In this habeas corpus, death penalty appeal, we must determine whether an attorney who provided no defense at the guilt or penalty phase was ineffective in defending a young drug dealer, who was an alcohol and drug abuser. When relief was denied in district court, the petitioner appealed on the bases of ineffective assistance of counsel at the guilt and penalty phases as well as conflict of interests with counsel. While we AFFIRM denial of habeas relief as to the conviction, we VACATE the denial of habeas relief as to the death sentence and REMAND to the district court for an evidentiary hearing to determine if petitioner is entitled to habeas relief because of ineffective assistance of counsel at the sentencing phase.

During the long Christmas weekend in 1984, petitioner-appellant, John Gary Hardwick, Jr., and various friends consistently consumed alcohol and quaaludes and smoked marijuana.1 Hardwick, who was unemployed but a drug dealer and user, and his wife, Darlene, who was fifteen and seven months pregnant at the time, had moved into the apartment of Dan Dimaggio in Jacksonville, Florida, two weeks before Christmas.2 Most of the young men in the neighborhood that Hardwick had met were teenagers and either involved in drug trade or were drug purchasers/consumers. Hardwick's brother acknowledged that Hardwick "has always done a lot of drugs and drank a great deal" and that, in the latter months of 1984, he "was doing even more than usual" such that "[h]e would be so high that he wouldn't know whether he was coming or going and all of his friends were druggies."3

Connie Wright, a friend of Hardwick's wife and daily visitor, stated:

From the first time I met John [November or December, 1984] he was doing drugs and selling drugs, including quaaludes and pot. He was messed up almost all the time; he was only straight in the morning when he got up. He took so many drugs that he would pop pills in his mouth and swallow them without drinking water. It seemed like he had problems and he took the drugs to get rid of his problems.4

Jeff Bartley, a neighborhood friend, described Hardwick's drug and alcohol consumption the weekend before Christmas:

The weekend before Hardwick was arrested for murder, Pete McCoy [Hardwick's brother-in-law], Hardwick and myself part[i]ed together. Friday night we bought three fifths of vodka. Hardwick had a bunch of quaaludes and quite a bit of pot. All weekend we were drinking and smoking. Hardwick was eating quaaludes all weekend. It was not unusual for Hardwick to be high.5

Michael Hyzer, a neighbor formerly convicted of possession of marijuana, testified at trial that, on Saturday, December 22nd, Hardwick came to his house at 10:00 A.M. and asked if Hyzer knew where he could get some marijuana to sell to make money.6 When Hyzer told Hardwick that he did not know where he could get marijuana, Hardwick left and returned within an hour and asked to use Hyzer's telephone. Telling Hyzer that he was going to buy quaaludes, Hardwick left Hyzer's house and returned at 3:00 P.M. with 100 quaaludes.7 He sold Hyzer twenty-five for $70.8 That Saturday night before Christmas, Hardwick and others attended a party at Hyzer's house, where quaaludes and alcohol were consumed.

On Sunday morning, December 23rd, Dimaggio was awakened at 10:00 or 11:00 A.M. by Hardwick's "running around the house looking for his ... Quaaludes and his money."9 Subsequently, Hardwick told Dimaggio "that he would take care of the mother fucker that took his Quaaludes," and "he accused a couple of people," including Keith Pullum, who sold marijuana for Hardwick.10 Dimaggio testified that Hardwick told him that he would use his .357 Magnum to "stop" whoever took his quaaludes.11 Darlene Hardwick related that, "when she got up Sunday [Hardwick] was still drunk and doing Quaaludes."12

In the early afternoon that Sunday, Connie Wright testified that she went to see Darlene Hardwick and found Hardwick lying on the floor and that "[h]e looked pretty intoxicated to [her]."13 At approximately 3:00 P.M., Hardwick went to his mother, Nell Lawrence's trailer home in Jacksonville. At the 3.850 proceeding, she testified:

[H]e was just totally out of his mind. He couldn't walk. He was stumbling. His words were slurred. You couldn't understand him, and my husband was at home and I had asked [Hardwick] to leave in that condition so that my husband wouldn't ask him to leave.

. . . .

It was around 3:00 o'clock, and he was — his words were so slurred you really [could] not understand either what he was saying but he was trying to tell me that he had come to wish me a merry Christmas.

. . . .

I had just told him — he knew that I didn't want any arguments or anything. Of course Johnny never argued with my husband but I always asked him not to, and I had asked him to — if he would leave ... before Allen came out and ... said something to him, and he said, yeah, ... and he stumbled on out the driveway.14

Thereafter, Darlene Hardwick saw Hardwick take eight to ten quaaludes between 3:00 and 6:00 P.M. on that Sunday afternoon.15

Regarding Hardwick's condition on that Sunday night, Connie Wright averred: "I saw John a few hours before Keith Pull[u]m was killed, somewhere around 8:00 p.m. I saw him eat some quaaludes. He was really high, even before he ate the quaaludes."16 At the 3.850 proceeding, Wright testified concerning the effects of Hardwick's taking the quaaludes: "He was acting real weird. He was laying on the floor and sweating and walking and pacing around."17 She also witnessed an argument between Hardwick and his wife "[o]ver him taking too many quaaludes"; there was no doubt in her mind that Hardwick "was high."18

In the early evening, Jeff Showalter came over, listened to the radio, and watched television with Hardwick's wife. At approximately 7:00 P.M., Hardwick, Jeff Bartley, and Keith Pullum arrived with 160 quaaludes.19 Showalter left between 10:00 and 10:30 P.M. and rode his bicycle home, which was five minutes away.20 Showalter's father went to bed, and Showalter lay down on the couch in the front room of the house to watch television. Between 10:30 and 11:00 P.M., Showalter heard his dog barking, looked out the window, and saw Pullum at the gate and Hardwick's car parked on the other side of the street.21

Showalter went outside, where Pullum informed him that Hardwick wanted to talk to him to ask if he had seen Hardwick's quaaludes. Showalter went over to Hardwick's car; Hardwick, accompanied by Jeff Bartley, told him that his quaaludes were missing and that Showalter and Pullum were his two suspects. Hardwick, who was driving, Bartley, and Pullum drove away, and Showalter went back inside and lay on the couch.

Between 11:00 and 11:30 P.M., Showalter heard his dog bark again, and, when he went outside, saw only Pullum, who said that he was going home to eat and then return to Hardwick's.22 Pullum said that Hardwick "was driving around mad looking for his Quaaludes."23 Showalter went inside his home. Between 11:30 P.M. and midnight, Hardwick, Bartley, and Pullum returned a third time, and Pullum informed Showalter that Hardwick, who was driving, wanted to talk to him.24 When Showalter walked over to Hardwick's window, he cocked and aimed his .357 Magnum at Showalter and accused him of stealing his quaaludes, which Showalter denied. Hardwick threatened that, if he did not have his quaaludes in an hour, then he would kill either Showalter or Pullum.25 When Showalter offered to help Hardwick look for the quaaludes in the morning, Hardwick informed Showalter that he wanted him at his house in an hour, and Hardwick and Bartley, who had a .22 automatic rifle, drove away.26 Hardwick was driving "pretty slow."27

Showalter urged Pullum to go into his house, talk to his father, and call the police. Asserting that Hardwick and Bartley would not "`mess'" with him, Pullum started walking toward his house down the same road on which Hardwick and Bartley had driven away.28 As he watched, Showalter saw the car in which Hardwick and Bartley were riding stop, turn around, go back to where Pullum was walking, and stop beside Pullum, but he neither saw Pullum get into the car nor the interior light illuminate.29 Showalter ran into his house, looked out the window, and saw the car drive in front of his house. He could not see who was inside Hardwick's car because it was "too dark."30

The description of the events that transpired after Hardwick, Bartley, and Pullum drove away from Showalter's house occurs in Dr. Clifford A. Levin's testimony at the 3.850 proceeding and his report. Dr. Levin not only interviewed Hardwick, but also he reviewed the pretrial depositions, the trial testimony, and the affidavits of the witnesses and found internal consistency. While Hardwick told Dr. Levin that he had killed Pullum, he described his state of mind at the time of the homicide "as foggy, implying that he didn't have complete knowledge of all the details that took place."31 Dr. Levin related Hardwick's description to him of how the murder evolved from his notes from his interview with Hardwick:32

Mr. Hardwick reported that he was with the victim after driving the victim to a secluded area for the purpose of holding the victim ransom to obtain his — return of his drugs, quaaludes, and he alternately said that he took the victim as a way to influence him to return his drugs. He stated that he became angered when the victim would not return the drugs....

. . . .

He reported that he became very angered at the victim's denial that he had the stolen drugs, and he reported reacting to the victim in anger and shooting the victim twice with his head turned so he could not see the victim get shot.

. . . .

He said that he was having difficulty focusing on what he was doing. He described himself as intoxicated, and he described himself as confused and unable to clearly think out what he was doing. That was a verbal report.

He reported that he felt that after shooting the victim he felt sorry for him and he thought about ... aiding the person in getting hospitalized and help and also reported checking with a person who was with him, who he did not state who it was, for assistance on what he should do and he was — he reported that he was advised to go ahead and kill the person.

. . . .

He reported that he was confused as to what he should do at that point, was wondering if he should take the victim to the hospital and conferred with apparently someone who was there with him who encouraged him to in quotes finish the job.

. . . .

At that point, [Hardwick commenced his attempts to kill Pullum.]

. . . .

Tried to stab him with a crowbar was the next thing. Was unsuccessful. Was unable to stab him with a crowbar. Got a knife. Stabbed him twice. The victim passed out, put him in the truck, drove him to the river[, thinking that Pullum was dead].

. . . .

He thought he was dead and he was going to put him in the river.

. . . .

He also characterized his thinking at the time saying he wasn't sure what he was doing — he wasn't sure exactly what he should do, statements to that effect and talked about stumbling, talked about being unclear and took a while to get out the information. He was not sure exactly the sequence of events. He was trying to reconstruct that.

. . . .

He did not seem to be holding back information in the sense of I am not going to tell you that I killed this guy or I am not going to tell you the gory details. He seemed to be struggling with what exactly my thoughts were and what exactly was the sequence of events, and that was of concern to me in terms of it seemed to give credence to this was not a clear-thinking individual and not a clear memory of the events that transpired.

. . . .

He put him in the water. He thought he was dead. The victim got up, stood up and ... he stated that he went back down to the victim....

. . . .

And hit him on the head with a car jack and held him under water until the air bubbles were gone.

. . . .

He said he went back home is the information I got and started crying and a friend calmed him down. 33

At trial, a resident in the Haulover Creek area testified that she heard two shots between 6:00 and 6:30 A.M. on Christmas Eve, December 24th.34 At 9:40 that morning, a man fishing from a dock at the point where Haulover Creek empties into the St. Johns River discovered a body floating in the water and called the police and rescue unit.35 The medical examiner, who performed the autopsy on Pullum on Christmas Day, testified that Pullum's body evidenced head injuries as well as knife and gunshot wounds; he fixed the time of death as being between 5:40 A.M. and 7:40 A.M.36

On Christmas Eve morning, approximately 10:00 or 11:00 A.M., Dave Tanner and William Bavar, walking down a road, encountered Hardwick, who also was walking.37 Hardwick told them that two people had stolen his quaaludes, that he had taken care of one and fed him to the sharks, and that he was looking for the other.38 At his deposition, Tanner described Hardwick as being "half wiped out," which he clarified as meaning almost "passed out."39 He also testified that Hardwick was intoxicated, upset over his missing quaaludes, and "[l]ook[ed] like he had been out partying all night" and "smoking a little pot that night."40 Tanner further noticed that Hardwick had a pistol in his pants.41

Between 10:00 A.M. and noon on Christmas Eve, Connie Wright went to the apartment where Hardwick and his wife were staying. She testified: "Darlene was yelling at Johnny. She was really very mad because he didn't come in the whole night before and they didn't get to go where they wanted to go."42 At the 3.850 proceeding, Wright testified that Hardwick's clothes were dirty, he looked like he had been up for days, and "he was just real high."43 Her affidavit details Hardwick's demeanor:

The next day, the day before Christmas, 1984, John and Jeff [Bartley] were acting weird. I knew that they had been messed up on drugs for days. They were dirty, their clothes were messy and they looked like they had been up for days. John looked worse than usual. He kept walking down the road and coming back. He would lay on the floor a few minutes and then get up and pace. He didn't say much but when he did talk he didn't make any sense. He was shaking, sweating a lot and his moods kept changing quickly.44

Wright also testified that she saw Hardwick take ten quaaludes that day.45 Wright reaffirmed her deposition testimony that, on Christmas Eve afternoon, Hardwick said that he had taken care of "the mother fucker that stole his drugs, and if Keith Pullum walked in the door he would believe in ghosts."46 Hardwick's mother averred that, when he called her on Christmas Eve, "his speech was still slurred and he was not making sense."47 Additionally, on Christmas Eve, Hardwick robbed a Marine.48

Between 10:00 P.M. and midnight on Monday, Christmas Eve night, Joseph Delgross was going home in his pickup truck, when Hardwick came out on the road and waved to him to stop.49 Hardwick asked Delgross if he had heard that 150 of Hardwick's quaaludes had been stolen. Learning that Delgross did not know about the theft, Hardwick told him that the quaaludes were stolen by two people, that he had taken "care of one of them and fed him to the sharks and he was looking for the other."50

At approximately 2:30 A.M. Christmas morning, Michael Marchbanks was walking along a road when Hardwick drove by in his car, and Marchbanks asked for a ride home.51 On the way home, Hardwick said "that he had been ripped off" and that he had taken "care of one guy and he was looking for another guy."52 At 8:00 A.M. Christmas morning, Michael Hyzer and his family were opening Christmas gifts when he heard his dogs bark.53 Hyzer looked out his window and saw Hardwick walking toward his driveway; he met him at the road. Hardwick wanted Hyzer to assist him in getting his stuck truck out of the woods. When Hyzer told Hardwick that he could not help him, Hardwick said that Pullum had stolen some quaaludes and that he had shot, stabbed, and thrown him into the jetties for the sharks.54 Although Hardwick told Hyzer that "we took care of him," he did not disclose the identity of the other person.55 After sending Hardwick to his neighbor to assist with the car, Hyzer called the police homicide division and talked with Detectives Pruett and Kesinger. He also agreed to go to the morgue that Christmas morning to identify Pullum.56

Christmas afternoon, police officers arrived in the neighborhood to search for Hardwick. The neighborhood residents joined in the search and one located Hardwick in the woods and detained him until the police arrived.57 In performing a body search of Hardwick, the arresting officer recovered a knife that did not show blood or any other bodily fluid.58 A .22 revolver also was located in the palmetto bushes, but Hardwick's .357 Magnum was never located.59

At 5:30 P.M. on Christmas day, Detectives Robinson, Hill, and Officer Register photographed Hardwick as part of the booking process.60 Hardwick asked three times "what was happening," and Detective Robinson told him to be quiet and that the pictures and other vital information would only take a few moments.61 At the third inquiry, Officer Register told Hardwick that officers from homicide would talk with him, whereupon Hardwick, who had not yet received his Miranda rights, voluntarily stated: "[A] man can't go around robbing dope dealers and not expect to get killed. He kept doing that and he got what was coming to him."62 Detective Robinson wrote down Hardwick's statement, which became a state exhibit at trial. While Detective Robinson testified that Hardwick appeared "disheveled," no sobriety test was conducted.63 Both he and Detective Hill testified that Hardwick did not seem to be intoxicated or under the influence of drugs and that he was "rational," "calm," and "coherent."64

At 5:40 P.M. on that Christmas day, Detective Kesinger of the Homicide Division interviewed Hardwick, who was not represented by counsel.65 Detective Kesinger testified that he did not record Hardwick's statements or have a court reporter present to transcribe them; he relied on his memory and the "notes on the back of the constitutional waiver form" that he made.66 He advised Hardwick that he had been arrested for the murder of Keith Randall Pullum and read him his constitutional rights for the first time.67 Detective Kesinger then proceeded with the interview whereupon Hardwick "made a spontaneous statement. He out of the blue said I'm missing some Quaaludes, but it's not a big deal."68 Detective Kesinger testified at trial that he did not ask Hardwick anything about quaaludes.69 Shortly after the termination of the interview, Detective Kesinger testified that Hardwick became incoherent and aggressive:

That was about 15 minutes after the interview had ended and we had him in the room, and the only thing I can think of is he apparently had been in possession of some drugs and had ingested them at some point and totally went out of it and started kicking the door, kicking the walls inside. I opened the door. He attempted to kick me. I grabbed him by the throat and tried to go to the wall with him to pin him against the wall, but there was a chair and we went over the chair. He was completely incoherent after that. We had to physically carry him from the building.

I saw him later that night once I got the search warrant and he didn't know where he was, who I was. I read it. They had him in a strip cell. Totally incoherent.70

After his arrest, Hardwick called his mother and asked her to retrieve some of his possessions from Dimaggio's apartment.71 She and her son Jeff went to Dimaggio's apartment and found a number of passed-out individuals from the partying that had involved drugs and alcohol.72 Jeff Hardwick described the scene similarly: "After Johnny's arrest, I went with mother to where Johnny lived, to get his belongings. The place was a wreck, with beer bottles all over and everyone passed out. It was hard to even wake someone up."73

During the day on December 26th, Mary Braddy, who then was employed by the Sheriff's Office as a chaplain's assistant, visited Hardwick.74 She found him "not responsive at all when spoken to," apparently unaware of her presence, and "his eyes were very glassy and glazed," and "never seemed to focus."75 Braddy clarified that her affidavit description of Hardwick looking "as if he had been on a binge" meant "an alcoholic that would come in the back door that hadn't slept or eaten in a week and had just been drinking or doing drugs and [had] not bother[ed] to take care of [himself]."76 In subsequent conversations, Hardwick, Jeff Bartley, and Jasper Davis, who also had been arrested for his participation in the homicide, consistently related to Braddy that "there had been a lot of drinking and drugs through their partying over the weekend," and she specifically remembered Hardwick's "talking about quaaludes."77

Braddy, who had worked as a booking officer, testified that Hardwick's booking document was dated December 25th at 6:35 P.M., but that it was not processed until December 26th.78 That document showed "unable" on the line for Hardwick's signature, which Braddy explained to mean that the inmate was "physically unable" to sign, which included intoxication, as opposed to refusal to sign.79 In her affidavit, Braddy noted that Hardwick's intoxicated state should have been mentioned by the arresting officers: "It would be hard to believe arresting officers didn't report that Mr. Hardwick was intoxicated when he was brought to jail. Mr. Hardwick definitely appeared to be under the influence of drugs when he was brought in. Mr. Hardwick was not even coherent when I saw him [the day after his arrest]."80

On December 27th, Detective Kesinger and a patrolman went to a fire pit on Alvin Road, where Hardwick shot bullets from his .357 Magnum into concrete blocks.81 The officers collected copper jackets, shell casings, and lead fragments.82 These items were sent to the Florida Department of Law Enforcement and then to the FBI laboratory in Washington, D.C., where they ultimately were found to match the.357 casings found in Hardwick's car and the bullet in Pullum's body.83

Hardwick was indicted for first-degree murder and pled not guilty. In response to discovery, his court-appointed attorney, Frank Tassone,84 filed a list of fifty-two witnesses that Hardwick "expect[ed] to call as witnesses at the trial."85 Although he took the depositions of the majority of the prospective witnesses, most of whom were involved in the law enforcement investigation of the murder, Tassone called none of them at trial.86

On February 13, 1986, Tassone moved to withdraw as Hardwick's counsel or, alternatively, to appoint Hardwick as co-counsel so that he could participate in his defense.87 The impetus for this motion was because Hardwick had informed Tassone that he wanted to represent himself but that he wanted Tassone's advice and needed him to perform other tasks, such as taking depositions and having subpoenas issued.88 The trial judge conducted a hearing on this motion on February 25, 1986. At this hearing, Hardwick explained his reasons for wanting another attorney appointed to represent him, which he also stated in a handwritten motion that the judge made part of the record:

Counsel has repeatedly told me I should plead guilty to first degree murder for life with a mandatory 25 years.

He has refused to subpoena people I want subpoenaed to trial for witnesses, and to get addresses.

I told counsel I wanted motions filed so I could be present during depositions that were never filed.

I also don't have any confidence he will fight the case for me, because he has already told me several things that are not true.

I know more about [the] case than he does, and I have only saw him twice until I fired him.

I ask the court to appoint me another attorney, because I cannot adequately represent myself.89

Regarding his impasse with Tassone, Hardwick informed the judge that, without dismissal of Tassone, he would be forced to represent himself, which he did not believe that he was qualified to do:

MR. HARDWICK:....

You know, if the Court so forces me to do so I will represent my own self. But it's not my choice I want to represent myself. Because I don't feel I'm adequate to represent my own self in this trial. But if the Court so forces me to do so I will represent myself rather than have Mr. Tassone as my counsel.

THE COURT: Well, the law is pretty clear that you either have the right to represent yourself, if you are qualified, —

MR. HARDWICK: I'm not choosing to represent myself.

THE COURT: — or to have Court-appointed counsel. You are not allowed to fire Court-appointed counsel.

. . . .

I don't hear anything in what you have said that would cause me to think that [Tassone's] handling of the case has not been proper.

MR. HARDWICK: Would you like me to read it again?

THE COURT: No. I heard it.

. . . .

Filing a motion to have you moved all around to attend depositions would have been a waste of his time and mine and yours because I wouldn't grant it.

MR. HARDWICK: Well, Your Honor, I don't feel that that's a waste of time because I know Florida Statutes states it's my right, you know, and — I mean, my life is at stake in this case. I believe I should be able to exercise all my rights. I feel like the reasons I have stated — you know, we have got irreconcilable differences....90

The trial judge denied Tassone's motion to withdraw as counsel91 and proceeded to examine Hardwick as to his competency to conduct his defense. The judge determined that Hardwick was not competent to represent himself, which resulted in Tassone's continuing as his counsel.92 Tassone also asked for clarification of the judge's ruling:

MR. TASSONE: ... I find myself in a quandary. I have received messages, my office has received messages, from Mr. Hardwick that regardless of what the Court's ruling is today that I was fired.

. . . .

I don't want to get into a quandary or a box of being between an order of the Court and the instructions by my client not to proceed further.

. . . .

I don't want to get into the position of perhaps violating any request by my client as opposed to one of the Court, and I would ask the Court to perhaps inquire of Mr. Hardwick as to whether it is his decision that I do or do not perform certain functions on his behalf?

THE COURT: I don't think he can make that decision. He didn't hire you and he can't fire you. .... as long as I have heard his request to have you relieved and to have other counsel and I have denied those. I think at this point that the thing that is binding on you is my order appointing you. Until you are relieved of that order you are to fulfill all the duties as his attorney.93

The testimony and evidence at Hardwick's trial, March 11-13, 1986, focused on identifying Hardwick as the murderer through witnesses and ballistics evidence. At the commencement of the second day of trial, Tassone informed the judge that Hardwick desired to address him. Hardwick again, orally and in handwriting, filed by the court, moved to have Tassone dismissed as his counsel:

1. Mr. Tassone has refused to ask state witnesses who took the witness stand questions I wanted asked about differences in their sworn statements and depositions.

2. He has also refused to call the defense witnesses I want called to the witness stand to tell my side of this case.

3. For this reason Mr. Tassone is incompetent as counsel and he is also in collusion with the state, and trial court has erred by not letting me dismiss Mr. Tassone as counsel on February 25, 1986 and appoint[]ing substitute counsel. This deprives me of my constitutional right to effective assistance of counsel. Because of this I have to ask to represent myself because the court is forcing me to do this.94

In a side-bar conference with Hardwick and counsel, Hardwick reiterated his request for appointment of another counsel, which again was denied.95 While cross examining Detective Kesinger, Tassone introduced his other apparent defense of Hardwick, in addition to sufficiency of the evidence, by asking Detective Kesinger if Mr. Buettner had confessed to killing Pullum. This resulted in a discussion among counsel, and the judge sustaining the state's objection with the ruling that the testimony that Tassone was attempting to place before the jury was hearsay. Later that day, the state rested, and Tassone moved for a directed verdict of acquittal based on the state's failure to prove first-degree murder.96 The judge denied this motion and asked Tassone to call his first witness.

The only witness that Tassone offered was David Buettner on a proffer outside the presence of the jury. Buettner, a Navy seaman, testified to participating in killing, with a Marine and another sailor, an individual in Jacksonville while on limited duty there between December 12, 1984 and August 1, 1985.97 While that victim also was beaten, stabbed, and shot in the same vicinity as Pullum, he was stabbed with a bayonet, not a pocket knife, and shot in the back of the head with a .38 pistol by another sailor with Buettner.98 Moreover, Buettner testified that he was certain that the killing occurred on February 2 or 3, 1985, and that the body was left on the beach by a seaway and not thrown into the river.99 Buettner even testified that aspects of the killing were the result of his "very vivid imagination."100 Notably, "Banana Man" was an individual that Buettner had met and who had told him a story that became part of the story that Buettner told about the murder to his leading petty officer, his immediate supervisor on his ship.101 The judge sustained the state's objection to Buettner's testimony because it was either fabrication or another murder, since the facts were different.102 Tassone then informed the judge that "the Defense will present no witnesses to the jury and will rest."103

While the jury was absent, the judge addressed Hardwick concerning witnesses on his behalf and his not testifying:

THE COURT: ....

Let me make one inquiry of Mr. Hardwick.... I want to state for the record that we are in the part of the trial where you can present evidence. Mr. Tassone has indicated that you do not wish to present any other evidence other than which you have tried to present.

MR. HARDWICK: I would like to present a bunch of evidence, Your Honor.

THE COURT: I understand. I understand there are things that you want to present that he has told you you can't or that he thought you ought not.

MR. HARDWICK: That's correct.

THE COURT: ....

Specifically with regard to you taking the stand, —

MR. HARDWICK: Yes.

THE COURT: — it is my understanding that you and he have discussed that, is that correct; whether or not you should take the stand?

MR. HARDWICK: I'm the defendant. I'm the defendant. I wouldn't.

. . . .

THE COURT: ....

But, for the record, I do understand there are other witnesses and things that you want to call and that Mr. Tassone has advised you not to do that.

MR. HARDWICK: Yes, sir, about 20 of them to be exact.

THE COURT: But none of them are yourself?

MR. HARDWICK: No, sir, none of them are myself.

. . . .

MR. HARDWICK: What I want to know is how Counsel can deny me the right to call witnesses into this trial?

THE COURT: Because your Counsel has to call the witnesses.104

Following the close of the evidence in the case, the judge ordered dinner for the jurors and resumed the trial for closing arguments at 7:30 P.M. on March 12, 1986. A bailiff advised the judge that Hardwick would not leave his cell, and the judge recalled that Hardwick had said that he wanted to make his closing argument.105 The judge, counsel, and court reporter went to Hardwick's cell for the judge to conduct an inquiry as to the voluntariness of Hardwick's absence from closing arguments:

MR. TASSONE: Judge, the Judge, court reporter and [prosecutor] are here.

I have advised Judge Haddock that it was your decision not to come out, and the bailiffs have advised him of the same;

Is that your decision?

MR. HARDWICK: Yes. That's my decision because my witnesses wasn't called and I don't feel that justice is being done and achieved in this trial. This is a mockery of justice.

MR. TASSONE: Okay.

Mr. Hardwick, I was advised by the bailiff — he indicated that — you had advised me of that, but one of the bailiffs indicated to me and to the Court that it was your desire to proceed and do your own closing argument.

MR. HARDWICK: You may as well do it. You done did everything else.

MR. TASSONE: Okay.

THE COURT: Do you understand you have the right to be present during this stage of the trial?

MR. HARDWICK: Yeah. I understand it.

THE COURT: And you are waiving that right?

MR. HARDWICK: I reckon. I don't know. I'm just not coming in there.106

In his closing argument, Tassone argued insufficiency of the circumstantial evidence with no mention of how Hardwick's drugged and intoxicated condition during the subject weekend could have affected his ability to formulate premeditated intent. The prosecutor argued the incriminating testimony and evidence presented through the state's eighteen witnesses and emphasized Hardwick's premeditated murder of Pullum. Following closing arguments, the judge conducted the charge conference with the attorneys late into the night.

The next morning, March 13th, the third and last day of trial, Tassone tendered two jury instructions, the first of which dealt with the effect of drugs and/or alcohol on formulating specific intent.107 The prosecutor objected to this instruction and stated: "I don't recall a scintilla of evidence that this defendant was intoxicated. As a matter of fact, the evidence was quite to the contrary; that he seemed very sober the night of the offense."108 The trial judge agreed: "With regard to number 1, I recall no evidence of intoxication of any sort on the night of the alleged killing. Therefore, I don't think it's an appropriate charge with this evidence. I will deny defendant's requested jury instruction number 1."109 After the instructions and the jury retired to deliberate the verdict, the judge asked counsel if there were any exceptions or objections to the instructions. Tassone stated that the defense had none.110 At 4:05 P.M., the jury signaled that it had a verdict.111 The jury found Hardwick guilty of murder in the first degree; the judge set sentencing for March 27, 1986.112

At sentencing, the judge informed the jurors that it was their duty to render an advisory opinion as to whether Hardwick's punishment for first-degree murder should be death or life imprisonment by evaluating the aggravating and mitigating circumstances.113 The prosecutor presented the judgments and sentences from Hardwick's previous convictions.114 Tassone presented no mitigating evidence.115 Again emphasizing the premeditated and cruel nature of the murder, the prosecutor told the jury that statutory mitigating factors did not exist to counter the aggravating circumstances. For example, the prosecutor stated that "there isn't one shred of evidence that indicates that this defendant was under the influence of any mental or emotional disturbance" and "[t]here is no evidence that the defendant's mind was impaired or that he was out of control."116 Rather than giving the jury any mitigating factors to consider, Tassone's closing and rebuttal arguments reviewed the evidence in keeping with his sufficiency-of-the-evidence defense.117 Having presented no defense for Hardwick and following the state's closing argument graphically describing Pullum's murder, Tassone's last statement to the jury in his rebuttal argument was notable for its lack of foundation: "I think the evidence is clear and the lack of evidence even clearer that John Gary Hardwick is innocent of the crime of first degree murder."118

The judge then instructed the jury that its advisory sentence was to be based on its

determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty and whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist.

Your advisory sentence should be based upon the evidence that you have heard while trying the guilt or innocence of the defendant and evidence that has been presented to you in these proceedings.

. . . .

Each aggravating circumstance must be established beyond a reasonable doubt before it may be considered by you in arriving at your decision.

If one or more aggravating circumstances are established, you should consider all the evidence tending to establish one or more mitigating circumstances, and give that evidence such weight as you feel it should receive in reaching your conclusion as to the sentence that should be imposed.

A mitigating circumstance need not be proved beyond a reasonable doubt by the defendant. If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established.

. . . .

If a majority of the jury determines that [Hardwick] should be sentenced to death, your advisory sentence will be: A majority of the jury, by a vote of blank, you will fill in that blank, advise and recommend to the Court that it impose the death penalty upon [Hardwick].

On the other hand, if by six or more votes the jury determines that [Hardwick] should not be sentenced to death, your advisory sentence will be: The jury advises and recommends to the Court that it impose a sentence of life imprisonment upon [Hardwick] without possibility of parole for 25 years.119

Tassone stated that he had no exceptions or objections to the instructions as given.120 The jury retired to deliberate its advisory recommendation at 3:17 P.M. on March 27, 1986, and returned a verdict at 4:18 P.M. that afternoon "by a vote of 7 to 5" recommending that Hardwick receive the death penalty.121

At sentencing on April 24, 1986, the judge found that five aggravating circumstances existed: (1) three prior, violent felony convictions,122 (2) the capital felony was committed while Hardwick was engaged in a kidnaping, (3) the capital felony was committed for pecuniary gain, (4) "the murder was especially wicked, evil, atrocious, or cruel,"123 and (5) the homicide "was committed in a cold, calculated, and premeditated manner."124 Having found five aggravating circumstances and "no statutory or non-statutory mitigating circumstances," the judge sentenced Hardwick to death.125 Following the imposition of the death penalty, Tassone thanked the judge.126

On direct appeal, the Florida Supreme Court affirmed Hardwick's conviction and sentence. Hardwick v. State, 521 So.2d 1071 (Fla.1988). The Florida Supreme Court did determine that two of the aggravating factors found by the trial court were erroneous: "[T]he trial court erred in finding that the killing was committed during a kidnapping and was for pecuniary gain. Each of these factors requires proof beyond a reasonable doubt, not mere speculation derived from equivocal evidence or testimony." Id. at 1075. That court determined that the error in weighing the aggravating and mitigating factors was harmless because "[t]he record before us reflects three aggravating factors and no valid mitigating factors."127 Id. at 1076-77. Regarding discounting the mitigation factor of alcohol and drug addiction, the Florida Supreme Court explained that no supporting evidence was presented at either the guilt or sentencing phase.128

6. Florida Postconviction, Rule 3.850 Proceeding

Following the signing of a death warrant, Hardwick filed an emergency motion for stay of execution and a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 on February 16, 1990. The trial judge conducted an evidentiary hearing on the latter motion on February 22, 1990, and denied it. On appeal, the Florida Supreme Court stayed Hardwick's execution and remanded his case "for a complete evidentiary hearing on Hardwick's claims under Florida Rule of Criminal Procedure 3.850."129 The trial judge conducted further proceedings on Hardwick's 3.850 motion on May 3-4, 1990, and August 15-16, 1990.

The evidence introduced at these proceedings included the testimony of Tassone,130 psychiatric experts, members of PAGE CONTAINED FOOTNOTES Hardwick's family, and other witnesses, as well as affidavits and diagnostic reports from the expert witnesses. Tassone's testimony reveals his misunderstanding of aggravating and mitigating factors as they relate to a voluntary intoxication defense: "I am not too sure an abuse of alcohol or drugs is a aggravating or a mitigating factor. I mean, I guess what I am saying is I am not too sure it's mitigating or aggravating."131 This misunderstanding, together with his belief that Hardwick would be convicted of first-degree murder,132 appeared to govern his defense of Hardwick at both the guilt and penalty phases. Although Tassone recognized that voluntary intoxication is "where an individual through ingesting either alcohol or drugs may be unable to formulate the intent or the requisite intent required in a specific intent crime,"133 he did not ask the court-appointed psychiatrist to evaluate Hardwick relative to a voluntary intoxication defense but to determine his competency to stand trial and his sanity at the time of the offense.134 In contrast, the two other psychiatric experts who were asked to perform this evaluation opined and testified, based on their review of the record and interviews with Hardwick, his family, and witnesses, that the degree of Hardwick's intoxication at the time of the homicide mitigated his ability to formulate specific or premeditated intent.135

Additionally, Tassone testified that he either discounted or discredited many of the witnesses at the relevant time because of their age or drug use.136 He did not recall interviewing Hardwick's mother as to whether she saw her son and his condition within the relevant time of the homicide.137 Hardwick's family members, including his siblings, who could have testified concerning Hardwick's alcohol and drug use from childhood, averred that Tassone did not contact them and that they would have been willing to testify.138 The trial court denied Hardwick postconviction relief,139 and the Florida Supreme Court affirmed and also denied his petition for writ of habeas corpus. Hardwick v. Dugger, 648 So.2d 100 (Fla.1994) (per curiam).

Hardwick then filed the subject petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in the Middle District of Florida, which the district court dismissed with prejudice. Of the twenty issues raised, only the subject claims of ineffective assistance of trial counsel at the guilt and penalty phases and a claim of conflict of interests between Hardwick and his trial attorney remain. Without an evidentiary hearing, the district judge determined that alleged guilt-phase ineffective assistance for failure to advance a voluntary intoxication defense was inconsistent with the evidence, that alleged penalty-phase ineffective assistance was justified as attorney strategy, and that Hardwick was not entitled to another appointed counsel.

When Hardwick sought a certificate of appealability/probable cause, the district judge applied the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2253(c) and issued a certificate of appealability for three of Hardwick's twenty claims for relief. Pursuant to Hardwick's argument that the district judge erroneously had applied AEDPA because his petition was pending on April 26, 1996, when AEDPA was enacted, our court remanded for "reevaluation of Hardwick's application for a certificate of probable cause in light of pre-AEDPA law." Hardwick v. Singletary 122 F.3d 935, 936 (11th Cir.1997) (per curiam). On remand, the district judge again relied on AEDPA and granted a certificate of appealability. Following Hardwick's motion for relief from the order, we construed the district court's certificate of appealability "as a grant of a certificate of probable cause to appeal all issues presented in the petitioner's federal habeas petition." Hardwick v. Singletary, 126 F.3d 1312, 1313 (11th Cir.1997) (per curiam). After oral argument, we directed counsel to provide supplemental briefs discussing the effect of Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), on this appeal. We now turn to the three issues before us: Tassone's ineffective assistance of counsel at the guilt and penalty phases and conflict of interest between Hardwick and his counsel.140

Under pre-AEDPA law, we review the denial of a § 2254 petition and a district court's legal conclusions de novo. Johnson v. Alabama, 256 F.3d 1156, 1169 (11th Cir.2001). A district court's factual findings are reviewed for clear error. Id. While factual findings by a state court following a merits hearing on the claims raised generally are accorded a presumption of correctness, this presumption does not obtain if any of the eight exceptions in former § 2254(d) apply.141

A presumption of correctness usually applies to "basic, primary, or historical facts." Thompson v. Keohane, 516 U.S. 99, 109-10, 116 S.Ct. 457, 464, 133 L.Ed.2d 383 (1995). Questions of law or mixed questions of law and fact, however, are not subject to the presumption.142 Id. at 109-10 & n. 9, 116 S.Ct. at 464-65 & n. 9. Accordingly, our court has recognized that the presumption of correctness generally applicable to federal habeas review of state-court factual findings is not insurmountable or irrebuttable. Historical facts found by state courts in evaluating ineffectiveness claims are not presumed correct if they are clearly erroneous. Bolender v. Singletary, 16 F.3d 1547, 1558 n. 12 (11th Cir.1994). State-court factual findings are not entitled to a presumption of correctness where the petitioner "did not receive a full, fair and adequate hearing in the state court proceeding." 28 U.S.C. § 2254(d)(6); Porter v. Wainwright, 805 F.2d 930, 938 (11th Cir.1986). "[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Strickland, 466 U.S. at 696, 104 S.Ct. at 2069. Consequently, an evidentiary hearing in district court may be required to resolve "conflicting inferences." Porter, 805 F.2d at 938. A federal court reviewing a state prisoner's petition for habeas relief must make an "independent federal determination" in deciding questions involving constitutional law and the application of constitutional law to the facts "under the totality of the circumstances" of a particular case. Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450-51, 88 L.Ed.2d 405 (1985). Therefore, a trial court's determination as to whether a petitioner has been denied his Sixth Amendment right to effective counsel is not entitled to the presumption; we must make that determination anew.143 Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984). "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." Id. at 686, 104 S.Ct. at 2064.

The crux of Hardwick's discontent with his trial counsel was Tassone's failure to call witnesses that Hardwick wanted to testify on his behalf. Hardwick, who has a G.E.D. acquired during previous incarceration, has not specified which witnesses he desired or what their testimony would be. There is no dispute that Hardwick handed Tassone a list of witnesses that he wanted to testify, but that list inexplicably has disappeared from the record, while Hardwick's other handwritten motions are part of the record. Nonetheless, the lack of specificity as to the identity of the witnesses Hardwick wanted called for his defense or the substance of their testimony even at this appellate stage in the federal habeas proceedings makes his unsubstantiated allegation of ineffective assistance of his trial counsel difficult to analyze.

To be successful in his contention of his trial counsel's ineffective representation, Hardwick must satisfy well-delineated Supreme Court and circuit law. In Strickland, the Court established a two-part test to show ineffective assistance that violates the Sixth Amendment right to counsel: (1) "the defendant must show that counsel's performance was deficient," defined as "representation [that] fell below an objective standard of reasonableness," and (2) "the defendant must show that the deficient performance prejudiced the defense" by demonstrating "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 687, 688, 694, 104 S.Ct. at 2064, 2068. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068.

"[I]t is sufficient that a petitioner must show only a reasonable probability that the outcome would have been different; he `need not show that counsel's deficient conduct more likely than not altered the outcome in the case.'" Brownlee v. Haley, 306 F.3d 1043, 1059-60 (11th Cir.2002) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. at 2068); see DeLuca v. Lord, 77 F.3d 578, 590 (2d Cir.1996) ("The Strickland test does not require certainty that the result would have been different."). "When evaluating this probability, `a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.'" Brownlee, 306 F.3d at 1060 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. at 2069). "The petitioner bears the burden of proof on the `performance' prong as well as the `prejudice' prong of a Strickland claim, and both prongs must be proved to prevail." Johnson, 256 F.3d at 1176.

Our circuit reviews an attorney's performance "with considerable deference." Id. "[T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'" Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.2000) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 3126, 97 L.Ed.2d 638 (1987)), cert. denied, 531 U.S. 1204, 121 S.Ct. 1217, 149 L.Ed.2d 129 (2001). "The petitioner must establish that particular and identified acts or omissions of counsel `were outside the wide range of professionally competent assistance.'" Id. at 1314 (quoting Burger, 483 U.S. at 795, 107 S.Ct. at 3126).

In this case, court-appointed Tassone took a number of pretrial depositions, which he did not use to explain, moderate, or mitigate the direct testimony of the state's witnesses, many of whom were quite young at the relevant time and embittered toward Hardwick, a newcomer to their community, for killing Pullum, their longstanding, neighborhood friend. Convinced of Hardwick's guilt, Tassone advised him to plead guilty. When the evidence shows that a defendant was so intoxicated that he could not form specific intent to commit murder, Florida law recognizes voluntary intoxication as a defense, and an instruction on the defense should be given to the jury. Gardner v. State, 480 So.2d 91, 92 (Fla.1985) (per curiam). Tassone apparently believed that there was sufficient credible evidence that Hardwick was sober at the time of the murder to justify not presenting this defense and pursued sufficiency of the evidence as Hardwick's defense.144 Additionally, witnesses had testified that Hardwick threatened to kill Pullum prior to the murder and boasted of the killing afterward. Together with the multiple means of inflicting death, a jury could have found premeditation for first-degree murder.145 There has been no claim of actual innocence in this case.

While other attorneys may have used voluntary intoxication as Hardwick's primary defense theory, Tassone's decision to forego this defense is not outside the ambit of strategic choice recognized by Strickland and our circuit law. Because Hardwick has failed to prove the performance and prejudice prongs of the Strickland test, we conclude that constitutional ineffective assistance of counsel in the guilt phase has not been established and, consequently, affirm the district court's denial of habeas relief as to the guilt phase.146

"The Sixth Amendment guarantees a criminal defendant the right of effective assistance of counsel during a capital sentencing hearing." Harris v. Dugger, 874 F.2d 756, 762 (11th Cir.1989). The two-part Strickland test also applies in a capital sentencing proceeding because "counsel's role in the proceeding is comparable to counsel's role at trial — to ensure that the adversarial testing process works to produce a just result under the standards governing decision." 466 U.S. at 687, 104 S.Ct. at 2064; Glock v. Moore, 195 F.3d 625, 634-35 (11th Cir.1999). "Circumstances which would warrant a presumption of prejudice from counsel's ineffectiveness are those where `the adversary process itself is [rendered] presumptively unreliable [by the circumstances].'" Blanco v. Singletary, 943 F.2d 1477, 1496 (11th Cir.1991) (alterations in original) (citation omitted).

When "`the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results,' our confidence is undermined." Brownlee, 306 F.3d at 1069 (quoting Strickland, 466 U.S. at 696, 104 S.Ct. at 2069). "The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. "Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice." Strickland, 466 U.S. at 692, 104 S.Ct. at 2067.

"`The primary purpose of the penalty phase is to insure that the sentence is individualized by focusing [on] the particularized characteristics of the defendant. By failing to provide such evidence to the jury, though readily available, trial counsel's deficient performance prejudice[s a petitioner's] ability to receive an individualized sentence.'" Brownlee, 306 F.3d at 1074 (alterations in original) (quoting Cunningham v. Zant, 928 F.2d 1006, 1019 (11th Cir.1991)); see Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir.1988) (same); Thomas v. Kemp, 796 F.2d 1322, 1325 (11th Cir.1986) (same). "[T]he Eleventh Circuit has enunciated the rule that effective representation, consistent with the sixth amendment, also involves `the independent duty to investigate and prepare.'" House v. Balkcom, 725 F.2d 608, 618 (11th Cir.1984) (citations omitted); see Bolender, 16 F.3d at 1557 ("The failure to conduct a reasonable investigation into possible mitigating circumstances may render counsel's assistance ineffective.").

[C]ounsel's duty of inquiry in the death penalty sentencing phase is somewhat unique. First, the preparation and investigation for the penalty phase are different from the guilt phase. The penalty phase focuses not on absolving the defendant from guilt, but rather on the production of evidence to make a case for life. The purpose of investigation is to find witnesses to help humanize the defendant, given that a jury has found him guilty of a capital offense. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066.

....

[E]ven where a client is recalcitrant, courts have been ambivalent in whether counsel is relieved of any further duty of investigation, particularly where the client exhibits signs of instability.

Marshall v. Hendricks, 307 F.3d 36, 103 (3d Cir.2002) (citing Johnston v. Singletary, 162 F.3d 630, 641-42 (11th Cir.1998)). Trial counsel performs deficiently by not providing readily available mitigating evidence to the jury at the penalty phase because he prejudices a convicted defendant's receiving an individualized sentence. Cunningham, 928 F.2d at 1019; see Armstrong, 833 F.2d at 1433, 1434 (concluding that "investigation and preparation for the penalty phase of [petitioner's] trial was negligible" and that the "demonstrated availability of undiscovered mitigating evidence clearly met the prejudice requirement"); House, 725 F.2d at 618 ("While we do not require that a lawyer be a private investigator in order to discern every possible avenue which may hurt or help the client, we do require that the lawyer make an effort to investigate the obvious.").

Concomitantly, a tactical or strategic decision is unreasonable if it is based on a failure to understand the law. Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991). Whether counsel's decision is tactical is a question of fact, but "whether this tactic was reasonable is a question of law, and we owe neither the district court nor the state court any deference on this point." Id. We have decided that failure to present mitigating evidence because of misunderstanding the state law as to presentation of mitigating evidence is unreasonable as a tactical decision: "Mitigating evidence, when available, is appropriate in every case where the defendant is placed in jeopardy of receiving the death penalty. To fail to do any investigation because of the mistaken notion that mitigating evidence is inappropriate is indisputably below reasonable professional norms." Id. (emphasis added). Similarly, "[w]here defense counsel is so ill prepared that he fails to understand his client's factual claims or the legal significance of those claims ..., we have held that counsel fails to provide service within the range of competency expected of members of the criminal defense bar." Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982).

Regarding mental health mitigating evidence, our court has distinguished between its use during the guilt phase to establish competency to stand trial and presenting mental health mitigating evidence at the penalty phase:

[T]here is a great difference between failing to present evidence sufficient to establish incompetency at trial and failing to pursue mental health mitigating evidence at all. One can be competent to stand trial and yet suffer from mental health problems that the sentencing jury and judge should have had an opportunity to consider.

Blanco, 943 F.2d at 1503.147 When mental health mitigating evidence was available, and "absolutely none was presented [by counsel] to the sentencing body, and ... no strategic reason [w]as ... put forward for this failure," our court determined that this omission was "objectively unreasonable." Id. (citing Middleton v. Dugger, 849 F.2d 491, 493-95 (11th Cir.1988) (emphasis added)). Additionally, our court has recognized that "[p]sychiatric mitigating evidence not only can act in mitigation, it also could significantly weaken the aggravating factors." Elledge v. Dugger, 823 F.2d 1439, 1447 (11th Cir.), withdrawn in part on denial of rehearing en banc, 833 F.2d 250 (11th Cir.1987) (withdrawing only unrelated Part III of the opinion).

Similarly, we have decided that failure to present mitigation evidence as to a defendant's family background or alcohol and drug abuse at the penalty phase of a capital case constitutes ineffective assistance of counsel, particularly when defense counsel "was aware of [petitioner's] past and knew that mitigation was his client's sole defense."148 Elledge, 823 F.2d at 1445 (emphasis added). Concluding that counsel rendered ineffective assistance for failing to present mitigating background information at the sentencing phase, we have explained: "[T]he sentencing jury knew much about the crime, having just convicted [the defendant] of a brutal murder, but little about the circumstances of the defendant." Harris, 874 F.2d at 763. In Brownlee, the psychiatric expert at the state proceeding for postconviction relief diagnosed petitioner as a "`polypharmacy individual'" and testified that, based on his "long history of drug and alcohol abuse,... dating to his teenage years," particularly, his "[d]rug or alcohol use on the day of the crime would have substantially aggravated [his] pre-existing [intellectual and psychiatric] limitations," which, if presented at the sentencing phase, could have assisted in a finding that the level of intoxication substantially impaired his ability to conform his conduct to the requirements of law. 306 F.3d at 1056, 1071, 1072.

In Harris, although family members were willing to testify that the defendant's life was meaningful to them, the defendant's attorney "erroneously told the jury that [defendant's] family had `turned against him.' Thus, the jury did not assess `the information needed to properly focus on the particularized characteristics of this petitioner.'" 874 F.2d at 763 (quoting Armstrong, 833 F.2d at 1433). "[I]njecting [defendant's] character as an issue during sentencing was fraught with danger": petitioner "committed the murder while on parole," which would have permitted the prosecution to expose his "other felony convictions as well as his dishonorable discharge from the Army." Id. at 764. "Nevertheless," we determined, "on this record, we cannot conclude that effective counsel would have made a strategic decision to forego testimony about [defendant's] good character merely because its use would have permitted the state to add some prior unlawful acts to the proof already in the case." Id. We noted that defense counsel "conceded that he would have used the [background] evidence had he known about it." Id. Recognizing that the mitigating background evidence "constituted the only means of showing that [petitioner] was perhaps less reprehensible than the facts of the murder indicated," we concluded that "a reasonable probability exist[ed] that a jury hearing this evidence would have recommended life," and that petitioner "suffered prejudice from counsel's errors" at the penalty phase. Id.

Of course, "[t]he right to present, and to have the sentencer consider, any and all mitigating evidence means little if defense counsel fails to look for mitigating evidence or fails to present a case in mitigation at the capital sentencing hearing." Accordingly, counsel's general duty to investigate takes on supreme importance to a defendant in the context of developing mitigating evidence to present to a judge or jury considering the sentence of death; claims of ineffective assistance in the performance of that duty should therefore be considered with commensurate care.

Strickland, 466 U.S. at 706, 104 S.Ct. at 2074 (Brennan, J., concurring in part and dissenting in part) (alteration in original) (citations omitted) (emphasis added).

"Florida is a weighing State; the death penalty may be imposed only where specified aggravating circumstances outweigh all mitigating circumstances."149 Parker v. Dugger, 498 U.S. 308, 318, 111 S.Ct. 731, 738, 112 L.Ed.2d 812 (1991) (citing Fla. Stat. § 921.141(3) (1985)) (emphasis added). "[T]he Supreme Court and this Court ... have repeatedly emphasized the constitutional right of a defendant facing the death penalty to present any relevant evidence of mitigating circumstances." Brownlee, 306 F.3d at 1070. "[T]he question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court ... would have concluded that the balancing of aggravating and mitigating circumstances did not warrant death."150 Strickland, 466 U.S. at 695, 104 S.Ct. at 2069. "The appropriate analysis of the prejudice prong of Strickland requires an evaluation of `the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding — in reweighing it against the evidence in aggravation.'" Bottoson v. Moore, 234 F.3d 526, 534 (11th Cir.2000) (quoting Williams, 529 U.S. at 397-98, 120 S.Ct. at 1515); see Clemons v. Mississippi, 494 U.S. 738, 752, 110 S.Ct. 1441, 1450, 108 L.Ed.2d 725 (1990) (vacating state supreme court's upholding death sentence because it was not apparent that the appellate reweighing of the aggravating and mitigating factors accorded "defendant[] the individualized treatment that would result from actual reweighing of the mix of mitigating factors and aggravating circumstances" or "that the [state appellate] court fully heeded our cases emphasizing the importance of the sentencer's consideration of a defendant's mitigating evidence" required in a weighing state).

The Supreme Court has been clear that both statutory and nonstatutory mitigating factors must be considered in a capital sentencing proceeding:

"[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."

....

Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.

Eddings v. Oklahoma, 455 U.S. 104, 110, 113-14, 102 S.Ct. 869, 874, 876-77, 71 L.Ed.2d 1 (1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (plurality opinion)) (alteration, first ellipsis, and emphasis in original).151 When a petitioner contends that the presentation of additional mitigating evidence would have changed the weighing process so that death is not warranted, "we look at the mitigating circumstance evidence that was not presented, along with that which was, and consider the totality of it against the aggravating circumstances that were found."152 Tompkins v. Moore, 193 F.3d 1327, 1336 (11th Cir.1999).

Tassone presented no mitigating evidence at the sentencing proceeding. Therefore, we first consider the record evidence of statutory mitigating factors.153 Because of Hardwick's alcohol and drug consumption before Pullum's murder, the most significant statutory factor was Hardwick's cognitive ability to conform his conduct to the requirements of law. Tassone failed to present the record evidence at the sentencing phase of Hardwick's drunk and drugged condition resulting from the well-documented, long Christmas weekend binge of drugs and alcohol as well as expert testimony, like that given at the 3.850 proceeding.154 This omission kept from the judge and jury knowledge that, at the time of the murder, Hardwick could have lacked the judgment to conform his conduct to the requirements of law. In his report for the 3.850 proceeding, Dr. Levin considered "that during the five days leading to his offense that [Hardwick] ingested forty or fifty of the Quaaludes, continually smoked marijuana, drank a fifth of vodka and shared `a couple of cases of beer' with friends."155 Dr. George W. Barnard, who was court-appointed, testified that Hardwick suffered from multiple substance abuse disorder.156 Hardwick "denied that he ever had preplanned murdering the victim" and "indicated that his entire focus was to reobtain his drugs for the primary purpose of ingesting drugs."157 Thus, "the source of his anger [toward Pullum] was his loss of drugs and inability to `get high.'"158

Dr. Levin explained the effect of the combination of quaaludes, alcohol, and lack of sleep:

It's well known that alcohol and Methyquaalone has an added effect of inflated euphoric feelings, intoxication just as one would be drunk on alcohol. The effects on top of that of quaaludes would enhance that effect.

....

Lack of sleep exacerbates ... ability to be coherent, to think linearly, to be able to be in control of one's thought process.159

Dr. Levin's review of the affidavits of individuals who observed Hardwick over the weekend prior to the murder typically described "erratic behavior, sweating, slurring of speech, inconsistent behavior and... mood swings."160 In Dr. Levin's opinion, Hardwick "was intoxicated at the time of the offense."161 Regarding Hardwick's cognitive ability to formulate intent, Dr. Levin testified to a reasonable degree of psychological certainty that Hardwick "had some ability to think rationally, but... he was significantly impaired in his judgment and reasoning skills" resulting in his inability to have premeditated intent.162 He concluded that Hardwick's capacity to conform his conduct to the requirements of law was substantially impaired at the time of the offense, which constitutes a mitigating factor under the Florida death penalty statute.163

In response to cross-examination questions suggesting that Hardwick's description of the killing indicated his mental clarity at the time of the murder, Dr. Levin explained that Hardwick's manner of killing Pullum exemplified his diminished cognitive functioning in terms of his "somewhat cloudy" memory of the events, his thought process, and his "very erratic" behavior:

[M]y understanding that it took him a great deal of effort and different means to strike the victim in terms of striking him with a jack from a car, with a tire iron, with a knife, trying to stab him with a tire iron, trying to drown him, trying to — and shoot him.

This showed to me behavior that was something that reflected some erratic intent or erratic direction in his behavior in terms of — if you will getting the job done. He seemed to be ineffective and that was where the erratic — his thinking in terms of talking about— talking over shall I complete this, not being sure of what he was doing or whether he should complete the task in conferring with another person there.164

Similarly, Dr. Dee, who also interviewed and examined Hardwick as well as reviewed the record of the 3.850 proceeding and concluded that Hardwick was "acutely intoxicated" at the time of the offense,165 found the manner of death was consistent with drug and alcohol influence, despite the impression created by the medical examiner's report.166 To a reasonable degree of psychological certainty, Dr. Dee opined that Hardwick was so intoxicated that his ability to formulate specific intent was diminished.167

In contrast, Dr. Barnard, the court-appointed psychiatrist, testified at the 3.850 proceeding that Hardwick, whom he examined on April 10, 1985, was not insane at the time of the offense and that he did know that his actions were wrong.168 Dr. Barnard testified, however, that he was asked to evaluate Hardwick for only two purposes: (1) competency to stand trial, and (2) legal sanity at the time of the alleged crime.169 Consequently, he did not evaluate Hardwick regarding specific intent relating to a voluntary intoxication defense or as to statutory or nonstatutory mitigation.170 Further, Dr. Barnard's notes show that he did not have any conversations with Tassone.171

Dr. Barnard testified that Hardwick had experienced blackouts from alcohol since age thirteen and that he had extensive drug use at an early age: "[m]ultiple drug usage, including pot, LSD, uppers, downers, MDA, cocaine, Quaaludes, glue sniffing."172 Hardwick told Dr. Barnard, when the offense occurred, that "he had taken Quaaludes and drunk part of a couple of fifths of vodka with four or five other people and smoked six to eight joints of pot," which "he had been more or less doing ... since December 20th."173 Stating that Hardwick had a history of poor impulse control, Dr. Barnard explained that the alcohol and drugs lifted his inhibitions, thereby releasing his impulsive behavior and causing him to become "a lot more aggressive when he was under the influence of alcohol and drugs."174 Dr. Barnard stated that quaaludes gave Hardwick "a sense of power and a feeling of importance" and explained how they affected Hardwick's cognitive functioning: "specifically ... his judgment ... more than anything," "his reaction time," "his level of alertness," "his ability to ... project ahead to the consequences of what he was doing," and "he would make more errors in judgment."175 Based upon his understanding of the amount of drugs and alcohol that Hardwick had ingested near the time of the offense, Dr. Barnard testified that Hardwick's judgment and impulse control were substantially impaired and that his ability to reason was affected.176 If he had been asked to evaluate mitigation evidence, such as Hardwick's poor and abusive family life and its effect on his life, or his ability to conform his conduct to the requirements of law, Dr. Barnard testified that he would have been willing to do so.177 At the 3.850 proceeding, Dr. Barnard testified that Hardwick's capacity to conform his conduct to the requirements of law was substantially impaired