concurring in results:
Because I cannot agree with the analysis dealing with ineffective assistance of appellate counsel, I must concur in result.
I think everyone on the Court can agree that the revised death post-conviction statute could have been better written: the language is vague at best and utterly confusing at worst. Nowhere is this more evident than the language in section 1089(D)(4)(b)(2), dealing with ineffective assistance of counsel. Based on this language, my colleague’s interpretation is one possible interpretation. However, I do not think this interpretation is defensible, any more than I believe the Legislature by using such imprecise language intended to change the way this Court has long looked at a claim dealing with ineffective assistance of counsel. As I shall point out below, the interpretation used in the order creates a standard which is more lenient, not stricter, than the interpretation this Court uses on direct appeal.
I.
As I understand Judge Chapel’s Order, it effectively overturns the test this Court has used for ineffective assistance of counsel. The opinion would abandon the traditional Strickland1 test in favor of a “three-pronged” test set forth on pages 6-7 of the opinion. Specifically, this Court will ask (1) whether counsel actually committed the act which gives rise to the allegation of ineffectiveness; (2) if yes, whether such performance was deficient under the first prong of the Strickland test; (3) if yes, whether the claim meets the second requirement for review under the new Act, i.e., “that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent.”
A.
Let us initially deal with the first prong, whether counsel actually committed the act which gives rise to the allegation of ineffectiveness. Since in virtually all cases, the allegation is that appellate counsel failed to present a claim in the direct appeal, the first prong is virtually always going to be met, as that omission will be readily apparent from the record. A requirement which fails to differentiate one case from another is, at best, a requirement with no teeth; at worst, it is no requirement at all.
Since, in virtually every case, a petitioner can easily clear this first hurdle, we are left with the other two prongs: whether such performance was deficient under the first prong of the Strickland test; and whether the outcome of the trial would have been different but for the errors or that the defendant is factually innocent. The order takes language from Strickland in support of the deficient-performance prong; however, in doing so, it uses the “pick-and-choose” method to find language which supports its position.
B.
The analysis of ineffective assistance of counsel must begin with the reasons an effective counsel is necessary. That much is clear: “[i]n giving meaning to the requirement [for effective assistance of counsel], however, we must take its purpose — to ensure a fair trial — as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. In *342making that assessment, both prongs of the Strickland test must be met.2
[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.... The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.
Id. at 690, 104 S.Ct. at 2066 (emphasis added). If this were not clear enough, the Court added that “[t]he purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” Id. at 691-92, 104 S.Ct. at 2067 (emphasis added).
I see no way to read this other than that a petitioner must show not only deficient performance, but also must show prejudice. The premise of Strickland is based on a petitioner’s showing two requirements. The language describing one is supported by the language describing the other. One cannot separate the two parts and expect either one to function properly alone. The language in 22 O.S.Supp.1995, § 1089(D)(4)(b)(2), i.e. “the performance of appellate counsel constitutes the denial of reasonable, competent assistance of appellate counsel under prevailing professional norms”, is in effect a generalized statement of the Strickland two-prong test. This language dictates both prongs of the Strickland test must be used.
Granted, the order here requires some kind of a “prejudice” prong. Specifically, the second prong would be met if a petitioner can show “either that the outcome of the trial could have been different but for the errors or that the defendant is factually innocent.” Order at 9 n. 23. As shown below, the “prejudice” prong in Strickland requires more.
C.
Strickland is very specific on the point there must be more than a look at whether the outcome would have been different.
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test [citation], and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. Respondent suggests requiring a showing that the errors “impaired the presentation of the defense.” Brief for Respondent 58. That standard, however, provides no workable principle. Since any error, if it is indeed an error, “impairs” the presentation of the defense, the proposed standard is inadequate because it provides no way of deciding what impairments are sufficiently serious to warrant setting aside the outcome of the proceeding.
Strickland, 466 U.S. at 693,104 S.Ct. at 2068.
Granted, in many, if not most, cases, this requirement will be met if a petitioner can show there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. But as Strickland and other Supreme Court cases stress, this is not a pure outcome-determinative test. Indeed, in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), the Court declined to grant relief even thought the outcome might have changed because to do so might have “grant[ed] the defendant a windfall to which the law does not entitle him.” Id. at 370,113 *343S.Ct. at 843. This is so because “[t]he touchstone of an ineffective assistance claim is the fairness of the adversary proceeding, and ‘in judging prejudice and the likelihood of a different outcome, ‘[a] defendant has no entitlement to the luck of a lawless decisionmaker.’” Id. at 370, 113 S.Ct. at 843 (quoting Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998, 89 L.Ed.2d 123 (1986)).
In short, the “prejudice” prong focuses not on whether the outcome of the trial would have been different, but rather “on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Id. at 372,113 S.Ct. at 844 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). See also United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984) (“the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.”).
II.
My concern about this Court’s abandoning Strickland’s second prong is more than a rigid adherence to past easelaw. I have shown above that the first of the three requirements enunciated in the Order is really no requirement at all. I have also shown that the “prejudice” prong enunciated in the Order is not as demanding as the “prejudice” test we use on direct appeal. The net result is a test for ineffective assistance of counsel which is actually more lenient for post-conviction than it is for direct appeal. The Order takes great pains at the beginning to “reemphasize the narrow scope of review available on collateral appeal,” supra at page 2, and to point out “the legislature’s intent to honor and preserve the legal principle of finality of judgment,” adding that this Court “will narrowly construe these amendments to effectuate that intent.” Order at page 4. If this new test for ineffective assistance of counsel is implemented, these quotes become mere empty platitudes.
In making these statements, I am not necessarily criticizing the way the Order purports to interpret the first prong of the Strickland test. It is appropriate to apply the first prong first, for that way there is no need to analyze under the “prejudice” prong the underlying omitted claim which forms the basis for the ineffective assistance of counsel complaint if deficient performance is not proven. The method by which we analyzed ineffective assistance of appellate counsel claims before was indeed frustrating. But to throw out a substantial portion of our previous ineffective assistance of counsel analysis simply because we did not think of applying the first prong first is to throw the baby out with the bathwater. And it will lead to results which are equally frustrating. Post-conviction counsel are creative lawyers. Just as they found a way to force this Court to “analyze” a substantive claim under the guise of ineffective assistance of appellate counsel, so here will they figure out a way to present sufficient evidence in support of their claim to necessitate a remand for an evidentiary hearing and possible relief.3
Everyone has a bad day once in awhile. The Legislature certainly had one when they adopted some of the language contained in this statute. This Court has attempted to give reason to the syntax set forth in the statute as that language is strictly construed on its face. But there is no reason to compound one bad day in the Legislature'with *344another bad one in this Court. I fear we are doing exactly that with this interpretation.
Accordingly, I can only concur in result.
. Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
. The importance of the second prong is discussed below. See also Lockhart v. Fretwell, 506 U.S. 364, 368-69, 113 S.Ct. 838, 842, 122 L.Ed.2d 180, 189 (1993) (FN 2 ... “And under Strickland v. Washington (cites omitted), an error of constitutional magnitude occurs in the Sixth Amendment context only if the defendant demonstrates (1) deficient performance and (2) prejudice.”) (emphasis added).
. As the issue was determined without need for elucidation, the Order does not discuss the standard by which we judge documents submitted in support of the post-conviction relief application. In fairness to litigants before this Court, I set out the method I use to determine whether affidavits or other materials submitted in support of an application meet the required burden of proof for further examination. I believe the appropriate vehicle is 22 O.S.Supp.1996, Ch. 18, App. Rules of the Court of Criminal Appeals, Rule 9.7. The documents presented in support of a claim must relate to issues not procedurally barred from review in post-conviction review and show this Court by clear and convincing evidence that the materials sought to be introduced have or are likely to have support in law and fact to be relevant to an allegation raised in the application for post-conviction relief. Rule 9.7(D)(5). If we find the documents meet these requirements, we will remand for an evidentiary hearing at which appropriate evidence can be presented.