attorney in 1976. (Id.). Turner knew petitioner from their Vietnam service together and as a civilian in Philadelphia before the murder. (Id. at 141-42, 150-51). Turner corroborated petitioner's version of his Vietnam experiences, including the killing of the Vietnamese woman. (Id. at 143-147).
The magistrate judge also heard the testimony of Janice Walker. Walker, a friend of petitioner, stated she would have testified on petitioner's behalf in 1976. (Tr. 5/26/93 at 178). Walker, like Turner, testified that she never attempted to contact petitioner's family or attorney. (Id. at 185). Walker stated that prior to the murder petitioner's behavior included nightmares, crying fits and excessive sweating. Walker also testified that she knew about the relationship between petitioner and the victim. (Id. at 174-177).
James Curry also testified at the evidentiary hearing. Curry, a friend of petitioner, stated that he did not know of the murder until after petitioner was convicted. (Tr. 5/26/93 at 169). Curry stated he would have testified for petitioner in 1976 if he had been asked. (Id. at 163-64). Curry testified that he was aware of petitioner's negative reaction to rain, his inability to remember violent events at bars and his reactions to startling noises. (Id. at 157-163).
Finally, the court heard the testimony of petitioner at the February 18, 1994 evidentiary hearing. Petitioner stated that he does not remember committing the crime. However, he testified that he would have admitted there was a "great possibility" that he had killed the victim if he knew what he does today about his illness. Petitioner also stated that Denker never inquired into his personal background and limited his questions to petitioner's actions on the night of the murder. Denker also failed to explain to petitioner the various degrees of murder and the penalties associated with each charge. If Denker had explained this and petitioner had known about his condition, he testified that he would have accepted responsibility for the murder and pled guilty to a charge of murder in the third degree. (Tr. 2/18/94 at 11-24). The court finds that petitioner was a credible witness.
CONCLUSIONS OF LAW
Based on the above findings of fact, the court hereby makes the following conclusions of law:
Ineffective Assistance of Counsel
In order to sustain a claim of ineffective assistance of counsel, petitioner must prove both prongs of the test pronounced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). One prong of the Strickland test requires petitioner to demonstrate that his trial counsel's performance was deficient. This first prong involves showing that his trial counsel's errors or omissions were so serious that trial counsel did not function as "counsel" as guaranteed by the Sixth Amendment to the United States Constitution. Strickland, 466 U.S. at 687. The other prong of the Strickland test requires petitioner to demonstrate that his trial counsel's deficient performance prejudiced his defense at trial. This second prong involves a showing that petitioner's trial counsel's errors were so serious that they deprived petitioner of a fair trial and a just result. Id. If petitioner fails to satisfy either part of the Strickland test, there is no need to evaluate the other prong of the test. Id.
(a) Deficiency of Performance
The respondents argue that the magistrate judge erred in concluding that petitioner's trial counsel's performance was deficient because of a failure to investigate. After examining the respondents' objections, the court agrees with the magistrate judge's conclusion.
In assessing this prong of the Strickland test, the court must determine whether "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Judicial scrutiny of the reasonableness of counsel's performance must be "highly deferential" and the court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged actions or omissions might be considered sound trial strategy." Id. at 689. The court must measure the reasonableness of counsel's performance after viewing all the circumstances in light of the prevailing professional norms. Id. at 688. This measurement must be evaluated on the facts of the case at the time of counsel's conduct. Id. at 690.
In a case like this one where there is a claim that counsel was ineffective for failing to adequately investigate possible defenses, the Strickland court stated that:
Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonably precise to the extent that reasonable professional judgment supports the limitations on the investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
466 U.S. at 690-91. The reasonableness of trial counsel's actions may be affected by petitioner's statements, actions and choices. United States v. Gray, 878 F.2d 702 (3d Cir. 1989), citing, Strickland, 466 U.S. at 691. Counsel's failure to pursue certain investigations cannot later be challenged as unreasonable when the defendant has given counsel reason to believe that a line of investigation should not be pursued. Id. Counsel's conversations with petitioner may be critical in making a proper assessment of counsel's investigative decisions. Strickland, 466 U.S. at 691.
"Where the deficiencies in counsel's performance are severe and cannot be characterized as the product of strategic judgment, ineffectiveness may be clear. Gray, 878 F.2d at 711. Thus, when counsel fails to conduct any pretrial investigation, courts of appeals generally find that this failure constitutes a clear instance of ineffectiveness. See Sullivan v. Fairman, 819 F.2d 1382 (7th Cir. 1987) (counsel's cursory attempts to locate witnesses ineffective); Code v. Montgomery, 799 F.2d 1481 (11th Cir. 1986) (counsel interviewing only one witness was unreasonable); Crisp v. Duckworth, 743 F.2d 580 (7th Cir. 1984) (since attorney must investigate case in order to provide minimally competent representation, it will be unusual case where complete lack of investigation is not unreasonable); Thomas v. Lockhart, 738 F.2d 304 (8th Cir. 1984) (investigation that solely involved reviewing the prosecutor's file falls short of what reasonable attorney would have done). As the Third Circuit stated in Gray,
Ineffectiveness is generally clear in the context of complete failure to investigate because counsel can hardly be said to have made a strategic choice against pursuing a line of investigation when s/he has not yet obtained the facts on which such a decision could be made.