Indeed, counsel uncovered no evidence in their investigation to suggest that a mitigation case, in its own right, would have been counterproductive, or that further investigation would have been fruitless; this case is therefore distinguishable from our precedents in which we have found limited investigations into mitigating evidence to be reasonable. See, e.g., Strickland, supra, at 699 (concluding that counsel could "reasonably surmise . . . that character and psychological evidence would be of little help"); Burger v. Kemp, 483 U.S. 776, 794 (1987) (concluding counsel's limited investigation was reasonable because he interviewed all witnesses brought to his attention, discovering little that was helpful and much that was harmful); Darden v. Wainwright, 477 U.S. 168, 186 (1986) (concluding that counsel engaged in extensive preparation and that the decision to present a mitigation case would have resulted in the jury hearing evidence that petitioner had been convicted of violent crimes and spent much of his life in jail). [Had counsel investigated further, they might well have discovered the sexual abuse later revealed during state postconviction proceedings.]
"Our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case." Burger v. Kemp, 483 U.S. 776, 785 (1987). Given that obligation, we VACATE the district court's order denying relief and REMAND for an evidentiary hearing addressing those concerns we have found deficient in the record.
Moreover, "valid strategic choices are possible even without extensive investigative efforts." Id. (quoting Burger v. Kemp , 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) ). Finally, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions," and may be "based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant."
[Citation.]" ( Burger v.Kemp (1987) 483 U.S. 776, 795-796, quoting Strickland, supra, 466 U.S. at pp. 690, 700.) In Strickland, the Supreme Court specifically addressed counsel's duty to investigate and made clear courts should not equate effective assistance with exhaustive investigation of potential mitigating evidence: "[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.
The Court reached a similar result the following year in Burger v. Kemp, 483 U.S. 776 (1987). Again, defense counsel had presented no evidence at the penalty phase of a capital trial and had conducted only a minimal investigation into his client's background prior to electing the penalty-phase strategy.
Strickland, supra, 466 U.S. at 695, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. Thus, in Burger v. Kemp, 483 U.S. 776, 793-95, 107 S.Ct. 3114, 3125-26, 97 L.Ed.2d 638, 657 (1987), although observing that counsel did not investigate evidentiary material to be presented in mitigation of defendant's sentencing phase, the Court did not invalidate the conviction because it was a strategic decision "supported by reasonable professional judgment" that such investigation "would not have minimized the risk of the death penalty." The Court rejected the argument that a more aggressive defense performance would have made a difference in the face of overwhelming evidence of defendant's guilt.
The happenstance that the aggravating evidence was not presented is therefore not attributable to counsel's strategy and, because we assess a lawyer's choices "from counsel's perspective at the time," Strickland , 466 U.S. at 689, 104 S.Ct. 2052, it does not factor into our deficiency analysis. The California Supreme Court relied on the Supreme Court's decision in Burger v. Kemp , 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), to conclude that counsel's penalty-phase strategyโportraying Andrews as a "follower" and arguing that others, including Andrews's co-defendant Sanders, had received lighter sentencesโwas a reasonable strategy. In re Andrews , 124 Cal.Rptr.2d 473, 52 P.3d at 669.
Wood v. Georgia, 450 U.S. 261, 268-69, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). Where, as here, however, Bryan "raised no objection at trial," Cuyler, 446 U.S. at 348, 100 S.Ct. 1708, he cannot now prevail unless he demonstrates "that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance," Burger v. Kemp, 483 U.S. 776, 783, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (further quotation omitted). If he can make that showing, we will presume prejudice to his defense.
This element does riot require that a defendant receive perfect representation, but it does require that counsel act within the "wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; see also Burger v. Kemp, 483 U.S. 776, 794 (1987); Kokoraleis v. Cilmore, 131 F.3d 692, 695 (7th Cir. 1997) (noting that "[t|he Constitution is satisfied when the lawyer chooses a professional]y competent strategy that secures for the accused the benefit of an adversarial trial"); Berryman v. Morton, 100 F.3d 1089, 1101 (3d Cir. 1996) (staling "[t]he right to counsel does not require that a criminal defense attorney leave no stone unturned and no witness unpursued"); Waters v. Thomas, 46 F.3d 1506, 1518 (11th Cir. 1995) (en banc) (finding that "perfection is not required" under the Sixth Amendment). To satisfy the second prong, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Other courts, including the United States Supreme Court, have held that a limited investigation into the defendant's background was reasonable in similar situations. Burger v. Kemp, 483 U.S. 776 (1987), is particularly instructive.