concurring in part and dissenting in part:
I concur in part I of the majority opinion, as to the guilt phase of the trial, but respectfully dissent as to part II, regarding the penalty phase. We should reverse the district court’s grant of the habeas petition. The jury sentenced this man to death because of his horrible crimes, not because he had a bad lawyer. The majority opinion mistakenly treats counsel’s failure to put on evidence of an abusive childhood as per se ineffective assistance, without the deference to defense counsel’s judgments required by Strickland .v. Washington.1
I. Ineffective Assistance
Like the majority, I am troubled by the brevity of the penalty phase defense. Sometimes a defense is brief because coun*1142sel is not prepared. But in this case counsel thoroughly investigated and prepared. The problem was that the investigation turned up little evidence. The shortage of mitigating evidence was because Karis was a very bad man.
The majority opinion makes two central propositions: (1) “failure to investigate the abuse through other family members and witnesses was error of constitutional magnitude,”2 and (2) “failing to investigate and present the highly relevant information of an abusive childhood [ ] was prejudicial.”3 These propositions are erroneous, because Strickland allows for no such absolutes. To show “deficient performance” under Strickland, a petitioner must show “that counsel made errors so serious that counsel was not functioning as ‘counsel’ guaranteed the defendant by the Sixth Amendment,”4 and our scrutiny of counsel’s conduct must be “highly deferential,” evaluating it “from counsel’s perspective at the time.”5
The majority opinion concedes that “there was essentially no other significant mitigating evidence to present to the jury” except for evidence that Karis and his mother had both been abused during his childhood.6 The problem in the majority’s analysis arises because counsel investigated and discovered the abuse, but was precluded both by tactical considerations and by lack of cooperation from his witnesses from presenting it.
Karis committed the murder in this case twenty years ago and has litigated continually since then. This decades-long duration is typical of death penalty cases. The Strickland test, whether “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,”7 is emphatically not a question of whether during the decades following the trial any other lawyer or expert can come up with something new that might have helped the defense. We must view the facts “as of the time of counsel’s conduct.”8
The Supreme Court applied the general principles of Strickland in Burger v. Kemp9 to facts that preclude the result in the case at bar. In Burger, defense counsel “offered no mitigating evidence at all,”10 and put no witnesses on the stand,11 while in the case at bar, mitigating evidence was presented through several witnesses. There was mitigating evidence that counsel could have presented in Burger, that “would have disclosed that petitioner had an exceptionally unhappy and unstable childhood.”12 In our case, it is considerably less clear, as I will explain below, that counsel could have presented more evidence to that effect. The lawyer in Burger, as here, “was aware of some, but not all, of this family history.”13 In Burger, as here, counsel talked with the petitioner’s mother, though she claimed after the trial was over that his efforts were minimal.14 He also talked with a lawyer *1143who had befriended the petitioner and a psychologist.15 The problem with the defense psychologist in Burger was that he concluded that petitioner’s “psychopathology would make him want to do wrong,”16 just as the problem with the defense psychiatrist, Dr. Globus, in our case was that he had very little good to say about Karis. The Court concluded in Burger that defense counsel’s decision not to put anyone on the witness stand “may have been erroneous” but was “not unreasonable.”17 Though the Court in Burger concluded that defense counsel “could well have made a more thorough investigation,”18 the decision to interview no further witnesses was not a constitutionally deficient judgment.19 Despite the majority’s conclusion that Burger’s lawyer acted more strategically than Karis’s, there is simply no way to avoid the force of Burger in this case.
Defense counsel was faced with a hard case to defend, and a hard defendant for whom to get sympathy. At the penalty phase of Karis’s trial, the prosecution established Karis’s previous rapes through the testimony of prior victims. He and another man had raped a woman in 1971, and he went to prison until 1975. Out of prison three months, he raped a high school girl, and went to prison for another five years. While still on parole for that recent rape, he raped one of the women in the case at bar. Instead of taking the lesson from his imprisonments that he should not commit rapes, he took the lesson that he should not leave witnesses alive. After he captured the two women in this case and raped one of them, he coldly shot them both to keep them from ever testifying against him.
Most of the possible defense witnesses posed problems. Karis’s mother had lied for him twice to the police, so cross examination was threatening. The defense psychiatrist, Dr. Globus, reported to defense counsel that Karis was “involved” in the murder of another inmate, had “a very degrading opinion of the value of women,” and had “a strong urge to destroy.”
As for the abusive family environment— the hook that the majority opines might have gotten Karis enough sympathy to turn the jury in his favor — it did not, in Dr. Globus’s report, sound likely to arouse much jury sympathy for this womanhating repeat rapist and murderer. (It sounds like a great deal more in the evidentiary hearing testimony, composed decades after trial, that the majority cites at great length). Karis’s mother, though crying the whole time, told Dr. Globus that Karis did quite well in school until he started cutting classes in junior high. She and his natural father divorced when he was two, and he never saw his natural father again until he was sixteen. Karis himself told the psychiatrist that “he now thinks she should have supplied more discipline” when he was growing up. His complaint about her marriage that lasted for four years to his stepfather, from when he was nine, was “that the only time he received any attention was when he did something wrong and then he was usually beaten.” His stepfather beat his mother and beat Karis with a belt, often with the buckle end. Karis did not report any recollection to the psychiatrist of any beatings by his natural father of his mother or himself.
Defense counsel in this case, unlike in Burger, put on a case, as substantial as he *1144could, during the penalty phase. First he put on a prison official who testified about Karis’s above average performance in the prison arts and crafts program, showing some potential for rehabilitation. Then he put on a woman who owned a craft shop, who testified that Karis had sold her items which she resold in her shop, demonstrating further Karis’s ability to do something decent and useful. Another prison official testified to Karis’s excellent crafts, and also to his constructive contribution to prison life as a guitar player. Then he put in by stipulation Karis’s records from his college education, further showing rehabilitation potential. An instructor at the college testified to Karis’s fine work in his geography class. He put on a stipulation that Karis’s seventh grade teacher and counselor characterized him as a “very bright and sensitive child.”
Then came Karis’s mother, a triumph for the defense. Through her, the defense put into evidence photographs of “Jim” as a little boy and school report cards. She testified that she divorced Karis’s father when he was about two, and he did not see him again until he was almost sixteen. Then defense counsel elicited that when Karis’s little brother was five, he almost drowned at the ocean, and the mother “froze,” but “Jim jumped in” and pulled him out as he was being “dragged under.” She then began crying in front of the jury, and Karis began crying, too. She was excused without the prosecutor cross-examining her. Defense counsel could have asked for a recess until she stopped crying, and then examined her about the abuse of her and Karis, which he knew about from Dr. Globus’s report. But he had good reasons not to: (1) he had reason to think, as I explain below, that she would give unhelpful answers; (2) he would lose the wonderful dramatic ending of her and her son crying as they recalled his lifesaving heroics; and (3) the prosecutor might be moved to cross-examine, showing that she had lied for Karis on two separate occasions to the police. Instead of taking that risk, he moved on to Karis’s aunt, who testified about how upsetting it was to the boy when her husband, his uncle, who used to do a lot with the boy (talking, motorcycle riding, fishing, camping) died in a truck crash. The majority takes issue with this strategy, and says that the lawyer should have asked Karis’s mother about the abuse before she started crying; he probably didn’t know when she was going to start crying, and he couldn’t count on her to say helpful things about the abuse.
This defense case could have taken a couple of days, had it stretched through lengthy cross examination, redirect, recross, redirect, and so forth until both sides brought out all they had and probed all the other side had brought out. But the prosecutor employed a clever tactic to deflate the defense case and shorten it. He made no objections. After each witness testified, he said “no questions.” That prosecution tactic made the defense case for mitigation go very fast indeed and robbed it of the force it would have had, had cross examination stretched it out, by implying that it was so insubstantial as not to need challenge.
Thus, defense counsel investigated, prepared, and presented a case with six witnesses and one other by stipulated testimony, as well as exhibits. The majority concedes, as it must, that Dr. Globus’s harmful opinion, despite his being hired by the defense, made it reasonable not to present his testimony. Defense counsel had consulted two other doctors as well, without getting anything useful. The majority says that what defense counsel did wrong was that he failed to present evidence that when Karis was a child, his natural father and his stepfather viciously beat his mother, and also beat Karis. The majority says that defense counsel should *1145have presented evidence of abuse “through other family members and witnesses.”20
Defense counsel had initially planned to put on proof of the abuse. The reason defense counsel had not talked to the father and stepfather was that he had planned to “make them out to be the heavies” and did not want them to contact the prosecutor with his plans and undermine the only evidence he had. But when defense counsel asked Karis’s mother about the abuse, “she denied ... telling Dr. Glo-bus what Dr. Globus had written in the report.” She was at that time “good friends” with the stepfather and counsel feared that she would protect him. Failing to ask her about the abuse on the stand, or to bring it out from someone with less knowledge than her, might have denied Karis mitigating evidence, or it might have avoided a worse situation in which the mother would destroy defense counsel’s credibility with the jury by denying that it had occurred because she wanted to preserve her relationship with the stepfather. And he could not even count on his own client to back him up. Karis told defense counsel he did not want defense counsel to ask his mother about the beatings. The majority quotes extensively from what the mother and others said years later, in the evidentiary hearing, while Karis was on death row. The evi-dentiary hearing took place long after the mother’s relationship with the stepfather may have evaporated. Counsel had sensible tactical reasons for not doing more with the abuse when the case was tried and Karis’s mother was still “good friends” with the abusive stepfather.
Williams v. Taylor21 does not control, because in that case, the lawyer did not look into the defendant’s background at all, never found out about the defendant’s juvenile records which contained ample evidence of abuse, and admitted in closing argument that it was difficult “to find a reason why the jury should spare [his] life.”22 In this case, defense counsel made “a reasonable investigation such that [he was] able to make informed decisions about how best to represent [his] client[ ],”23 and “made a showing of strategic reasons for failing to” introduce the evidence.24
II. Prejudice
Strickland also requires that the petitioner “affirmatively prove prejudice.”25 “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”26 Rather, Karis must show that there was a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”27 A reasonable probability is one that “undermine[s] confidence” in the jury’s decision.28 In the case at bar, all we have is a “conceivable” possibility that Strickland says is not enough, not a “reasonable probability” such that confidence in the jury’s decision is undermined.
Maybe the jury would have felt very sorry for Karis had it learned about the child abuse, and maybe the mother would *1146have changed her story again and admitted it, had counsel asked her while she was on the stand, even though she had denied it when he prepared her to testify. Or maybe she would have denied it, and ruined the humanizing testimony counsel had put on, with the chorus of crying about Karis saving his brother’s life. And maybe the jury would have thought that a baby who did not remember his mother being beaten before he was two would not have been so traumatized as to mitigate murder. Maybe the jury would have found mitigation for a man who had suffered beatings with a belt for four years of his childhood. Or maybe some jurors would have said “I was beaten with a belt and I haven’t killed anyone,” and learned as the issue was explored that Karis had told Dr. Globus that he thought his mother had not disciplined him enough. The mitigation is speculative at best, especially in light of Karis’s merciless multiple rapes and cold blooded murder to avoid apprehension.
In any case, it is possible to wonder whether “if only counsel had done something different,” the result would have been different. But neither that kind of wondering, nor the evidence that can be developed in the decades following trial, is enough to show prejudice.
III. Conclusion
Karis has not presented any evidence that errors by counsel, if they were errors at all, were so grave “that it is as though he had no lawyer at all in the Sixth Amendment sense.”29 Nor has he demonstrated prejudice from failure to prove abuse of his mother and himself. Though a jury in this case, as in any case, could have gone the other way, it was not counsel’s fault that it did not. The law and the facts preclude relief on the basis of ineffective assistance of counsel.
. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
. Maj. Op. at 1135.
. Id. at 1140-41.
. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
. Id. at 689, 104 S.Ct. 2052.
. Majority at 1136.
. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
. Id. at 690., 104 S.Ct. 2052
. 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987).
. Mat 788, 107 S.Ct. 3114.
. Id. at 791, 107 S.Ct. 3114.
. Id. at 789, 107 S.Ct. 3114.
. 483 U.S. at 790, 107 S.Ct. 3114.
. Id.
. Id. at 790-91, 107 S.Ct. 3114.
. Id. at 791 n. 9, 107 S.Ct. 3114.
. 483 U.S. at 792-93, 107 S.Ct. 3114, 107 S.Ct. 3114.
. Id. at 794, 107 S.Ct. 3114.
. Id. at 794-95, 107 S.Ct. 3114.
. Maj. Op. at 1134.
. 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
. Id. at 369, 120 S.Ct. 1495.
. Caro v. Calderon, 165 F.3d 1223, 1226 (9th Cir.1999).
. Id.
. 466 U.S. at 693 104 S.Ct. 2052.
. Id.
. Id. at 694, 104 S.Ct. 2052.
. Id.
. Caro, 165 F.3d at 1234 (Kleinfeld, J., dissenting).