dissenting:
I agree that this ease should be remanded, but write separately to comment on the majority’s incorrect treatment of Rule 12(b)(6). Whether, as a matter of law, Alvarez’s petition was insufficient “under any state of facts which could be proved in support of its claim,” Arrow Indus. v. Zions First Nat’l Bank, 767 P.2d 935, 936 (Utah 1988), remains to be seen, but it certainly was not insufficient because it failed to allege prejudice. Even a cursory reading of the petition demonstrates as much. Alvarez’s petition alleged the following three claims:1
1. Trial counsel was ineffective in failing to make an objection and preserving the record when the trial court committed an obvious and plain error during jury deliberations with relation to a jury instruction on the elements of first degree felony murder. That instruction provided:
That Fred A. Alvarez caused said death under circumstances where the homicide was committed incident to one act, scheme, course of conduct, or criminal episode during which two or more persons are killed.
While deliberating, the jury asked the court the following question: “Do you need to satisfy all elements listed or just one?” To which the Court responded, “Any single element set forth ... is sufficient.” Because this is clearly wrong, since the instruction requires the satisfaction of two different elements beyond a reasonable doubt, trial counsel was ineffective by failing to raise this issue in his appellate brief.[ 2]
2. At trial, counsel objected to the section under which Petitioner was sentenced, UTAH CODE ANN. § 76-3-203.1 (1953, as amended). The Supreme Court of Utah ... held that trial counsel, although challenging the constitutionality of the statute, had failed to properly preserve the issue because his objection was general rather than specific. Again, this clearly constituted ineffectiveness on counsel’s part, which was not raised on appeal by appellate counsel.
3. Petitioner claims that trial counsel failed to properly investigate this matter. Petitioner submits that no investigator was ever retained in this matter and that trial counsel ignored Petitioner’s requests to investigate the possible evidence relating to *992Tony DeHerrera, who Petitioner claims committed the homicide. Mr. DeHerrera was never interviewed and was not contacted concerning this case. In addition, there is at least one witness that Petitioner is aware of who had evidence concerning Mr. DeHerrera’s involvement in the homicide. Trial counsel ignored that information. Petitioner requests this Court order an evidentiary hearing be held on this matter in order to make a record as to the lack of investigation pursuant to State v. Templin, 805 P.2d 182 (Utah 1990).
I submit that these three claims are sufficient on their face, at least with respect to their allegations of prejudice. The first allegation clearly asserts that the judge gave incorrect information to the jury on the required elements of the crime. The prejudice alleged is self-evident. Specifically, he alleges the possibility that the jury convicted without finding that all the necessary elements were satisfied. In fact, it is difficult to understand what more Alvarez could state which would make this more clear unless talismanic significance is accorded to the word “prejudice.”
The second allegation states that counsel failed to preserve with adequate specificity Alvarez’s objection to the gang sentencing enhancement statute. Again, the prejudice alleged is self-evident. If counsel had preserved the objection, this Court could have treated the issue on the merits, and if the statute were found unconstitutional, Alvarez’s sentence under that statute would necessarily be vacated.
The third allegation states that trial counsel failed to properly investigate the matter, and specifically refers to another person, Tony DeHerrera, who petitioner claims actually committed the homicide. Although the petition might have been more specific about the general nature of the asserted exculpatory evidence relating to DeHerrera, I cannot agree that this renders the allegation insufficient for failure to allege prejudice.
The habeas court held that Alvarez’s claim of failure to investigate exculpatory evidence did not demonstrate prejudice because under the undisputed facts, he was at least an accomplice to the murders, even if he did not personally wield the knife which killed either Don or Shayne Newingham.3 Alvarez was convicted of first degree murder under a definition of that crime which required the jury to find that he had caused the death of Don Newingham “incident to one ... criminal episode during which two or more persons were killed.” Evidence showing that another person killed Don Newingham would be directly relevant to proof of an essential element of the crime.
Absent that element, Alvarez likely would not have been convicted of the same degree of crime under the aiding and abetting instruction. Alvarez was involved in a melee in which both Don and Shayne Newingham were killed. The jury convicted Alvarez of first degree murder in the killing of Don Newingham but acquitted him with respect to Shayne Newingham. The jury almost certainly based its verdict on a conclusion that Alvarez stabbed Don but that there was insufficient evidence to show that he stabbed Shayne. In light of the jury’s demonstrated concern that Alvarez be personally responsible for killing, it is untenable to assert that had the jury been convinced Alvarez did not stab Don or Shayne, it would have nevertheless convicted him of the same degree of crime under the aiding and abetting instruction given by the trial court.
. Alvarez also alleged a fourth claim relating to trial counsel's failure to preserve the identities of peremptorily struck Hispanic jurors but withdrew that claim during habeas proceedings before the district court.
. The reference to counsel’s failure on appeal could bear some clarification. In the first place, Alvarez had a different attorney on appeal. Second, Alvarez did in fact raise the issue of the impropriety of the court's response to the jury's question on direct appeal, and we ruled that he had waived it at trial. See Alvarez, 872 P.2d 450, 460 (Utah 1994). Therefore, the reference to ineffectiveness on direct appeal presumably refers to Alvarez's appellate counsel's purported failure to raise a plain error argument.
. The State, in defending this argument, refers to dicta in Codianna v. Morris, 660 P.2d 1101 (Utah 1983), which stated that a proper aiding and abetting instruction demonstrated that the defendant could have been convicted of murder even if he did not commit the actual killings. I do not agree that such speculation, by itself, can justify the rejection of a claim of ineffective assistance of counsel. How can it be said that no prejudice has been alleged if a different verdict could have, and likely would have, resulted if a jury had heard and accepted exculpatory evidence?