dissenting in part.
I largely agree with the court’s analysis of Mason’s arguments in this case. I cannot agree, however, with the court’s decision to remand this action to the district court for an evidentiary hearing on the adequacy of Mason’s counsel’s investigation and presentation of evidence in mitigation during the sentencing phase of Mason’s trial. The court’s action both ignores the clear Supreme Court precedent establishing the standards for evaluating the constitutionally required effectiveness of defense counsel and contravenes the statutory limitations on our review of state convictions through habeas corpus proceedings. Accordingly, I respectfully dissent from the court’s decision to reverse the district court’s denial of Mason’s petition for a writ of habeas corpus and to remand for an evidentiary hearing on further mitigatory evidence that defense counsel could have offered.
This court has reversed capital sentences for failure to present or to investigate mitigatory evidence on no fewer than seven occasions. See, e.g., Coleman v. Mitchell, 268 F.3d 417, 438 (6th Cir.2001); Greer v. Mitchell, 264 F.3d 663 (6th Cir.2001); Cone v. Bell, 243 F.3d 961 (6th Cir.2001), rev’d, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Skaggs v. *643Parker, 235 F.3d 261 (6th Cir.2001); Rickman v. Bell, 131 F.3d 1150 (6th Cir.1997); Austin v. Bell, 126 F.3d 843 (6th Cir.1997); Glenn v. Tate, 71 F.3d 1204 (6th Cir.1995). The Supreme Court, in the course of reversing one such decision of this court, has made abundantly clear the extremely high standard that must be met for counsel’s representation in the penalty phase to be considered constitutionally inadequate. The Supreme Court in Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), reversed one iteration of this court’s finding of inadequacy of counsel during the penalty phase. In our Cone decision, this court observed that counsel’s presentation was not only poor, but a complete abdication of the defense attorney’s role: “It is indisputable that Cone’s trial attorney presented no mitigating evidence at all and made no final argument; he did not even ask the jury to spare his client’s life.” Cone v. Bell, 243 F.3d 961, 978 (6th Cir.2001) (Ryan, J.). In Cone, defense counsel failed to call a single witness to present mitigatory evidence and offered no closing statement, although defense counsel did briefly cross-examine some of the state’s witnesses. Cone, 122 S.Ct. at 1848. Nevertheless, the Supreme Court, with only one dissent, held that defense counsel’s representation during the penalty phase was not unconstitutionally inadequate under its standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
Determining the best tactic for a penalty-phase presentation is extremely difficult in the wake of a jury’s finding the defendant guilty of a horribly brutal act, according to the Court. Cone, 122 S.Ct. at 1852. This court’s determination that a defense counsel’s failure to present any affirmative case for mitigation in the penalty phase was unconstitutional ineffective representation failed to indulge the “ ‘strong presumption’ that counsel’s conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that the particular act or omission of counsel was unreasonable in the harsh light of hindsight.” Id. at 1854. See also Strickland, 466 U.S. at 669, 104 S.Ct. 2052.
In this case, defense counsel presented a significantly more fobust mitigatory case than the counsel in Cone. Defense counsel called two members of the sheriffs department to comment on Mason’s good behavior as a prisoner. Counsel also called Mason’s mother, his two brothers, his cousin, and finally his wife to testify regarding how meaningful Mason had been in their lives and to ask the jury to spare the defendant’s life. Finally, Mason himself testified about the artwork and poetry he had composed in prison. Unlike defense counsel in Cone, Mason’s counsel delivered an extensive closing statement.
Defense counsel’s presentation in the penalty phase is not the principal thrust of the court’s concern regarding the adequacy of Mason’s representation. Instead, the court contends that defense counsel did not sufficiently investigate Mason’s “history, character, or background.” According to the court, any investigation would have revealed Mason’s traumatic childhood, his living with parents who were drug dealers and users, the regular beatings that he received from his father, and the resulting drug addiction that Mason himself developed from the age of eleven. The court suggests that counsel’s failure to present this tale of woe to the jury was not the result of a strategic choice in the heat of litigation, but a lack of knowledge regarding Mason’s background. The court argues that, “[h]ad trial counsel conducted an adequate investigation, the jury would have heard substantial evidence about how drug use and violence pervaded Mason’s background and life history.” Slip op. at 622. (emphasis added). Indeed, the court *644notes Mason’s post-conviction testimony that he did not recall defense counsel ever interviewing him regarding his background, much less that of any of his family members. Slip op. at 621-622.
The existing record in this case contradicts the court’s finding that defense counsel had no knowledge of these particularly tragic features of Mason’s background. As the court indicated, defense counsel was provided with the services of Dr. Robert T. Spare, a psychologist who examined the defendant to determine, among other things, his future dangerousness. Spare also took an relatively extensive oral history from Mason. Under deposition questioning by defense counsel, Spare recounted essentially all of the facts that, according to this court, were not discovered by defense counsel.1 Spare testified that Mason told him that his family life was “rather unusual,” with his parents involved in “drug related activities as long as he could remember.” See Videotape Deposition of Dr. Robert T. Spare at 5:57 P.M. According to Spare, Mason began extensive involvement in his parents’ drug business in “the middle elementary grades” and started using drugs regularly “about the same time.” Id. at 5:58 P.M. Spare also testified that Mason said that he had been regularly beaten by his father. Ibid.
Spare further testified as to several “exhibits offered for mitigation purposes” that he had reviewed in the course of his treatment of Mason. These exhibits were in the record of the deposition and included several reports from social services agencies that included extensive records of domestic and child abuse in Mason’s home and the drug-seeking activities of Mason’s parents. ■ The defendant was present during the deposition, id. at 5:51 P.M., and thus would have been able to advise his attorney of any additional material that might have been relevant. In any event, the deposition shows that Dr. Spare was aware of, and fully related to counsel, the gist of the material on Mason’s background as to which the court now appears to be uncertain.
In short, Spare’s deposition explicitly covers all of the information to which defense counsel was allegedly not exposed due to shoddy investigation into mitigating evidence. Accordingly, this case seems indistinguishable from prior cases in which we have denied claims of ineffective assistance based on alleged failure to investigate mitigating evidence. Specifically, the defendant has identified no evidence of which defense counsel was not already aware at the time of the penalty phase proceedings. See Buell v. Mitchell, 274 F.3d 337, 361 (6th Cir.2001).
The relevant question is the one that this court declines today to answer, whether defense counsel’s decision not to present certain evidence of the drug-related activities of Mason’s parents, of Mason’s long history of drug use, and of the physical abuse to which Mason was subjected, was a reasonable strategic choice of counsel or was within the wide range of decisions that constitute constitutionally effective representation.
I believe that counsel’s decision not to present evidence of Mason’s childhood was reasonable or that, at the very least, the Ohio Supreme Court’s denial of Mason’s claim was not an unreasonable application of Strickland v. Washington, 466 U.S. 668, *645104 S.Ct. 2052 (1984), as it must be for this court to overturn its decision. See 28 U.S.C. § 2254(d)(1). The court assumes that any defense counsel who would not have presented the details of Mason’s past to the jury would have been either indifferent to his chent’s fate or incompetent. As the court states: “Had trial counsel conducted, an adequate investigation, the jury would have heard substantial evidence about how drug use and violence pervaded Mason’s background and life history.” Slip op. at 622.
To me, the record is clear that defense counsel not only was aware of Mason’s background, but also made a reasonable strategic decision not to present evidence of Mason’s background to the jury. Defense counsel’s decision addresses the fundamental dilemma for penalty-phase presentations. To some, recounting a childhood filled with drug use and crime would arouse sympathy and provide an explanation for otherwise heinously violent crimes, but to others it would tell a story of waste, lifelong moral turpitude, and incorrigibility. The omitted evidence here is far less mitigating than the relevant evidence in Bell v. Cone, that the defendant had been traumatized during honorable military service to his country, the omission of which the Supreme Court determined not to be unconstitutionally ineffective assistance. The evidence omitted here is potentially aggravating in the minds of some jurors, and its probable effect is a judgment call for counsel in the context of his understanding of the jury’s composition. Defense counsel’s choice to omit Mason’s background, and it was a choice, is a quintessential strategic decision that cannot form the basis of a Strickland challenge.
This court also flatly suggests that this particular evidence, of Mason’s troubled childhood and early drug use, would not have permitted the prosecution to introduce rebuttal evidence regarding Mason’s extensive, violent, and contemporaneous history of criminal activity. The court’s claim here is nothing more than an assertion: “Testimony that simply put Mason’s childhood into context without misinterpreting it would not have been the subject to the prosecutor’s rebuttal evidence, which mostly concerned Mason’s character.” Slip op. at 627. The court’s cursory opinion of Ohio evidence law narrowly construes the trial court’s explicit ruling on this matter. See Tr. at 4211. The trial court indicated that extremely damaging evidence could have been introduced “had the Defense elected to proceed with a more expansive mitigation strategy.” JA at 1761. Mason concedes that “[t]he trial court ruled that such evidence,” referring to evidence of Mason’s past criminal behavior, “would be admissible.” Mason’s Br. at 13. Defense counsel undoubtedly could have presented the evidence notwithstanding the trial court’s determination, inviting the introduction of Mason’s prior criminal record by the prosecution, and appealed a district court decision to admit Mason’s negative history as rebuttal evidence. Yet we have never held that defense counsel is constitutionally obligated to take such a risk, especially when the trial court’s ruling is far from clearly the abuse of discretion that would be required to overturn its evidentiary determination.
Indeed, the trial court’s ruling makes ample sense. By raising the factual question of his background and prior activities, the defendant makes his entire background relevant. After all, the mitigation case with this evidence would have been that Mason was a victim of his parents’ violence and drug activities and that this sorrowful childhood led an otherwise innocent boy into personal drug use and ultimately to commit a horribly violent crime. The evidence of his criminal record would have been directly relevant to rebut this *646story, showing a young man, far from innocent, who has engaged in a consistent campaign of violent crime, including a rape eerily similar to that for which he had just been convicted.
Finally, given the infirmity of this court’s determination regarding defense counsel’s potential ineffectiveness, there is even less legal foundation for its decision to' remand this case for an evidentiary hearing on his ineffectiveness claim. The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) explicitly limits the circumstances under which an evi-dentiary hearing may be granted in habeas proceedings. See 28 U.S.C. §'2254(e)(2). If Mason failed to develop a sufficient “factual basis of a claim in State court proceedings,” this court must dismiss the claim and cannot order an evidentiary hearing unless the claim relies on a “new rule of constitutional law made retroactively applicable to cases on collateral review by the Supreme Court, that was previously unavailable; or a factual predicate that could not have been previously discovered through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2). Neither of these conditions obtain in this case. This court makes clear that Mason raised these arguments in Ohio state courts. Mason also had an opportunity to introduce extensive evidence, of which he somewhat availed himself, regarding what defense counsel could have done. Any factual deficiency in Mason’s claim that prevents us from accepting it may not be cured by a federal court in habeas proceedings when there is no evidence in the record that Ohio courts prevented Mason from making a sufficient factual record. This court’s current remedy of ordering an evidentiary hearing is invalid under Section 2254(e)(2) of AED-PA.
Ironically, if counsel’s true aim is to see that his client’s life is spared, the most effective tactic under cases such as the one today is to omit some step so that our court will later find counsel was not “effective.” Creative habeas counsel can conjure up myriad possible scenarios in which a claim can now be made that some information would surely have convinced a jury to spare the life of a heinous murderer, without having to face the actual consequence that such information could easily have been ineffective, or worse. In fact, if trial counsel were to use the “kitchen sink” approach seemingly advanced by respondent’s counsel, and introduce every scrap of information now claimed to be helpful (including his becoming “certified in Heating and Air Conditioning,” see Mason’s Br. at 72 n.28), one could probably find that approach “ineffective” for depriving the defendant of the argument that has proven, in this circuit at least, to be the most efficacious in achieving defendant’s goal of continued life.
The fact that a trial strategy did not work does not make the ex ante decision to employ it, under circumstances where hardly any trial strategies would seem attractive, constitutionally defective lawyer-ing. Given the Supreme Court’s admonishments against using the penalty phase and the Sixth Amendment as a lever in death penalty cases, and the sound strategic reasons for the omission of Mason’s background by his counsel, I respectfully dissent.
. The deposition was conducted during the guilt phase of the trial in anticipation of Dr. Spare's potential absence for a possible penalty phase. The actual video tape of the deposition of Dr. Spare is in our record, as record entry 43 in the district court, referenced as Appendix Vol. 14 to the return of writ by the respondent, record entry 29. The volume number appears to be that assigned in the state trial court.