concurring, in part, and dissenting, in part:
I.
The question before the en banc court is whether the district court erred in rejecting petitioner’s claim that his lawyer, L. Drew Redden, rendered ineffective assistance of counsel in the sentencing phase of this case by failing to obtain evidence in mitigation of the death penalty and present it to the jury. The district court assumed that counsel’s performance was constitutionally deficient; it nevertheless rejected petitioner’s claim because, in the court’s view, the mitigating evidence that Redden would have found (had he looked for it)1 would not have prompted the jury to recommend a sentence of life imprisonment instead of death. See United States v. Chandler, 950 F.Supp. 1545, 1569 (N.D.Ala.1996) (“In fact, the Court is convinced that there is no reasonable probability that the result of the sentencing *1329hearing would have been different if the proffered evidence had been presented.”); see also Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984) (To prove prejudice, the second prong of the Sixth Amendment test for ineffective assistance of counsel, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”).
A divided panel of this court vacated the district court’s decision denying relief on petitioner’s ineffective assistance of counsel claim, and remanded the case for re-sentencing. See Chandler v. United States, 193 F.3d 1297, 1310 (11th Cir.1999). It held that the mitigating evidence Redden should have uncovered, and which ha-beas counsel proffered to the district court in support of petitioner’s application for relief under 28 U.S.C. § 2255 (Supp. 11.1996), if presented to the jury, would probably have made a difference in the outcome of the sentencing phase. Id. at 1308 (“[T]he quality and quantity of this evidence, almost all of which was available at the time of trial ... creates a reasonable probability that, but for counsel’s failure to present even a small portion of this evidence, [petitioner] would not have received the death sentence.”) (footnote omitted). In addition to deciding that petitioner had satisfied the prejudice prong of Strickland’s Sixth Amendment test, the panel also addressed the question of whether petitioner had satisfied the performance prong of that test. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064 (“This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”). After examining the record, it concluded that Redden’s performance in the sentencing phase failed that part of the test as a matter of law, and (after refusing to set aside petitioner’s convictions) vacated his death sentence and ordered (assuming that the Government still wished to pursue a death sentence on the murder conviction) the district court to afford petitioner a new sentencing proceeding. See Chandler, 193 F.3d at 1310. Judge Edmondson, dissenting, did not address the question of whether petitioner had shown Strickland prejudice. Instead, he focused solely on Redden’s performance, and, disagreeing with the panel’s reading of the record, concluded as a matter of law that Redden’s performance passed constitutional muster. Id. at 1315 (Edmondson, J., dissenting). Today, the court sitting en banc reaches the same conclusion and thus finds it unnecessary to remand the case to the district court for findings of fact and conclusions of law on the performance prong of Strickland’s test for ineffective assistance of counsel.2
I dissent because the material facts concerning Redden’s investigation and presentation of mitigating evidence are in dispute.3 An evidentiary hearing on an application for section 2255 relief is, in all respects, a bench trial; the tasks of re*1330solving the conflicts in the testimony, finding the facts, and then weighing such facts and according them their appropriate weight under the applicable rule of law is assigned to the district court.4 In this case, the court of appeals has put aside institutional tradition and taken over the district court’s role. On a cold record from which various inferences of fact can reasonably be drawn — some in favor of petitioner, some in favor of the Government — the court has judged the demeanor of the witnesses, determined their credibility, found and weighed the facts, and then, applying Strickland’s performance standard, has concluded that Redden discharged his Sixth Amendment duty to petitioner. I have searched in vain for a habeas proceeding — especially in a capital case — whether brought under 28 U.S.C. § 2254 or § 2255, in which a United States Court of Appeals took it upon itself to resolve the issues of fact rather than remanding the fact-finding task to the district court, which previously had held an evidentiary hearing, heard from witnesses on both sides of the case, and observed their demeanor.5
*1332Judge Barkett’s dissent, after canvassing the evidence relating to Redden’s performance, shows quite convincingly why petitioner has satisfied the first prong of Strickland’s test. I agree with her dissent’s analysis of the evidence, but I disagree that the dispositive issue can, and should, be decided by this court in the first instance. If nothing else, that the judges of this court are fairly split on whether the historical facts demonstrate ineffective assistance of counsel highlights the necessity of remanding the issue to the district court.
The majority concludes that Redden provided effective assistance as a matter of law.6 Because the district court made no findings of historical fact on his performance in the sentencing phase of the case, the majority, in order to hold that petitioner failed to show that Redden’s performance was deficient, must view the evidence in the light most favorable to petitioner.7 In this dissent, I also consider the evidence in that light, and then lay out the facts that a reasonable fact finder could find by a preponderance of the evidence.
Before doing so, however, I deem it necessary to comment on the majority’s strong reliance on the “presumption” that defense attorneys are acting competently, in the Sixth Amendment sense, when they make strategic choices,8 and to consider the time frame in which Redden prepared petitioner’s case for trial, a time frame the majority opinion fails to mention.
A.
According to the majority, the Supreme Court and this court have established certain “principles and presumptions” relating to ineffective assistance of counsel claims. One such presumption is that counsel’s strategic choices are competent. In a post-conviction proceeding in which the petitioner is claiming that his lawyer rendered ineffective assistance, however, this “strategic choice” presumption has no legal effect. In other words, it does not operate as a presumption.
Federal Rule of Evidence 301 explains how a presumption operates in a case such as the one before us:
*1333In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
See also Fed.R.Evid. 301 advisory committee’s note (“[W]hile evidence of facts giving rise to a presumption shifts the burden of coming forward with evidence to rebut or meet the presumption, it does not shift the burden of persuasion on the existence of the presumed facts. The burden of persuasion remains on the party to whom it is allocated ... in the first instance.”). A Rule 301 presumption is the same as a presumption at common law. Like its common law antecedent, a Rule 301 presumption is a device that aids the party with the burden of proof in establishing the elements of its claim. (Or, on the defendant’s side of the case, a presumption may aid in establishing the elements of an affirmative defense.) A presumption is invoked when a party’s adversary possesses evidence that is essential to the claim (or affirmative defense) but is, as a practical matter, unavailable to all but the adversary.
In giving petitioner’s adversary, the Government, the benefit of the “strategic choice” presumption, the majority apparently overlooks the fact that the Government needs no assistance in this case. The Government does not bear the burden of establishing Redden’s competence; to the contrary, it is petitioner’s burden to establish Redden’s in competence.9 In sum, the “strategic choice” presumption is not a presumption in the Rule.301/common law sense. It is simply a short-hand way of saying that petitioner has the burden of proof on the issue of the constitutional adequacy of his attorney’s performance.10
B.
The period of time during which Redden performed his service in the trial court— from the day he undertook petitioner’s representation to the day the jury recommended the death penalty — was relatively short. The petitioner retained Redden early in January 1991 (the record does not disclose the precise date of Redden’s employment). Petitioner and fifteen others had been under indictment in the Northern District of Alabama on a charge of conspiring to traffic marijuana, and the grand jury was in the process of returning a ten-count superceding indictment that alleged a massive continuing criminal enterprise that spanned a period of three years, 1987-1990, and included the murder charge that led to the death sentence now under consideration. The grand jury returned the superceding indictment on January 9; Redden appeared for petitioner at his arraignment the next day. On January 24, the district court entered an order fixing February 12 as the trial date. Six days later, on January 30, the prosecutor formally notified petitioner, and Redden, that the Government would be seeking the death penalty on the murder count. On February 1, the district court severed petitioner’s case from the cases against the other (fifteen) defendants; their trial would commence on February 12 as scheduled, and petitioner’s trial would begin on March 12. Because Redden had previously committed himself to attending the an*1334nual convention of the International Society of Barristers in London in the first week of March, he moved the court to set another trial date. The court granted his request and scheduled petitioner’s trial for March 19.
Recapitulating, I conclude that, excluding the time Redden would spend attending the' Barristers’ convention, from the day the prosecutor notified him that the Government would seek the death penalty until the day petitioner’s trial would (and did) begin, he had forty days, weekends included, in which to prepare for trial. During that time, he or his paralegal, Suzanne Brotherton, or both, attended the February 12 trial of petitioner’s co-defendants, which lasted six days, and interviewed nearly sixty-seven witnesses; some of the witnesses were interviewed initially, or were re-interviewed, during petitioner’s trial. Most of the interviews took place in or around Piedmont, Alabama, in Calhoun County, a two hour drive from Birmingham, where Redden’s law firm had its office.
The guilt phase of petitioner’s trial began as scheduled on March 19, 1991. The Government called over forty witnesses. Nine days later, on March 28, the Government rested. In his defense (in the guilt phase), petitioner called twelve witnesses, but did not take the stand himself.11 The parties’ closing arguments took place on April 1. The court charged the jury the following morning, and at 10:25 a.m., the jury retired to deliberate. At 1:50 p.m., after three and a half hours of deliberation, the jury reached a verdict; it found petitioner guilty on the nine counts of the indictment in which he had been named as a defendant. The court then asked the clerk to poll the jury; the poll indicated a unanimous verdict, and the jury was dismissed until 9:00 a.m. the next day, at which time the sentencing phase of the trial of the murder count would begin. Once the jurors had left the courtroom, the court informed counsel that it wished to discuss what they intended to do in the sentencing phase of the trial. Redden stated that he would prefer that the discussion take place in chambers. The court agreed, and declared a half-hour recess.
At 2:30 p.m., the court and counsel met in chambers in the presence of a court reporter who took down and transcribed the entire proceeding. The court began the discussion by outlining the sentencing phase of the trial. That phase would begin with the court instructing the jury on its sentencing role and how the proceedings would be conducted. Thereafter, the prosecution and the defense would make opening statements; the Government would present evidence of aggravating circumstances; the defendant would be afforded the opportunity to put on evidence of mitigating circumstances; the Government and the defendant would present then-closing arguments; and the court would charge the jury. Regarding mitigating evidence, the court told Redden that the “world is open” to the defendant; he has the right to introduce any evidence that might mitigate the sentence.
The court asked the prosecutor and Redden hoyr long it would take to present their evidence. The prosecutor stated that the Government would stand on the record of the guilt phase and offer nothing further. Redden said that his presentation of the defense “won’t be long ... less than a day.” He stated that the defense would rely on two statutory mitigating circumstances, which the Government did not dispute. These were (1) that petitioner had no “substantial criminal record,” and (2) that Charles Ray Jarrell, who was as responsible as petitioner for Shuler’s death and had plead guilty to the marijuana conspiracy charge, would not be receiving a death sentence. Redden was non-committal concerning the witnesses, if any, he might call, although he did ask the court for a ruling in limine as to the scope of the prosecutor’s cross-examination of petitioner’s wife if he called her as a witness. Finally, the court and counsel discussed the instructions the court planned to give *1335the jury and the verdict form. The record does not indicate how long the court-counsel chambers conference lasted. Although the clerk’s docket sheet and the court reporter’s transcript reveal that the conference began at 2:30 p.m., neither reveal when it ended. The transcript consists of twenty-nine pages; hence, drawing purely on experience, I estimate that the conference lasted twenty-five to thirty minutes.
With the foregoing time frames in mind, I turn to the facts a reasonable fact finder could find from the evidence when that evidence is considered in the light most favorable to petitioner. Stated another way, I review what the evidence, when considered in that light, tells us about Redden’s investigation of mitigating evidence and his decision to limit petitioner’s case to the two undisputed statutory mitigating circumstances cited above and the testimony of petitioner’s wife, Deborah Chandler, and his mother, Irene Chandler.
II.
The evidence bearing on petitioner’s claim that Redden rendered ineffective performance by failing to seek mitigating evidence and present it to the jury comes from four sources: (1) the testimony of Redden and petitioner’s wife, Deborah Chandler, adduced during the section 2255 evidentiary hearing concerning Redden’s efforts to obtain favorable character witnesses; (2) the testimony of the twenty-seven witnesses called to the stand by habeas counsel during that proceeding to expound on petitioner’s character and to relate specific instances of petitioner’s charity toward others; (3) the pre-trial and trial time tables I have set out above; and (4) Redden’s opening statement and closing argument made to the jury at the sentencing phase of the trial. If this evidence is viewed in the light most favorable to petitioner — which means that he receives the benefit of the doubt on all credibility and fact issues' — a reasonable fact finder would be justified in giving little, if any, credence to what Redden had to say, with the exception of the statements that support petitioner’s claim. I say this because Redden’s testimony, as indicated in the margin,12 is riddled with “I don’t *1336know,” or “I don’t recall,” or “I don’t have any recollection,” or “I have forgotten.” 13 Giving Redden’s testimony its due weight and considering the rest of the evidence, a reasonable fact finder could find the following facts:
— Redden did not look for mitigating evidence or even give the matter serious thought until after the jury returned its verdict at the conclusion of the guilt phase of the trial.14
■— After the jury returned its verdict at the conclusion of the guilt phase of the case, Redden determined as a matter of sound trial strategy that mitigating evidence would be necessary. Having made no investigation, or other inquiry, into petitioner’s background, *1337however, he had no idea of the sort of mitigating evidence that might be available.15
— Redden delegated to Deborah Chandler the task of finding witnesses who could portray petitioner’s character in a favorable light. He did so without asking her who might be available to testify or explaining the kinds of persons she should contact. Moreover, Redden knew that she was visibly shaken and distraught over the jury’s verdict and in no condition to carry out the task he had assigned her.16
*1338— Notwithstanding these circumstances, Redden did not consider explaining his predicament to the district court and requesting a continuance. He could have done so during or following the chambers conference with the court on the afternoon of April 2, or before the sentencing phase of the trial began at 9:00 a.m. the next day.17
The notion, expressed by the majority, that Redden did not call character witnesses like those found by habeas counsel because he had “misgivings” about what the prosecutor might be able to bring out on cross-examination, ante at 3051, has no foundation in the record.18 First, since *1339Redden had no idea as to who might be able to testify for petitioner, he could not have had misgivings about what a particular witness might say on cross-examination. Second, other than his belief that the Piedmont “law enforcement community” was “hostile” toward petitioner and that some folks thought that petitioner was a drug dealer, Redden had nothing to say on the subject of what the prosecutor might have been able to develop on cross.19
Also lacking a foundation in the record is the notion that Redden decided to base his sentencing phase strategy on “lingering doubt” rather than mitigating evidence (save the two stipulations, and the testimony of Deborah and Irene). I say this for two reasons. First, when examined at the evidentiary hearing on petitioner’s ineffective assistance of counsel claim, Redden did not say, or even imply, that he pursued the “lingering doubt” strategy.20 From all appearances, Redden had little idea as to what he would say to the jury when he rose to make his opening statement. Second, the transcripts of Redden’s opening statement and closing argument — copies of which are attached to this opinion — do not reflect a “lingering doubt” strategy. In fact, in his closing argument, Redden told the jury:
You’ve made a finding of guilt. I can’t argue against that because it’s already made, but I say to you in all sincerity that it would be a tremendous mistake, in my judgment, for you to return a recommendation; that is, a verdict that would impose on this court the obligation to cause this man to be put to death considering every circumstance of this case.
Instead of relying on “lingering doubt,” Redden urged the jury to give due weight to the fact that petitioner had no substantial criminal record, the fact that Charles Ray Jarrell would not be receiving the death penalty, and the testimony of Deborah and Irene Chandler. Regarding the women’s testimony, he said that he had not presented “the testimony ... for a tear-jerking purpose.” It was presented “to show that there was a life here that has had a stability to it, that has had some quality to it.” In other words, a reasonable fact finder could find that Redden himself thought mitigating circumstances existed, which the jury should have consid*1340ered in deliberating on the sentence to recommend.
III.
In summary, the district court made no findings of fact regarding Redden’s performance in the sentencing phase of the trial; rather, it disposed of petitioner’s ineffective assistance claim by concluding that Redden’s performance, even if constitutionally inadequate, caused petitioner no prejudice. What the majority and Judge Barkett in her dissent have done is to step into the district court’s shoes, find the historical facts underpinning petitioner’s claim that Redden’s performance fell short of constitutional minima, and decide the merits of the performance aspect of petitioner’s ineffective assistance claim. I would eschew such fact finding at the appellate level. Rather, I would remand the case to the district court, whose habeas role is to find the facts underpinning a petitioner’s claims, with instructions to enter findings of fact and conclusions of law concerning Redden’s performance in the sentencing phase of petitioner’s trial.
Opening Statement
Please the Court, ladies and gentlemen. Of course, the issue or there has been put in issue the question of whether these aggravating factors exist by evidence sufficient to convince beyond a reasonable doubt that they do exist. The Court has told you I believe and will tell you again that the only aggravating factors that could be considered are those that have been identified to you and that will be identified to you, I’m sure, in his closing instructions.
Mitigating circumstances may include any of those mitigating circumstances that are identified by statute and may include also anything else, any other circumstance that any juror wants to consider in mitigation. And by mitigation, we simply mean as tending to indicate to you that you should not recommend a death penalty.
Of course, as the Court has stated to you, the word “recommend” is used here but it’s more than that. In this respect, that if a jury recommends the death penalty, the Court has no discretion to change that or to make another sentence or penalty, but among the statutory mitigating factors that the Court will identify to you are two at least that are very important in this case.
One is — and this is in the statute for a jury to consider — that the defendant on trial has no, as the statute says, “substantial criminal record”. And we expect that to be demonstrated very clearly in this hearing, that that is true of David Ronald Chandler.
Also, that another person or persons who participated in the killing of Marlin Shuler, which has been found, is not receiving and is not undertaken to receive the capital penalty. I think that’s already been demonstrated by the evidence in this case that that certainly is true with reference to the man that killed Marlin Shuler, Charles Ray Jarrell, Sr. But it will be demonstrated conclusively to you again in the course of this hearing.
Yesterday after you had commenced your deliberations you manifested an interest in what was identified as Exhibit 45 of the government and that was a tape that you asked to be played and you were allowed to have in your hands to read along with the playing of the tape a document which had been identified as Exhibit 45-A, not in evidence but as an assist to you.
The importance of that tape and of that document for purposes of this hearing is this. I say that this hearing will establish without a doubt — again I think it’s something already that has already been established, that the death of Marlin Shuler occurred on May 8, 1990, that the statement that your foreman’s message referred to to the Court which was in writing as the Court instructed and you did it without knowledge of what numbered exhibit you were talking about, but the statement in which you had an interest was capsulated in the foreman’s message. And that was Exhibit 45. And you manifested *1341an interest in a statement that says, in substance, I’ve got to kill somebody or words to that effect.
The evidence has reflected and will reflect again that that statement was not made until July 31, 1990, that it was made almost three months after the death of Marlin Shuler. It could not have been made with reference to Marlin Shuler unless the maker of the statement was unaware of the death of Marlin Shuler. But you found contrary to that by your finding already. And I ask you — -we will ask you to consider the significance of that fact; that is, that Marlin Shuler was already deceased at that time.
There will be other evidence that we will offer briefly and at the conclusion of this hearing and of the further instructions of the Court we urge and feel very strongly that you will not recommend a death sentence under all the circumstances of this case which you have heard and can take into consideration to the extent that the Court has instructed you and what you will hear on this hearing.
Closing Argument
Please the Court, I think that for the purposes that you’re here that part of Mr. Davis’ argument goes outside the parameters of what is relevant to determining what penalty you recommend for David Ronald Chandler. But I’ll respond to part of it anyway. He talked of the great preparation, he talked about Texas, he talked about many things, all of which he now attributes to David Ronald Chandler, which the evidence did not attribute to David Ronald Chandler. He sort of forgets Paul Watson when he talks about who was the person who over a long period of time was the planner, was the contact with Treacy, was the contact with Moncrief, all of this, forgets and I respond to it only to say, number one, I think it’s outside the scope of what is relevant here but, number two, it forgets what the evidence in this case was.
And then he says to you that David Ronald Chandler says to Charles Ray Jar-rell, Sr., got $500.00, kill him, kill him, kill him, keep on and keep on until you persuade that man to do that and wait a minute, if I misstate the evidence, you’ll correct me and I hope you’ll correct Mr. Davis because Charles Ray Jarrell testified, as I recall, that on an occasion three or four months before May the 8th, David Ronald Chandler had made a statement to him which said, in substance, “This man is going to cause trouble, I’ll give you $500.00 to kill him.” And what did he say about the statement. He said, “I thought he was joking, always off the wall like that.” And that that’s the only time, the only time that was ever mentioned up until the 8th day of May of 1990 when he said he had a conversation with David Ronald Chandler which he stated two different ways in his prior testimony. One time no money was mentioned, according to him. The other time said I’ve still got the $500.00. Now, what does that show with reference to any planning, scheming, deliberation by David Ronald Chandler. If that conversation took place at all, if it took place at all, took place after a long lapse of time, after one conversation that the man said was unimportant in my mind. Now, if it took place, it was a thing that was not precipitated. His testimony was not that any nine millimeter pistol had been given to him for the purpose of killing Marlin Shuler, that he had that pistol. He said, in his truck, that he thought, as I recall his testimony, that David Ronald Chandler was going to pick it up. David Ronald Chandler was going to pick it up that morning when he came over and that the thirty-eight he had was his own weapon.
Well, then let’s go on. What prompted Charles Ray Jarrell, Sr. in his actions. How much did anything that was said to him on that day by David Ronald Chandler impel him, motivate him to do what he did after twenty-three beers on that date, twenty-three beers before he shot the man. And his testimony, as I recall, was well, shot up all of the thirty-eight — I don’t know how many rounds were left in the nine millimeter, didn’t even know whether *1342he had any or not. And he shot him. And, of course, when Mr. Davis states that he stated unequivocally well, you know, this man again can be tested by what he had said unequivocally on other occasions; that is, number one, that he didn’t shoot this man; number two, he shot him, it was an accident and then he gets into the routine of the statements that he made when it became profitable for him to make them.
Well, here’s one thing that is undisputed. There was Jarrell’s family’s malice toward Marlin Shuler. How is that demonstrated. No question about the fights that both sons, Charles Ray, Jr., Billy Joe had with Shuler. Why. Because of, number one, his abuse of Donna Shuler, Charles Ray’s half sister, abuse of her, his abuse of the family generally and his abuse of Donna’s mother, Mrs. Johnson, for whom he had an abhorrious name.
Charles Ray Jarrell had plenty of malice, animosity, hostility toward Marlin Shu-ler not engendered by David Ronald Chandler. David Ronald Chandler didn’t have a thing to do with Charles Ray Jarrell putting a pistol to the nose of this man and pulling the trigger intending to kill him and in November of 1989. So what happened. He said well, the Lord must not have intended for him to die that night. And the prosecutors would say to you yeah, but that was all over with, that was over and done with, that was just one moment called the argument that well, he was looking him in the face at that time. That’s a different thing from shooting him in the back of the head or wherever he was shot on a different occasion. But I say you can’t attribute to David Ronald Chandler the compelling force of what that man did on that occasion to the extent that a recommendation, in fact, a sentence to death be justified.
I submit to you that under all the circumstance of this case it would be cruel and unusual punishment, which our constitution even says should not be the subject of punishment in this country.
Now, certainly we would argue and we do argue that there are two very clear mitigating circumstances in this case. One is the absence of any substantial criminal record, as the statute says, “mitigating factors”. Number six, the defendant did not have a significant prior criminal record. And that stipulation which is in evidence is proof without contradiction that that is the case.
Another is that another defendant or defendants equally culpable in the crime will not be punished by death. You can go further than that, not be punished at all, will not even be tried under an accusation of the murder of Marlin Shuler. Those two things. Well, what else mitigates.
Well, for one thing, the testimony of his mother and of his wife was not here for a tear-jerking purpose. It was here to show that there was a life here that has had a stability to it, that has had some quality to it and I think that is apparent when you looked at those two ladies, contrasted to the character or nature of some of the people who testified in this case and it stands out in stark contrast and the fact that here is a family that had tremendous stability, here is a man who not to have lived around with this person, that person and the other. He’s got three children, they are all by his wife. Here is a man who apparently has some skill of his hands who has worked in building his house and his parents’ house, his brother’s houses and they’ve worked with him and this springs off the 80-acre farm that his father had with his father, way back. They built a sawmill, they cut trees, they made lumber, they collected rocks, they built houses and lives demonstrating lives with some purpose as opposed to life worthless. So that that is a mitigating factor that I think that you have certainly not just the right but the obligation to consider.
This is a case, of course, that’s extremely important. You’ve made a finding of guilt. I can’t argue against that because it’s already made, but I say to you in all sincerity that it would be a tremendous mistake, in my judgment, for you to return *1343a recommendation; that is, a verdict that would impose on this court the obligation to cause this man to be put to death considering every circumstance of this case. You are going to be told that any such recommendation must be unanimous, that it has to be signed on, signed on judgment of each one of you. And I say to you that there has been a lot of innuendo — where he says, well, now, this guy named McFry who is not her, Burrows who is not here — I say to you that there is no evidence in this case that would justify any speculation on someone’s part that hey, these people may be dead and he might have had something to do with it. If you indulge in that, you will have committed, in my judgment, an aggrievous wrong as far as the defendant is concerned.
I think it is the certainly the inclination of our law and the safeguards that even this statute attempts to wrap around the case and this defendant or any defendant so charged that the recommendation of a death penalty is not considered to be the normal act of a juror, certainly under circumstances of this case and particularly where, as here, no prior record. And then the man who did it after twenty-three beers not even prosecuted for that murder, has been indicted but that will be dismissed, that’s the stipulation that’s in evidence. So we ask you to consider the relevant evidence and when you’ve done so, we feel that you will return a recommendation to the court that there be no death penalty imposed on David Ronald Chandler.
Thank you very much.
. The evidence Redden could have'uncovered is the testimony petitioner’s habeas counsel presented to the district court during the proceedings on petitioner’s application for relief under 28 U.S.C. § 2255 (Supp 11.1996).
. It is not disputed that Redden failed to look for mitigating evidence for use in the sentencing phase of petitioner’s trial (except two circumstances, to which the Government stipulated, that petitioner lacked a substantial criminal history and that someone equally culpable would not be receiving a death sentence). Therefore, when the sentencing phase arrived, Redden had nothing to present to the jury except the testimony of two witnesses, whose testimony he did not anticipate until an hour or so before the sentencing phase began. The majority holds that Redden's failure to look for mitigating evidence and his performance during the sentencing phase passed Sixth Amendment muster because four years later the district court, in ruling on petitioner's motion for section 2255 habeas relief, concluded that Redden’s failure to call any, or all, of the witnesses that habeas counsel were able to uncover caused petitioner no prejudice. In other words, the majority’s holding today is: counsel’s failure to seek mitigating evidence constitutes competent performance, if, on habeas corpus, it appears that the petitioner cannot satisfy Strickland's prejudice prong.
. At the same time, I concur in the court's disposition of petitioner’s remaining claims for section 2255 relief.
. It cannot be disputed that the fact-finding function lies with the district court. See United States v. Griffin, 699 F.2d 1102, 1108 & n. 14 (11th Cir.1983). In Griffin, this court explained, in a footnote, why it is procedurally improper for an appellate court to decide a claim when the underlying facts have not been found by the district court:
If an appellate court elects to consider the issue and study the record on appeal in relation to it, an assertion of ineffective assistance may appear totally without merit in light of that record. The temptation is strong in such instances to go ahead and decide the issue against appellant on the presumption that doing so will reduce the workload of the district court. Succumbing to the temptation, however (1) adds unnecessarily to the workload of the appellate court; (2) may be fruitless, where the appellant would not have elected to present the issue to the district court under 28 U.S.C. § 2255; (3) may deny appellant an opportunity to develop the issue on a proper record; (4) encourages future first-time presentations on appeal; and most importantly; (5) undercuts everything the courts ... have said against its presentation for the first time on direct appeal.
Griffin, 699 F.2d at 1108-09 n. 14. See generally Gulf Power Co. v. United States, 187 F.3d 1324, 1334 (11th Cir.1999) ("To be sure, an appellate court is not the usual forum in which factual issues ... are resolved....”).
. There may be occasions, as in a case whose appropriate disposition turns on documentary or other tangible evidence, where the material facts are so clear and settled that a remand for fact-finding is unnecessary; this, however, is not such an occasion. See, e.g., Jackson v. Leonardo, 162 F.3d 81, 86 (2d Cir.1998) (stating that the usual practice is to remand, but that remand "might not be necessary in a highly unusual case where no plausible explanation for an attorney’s actions exists”); United States v. Gaviria, 116 F.3d 1498, 1512 (D.C.Cir.1997) (stating that remand is the normal practice unless "the trial record alone conclusively shows that the defendant is entitled to no relief and when the record conclusively shows the contrary”) (internal quotation marks omitted).
To support its proposition that it is within the province of a court of appeals to resolve isshes of fact in a case where the district court held an evidentiary hearing but failed to find the facts, the majority cites several cases. None of them, however, stands for the majority’s proposition. In United States v. Shukri, 207 F.3d 412 (7th Cir.2000), the Seventh Circuit disposed of the defendant’s claims of ineffective assistance of counsel in the defendant’s direct appeal from his convictions for conspiring to possess and possession of stolen property. The claims, which had not been presented to the district court, were that (1) counsel failed to cite United States v. Garcia, 897 F.2d 1413 (7th Cir.1990), in support of his motion in limine to suppress certain out-of-court statements the prosecution intended to introduce as having been made against the witness' penal interest; (2) counsel failed to renew his objection to the statements at trial, when it presumably became apparent that the statements had not been made against the witness’ penal interest; and (3) counsel failed to object to questions the prosecutor put to the defendant on cross examination. Shukri, 207 F.3d at 418-19. In his brief, the defendant cited as district court error the court's denial of the motion in limine. The Seventh Circuit found no error, much less an abuse of discretion, in the district court’s denial of the motion in limine or its admission of the statements into evidence at trial; therefore, the defendant’s claim that his attorney’s performance was constitutionally defective was patently meritless. Id. at 419. The same was true regarding the defendant’s third point; the questions the prosecutor asked the defen*1331dant on cross examination were appropriate. Id. The court of appeals disposed of the defendant’s ineffective assistance claims because the trial court record conclusively showed that, even if the defendant was given an evi-dentiary hearing in a section 2255 proceeding (brought following the affirmance of his conviction), he could not possibly establish either prong of Strickland’s standard for ineffective assistance. Id. at 419.
In United States v. Fortson, 194 F.3d 730, 736 (6th Cir.1999), another direct appeal from the defendant’s convictions, the Sixth Circuit entertained the defendant’s challenge to his attorney’s performance at trial. In that case, the defendant, Fortson, a Michigan resident, was charged with four other gentlemen for conspiring to transport cocaine from New York to Michigan. Id. at 733. Fortson's co-conspirators brought eight kilograms of cocaine to Michigan in a van; when they arrived, the local police, who had been monitoring the activities of one of the co-conspirators, Paulino, spotted the van, and followed it and a Camry sedan, driven by Fortson, which was traveling in front of the van. Id. When it appeared that the occupants of the van and the Camry were working together, the police stopped the van, and searched it, finding the cocaine. Id. Moments later, the police approached the Camry, which was parked in an adjacent lot, and arrested Fortson, Paulino, and a co-conspirator. Id. at 734. At his trial, Fortson's defense was that, even though he had been arrested at the scene of the crime, the jury should acquit him because all that the evidence showed was "mere presence.” Id. The jury, of course, rejected his "mere presence” defense. In his brief on appeal, in addition to challenging the sufficiency of the evidence, Fortson alleged that his trial attorney’s performance had been constitutionally deficient because he had not "introduced evidence demonstrating Paulino’s ties to the state of Michigan.” Id. at 736. He did not explain, however, how evidence of Paulino’s ties to Michigan would have established his "mere presence” defense. The Sixth Circuit, concluding that the evidence was more than sufficient to convict, made an exception to its rule that ineffective assistance of counsel claims are not to be heard on direct appeal and decided to address Fortson’s ineffective assistance claim because the record conclusively demonstrated that the claim had no merit. Id.
United States v. Torres, 845 F.2d 1165, 1167, 1172 (2d Cir.1988), another drug case, is likewise a case in which the challenged actions of counsel were clearly established in the trial record, so that the court of appeals was confident that it could decide the ineffective assistance of counsel claim while reviewing the defendant’s conviction on direct appeal. Torres and two accomplices were arrested at the conclusion of a drug transaction involving two kilograms of cocaine. In searching Torres at the scene, a DEA agent found $3,871on his person. Id. at 1168. In his brief on appeal, Torres claimed that he was denied the effective assistance of counsel because, prior to trial, his attorney failed to move to suppress money the agent had seized and, at trial, failed to request a missing witness instruction, so that the jury would understand why a confidential informant had not been called as a defense witness. Id. at 1172. It was obvious that counsel's performance fell clearly within the range of what any court would consider adequate performance, and the Second Circuit therefore rejected Torres’ ineffective assistance claim out of hand.
Next, Bonin v. Calderon, 59 F.3d 815, 822-23 (9th Cir.1995), involving two 28 U.S.C. § 2254 (1994 & Supp. II 1996) petitions challenging sixteen murder convictions in two counties (Los Angeles and ’Orange), provides absolutely no support for the majority’s proposition. In Bonin, the district court held a three-day evidentiary hearing and made comprehensive findings of fact and conclusions of law in disposing of the petitioner’s ineffective assistance of counsel claim. Id. at 823 (9th Cir.1995) ("In separate published opinions, the district court denied both of Bonin's petitions.”) (citing Bonin v. Vasquez, 807 F.Supp. 589 (C.D.Cal.1992) and Bonin v. Vasquez, 794 F.Supp. 957 (C.D.Cal.1992)). United States v. Montes-Mercado, No. 99-15282, 2000 WL 623143 (9th Cir. May 15, 2000) (unpublished), a section 2255 proceeding in which the petitioner's ineffective assistance claim was that counsel should have advised petitioner that he could plead guilty, but still maintain his innocence, is equally unhelpful to the majority. Putting aside the question whether we should rely on an unpublished opinion from a sister circuit, we note that, unlike the situation in the instant case, the district court held an evidentiary hearing and made findings of fact in rejecting the petitioner’s claim.
Finally, the majority relies on two Supreme Court cases, Roe v. Flores-Ortega, - U.S. -, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), for the proposition that it is appropriate for a court of appeals to make findings of fact in the absence of findings made by the court that originally entertained the ineffective assistance of counsel claim. In Roe, the Court emphasized that the deficient performance inquiry is a fact-intensive one, the determination of which requires "courts ... [to] take into account all the information counsel knew or should have known.” Roe, 120 S.Ct. at 1036. Because the "Magistrate Judge's findings d[id] not provide [the Court] with sufficient information to determine whether Ms. Kops rendered constitutionally inadequate as*1332sistance,” id. at 1040, the Court vacated the court of appeals decision and remanded the case. In Darden, the district court held an evidentiary hearing and made findings of fact; the Court cites to the habeas proceeding, Darden, 477 U.S. at 184, 106 S.Ct. at 2473, and concludes that "[w]e agree with both the District Court and the Court of Appeals that petitioner was not deprived of the effective assistance of counsel.” id. at 187, 106 S.Ct. at 2474.
In sum, I am simply at a loss as to how any of the cases cited above could be considered supportive of the majority’s proposition that a court of appeals should assume the district court’s fact-finding role in a case of this magnitude.
.The majority draws this conclusion without acknowledging the full import of the Supreme Court’s recent decision in Williams v. Taylor, — U.S. -, 120 S.Ct. 1495, 1514-15, 146 L.Ed.2d 389 (2000). As Judge Barkett’s dissent explains, the majority’s analysis of Redden's "strategic choice” to forego any investigation into the petitioner’s background in an effort to find mitigating evidence cannot be squared with the Court's holding in Williams.
. Absent findings of fact by the district court, this court is in the same position it would occupy in reviewing a summary judgment, a judgment as a matter of law, or a judgment entered following a bench trial without the findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a) (as occurred in the instant case). In conducting such reviews, we consider the evidence, and the inferences it yields, in the light most favorable to the nonmovant. In the case at hand, petitioner is, for our purposes, the nonmovant. Although the majority opinion does not indicate that, in assessing Redden’s performance, the court viewed the evidence in the light most favorable to the petitioner, I must assume that it did.
. The majority opinion cites this presumption at least eleven times, ante at 3043 n. 14, 3044 n. 15, 3045-46, 3048 n. 23, 3049, 3053, and 3054. In footnote 15, ante, the majority seems to agree with the proper definition of a presumption; therefore, I do not understand how it can continue to assert that we should presume that defense counsel acted reasonably.
. For the same reason, the principle that a defendant is "presumed” innocent until proven guilty beyond a reasonable doubt does not express a presumption in the Rule 301/com-mon law sense. That the defendant is presumed innocent is merely a way of saying that the prosecution has the burden of proof on the issue of the defendant’s guilt.
. A final observation about the "strategic choice” presumption the majority invokes: even if the law were to accord it the status of a Rule 301 presumption, it would not yield an inference that Redden acted competently in making the strategic choice at issue. An inference has probative value. A presumption does not. It simply shifts the burden of going forward with the evidence; once rebutted, it disappears from the scene.
. Petitioner also called one witness in surre-buttal.
. The following passages are from Redden’s testimony during the section 2255 proceeding:
• In response to when he entered a notice of appearance in the case, Redden stated "Well, I don't — I don’t have any recollection of that act. I’m sure I did it.”
• Responding to a question about when he received notice of the Government’s intent to seek the death penalty, Redden said, “I recall that subject. I do not recall the precise date.”
• Regarding severance of Chandler’s trial, he stated "I don’t know what the Government’s position was. I don’t recall what it was.”
• When asked why he sought a one-week continuance. Redden replied "It was that I had prior to being retained in this case committed myself by word and by money to attend the Convention of the International Society of Barristers that was to be held probably the first week in March, I’ve forgotten.”
• When asked if he thought about requesting a continuance before the sentencing phase, Redden stated "I don’t think I did.”
• When asked whether the court would have granted a continuance, Redden said "I don’t know whether it would have been or not.”
• When trying to recall when petitioner was arrested, Redden said "I believe, [he] had been arrested probably in around September, I’m not sure
• When asked if he knew that section 848(q) of the Anti-Drug Act provided resources for an investigator (whom he chose not to hire), Redden stated "I’m not sure whether I knew that at the time or not, but I knew I was retained counsel and I figured that [hiring an investigator] would be my obligation.”
• When asked whether he remembered the jury asking to listen a second time to a tape recording in which petitioner said he’d have to kill somebody, Redden said "I don’t recall.”
• When asked if the sentencing hearing was set for the day after the jury’s verdict (finding petitioner guilty of murder and eight other offenses) was announced, Redden said "Set it for the next day. I don’t — I don’t know the time.”
• When asked what he did after the verdict came in to find some additional character witnesses, Redden replied "I know that I made the request of [Deborah] Chandler *1336and whether other family members, I don’t know, and whether we had earlier had such conversations, I don’t know.” Then petitioner’s habeas counsel said, "All right. You don’t recall?” and Redden responded, "No.”
• In response to a question about what he told Deborah Chandler on April 2 about the kind of evidence they needed to put on in mitigation the next day, Redden said "I don’t recall what I told her or what she might have been told by Suzanne [Broth-erton, his paralegal], except that it would be things that would demonstrate humanity, compassion, things of that sort.”
• When asked if he asked any family members besides Deborah Chandler to find mitigation witnesses, Redden replied "That I'm not sure of.”
• Regarding when he prepared Deborah and Irene Chandler to testify at sentencing, Redden said "We talked probably some that afternoon, I'm not sure, and probably in the morning.” When post-conviction counsel tried to be more specific, asking "[s]o it would have been after — sometime after 2:30 before you talked to her?” Redden replied "It might have been. I don’t recall now.”
• When asked if he remembered asking the court to bring petitioner in at 8:00 a.m. on the day the sentencing proceeding was to begin, Redden said "I think that happened. I don’t remember it.”
• In response to a question about if he knew what Deborah Chandler’s and Irene Chandler’s answers would be to the questions he would ask them before the jury, Redden said "I don’t think so.”
• When asked if he knew that the sentencing hearing lasted less than an hour, Redden said "I don’t know.”
• When the prosecutor asked Redden if he knew how many witnesses he talked to. Redden said "No, except as she [his paralegal, Brotherton] has advised me of a number that looked as if we had was 67.”
• When asked by the prosecutor why he did not call Reverend McCoy as a mitigation character witness, Redden said "[t]hey came with — there was a minister who came that I made the decision not to use for the reason that he had been out of the community for a period of time, and as I recall — I’ve forgotten, you know, the contact was not a current thing and I felt that in the absence of some number of witnesses that that would not be a wise thing to do.”
• When asked if he knew which of the 67 witnesses he and/or his paralegal, Broth-erton, interviewed were interviewed prior to trial or during trial, Redden said "No. Of course, there was some that would have been in both categories.”
. The majority states, ante at nn. 27 & 41, that it is not "accepting that [Redden’s] words represent his heartfelt views, that [it] is not crediting his testimony as absolutely true” or reviewing "the quality of the specific lawyer’s judgment process that underlie his conduct at trial”; rather, the majority accepts Redden’s testimony as "illustrating the kinds of thoughts some lawyer in the circumstances could — we conclude — reasonably have had.” It seems to me that in determining whether a defense attorney provided ineffective assistance of counsel, what the attorney did, and why he did it, is important. The majority seems to be disregarding what Redden did, and why he did it; instead, imagining what a hypothetical lawyer would have done under the circumstances. I am unfamiliar with such an approach, which to me is quite novel, to the resolution of ineffective assistance claims.
. All of the 27 character witnesses who testified during the hearing on petitioner's ineffective assistance claim stated that neither Redden nor anyone acting in his behalf contacted them at any time about testifying in petitioner's behalf at the sentencing phase of the trial. All of them also stated that they would have been available to testify and would have done so if called. Deborah Chandler testified that the first time Redden mentioned the subject of mitigating evidence was after the jury returned its verdict on the afternoon of April 2.
. In his opening statement to the jury at the sentencing phase of trial, Redden described the mitigating evidence he would present as follows:
Mitigating circumstances may include any of those mitigating circumstances that are identified by statute and may include also anything else, any other circumstance that any juror wants to consider in mitigation. And by mitigation, we simply mean as tending to indicate to you that you should not recommend a death penalty.
... [Ajmong the statutory mitigating factors that the Court will identify to you are two at least that are very important in this case.
One is — and this is in the statute for a jury to consider — that the defendant on trial has no, as the statute says, "substantial criminal record.” And we expect that to be demonstrated very clearly in this hearing, that that is true of David Ronald Chandler.
Also, that another person or persons who participated in the killing of Marlin Shuler, which has been found, is not receiving and is not undertaken to receive the capital penalty. I think that's already been demonstrated by the evidence in this case that that certainly is true with reference to the man that killed Marlin Shuler, Charles Ray Jar-rell, Sr. But it will be demonstrated conclusively to you again in the course of this hearing.
Then, in his closing argument at the sentencing phase, Redden contended that the mitigation evidence he had presented showed that a sentence of death was inappropriate for Chandler's crime. Specifically, he argued that,
Now, certainly we would argue and we do argue that there are two very clear mitigating circumstances in this case. One is the absence of any substantial criminal record, as the statute says, "mitigating factors.” Number six, the defendant did not have a significant prior criminal record. And that stipulation which is in evidence is proof without contradiction that that is the case.
Another is that another defendant or defendants equally culpable in the crime will not be punished by death. You can go further than that, not be punished at all, will not even be tried under an accusation of the murder of Marlin Shuler. Those two things. Well, what else mitigates.
Well, for one thing, the testimony of his mother and of his wife was not here for a tear-jerking purpose. It was here to show that there was a life here that has had a stability to it, that has had some quality to it and I think that is apparent when you looked at those two ladies, contrasted to the character or nature of some of the people who testified in this case and it stands out in stark contrast and the fact that here is a family that had tremendous stability, here is a man who not to have lived around with this person, that person and the other. He’s got three children, they are all by his wife. Here is a man who apparently has some skill of his hands who has worked in building his house and his parents’ house, his brother’s houses and they’ve worked with him and this springs off the 80-acre farm that his father had with his father, way back. They built a sawmill, they cut trees, they made lumber, they collected rocks, they built houses and lives demonstrating lives with some purpose as opposed to life worthless. So that that is a mitigating factor that I think that you have certainly not just the right but the obligation to consider.
A reasonable fact finder could find from these portions of Redden’s opening statement and closing argument that Redden thought that mitigating evidence would be necessary if the jury was to spare petitioner's life.
. After Redden spoke to Deborah Chandler about the need for witnesses to testify for petitioner, she left the courthouse with members of her family and some friends (all from Piedmont) and drove to Piedmont. Someone else drove the car because, in her words, she was "numb” and was having difficulty functioning. Foremost in her mind was what she would tell her three children, the oldest of which was sixteen, about the day's events.
The trip to Piedmont took two and a half to three hours because they had to detour to drop some of the people off; thus, they arrived home somewhere between 4:45 p.m. and 5:15 p.m. Family members concerned about Deborah’s condition summoned Rita Smith, a fellow member of Piedmont Church of God, to stay with her. Several well-wishers stayed and prayed with Deborah through*1338out the night. At some point during the evening, Deborah's sister-in-law reminded her that "they were supposed to get somebody to stand up for Ronnie tomorrow.” Rita Smith thought of Reverend McCoy, who had been the pastor of Piedmont Church of God from 1975 to 1981. McCoy, who lived in Piedmont, said he would testify, and came to Birmingham the next day for that purpose.
On the morning of April 3, between 8:00 a.m. and 9:00 a.m., Redden met for a "few minutes” with petitioner, Deborah Chandler, Irene Chandler, and Reverend McCoy. At 9:00 a.m., the sentencing phase of the trial began. Redden called Deborah and Irene to the stand, and they testified as indicated in Judge Barkett’s dissenting opinion.
. During the chambers conference, after the court told Redden that "the world [was] open to him,” Redden could have — indeed, should have — informed the court that he had done nothing to prepare for the penalty phase of the case. First, and foremost, his client’s life was at stake. Even though Redden had satisfied his constitutional obligation to provide petitioner competent representation during the guilt phase of the case, Redden had an ethical obligation to cast petitioner's character in the best possible light at the sentencing phase of the trial. Second, as a highly experienced criminal defense attorney, Redden knew that, if the jury recommended a death sentence and petitioner was sentenced to death (1) petitioner-would seek relief from the sentence under 28 U.S.C. § 2255 on the ground that Redden had denied him effective assistance in the sentencing phase of the trial, and (2) Redden would be back in court before the same district judge and interrogated under oath as to why he did not seek a continuance in order to prepare the sort of mitigation evidence petitioner’s habeas counsel was able to uncover in the span of a few days.
Habeas counsel, after receiving two weeks notice of (he evidentiary hearing the district court would hold on petitioner's claim of ineffective assistance of counsel, met with Deborah Chandler, explained the role of a mitigation witness, and asked her to assemble a group of people who would have been available- to testify in petitioner’s behalf during (he sentencing phase of the trial. On a Sunday afternoon, after church, fifty or so people gathered at Irene Chandler’s house for a meeting with habeas counsel. Of this group, nearly all, forty to fifty, came to (he evidentia-ry hearing in the district court. After hearing the testimony of 27 of these witnesses, the district court stated that it had heard enough; it held that the testimony of the remaining mitigation witnesses would simply be cumulative and therefore would be unnecessary.
. The majority draws its "misgivings” conclusion from the following exchange that took place between Redden and the prosecutor at the evidentiary hearing on petitioner’s ineffective assistance claim:
Q: You're also aware, were you not, that by calling character witnesses for Mr. Chandler you would have opened (hem up to cross-examination by the government, would you not?
A: Yes, sir.
Q: Were there some aspects of that that you believed might not have been helpful to your case?
A. Certainly.
Q: In fact, you knew or had some information that some individuals in the community considered Ronald Chandler to be a drug dealer, did you not?
A: Yes.
Q: And some information that there were people in the community that were afraid of him?
A: Not as much of that. I had heard that, but that was — I don’t know how many people would come and say that as opposed to the other.
Q: You knew that was certainly available to the government or could be available to the -government as cross-examination material?
A: Well, I felt that the law enforcement community in Piedmont, in that part of the county, was hostile to him, antagonistic to him. And that they certainly could have produced witnesses of that sort.
Immediately after this exchange, Redden clarified that his real concern was not what the prosecutor might bring out on cross-examination, but that the jury, by finding petitioner guilty, had already set its mind against the *1339petitioner such that nothing would convince it not to recommend death:
And so I felt that, to answer your question, that it would be at least questionable whether a sufficient impact of character type testimony could overcome a fixed opinion based on the other evidence, if they had such a fixed opinion, and could change it from life to death. Or death to life.
. As the prosecutor conceded, petitioner had no "substantial” criminal record; thus, the prosecutor could not have cross-examined petitioner’s mitigation witnesses about petitioner's past crimes. As far as we can tell from the record, Redden had no idea as to the identity of any witness(es) the prosecutor could have called to the stand to rebut the sort of mitigating evidence petitioner’s habeas counsel were able to develop. Nor did the prosecutor reveal the identity of such witness(es). As for Redden's belief that the Piedmont law enforcement community was "hostile” toward petitioner, neither Redden nor the prosecutor have explained how this hostility would have been put to the mitigation witnesses on cross-examination. Moreover, I have been unable to conjure a question that the prosecutor could have put to a mitigation witness — such as, "Have you heard that the Piedmont law enforcement community is hostile toward petitioner?” — that would have survived a defense objection. Furthermore, neither Redden nor the prosecutor, who defended Redden's conduct at the evidentiary hearing, identified any testimony that could have been admitted under the Federal Rules of Evidence. The same is true with respect to the belief of some in the community that petitioner was trafficking drugs.
. The majority not only concludes, as a factual matter, that Redden delivered a "lingering doubt” argument as a matter of trial strategy, but goes on to hold that "we ... would not approve a district court's finding otherwise.” Ante at n. 26. In other words, Redden's lingering doubt argument provides a bench mark for the lawyers and courts of this circuit in future cases; any argument appearing to fit hand-in-glove with Redden's argument will be considered, as a matter of law, to be a "lingering doubt” argument!