dissenting:
The district court relied on the wrong prejudice standard in reviewing Laboa’s ineffective assistance of counsel claim in direct contravention of the Supreme Court’s recent holding in Williams v. Taylor, — U.S. —, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). I would remand this case to the district court for an evidentiary hearing because Laboa is entitled to full and fair review of his ineffectiveness claims. I respectfully dissent.
I. Ineffective Assistance
The district court used the wrong prejudice standard in rejecting Laboa’s ineffective assistance of counsel claims. Proof of ineffective assistance of counsel requires a two-prong showing of (1) deficient performance; and (2) prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The critical determination is often prejudice — whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.
In Williams v. Taylor, the Supreme Court reaffirmed that the prejudice standard only consists of the outcome-determinative test in Strickland. “The Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), modified or in some way supplanted the rule set down in Strickland.” Williams, 120 S.Ct. at 1512. In Terry Williams’s case,1 the Virginia Supreme Court relied on Fretwell in order to find that the prejudice prong was not satisfied based “ ‘on mere outcome determination,’ ” but also required a showing that the result was fundamentally unfair. Id. at 1501 (citations omitted). The Court held that Strickland’s outcome-determinative standard is the only requirement for proving prejudice. See id. at 1515 (“[T]he State Supreme Court mischaracterized at best the appropriate rule, made clear by this Court in Strickland, for determining whether counsel’s assistance was effective within the meaning of the Constitution .... inasmuch as the Virginia Supreme Court relied on the inapplicable exception recognized in Lockhart. ... ”).
In ruling on Laboa’s ineffectiveness claim, the district court improperly relied on Fretwell’s prejudice standard. According to the district court, Strickland’s outcome determinative standard was insufficient to establish prejudice: “Petitioner cannot satisfy the Strickland standard absent a showing that the proceeding was fundamentally unfair or unreliable.” The district court’s discussion of Fretwell’s factual and procedural background and Fret-well ’s “fundamental fairness” requirement spanned over three pages. Based on the failure to satisfy Fretwell, the district court concluded: “In this case, Petitioner received a fair trial.... Petitioner has not shown that counsel’s errors prejudiced him within the meaning of Strickland.” The district court’s “meaning of Strickland,” however, included the additional “fundamental fairness” requirement found in Fretwell.
Before the district court improperly relied on Fretwell, Laboa raised his ineffectiveness claims with regard to Denney’s confession and the van tape with the magistrate court. U.S. Magistrate Judge Dennis Beck, in his 49-page unpublished opinion, pointed out that the California Court of Appeals not only had suppressed Den-ney’s statements as a coerced confession but also it had suppressed the van tape under the “fruit of the poisonous tree” doctrine.2 Judge Beck recommended an evidentiary hearing in order to determine *983whether the van tape should have been suppressed. But since Judge Beck recommended habeas relief based solely on the suppression of Denney’s coerced confession, he said an evidentiary hearing regarding ineffective assistance was “not needed.” Judge Beck made a similar finding with regard to Laboa’s ineffectiveness claim about the van tape.3 Although he did not hold an evidentiary hearing, Judge Beck determined that Laboa’s ineffectiveness claim with regard to Denney’s confession “has merit.”
In a 45-page unpublished opinion, the district court rejected Laboa’s habeas claims. Disregarding Judge Beck’s recommendation, the district court decided not to suppress the van tape without holding an evidentiary hearing. The district court also rejected Laboa’s ineffectiveness claims without an evidentiary hearing. The district court conceded that Laboa had satisfied the performance prong because there was “no tactical reason” for failing to join Denney’s suppression motion. The district court, however, denied that his lawyer’s failure to object to Den-ney confession and the van tape prejudiced Laboa under Fretwell.
II. Habeas Relief
Because Laboa’s petition was filed in the district court before the effective date of the Autiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we review Laboa’s claims of ineffective assistance of counsel, a mixed question of law and fact, de novo.4 See Johnson v. Baldwin, 114 F.3d 835, 838 (9th Cir.1997).
The only question in this case is whether Laboa was sufficiently prejudiced under Strickland. If Laboa’s attorney had joined Denney’s motion to suppress Den-ney’s confession and he had filed a proper motion to suppress the van tape, there is more than a “reasonable probability” that the outcome of Laboa’s trial would have been different. Without these two pieces of evidence, the government had no case.
The California Court of Appeals suppressed Denney’s confession as coerced and apparently found evidence that Den-ney’s comments on the van tape were the “fruit” of his coerced confession. Indeed, Laboa’s responses on the van tape reflect the California court’s concerns that the van tape was a product of prior intimidation and coercion.5 The van tape re-*984fleets Denney and Laboa’s belief that if they did not cooperate they would face the death penalty and that cooperating was in their best interest. The forced cooperation in the van, just as in Denney’s confession, was a product of police coercion.
The outcome of Laboa’s state appeal would have been different if his counsel had properly objected to Denney’s confession and the van tape. At the very least, whether the van tape would have been excluded as it related to Laboa is a mixed question of law and fact that requires an evidentiary hearing.
Despite our de novo review, I am uncomfortable resolving all of these issues without an evidentiary hearing on ineffectiveness.6 This would give the district court an opportunity to apply the proper prejudice standard. It also would give Laboa a full and fair review of his ineffectiveness claims. Federal district court is often the first (and usually the best) opportunity for a petitioner to gain a complete review of his ineffectiveness claims. The majority’s decision deprives Laboa of that opportunity. Now we can only wonder what the district court, applying the correct prejudice standard, would have decided.
III. Waiver Issues
The only explanation for the majority opinion’s relative silence about the district court’s incorrect prejudice standard is that the majority believed: (1) the error was harmless; or (2) Laboa waived his ineffectiveness with regard to the van tape. The error, however, is not harmless because the admission of the van tape and Den-ney’s confession “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal quotation marks omitted). See also Bains v. Cambra, 204 F.3d 964, 977-78 (9th Cir.2000) (holding that the Brecht standard applies to habeas review of state court decisions). Laboa’s ineffectiveness claim relates to both Denney’s confession and to the van tape. Without those two pieces of evidence, the government had no case against Laboa. Therefore, the error “resulted in ‘actual prejudice.’ ” Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (citations omitted). Harmless error would be a closer question if the majority found that Laboa had waived his ineffectiveness claim as it related to the van tape because the van tape is more probative of Laboa’s guilt than Den-ney’s confession.
Laboa raised an ineffectiveness claim about the van tape before the magistrate court and the district court, both of which acknowledged the claim in their unpublished opinions. In his opening appellate brief, Laboa described his trial lawyer’s ineffectiveness as encompassing the failure to move to suppress both Denney’s confession and the van tape.7 The header to Laboa’s ineffectiveness claim characterized it as being based on “trial counsel’s failures to join to Denney’s motion to suppress his confession, and to move to suppress the van tape. ...” (emphasis added). This statement also is included in the table of contents of Laboa’s opening and reply briefs. Although the body of Laboa’s argument about ineffectiveness focuses exclusively on Denney’s confession, finding a partial waiver of Laboa’s ineffectiveness claim misreads Ninth Circuit caselaw.
*985As a general rule, “[w]e ‘will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant’s opening brief.’ ” United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992) (quoting Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir.1986)).8 However, there are several notable exceptions to this rule, two of which apply to this case. We will review an issue not properly raised in an opening brief (1) “ ‘if a failure to do so would result in a manifest injustice,’ ” Ullah, 976 F.2d at 514 (quoting United States v. Loya, 807 F.2d 1483, 1487 (9th Cir.1987)); or (2) “if the failure to raise the issue properly did not prejudice the defense of the opposing party.” Id.
The manifest injustice exception applies to this case. First, the district court’s erroneous reliance on the Fretwell test was “plain error,” like basing a conviction on a non-unanimous verdict, and therefore reversal is “ ‘necessary to prevent a miscarriage of justice.’ ” Ullah, 976 F.2d at 514 (quoting United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986)). Second, it is a “ ‘manifest injustice’ to reverse the conviction of one co-defendant but to uphold the conviction of another co-defendant when the same error affected both defendants.” Id. (citing United States v. Olano, 934 F.2d 1425,1439 (9th Cir.1991), rev’d on other grounds, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). See also United States v. Molinaro, 11 F.3d 853, 858 n. 9 (9th Cir.1993) (same); United States v. Baker, 999 F.2d 412, 416-17 (9th Cir.1993) (quoting Ullah, 976 F.2d at 514).
This case is the epitome of a manifest injustice involving a co-defendant. One of Laboa’s co-defendants, Denney, moved to suppress his coerced confession, the confession was suppressed by the state court of appeals, and Denney’s conviction was overturned. See People v. Denney, 152 Cal.App.3d 530, 199 Cal.Rptr. 623 (1984). Laboa’s attorney, however, had failed to join Denney’s motion to suppress or to file a motion to suppress the van tape. If Laboa’s attorney had provided constitutionally effective assistance, Laboa’s conviction should have been reversed by the state appeals court.
Furthermore, the manifest injustice exception applies because of the egregious application of the felony murder rule in this case. Three men and a woman went to a house presumably to sell guns and to allow the buyer to engage in an act of prostitution. Denney shot and killed the potential buyer while Laboa was in another room of the house. The four people stole a grand total of $20, of which Laboa received approximately $5. Although Den-ney admitted being the shooter, Denney’s conviction was reversed because of his coerced confession. Laboa was convicted of felony murder based on partial confessions by two co-defendants (including Den-ney’s) and the van tape. Laboa’s sentence was eventually reduced to 25 to life. Given the harsh application of the felony murder rule and the constitutional ineffectiveness of Laboa’s lawyer, finding a partial waiver would exacerbate a manifest justice.
Finally, Laboa’s failure to raise his ineffectiveness claim properly with respect to the van tape did not prejudice the government in any way (nor does the majority opinion suggest any ways in which the government was prejudiced). See Ullah, 976 F.2d at 514 (“[W]e may review an issue if the failure to raise the issue properly did not prejudice the defense of the opposing party.”); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 n. 4 (9th Cir.1985) (citing Ellingson v. Burlington Northern, Inc., *986653 F.2d 1327, 1332 (9th Cir.1981)) (“We recognize that we have discretion in certain cases to consider improperly presented claims of error, where the appellee is not misled and the issue has been fully explored.”).
The government was on notice about Laboa’s ineffectiveness claim, and it presented a complete defense. By raising the ineffectiveness issue before the magistrate court, the district court, and in his opening brief, Laboa gave the government ample opportunity to mount a defense. As a general matter, Laboa properly raised an ineffectiveness claim in his opening brief. Although Laboa failed to argue ineffectiveness specifically in relation to the van tape, his opening briefs table of contents and header mentioned both the van tape and Denney’s confession in describing his ineffectiveness claim.
Furthermore, even if Laboa had included a few lines of argument about the van tape in the body of the brief, it is likely that the government’s defense to Laboa’s ineffectiveness claim would have been unchanged. The government’s defense can be summed up by the following sentence from its brief: “Since the district court properly concluded that such a motion was meritless, Laboa’s claim of ineffective assistance also must fail. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).” The government specifically relied on the district court’s erroneous application of Fretwell. Assuming Laboa had included a few lines of argument about the van tape, this would not have ameliorated the constitutional violation or helped the government to construct a better defense. It is difficult to see how remanding for an evidentiary hearing on ineffectiveness will prejudice either party. Thus, given the lack of prejudice to the government and its reliance on Fretwell as a defense to ineffectiveness, there should no waiver regarding any portion of Laboa’s ineffectiveness claims.
IV. Conclusion
The district court relied on the wrong prejudice standard in Fretwell in denying Laboa’s ineffectiveness claim. Partial waiver is a non-issue given the manifest injustice exception regarding co-defendants and the lack of prejudice to the government. In the face of a clear constitutional violation and the harsh application of the felony murder rule, this case should be remanded to the district court for an evidentiary hearing. I respectfully dissent.
. The Supreme Court decided two cases named Williams v. Taylor on the same day.
. Judge Beck wrote:
In finding that Denney's damaging statements recorded in the van tape should have been suppressed as the product of his earlier *983involuntary confession, the Court of Appeals remanded the case to the trial court to conduct a hearing at which the state was to be given the opportunity to present evidence of a break in the causative chain between the involuntary confession and statements made in the van. In making the finding, the Court of Appeal noted that “[Denney’s] statement to [petitioner] to ‘be as cooperative as possible' [was] some evidence of the influence of the prior confession.” People v. Denney, No. F004763, page 5.
. Judge Beck wrote: "This court cannot make this determination because it unable to determine the merits of this issue. (See discussion above under 'Van Tape’) Accordingly, because the court recommends granting the petition, the court does not need to reach this issue.”
. Our pre-AEDPA de novo standard of review is another reason why the majority should have found that Laboa was prejudiced by his counsel's failure to object to Denney’s confession and the van tape. We are not hamstrung by AEDPA’s strict "unreasonable application” test for ineffectiveness cases. See Weighall v. Middle, 215 F.3d 1058, 1062 (9th Cir.2000). Indeed, we do not have to find clear error, as in our post-AEDPA cases. See Van Tran v. Lindsey, 212 F.3d 1143, 1152-54 (9th Cir.2000) (holding after Williams that in order for a state court’s application of federal law to be unreasonable, it must have been clearly erroneous.). We merely have to find error. The state appeals court erred in this case because, if the proper suppression motions had been filed, there is a reasonable probability that the outcome of Laboa’s case would have been different.
.Laboa: They told me they was gonna see me gassed. So they want me bad huh.
Laboa: They said, "If you don’t fuckin’ cop out now, we’re going to push, you, you’re gonna die motherfucker.” Hey, I’m delirious man. I swear to God.
Laboa: They told me, they said, "We’re gonna make it look like that wetback had his hands like this, beggin' and you guys blew him away.” Just like man, sayin’, *984"We're gonna make you look worse than Manson." Did they tell you shit like that?
. I recognize that Laboa is entitled to an evidentiary hearing only if: 1) he alleged facts that, if proven, would entitle him to habeas relief; and 2) he did not receive a full and fair opportunity to develop those facts in a state court, see Rich v. Calderon, 170 F.3d 1236, 1239 (9th Cir.1999). I believe that Laboa is entitled to an evidentiary hearing for both reasons, and that an evidentiary hearing is a more prudent course than outright habeas relief.
. Although Laboa’s trial counsel may have objected to the van tape, he did not object to it as a “fruit” of Denney’s coerced confession. He did not object to Denney’s confession as involuntary (only on hearsay grounds), therefore he could not have objected to the van tape as a product of coercion.
. Under this general rule, an issue mentioned in the "Statement of Issues,” see American Int’l Enters., Inc. v. F.D.I.C., 3 F.3d 1263, 1266 n. 5 (9th Cir.1993), in the "statement of the case,” see Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259-60 (9th Cir.1996), or in a footnote, see International Olympic Comm. v. San Francisco Arts & Athletics, 781 F.2d 733, 738 n. 1 (9th Cir.1986), but not discussed in the body of the brief or in the main argument, may be considered abandoned. The exceptions under the general rule, however, still apply to these cases, see infra, and I believe should apply in this case.