concurring:
I join Judge McConnell’s opinion except for Part III. As for Part III, I join only Part III(C) and concur in the result. I agree that we must remand for further proceedings on Mr. Wilson’s claim that he received ineffective assistance of counsel with respect to the investigation and presentation of Mr. Wilson’s mental condition
Judge Tymkovich raises important questions regarding Mr. Wilson’s claim of ineffective assistance with respect to mitigation. I share many of his thoughts regarding the perils of putting on mental-health evidence and the need to give substantial deference to trial counsel’s decisions on what sort of mitigating case to present to the jury. I also am troubled by the omissions in Dr. Reynolds’s affidavit of any mention of what he told counsel and how counsel responded. After all, ineffectiveness of counsel must be determined by what the attorney knew when he made a decision, not by what may have been in Dr. Reynolds’s mind.
Nevertheless, in light of the procedural posture of this case, I think that we must remand for an evidentiary hearing on this matter. Mr. Wilson was not required to prove ineffectiveness of counsel to be entitled to an evidentiary hearing. Under the law as I understand it, he needed only to make allegations in his application under *112428 U.S.C. § 2254 that, if true, would sustain a claim for habeas relief. This he has done.
To begin with, as Judge McConnell explains in Part III(C) of his opinion, we must review de novo Mr. Wilson’s claim of ineffectiveness with respect to the investigation and presentation of mitigating mental-health evidence. We then apply the pre-AEDPA standard for granting an evi-dentiary hearing on this claim. “[T]o be entitled to an evidentiary hearing, a petitioner [must] make allegations which, if proved, would entitle him to relief.” Miller, 161 F.3d at 1252 (internal quotation marks omitted). Of course, those allegations must be “viewed against the record,” and no evidentiary hearing is necessary if the allegations are “palpably incredible ... or patently frivolous or false.” Blackledge v. Allison, 431 U.S. 63, 76, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (internal quotation marks omitted) (deciding right to eviden-tiary hearing in case under 28 U.S.C. § 2255); see Schriro v. Landrigan, — - U.S.-,-, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007). Aso, the State can foreclose such a hearing if it submits un-contradicted evidence establishing that the applicant is not entitled to relief. See Blackledge, 431 U.S. at 80-81, 97 S.Ct. 1621; see also Rules Governing Section 2254 Cases, Rule 8 (evidentiary hearing), Rule 11 (applicability of federal rules of civil procedure).
The critical allegation in Mr. Wilson’s § 2254 application is that defense counsel conducted a deficient investigation of Mr. Wilson’s mental condition and did not make an informed and competent strategic decision not to conduct a thorough investigation. The investigation was deficient because, according to Mr. Wilson, his counsel waited until the last minute to conduct an investigation, rushed Dr. Reynolds so that he could not conduct adequate testing and obtain necessary background information, and failed to have family members interviewed about Mr. Wilson’s mental health. As a result, alleges Mr. Wilson, defense counsel did not learn the full extent of Mr. Wilson’s mental illness, including his paranoid schizophrenia and delusions, and did not make an informed decision to refrain from presenting such evidence to the jury. The alleged prejudice to Mr. Wilson is that competent counsel would have presented the full picture to the jury at the penalty stage of trial and at least one juror would have refused to impose the death penalty.
In my view, the allegations of Mr. Wilson’s § 2254 application would, if proved, entitle him to relief. Under the two prongs of the Strickland test for ineffective assistance of counsel, he has alleged that his counsel’s performance was constitutionally deficient and that he was prejudiced thereby. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The record does not undermine the claim of deficient performance, and the State has not presented any additional evidence (such as testimony regarding what defense counsel knew and thought) to rebut the claim. Perhaps the record undermines the claim of prejudice, but that issue was not addressed by the district court and should not be resolved in the first instance by this court.
As Judge Tymkovich points out in dissent, Mr. Wilson’s claim is not totally convincing. In particular, defense counsel — in light of the evidence of guilt, particularly the video recording of Mr. Wilson’s conduct during the crime — may have decided that a claim of mental illness would not get very far with the jury or would even be counterproductive, so further investigation of the claim (after receiving Dr. Reynolds’s initial report) would be a wasted effort. But the record does not reveal such a decision by counsel. Moreover, Judge McConnell’s opinion establishes that the *1125Supreme Court has set a high standard for defense counsel in capital cases with respect to investigating mitigation thoroughly before settling on a strategy. There may have been sound reasons for defense counsel to proceed as he did, but in the absence of evidence of what he knew and why he chose the strategy he pursued, I cannot say that it is implausible to claim that defense counsel’s investigation was inadequate and that the results of a proper investigation would have caused constitutionally effective counsel to adopt a different strategy at the trial’s penalty phase. See Bell Atlantic Corp. v. Twombly, — U.S.-, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (allegations of complaint must be plausible to avoid dismissal for failure to state a claim). I should add that the affidavits submitted by Mr. Wilson are, at least in part, a red herring. To be entitled to an evidentiary hearing, he was not required to prove his claim of ineffective assistance. Therefore, it is not our role to consider whether there are gaps in the evidence that he has presented to support his allegations. If the State decides to present counteraffidavits and seek a “summary judgment” that would foreclose an evidentiary hearing, see Blackledge, 431 U.S. at 80-81, 97 S.Ct. 1621, Mr. Wilson’s affidavits would become significant. But we are not there yet.