with whom
McMILLIAN, RICHARD S. ARNOLD, and MURPHY, Circuit Judges, join, dissenting.
Because I believe King was deprived of constitutionally adequate representation by counsel’s failure to adequately investigate and present a diminished capacity defense or to present evidence of King’s mental impairments at sentencing, I respectfully dissent. In my view, this failure is justified neither by the content of Robb’s report nor by this court’s precedent regarding counsel’s duty to investigate a client’s mental functioning. I also believe King’s federal petition was fairly presented to the state courts, and therefore properly exhausted.
I. Exhaustion
King has clearly given the Missouri courts a “fair opportunity” to apply controlling legal principles to his ineffective assistance claim. Odem v. Hopkins, 192 F.3d 772, 774-75 (8th Cir.1999) (quoting Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). Whatever the weight of authority concerning our ability to remedy the state’s oversight by raising exhaustion sua sponte, the Supreme Court has made clear that modifications to legal theories in a prisoner’s federal petition do not run afoul of the exhaustion requirement so long as such “variations in [a petitioner’s] legal theory” do not change “the ultimate question for disposition.” Picard, 404 U.S. at 277, 92 S.Ct. 509 (internal quotation omitted); see also Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) (“[Identical grounds may often be supported by different legal arguments.... Should doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the applicant.”).
Here, the ultimate question for disposition, as succinctly stated by the majority, is “whether [King’s] trial counsel provided constitutionally ineffective assistance in failing to investigate and present evidence of King’s diminished mental capacity.” Ante at 818. In my view, King’s diminished-capacity argument is a permissible variation in the theory he presented to the state court. Cf. Sanders, 373 U.S. at 16, 83 S.Ct. 1068 (“a claim of involuntary confession predicated on alleged psychological *827coercion does not raise a different ‘ground’ than does one predicated on alleged physical coercion”).
II. Merits
A. Deficient performance
I agree with the majority that King may not predicate his ineffective-assistance claim on Yankoviz’s failure to pursue a defense that, if successful, would have resulted in King’s institutionalization, contrary to King’s express wishes. In my view, however, counsel provided constitutionally inadequate representation by failing to pursue the statutory defense of diminished capacity.
Counsel’s judgments about the scope of investigation are entitled to a “heavy measure of deference.” Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Our decisions in Sidebottom v. Delo, 46 F.3d 744 (8th Cir.1995) and LaRette v. Delo, 44 F.3d 681 (8th Cir.1995) make clear that King’s Sixth Amendment right to competent counsel neither required counsel to ignore his client’s clear wishes regarding fundamental trial strategy nor demanded that counsel second-guess the conclusions of medical professionals in the absence of evidence to the contrary. Yankoviz’s failure to pursue a diminished capacity defense, however, was based not on his client’s wishes, nor on the opinion of a medical professional, but upon an erroneous view of Missouri law. As such, I conclude that King was denied the assistance of competent counsel at trial, in violation of the Sixth Amendment.
Yankoviz, in explaining his failure to obtain King’s medical records, testified that he thought evidence pertaining to King’s mental condition would have been inadmissible because of King’s refusal to pursue a defense of not guilty by reason of mental disease or defect. The majority speculates that this statement may have reflected counsel’s reliance on Robb’s conclusion— reached without the benefit of King’s medical records or a physical examination— that King did not suffer from a mental disease or defect. I disagree.
Counsel’s testimony plainly betrays his ignorance of the availability of the diminished capacity defense; this ignorance can hardly be said to demonstrate “such skill and knowledge as will render the trial a reliable adversarial testing process.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Even if Yankoviz’ decision not to present a diminished capacity defense was based on Robb’s conclusions as to King’s mental state, however, counsel provided inadequate representation.
The purpose of Robb’s examination was “to determine (1) whether [King] ha[d] the capacity to understand the proceedings against him or to assist in his own defense, and (2) whether [King], at the time of the alleged offense, as a result of mental disease or defect did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of the law.” (Respondent’s Ex. C. at 8.) In other words, Robb was directed to give an opinion as to (1) whether King was competent to stand trial, see Mo.Ann.Stat. 552.020, and (2) whether King, at the time of the offense, suffered from a mental disease or defect such that he could not be held criminally responsible for his actions, see Mo.Ann. Stat. § 552.030.
Following these instructions, Robb submitted a report in which he concluded that (1) at the time he examined King, King was not suffering from a mental illness or defect as defined in Mo.Ann.Stat. 552.010, and (2) at the time of the offense, King did not suffer from a mental disease or defect that would cause him not to know or appreciate the nature, quality or wrongful*828ness of his conduct or make him incapable of conforming his conduct to the requirements of the law. In Robb’s opinion, then, King was competent to stand trial and could not avoid all criminal liability arising from the incident based on a mental disease or defect.
The majority reasons that a competent Missouri criminal defense attorney reading the report “would know that it ruled out a diminished capacity partial defense.” Ante at 825. But the majority ignores that Robb’s findings with respect to King’s condition at the time the offense— the period relevant to a diminished capacity defense — were limited to the specific type of mental disease or defect contemplated in § 552.030(1), i.e., a mental disease or defect that left King unable to know or appreciate the nature, quality, or wrongfulness of his conduct or incapable of conforming his conduct to the requirements of the law. This was, after all, what Robb was asked to investigate. Robb’s report left open the question as to whether King suffered from a mental disease or defect that affected his ability to have committed the assaulted “knowingly,” as required by Mo.Ann.Stat. § 565.050(1).
In my view, a competent Missouri criminal defense attorney should have known the difference between a defense of mental disease or defect excluding criminal responsibility and a diminished capacity defense, and should have recognized that Robb’s report omitted any finding regarding a possible diminished capacity defense.
Even if Robb had supplied an opinion that was inconsistent with a diminished capacity defense, counsel would not have been justified in relying on such an opinion to rule out a diminished capacity defense. As the majority notes, Sidebottom stands for the proposition that Yankoviz was not compelled to seek a second evaluation “merely because [the] first was less than favorable.” Ante at-. In that case, we rejected petitioner’s claim that counsel was ineffective for not seeking a second mental evaluation after an initial evaluation concluded that petitioner was not suffering from a mental disease or defect, had no history of mental disease or defect, did not have an abnormal mental condition or mental retardation that would preclude the requisite state of mind for the commission of the crime, and was capable of assisting in his own defense. Sidebottom, 46 F.3d at 752-54.
But there are important factual differences that distinguish this case from Side-bottom. First, the initial evaluation conducted in Sidebottom was not limited to an evaluation of the defendant’s competency to stand trial or the existence of a mental disease or defect excluding criminal responsibility, but specifically and explicitly considered and rejected a diminished-capacity defense. See id. at 752. As I have already noted, Robb’s opinion should not have led a competent Missouri attorney to rule out a diminished capacity defense. More importantly, in Sidebottom, counsel’s decision not to pursue further mental evaluation was based upon an informed judgment that additional investigation would not uncover an opinion contrary to that produced by the first evaluation. Sidebot-tom’s attorney testified that neither his client nor any members of his family had been able to provide any evidence to contradict the findings in the initial psychological report or provide other information concerning mental disease or defect. As a result, we concluded that counsel’s decision not to pursue additional mental evaluation was reasonable. See Sidebottom, 46 F.3d at 752-53.
Here, however, counsel’s decision to forgo a second evaluation was not reasonable. It was not based upon an informed judg*829ment that further investigation would not yield useful information. Rather, counsel’s decision rested upon the erroneous view that any new information produced by a second evaluation would be useless by virtue of King’s determination not to pursue a defense of mental disease or defect excluding responsibility. Moreover, unlike Side-bottom, there was abundant information available to Yankoviz suggesting that at the time of the offense, King suffered from a mental disease or defect under Missouri law, including King’s own description of the gunshot injury and King’s decidedly implausible defense theory. Indeed, Robb’s own report contains information that casts some doubt on his conclusion that King was suffering from no mental disease or defect at the time Robb conducted his interview.5 And if Yankoviz had acted on King’s repeated requests to obtain his medical records pertaining to the gunshot injury, he would have had valuable information regarding the seriousness of the physical injury to King’s brain, yet another reason to conduct further investigation into King’s mental condition.
The majority notes testimony identified by the state at the en banc argument that would seem to establish that counsel did obtain reimbursement of $250 for a “mental exam,” though we know nothing of the content of such an examination, of the method by which it was performed, of the qualifications of the examiner, or what conclusions it reached. The state did not alert the district court or the original panel to this evidence; as such, I believe we are not permitted to consider it in reaching our decision. See In re Hen House Interstate, Inc., 177 F.3d 719, 724-25 (8th Cir.1999) (en banc), aff'd sub nom. Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000); cf. Warren v. City of Lincoln, Neb., 864 F.2d 1436, 1439 (8th Cir.1989) (considering argument raised on en banc rehearing where “[t]he pertinent record ... [was] fully developed ... and [relevant] facts and circumstances [were] uncontroverted”). Moreover, in light of counsel’s erroneous understanding of the diminished capacity defense, I find it difficult to believe that Yankoviz would have requested that any evaluation explore information relevant to such a defense.
B. Prejudice
As for the impact of Yankoviz’s representation, the majority’s discussion of the motion court’s ruling is irrelevant. First, the state courts did not find that “King did not suffer from a mental disease or defect as defined in Mo.Stat.Ann. § 552.010.” Ante at 825. Rather, the court “specifically [found]: That defendant (movant) was competent to stand trial and competent to aid in his defense at trial and defendant (movant) did not suffer from mental dis*830ease or defect excluding criminal responsibility.” (Respondent’s Ex. D. at 189 (emphasis added).) Like Robb’s report, the motion court’s findings are silent as to the possibility of a mental disease or defect upon which a diminished capacity defense could have been based. Contrary to the majority’s assertion, then, there has been no finding that would rule out or even cast doubt upon the viability of a diminished capacity defense.
Second, the judge’s assessment of Co-wan and Logan’s testimony has no bearing on the merit of such a defense. Under Missouri law, it is the jury and not the judge who must evaluate whether the state has met its burden of proving a defendant possessed a required mens rea beyond a reasonable doubt. See Missouri Approved Instructions-Criminal (MAI) 308.03; cf. Antwine v. Delo, 54 F.3d 1357, 1365 (“The issue is whether the failure to discover and present evidence of [defendant’s] mental condition undermines our confidence in the outcome of ... the trial. We are concerned, then, with whether the jury — -not the motion court — would have found the evidence of [defendant’s] mental condition credible.”).
I am similarly puzzled by the majority’s attempts to cast doubt upon the availability of a diminished capacity defense in the context of first-degree assault. If King came forward with evidence of a mental disease or defect relating to his ability to have acted knowingly, the jury would have been instructed as to the state’s burden of proving beyond a reasonable doubt that King acted with the required mens rea. See MAI 308.03. If the state failed to meet that burden, it is clear to me that King could only have been held responsible for second-degree assault under Mo. Ann.Stat. § 565.060 (recklessly causing injury to another). See State v. Hopkins, 873 S.W.2d 911 (Mo.App.1994) (noting that under Missouri law, acting recklessly and acting knowingly are mutually exclusive; “[0]ur legislature rejected the expansion of the definition of ‘knowingly’ to include wilful blindness of a fact and chose to limit the definition of ‘knowingly’ to actual knowledge of the fact.”).
In my view, King was also prejudiced by counsel’s failure to inject the issue of King’s mental condition into the court’s sentencing considerations. Although'King faced two life sentences, his attorney failed to present any reasoned argument with respect to sentencing,6 and King was sentenced to two consecutive life terms. I concede that the prejudice analysis requires speculation; this is so in any ineffective assistance case. I note, however, that counsel presented the sentencing court with absolutely no response to the state’s assertions of King’s depravity and lack of remorse. I also note that the minimum sentence for a first conviction for armed criminal action under Mo.Ann.Stat. § 571.015(1) is just three years. As such, I cannot say there is no reasonable probability that evidence of King’s mental impairments would have affected his sentence. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (defining prejudice).
III. Conclusion
For the forgoing reasons, I would vacate King’s sentence for assault and remand to the district court with instructions to issue the writ unless the state elects to retry *831him. Because King’s sentence for armed criminal action may also have been tainted by counsel’s failure to develop and present evidence of King’s mental impairments, I would also instruct that King must be re-sentenced on that count if (1) a retrial on the assault charge resulted in conviction of a lesser offense, or (2) the state elected to forgo retrial, in which case the sentencing court should be instructed to assume that the predicate offense for armed criminal action was a second-degree assault.
. Missouri law defines "mental disease or defect” loosely:
The terms "mental disease or defect” include congenital and traumatic mental conditions as well as disease. They do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, whether or not such abnormality may be included under mental illness, mental disease or defect in some classifications of mental abnormality or disorder. The terms "mental disease or defect” do not include alcoholism without psychosis or drug abuse without psychosis or an abnormality manifested only by criminal sexual psychopathy....
See Mo.Stat. § 552.010 (emphasis added). Although Robb prepared his report without the benefit of King's medical records, the report noted King’s own account that a bullet had traveled three inches into his brain, as well as King’s account that he sometimes forgot what he was doing, that he subsequently suffered from seizures that left him unconscious, and that he was taking medication to prevent the seizures.
. This was the sum total of Yankoviz’s sentencing argument (Tr. Vol. II at 318.):
Judge, I would ask that any sentences imposed be run concurrent. And that the Court consider giving Mr. King the minimum sentence in each count. The Court heard the evidence. It was controverted, but the jury did find in favor of the State. We ask that the minimum sentence be imposed.