dissenting.
I agree that the question is whether petitioner was denied effective assistance of counsel, and that this claim was not waived. I respectfully dissent, however, from the result reached by the court.
A claim of ineffective assistance of counsel requires proof that counsel’s performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial court was the only state court to address this claim on the merits. While not parsed out under the Strickland framework, the trial court made the following findings: (1) that the decision to abandon potential defenses in exchange for a favorable sentencing agreement is a common defense strategy; (2) that, as a factual matter, Dando had several opportunities to remove herself from the crime spree, but did not; and (3) that trial counsel had acted appropriately and secured a “very good break” on Dando’s sentence as a result of the plea.
Arguing first that the state court’s rejection of this claim was based on an unreasonable determination of the facts under § 2254(d)(2), Dando focuses on the trial judge’s explanation that the decision to enter the plea was “a choice made there by her attorney in counseling her, and they both made a choice together that it would be best for her to plead and move onward, rather than going to trial and setting up the defenses that may have been available to her.” Specifically, she claims it was *803unreasonable to find that “they both made the choice together” because it was contradicted by her insistence at sentencing that she was trying to prove that she did not have a choice about joining in the crime spree. The significance of this finding, however, was not that they had made the decision together but, rather, that counsel’s failure to pursue possible defenses was a strategic decision.
Under the unreasonable application clause of § 2254(d)(1), it is not sufficient that a reviewing court find in its independent judgment that the state court decision applied clearly established law erroneously or incorrectly; the application must also be objectively unreasonable. Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In this case, the claim is that trial counsel provided constitutionally defective assistance because he failed to pursue a duress defense before advising Dando to accept the plea-bargained sentence. Specifically, petitioner faults counsel (1) for failing to obtain the emergency room records; and (2) for failing to request payment for an expert on battered woman syndrome. The district court concluded after examining the law on duress and the admissibility of testimony from an expert on battered woman syndrome, that the state court decision was not objectively unreasonable because it would have been fruitless for trial counsel to have pursued a duress defense at trial.
The Supreme Court has made clear that “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052; see also Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). When it is alleged that the defendant was prejudiced by the failure of counsel to advise him of a possible defense before he pleaded guilty, the prejudice inquiry will depend largely on whether the defense “likely would have succeeded at trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Because both the reasonableness of counsel’s strategic decision and the prejudice inquiry are informed by the likelihood that a duress defense would have been successful at trial, one must begin with the relevant Michigan law.
In Michigan, duress is a common-law affirmative defense that arises in situations where the crime committed avoids a greater harm. People v. Lemons, 454 Mich. 234, 562 N.W.2d 447, 453 (1997). To be entitled to an instruction on the defense of duress, the defendant bears the burden to produce some evidence from which the jury could conclude that each of the following elements are present:
A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;
B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;
C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and
D) The defendant committed the act to avoid the threatened harm.
Id. (quoting People v. Luther, 394 Mich. 619, 232 N.W.2d 184, 187 (1975)). The Michigan Supreme Court elaborated that the threatening conduct, must be “ ‘present, imminent, and impending’ ”; that “ ‘threat of future injury is not enough’ ”; and that “‘the threat must have arisen without the negligence or fault of the person who insists upon it as a defense.’ ” Id. at 454 (quoting People v. Merhige, 212 *804Mich. 601, 180 N.W. 418, 422 (1920)). Also, a defendant may forfeit a duress defense when he fails to use a reasonable opportunity to escape if it would not unduly expose him to death or serious bodily injury. Id. at n. 18 (citing LaFave & Scott, Substantive Criminal Law, § 5.3, pp. 619-20).1
The court and counsel were, by all accounts, aware of Dando’s lifelong history of being abused and that she had been abused by Doyle as well. The emergency room records concerning the treatment she received in the hours before the crime spree were not obtained by trial counsel. No attempt has been made to demonstrate how these records might have supported a duress defense. Even if they were to provide an account of abuse by Doyle before the crime spree began, a successful duress defense would require evidence that Dando committed the crimes under present, imminent, and impending threat of death or serious bodily harm. Neither past abuse nor the fear of future abuse at the hands of Doyle would be sufficient.
The facts as admitted by Dando support the trial court’s factual finding that she had several opportunities to remove herself from the crime spree, but did not. The undisputed facts are that Dando rode alone with the first victim before he was robbed, went in alone to “case” the party store where the cashier was robbed, and waited alone in the truck while Doyle confronted the other victims. That being the case, it is hard to imagine that a duress defense would be likely to succeed at trial. This leaves the question of counsel’s failure to request payment of an expert on battered woman syndrome.
Short of adopting battered woman syndrome, the Michigan Supreme Court has held that expert opinion evidence regarding the syndrome may be admissible when relevant to explain behavior that would be incomprehensible to the average person. People v. Christel, 449 Mich. 578, 537 N.W.2d 194 (1995). Such evidence is typically offered when a defendant charged with killing her abuser is claiming self defense, or when a complainant files charges against her abuser after years of tolerating the abuse. Id. at 202. Even then, however, the expert may not testify that the individual suffered from battered woman syndrome, but may explain the generalities or characteristics of the syndrome to explain specific behavior brought out at trial. Id. at 201. Petitioner has not indicated what an expert on battered woman syndrome might have contributed to her defense. This is not a typical case in which the characteristics of the syndrome might be relevant, and an expert would not likely have been permitted to testify that Dando suffered from battered woman syndrome at the time of the offenses. See People v. Neff, No. 206498, 2000 WL 33538583 (Mich.App. Jan.11, 2000) (unpublished) (holding exclusion of evidence of battered woman syndrome did not deny defendant the right to present a defense).
It is also questionable whether the evidence would be relevant to the defense of duress. Because duress requires objective reasonableness — that the threat be sufficient to cause a reasonable person to fear death or serious bodily injury and the absence of a reasonable opportunity to avoid violating the law — I agree with the district court that evidence that a defendant suf*805fered from battered woman syndrome is not relevant to a duress defense. As one court explained:
Such evidence is not addressed to whether a person of reasonable firmness would have succumbed to the level of coercion present in a given set of circumstances. Quite the contrary, such evidence is usually consulted to explain why this particular defendant succumbed when a reasonable person without a background of being battered might not have. Specifically, battered woman’s syndrome evidence seeks to establish that, because of her psychological condition, the defendant is unusually susceptible to the coercion.
United States v. Willis, 38 F.3d 170, 175 (5th Cir.1994).
Despite having reason to believe Dando had been abused by Doyle, it was not unreasonable for counsel to decide not to pursue a duress defense based on battered woman syndrome given the undisputed circumstances of the crime spree and the questionable relevance and limited admissibility of such testimony. It was not objectively unreasonable for the state court to find that counsel’s decision to abandon a possible duress defense in favor of the plea was a reasonable strategic decision. Nor has petitioner averred that she would not have entered the plea if counsel had fully pursued the duress defense. I conclude that the state court’s decision that petitioner was not denied effective assistance of counsel did not involve an unreasonable application of Supreme Court precedent. See Gumangan v. United States, 254 F.3d 701, 705 (8th Cir.2001) (holding no ineffective assistance where counsel did not advise defendant of a possible defense based on duress and battered woman syndrome).
. The Court also indicated that the elements required to establish the defense in Michigan were substantially similar to those required in federal court: “(1) an immediate threat of death or serious bodily injury; (2) a well-grounded fear that the threat will be carried out; and (3) lack of a reasonable opportunity to escape the threatened harm.” Lemons, 562 N.W.2d at 454 n. 19 (citing United States v. Beltran-Rios, 878 F.2d 1208 (9th Cir.1989)).