specially concurring.
I concur in the result but not in all of the reasoning of the majority opinion.
I agree with Part 11(A) of the dissent, which concludes that Defendant’s counsel mistakenly waived Defendant’s marital privilege, misunderstood the law, and did not make a “tactical” decision. The state court unreasonably found the decision to have been “tactical.”
But, because of our highly deferential standard of review, I agree with Part 11(B) of the majority opinion, which holds that the state court permissibly concluded that counsel’s performance was not objectively unreasonable under the first prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Not every mistake requires a conclusion that counsel acted outside the bounds of professional competence. Moreover, in my view, for the reasons alluded to in the majority’s footnote 3, Defendant did not demonstrate prejudice under the second prong of Strickland.
Accordingly, I concur in the result.