Dissenting:
It is true, as the majority emphasizes, that attorney Castro initially decided on the unconsciousness defense before he had conducted an extensive investigation. Of course, one does have to start thinking about the proper approach early on,1 but what is significant is that Castro saw a great deal of information thereafter and saw no reason to change his initial approach. With perfect 20/20 hindsight, we can decide that he should have done more investigation, but that is not the standard.
As it is, Castro’s client did not even deny committing the murder,2 and it was clear that the injured and outraged Rios did plan a murderous assault,3 returned to the scene of the beating to carry it out,4 and after the shooting fled the scene and the state. Interestingly enough, during that lengthy flight, which took him as far as Ohio, Rios said, “[w]hy did it have to happen,” in response to discovering that Hampton was dead. One can properly assume that it was not a feeling of human empathy for the brute who had beaten him into a state of alleged amnesia that caused the exclamation.5 Most likely, it was an admission that his revenge had gotten him into a real mess.
Moreover, counsel did not eschew the *815misidentification defense for Rios;6 in fact, as it came out at trial the evidence showed just as much doubt about Rios as it showed about Lewis. Again, as counsel recognized, there was no real doubt that Rios went back to the scene armed, and fled after the shooting. The witnesses were conflicting among themselves and even with their own prior stories, and all had been drinking. The jury had a good picture of that without the addition of more of the same. Many of the witnesses gave testimony favorable to Rios; they said he did not shoot Hampton. If the jury was going to be moved by that sort of evidence as far as Rios was concerned, it seems that it would have been.7 It was not, and the evidence against him was, as the state court said, extremely damaging.
Really, in foresight Rios’s best hope probably was the mental defense adopted by Castro.8 In hindsight, of course, it looks as if some defense other than unconsciousness should have been emphasized. Indeed, in hindsight the unconsciousness defense failed, so no other defense could have been worse. But that is not the standard either.
The long and the short of it is that the record did not stun the state courts, the magistrate judge, the district judge, or me into a state of grave doubt. Nor did it leave any of us wandering in a miasma of undermined confidence. On the contrary, Rios failed to show with “probability sufficient to undermine confidence in the outcome” that had his counsel interviewed more witnesses and then chosen to place them on the stand to introduce more conflicting testimony, “the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); see also O’Neal v. McAninch, 513 U.S. 432, 445, 115 S.Ct. 992, 999, 130 L.Ed.2d 947 (1995).
Thus, I respectfully dissent.
.Evety scientist knows that a person has to construct some sort of screen before he starts sifting for facts. Absent that, no solution will ever be obtained.
. He said that he remembered nothing. Thus, he offered no help to counsel.
. Significantly, what Rios said to the people with him was that Hampton was going to get it and the girls were going to see some real men.
. Surely, Rios was not returning to the scene fully armed in order to have a rational conversation or to play patty-cake with Hampton.
. After the assault, Rios’s eyes were black, his nose was bleeding, his face was swollen, and he was dizzy.
. Actually, a fourth of his closing argument was devoted to that defense.
. The newly dredged up witnesses would simply have added more conflicting stories about who was shooting and from what location. See Clabourne v. Lewis, 64 F.3d 1373, 1382 (9th Cir.1995); United States v. Schaflander, 743 F.2d 714, 718 (9th Cir.1984).
.It is true that the jury let Lewis go free, but we can hardly speculate on why it took that path. At any rate, that cuts against Rios rather than for him. It indicates that conflicting evidence from eyewitnesses was not going to save his hide; the jury saw his case differently.