[P U B L IS H ]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

A u g u s t 8, 2006

N o . 05-13112 T H O M A S K. KAHN

CLERK

D . C. Docket No. 96-00768-CV-A-N

W IL L IA M L. SULLIVAN,

Petitioner-Appellant,

versus

JAMES DELOACH,

TROY KING,

Attorney General of the State of Alabama,

Respondents-Appellees.

A p p e al from the United States District Court

fo r the Middle District of Alabama

(A u g u st 8, 2006)

B e fo r e HULL and WILSON, Circuit Judges, and DUPLANTIER,* District Judge.

H U L L , Circuit Judge: W illia m L. Sullivan ("Sullivan"), an Alabama prisoner serving a life sen ten ce for murder, appeals the district court's denial of his 28U.S.C. § 2254 h a b e a s corpus petition. In his § 2254 petition, Sullivan argued that he received in ef fe ctiv e assistance of trial counsel because his counsel failed to call Sullivan's d au g h ter, Renee Sullivan ("Renee"),1 to testify at his murder trial. Renee was five y ea rs old at the time of the murder and has given conflicting statements. We need n o t address the performance prong of Sullivan's ineffective-assistance claim b ecau se Sullivan has so clearly failed to establish the required prejudice prong of h is claim. Thus, after review and oral argument, we affirm.

I. BACKGROUND I n March 1990, Sullivan was convicted of the April 1989 murder of Michael S m ith ("Smith"). At the time of Smith's death, the defendant Sullivan and his wife Jan ice Sullivan ("Janice") were separated. The victim Smith worked for defendant S u lliv a n 's roofing company and had lived with Sullivan and Janice for a short tim e . Defendant Sullivan began to suspect that Janice and Smith were * Honorable Adrian G. Duplantier, United States District Judge for the Eastern District of Louisiana, sitting by designation.

1 Renee's name is spelled various ways throughout the record. For simplicity, we refer to her as "Renee" throughout this opinion. r o m a n tic ally involved. Sullivan then kicked Smith out of their home, and Sullivan r ep e a te d ly threatened Smith. On April 21, 1989, the defendant Sullivan discovered Jan ice and Smith together in a public place and stabbed Smith with a screwdriver.

Within the week, Janice obtained a restraining order against Sullivan and co m m en ced divorce proceedings. One witness testified that Sullivan admitted to s ta b b in g Smith with a screwdriver on April 21 and that after doing so, Sullivan stated that next time he would kill Smith.

Just six days later, on April 27, 1989, Janice and Smith were together at the h o m e of Kitty Sullivan, who was Janice's sister-in-law. The defendant Sullivan cam e to Kitty's home in his truck. This time Sullivan had a knife and repeatedly stab b ed Smith with the knife. Sullivan then left in his truck. Smith died at the scen e even before the paramedics arrived.

A t trial, defendant Sullivan admitted that he came to Kitty's home on April 2 7 , that he had a knife with him when he arrived, that he opened the blade on his k n if e after he got there, and that he stabbed Smith multiple times with his knife, k illin g him. Sullivan argued, however, that his stabbing and killing of Smith was in self-defense. Sullivan claimed that Smith jumped on him first. However, S u lliv an admits he never saw a knife on Smith. Further, no one, including the p aram ed ics, the police, or neighbors, found a knife on Smith or near Smith's body a t the scene.

W e describe in detail the trial testimony about the events of April 27, 1989, an d then explain why Sullivan has established no prejudice from Renee's not te s tif y in g .

A. K itty 's Testimony T h e murder occurred at the home of Kitty Sullivan, who testified for the s ta te at trial. Kitty Sullivan testified that the defendant Sullivan and his wife Janice w ere separated and that Janice and Smith had been seeing each other. Kitty te stif ie d that on the day Smith was killed, Janice and Smith were in her backyard w h e n the defendant Sullivan arrived at her house. Kitty instructed her daughter K im , who was 16 years old, to go and tell Janice and Smith that Sullivan was there.

The defendant Sullivan first came inside the house. Sullivan asked Kitty where J an ic e was, and she indicated Janice was outside. Kitty stated that Sullivan walked to the back door and Janice met Sullivan at the back door. Kitty saw Janice and S u lliv a n talk at the back door but did not recall the conversation. Kitty testified th at Renee, Janice and Sullivan's five-year-old daughter, was also standing at the b ack door as Janice and Sullivan talked.

Kitty went to her den to tell her boyfriend, David Hyatt, there might be tr o u b le . Janice then came in the house and stated that Sullivan and Smith were fig h tin g . Kitty sent her son next door to call the police, and Janice "grabbed the b ab y [Renee] and run to my daughter's [Kim's] room in the house." Kitty went to th e front door and saw Smith walking across the street. Kitty also saw the d efen d an t Sullivan coming out of the backyard with blood on his shirt. Kitty w a lk e d with Sullivan to his truck, where he apologized for what happened at her h o u s e but stated that Smith was "going to learn not to mess with" Sullivan's wife J a n ic e .

As the defendant Sullivan drove off, Sullivan told Smith that he was not fin ish ed with him. In the meantime, Smith had fallen down, and Kitty told him the p aram ed ics were on the way.

B. K im 's Testimony K im Sullivan, Kitty's 16-year-old daughter, testified to approximately the s am e sequence of events as Kitty. Kim went to the backyard to tell Janice that S u lliv a n was there. Kim stated that Janice then followed her in the back door, w h ere they met the defendant Sullivan. Janice told Sullivan that they were at Kitty an d David's house and not to go in the backyard, and Sullivan responded, "I don't c ar e whose house we're at." Kim went back into the house and did not witness the stabbing. Kim did not see Sullivan or Smith until they had left the backyard. Kim then went outside and saw that the defendant Sullivan had blood on his shirt and a knife in his right hand.

Sullivan's knife had approximately a three-inch blade and had blood on it.

Sullivan told Kim, "You tell Janice I enjoyed her being with me." Kim then c ro s s ed the street to where Smith was and observed Sullivan driving away. Before d riv in g away, the defendant Sullivan pointed his finger at Smith and stated that he w as not done with him yet.

Kim did not notice any wounds on the defendant Sullivan. Two police o f f ic er s testified that when Sullivan turned himself in to the police the day after S m ith died, Sullivan had minor cuts or abrasions on his face and elbow, bruising o n his arm, and a scratch across his stomach. Through W.R. Huett of the M o n tg o m e ry Police Department, the State admitted photographs taken of Sullivan b y Huett when Sullivan turned himself in the day after the incident. The pictures d ep icted a bruised area on Sullivan's upper arm, a small, thin scratch across S u lliv an 's stomach, and a scrape on the left side of Sullivan's face. Detective S h aw n Smith acknowledged that Sullivan also had an abrasion on his right elbow.

C. S m ith 's Wounds A lth o u g h the defendant Sullivan had only minor cuts and left the scene, S m ith was mortally wounded by Sullivan and died at the scene. Dr. James L au rid so n ("Dr. Lauridson"), the state medical examiner, conducted the post- m o r te m examination of Smith. Dr. Lauridson testified that Smith had seven serio u s stab wounds and about ten other, less significant wounds, including cuts, a b r as io n s , and bruises. Through Dr. Lauridson, the state admitted into evidence p h o to g r ap h s of Smith's wounds, and Dr. Lauridson testified about the depicted w o u n d s . For example, Dr. Lauridson described "a very large gaping wound over th e right side of the chest," which "extends into the chest cavity and causes a w o u n d to the right lung." Dr. Lauridson also described a large, gaping wound right u n d e r the right armpit, and a more superficial wound in that same area, which ex ten d ed into the muscles of the chest wall. He then described another stab wound ju st under the left armpit, which entered the left lung and left side of the heart and resu lted in a significant amount of bleeding into the left chest. Dr. Lauridson also d escrib ed a number of wounds on Smith's back, including one stab wound, a "larg e gaping stab wound across the side of his left thigh," and two stab wounds in th e right elbow area.2 D r . Lauridson stated that the cause of Smith's death was multiple stab w o u n d s. Dr. Lauridson stated that it was impossible to say exactly how the p a r tic u la r injuries occurred, but that some seemed defensive, meaning that they w ere incurred as a result of Smith's defensive posture. He admitted that the w o u n d s possibly could have been inflicted as two individuals rolled on the ground.

However, Dr. Lauridson stated Smith's wounds were unlikely to have been caused accid en tally. Dr. Lauridson also testified that, in light of the number of wounds an d the directions and pathways of the cuts, it was possible but "highly unlikely" th a t Smith's wounds were caused by tussling between two people, as opposed to an in ten tio n al stabbing.

D. S m it h Had No Knife B efo re discussing the defendant Sullivan's version of the events, it is n o tew o rth y that there was no evidence that Smith had a knife on him on the day of h is murder. Officers, paramedics, and a next door neighbor testified to securing th e crime scene and body, and none of them found a knife or even a knife sheath o n Smith. Kitty also testified that she did not see a knife on Smith that day.

Further, as detailed below, even Sullivan himself testified three times that he did n o t see a knife on Smith.

E. S u lliv a n 's Trial Testimony S u lliv a n testified that Smith had worked for and lived with him but had m o v ed from the Sullivan home a few months prior to April 27, 1989. Sullivan b ecam e suspicious of Janice and Smith's relationship in February 1989. T h e defendant Sullivan admitted that he usually carried a small knife and h ad a knife at Kitty's house on April 27, 1989. Sullivan further admitted that he h ad fought with other men over Janice in the past. In one such incident in 1975, w h e n Sullivan learned that Janice was having an affair with another man, Sullivan a tta ck e d the man with a Coke bottle and cut his throat; however, Sullivan alleged th at the man had run over Sullivan with a car earlier in the day, and that was the real motivation for the assault. Sullivan also admitted that he had assaulted the sam e man upon learning that he was again having an affair with Janice in 1979 or 1 9 8 0 , but alleged that the man had attacked him earlier in the day. Sullivan further ack n o w led g ed that he may have made threats against Smith, but testified that he n ev er intended to kill Smith and did not mean any statements that he did intend to k ill Smith. As to the incident the week before Smith's death, Sullivan ack n o w led g ed stabbing Smith with a screwdriver, but he claimed that Smith th reaten ed and ran at him. Thus, the defendant Sullivan acknowledged attacking an d assaulting Janice's various boyfriends prior to April 27, 1989, but claimed his attack s on her boyfriends were because they either threatened or assaulted him e a r li e r .

As to the events of April 27, 1989, Sullivan testified that he and Janice were p la n n in g to meet. When Sullivan went to his mother-in-law's house to pick Janice u p , his father-in-law told him she was at Kitty's, so he proceeded to Kitty's house.

Sullivan denied knowing that Janice had filed for divorce or that she had obtained a restraining order against him.

When he arrived at Kitty's, Sullivan briefly spoke to Kitty, her daughter K im , and David Hyatt (Kitty's boyfriend), and then proceeded to the side door, w h ere he met Janice. Sullivan admitted talking with Janice at Kitty's house. Thus, th e r e was no need for Sullivan to go to the backyard in order to see Janice.

F u rth er, Kim testified that Janice told Sullivan not to go to the backyard.

Sullivan claimed that he did not recall the substance of his conversation with J an ic e. Sullivan admitted, however, that after he spoke to Janice, he assumed S m ith was at Kitty's. Sullivan then went into the backyard as Janice went into the h o u se, walked around the back of the house, but did not see anyone. According to S u lliv an , Smith then jumped on him from the side. Sullivan testified that Smith g rab b ed and hit him, and the two tossed, tumbled, and fought.

The defendant Sullivan even admitted that he did not see a weapon on Smith a n d that Sullivan drew his own knife on Smith. Specifically, Sullivan testified that S m ith "come at [Sullivan] with both hands" and struck him all over. Sullivan then testified : "We tossed and tumbled and fought. During the fight, I drawed my k n if e." In response to the question of whether he knew or saw at that time whether S m ith had a knife in his hand, Sullivan stated "No, sir." When questioned again, h e stated: "I never seen a weapon." Sullivan testified that they broke away m o m en tarily while still on the ground, and he was able to take from his pocket a sm all knife, less than two inches long, and open it. In response to the question w h eth er he saw a weapon in Smith's hand at that time, Sullivan replied: "No, sir.

Everything was happening too fast." Sullivan's own testimony established that Sullivan had a knife and Smith did n o t have a weapon. Sullivan also admitted that at some point they broke away fro m each other. Rather than try to run away, Sullivan admitted that he got out his k n if e when they broke away. Sullivan claimed that he could not run away at that tim e because he recently had hernia surgery. Moreover, according to Sullivan, S m ith then came back at him, and neither of the men broke away thereafter. Thus, S u lliv an 's version, in effect, is that they broke away, Sullivan got out his knife, and S m ith , who had no knife, came back at Sullivan.

According to Sullivan, Smith sustained the stab wounds as they struggled w ith each other on the ground. Sullivan claimed that one stab wound to Smith o c c u r r ed as Sullivan attempted to get Smith off of him. However, Sullivan ad m itted that Smith never was in possession of Sullivan's knife. Sullivan did su stain a scratch across his stomach from his own knife during their struggle. D e sp ite Dr. Lauridson's testimony that Smith had seven deep, gaping stab w o u n d s, Sullivan testified that he did not intend to stab Smith, but was only trying to get Smith off him. When they separated again, Smith ran, and Sullivan got off th e ground. Sullivan did not pursue Smith, but told him he would get him another tim e .

After he left Kitty's, the defendant Sullivan went to his mother's house and th e n left there and drove around. Sullivan admitted that at some point on the drive, S u lliv an threw his knife away. The next day, Sullivan was informed that Smith h a d died, and he made arrangements to turn himself in to the police.3 F. J u r y Instructions and Verdict T h e state trial court instructed the jury on murder (the charge in the in d ictm en t), manslaughter caused by sufficient provocation in the heat of passion, reck less manslaughter, and criminally negligent homicide. The trial court also in s tr u c te d the jury on self-defense. After beginning deliberations, the jury asked th e court for additional instructions on sudden heat of passion provocation. The trial court then instructed the jury again on the elements of murder and m an slau g h ter and the effect of a provocation defense. The following morning, the ju r y returned a verdict finding Sullivan guilty of murder. The trial court sentenced S u lliv a n to life imprisonment. Sullivan moved for a new trial, arguing, inter alia, th a t the state failed to comply with its Brady obligations. After hearing evidence, th e trial court denied the motion.

G. S ta te Direct Appeal S u lliv an appealed his conviction to the Alabama Court of Criminal Appeals, raisin g issues concerning the admission of photographs and a video tape into e v id e n c e , his motions for acquittal and for a new trial, the testimony of an expert w itn ess, and the use of the Habitual Felony Offenders Act. The Alabama Court of C r im in a l Appeals affirmed his conviction without opinion. Sullivan filed an ap p licatio n for rehearing, which the Alabama Court denied.

H. S t a t e Motion for Post-Conviction Relief S u lliv an filed a pro se petition for post-conviction relief in Alabama Circuit C o u rt pursuant to Alabama Rule of Criminal Procedure 32 and subsequently a m e n d e d the petition. In his amended Rule 32 petition Sullivan argued, inter alia, th a t his trial counsel, John T. Kirk ("Kirk"), was ineffective for failing to interview o r call Sullivan's daughter Renee as a witness during the trial. At the time of the m u rd er, Renee was five years old, and Sullivan claimed she witnessed his fight w ith Smith. The state circuit court held a hearing at which most of Sullivan's su b p o en aed witnesses, including Kirk, failed to appear. Sullivan asked that the s ta te circuit court admit Renee's testimony to support his claim that Kirk was in e f fe ctiv e , but the state circuit court refused to hear her testimony, stating that "[ i]t doesn't have anything to do with the ineffective assistance of counsel, what s h e may have witnessed," and her testimony was not important because they were n o t going to retry the case.

The state circuit court denied Sullivan's petition, and he appealed to the A la b a m a Court of Criminal Appeals. Sullivan argued that, although he had a d v is ed Kirk that Renee was a witness three months before trial and asked Kirk sev eral times during trial to call her as a witness, Kirk failed to interview her or to in v e stig a te the information she had. Sullivan maintained that the lower court erred in denying his Rule 32 petition without hearing Renee's or Kirk's testimony. The s ta te prosecutor conceded that the case should be remanded for entry of a final o rd er with specific fact findings.

The Alabama Court of Criminal Appeals remanded the case for the state circu it court to state with particularity its reasoning and findings for denying S u lliv a n 's Rule 32 petition. On remand, the state circuit court issued a brief order statin g that Sullivan failed to establish by a preponderance of the evidence that he w as entitled to relief for ineffective assistance of counsel. The Alabama Court of C rim in al Appeals affirmed without substantial discussion. I. § 2254 Petition O n May 8, 1996, Sullivan filed in federal district court a petition for habeas r elie f pursuant to 28U.S.C. § 2254. In his § 2254 petition, Sullivan argued, inter a lia , that Kirk provided ineffective assistance of counsel in failing to call Renee as a witness or to interview her even though she was the only one to witness Smith's d e a th .

Sullivan attached to his § 2254 reply brief a transcript of a deposition given b y Renee in 1995, when she was eleven years old. Thus, Renee's deposition was tak en over five years after the murder. In the deposition, Renee stated that on the d ay Smith died, Smith and Janice were talking in the back yard of Kitty's house w h ile Renee climbed a tree. When the defendant Sullivan arrived at Kitty's house, J an ic e told Smith to leave, but he refused and hid by the side of the house. Renee a n d her mother Janice went inside.

A s to the outbreak between Sullivan and Smith, Renee testified in the d e p o s itio n : "Mike [Smith] jumped on my daddy [Sullivan], and my daddy jumped o n him. Mike stabbed my daddy, and then my daddy stabbed him." Renee then stated that she went into Kitty's house as Sullivan went to the backyard, and th e r ea fte r Renee watched her father only from a window. According to Renee, her d ad d y (Sullivan) walked to the side of the house where Smith was hiding, and S m ith jumped on Sullivan. Renee testified that when Smith jumped on her daddy ( S u lliv a n ) , the two men fell to the ground, rolled around, and stabbed each other, b u t Smith stabbed Sullivan first. According to Renee, Smith got the knife "out of h is back pocket" and had his knife out first, but then her daddy (Sullivan) pulled o u t his knife after Smith jumped on and stabbed him. According to Renee, Smith stab b ed her daddy (Sullivan) three or four times in the stomach.

J. F ir st District Court Order O n May 13, 1999, the magistrate judge entered a report and recommendation ( th e "First R&R"), which recommended that Sullivan's § 2254 petition be denied w ith o u t a hearing. With regard to Sullivan's claim that Kirk was ineffective in f ailin g to call or interview Renee, the magistrate judge determined that Sullivan f aile d to show either that Kirk's performance was deficient or that he suffered p reju d ice. Specifically, the magistrate judge found that Renee's deposition, "while ap p earin g rehearsed regarding some questions, is inconsistent and overall co n fu sin g ." The magistrate judge also stated: A d d itio n ally, the statement, taken five years after the events occurred, m a y bear little resemblance to any statement the child may have given a t the time of the murder. The failure of [Kirk] to call [Renee] does n o t appear unreasonable. . . . [E]ven if [Kirk's] actions in failing to c all [Renee] could be deemed deficient, [Sullivan] fails to show that th e r e is "a reasonable probability that, but for [Kirk's] unprofessional erro rs, the results of the proceedings would have been different." S u lliv a n objected to the First R&R, arguing that he was entitled to an e v id e n tia ry hearing because he had shown that Kirk's failure to interview Renee an d call her as a witness prejudiced Sullivan's case and the facts were not ad eq u ately developed in the state court post-conviction proceedings. However, the d is tr ic t court adopted the First R&R, denying Sullivan's § 2254 petition. Sullivan a p p lie d for a certificate of probable cause ("CPC"), which the district court g r a n te d .

K. F ir st Appeal to This Court S u lliv an then appealed the denial of his § 2254 petition to this Court on sev eral grounds. This Court affirmed the district court's denial, except that we v acated and remanded as to Sullivan's claim of ineffective assistance of counsel in K irk 's not interviewing or calling Renee as a witness. Specifically, we concluded: "C o n trary to the suggestion by the magistrate judge, the testimony is clear with resp ect to the crucial matter of who started or provoked the altercation between the v ictim and Sullivan." Because the magistrate judge's dismissal of this claim "res ted primarily, if not entirely, upon his misinterpretation of the daughter's te stim o n y ," we vacated the district court's judgment and remanded for further p ro ceed in g s only as to that claim. This Court stated that it was expressing no o p in io n about the merits of Sullivan's claim. This Court also noted that Kirk did n o t testify at the state post-conviction evidentiary hearing and that on remand, the d is tr ic t court should "conduct a thorough analysis as to whether or not an e v id e n tia ry hearing in federal court is appropriate." L. E v id e n t ia r y Hearing in District Court O n remand, the magistrate judge appointed counsel to represent Sullivan and h e ld an evidentiary hearing in 2001 on Sullivan's § 2254 petition, at which Renee testified . Renee testified that she was then 17 years old and was 5 years old at the tim e Smith died. Renee testified that she was at Kitty's home on the day in q u e stio n , and she played in a tree in the backyard while Janice and Smith talked b esid e that tree. Renee saw Smith wearing a knife on a holder in his belt that day.

Renee testified that Sullivan came out to the backyard after arriving at Kitty's, and Jan ice went into the house. Janice thought Renee had gone into the house, but in stead , Renee followed Sullivan back out into the backyard and saw Sullivan walk to w ard the side of the house, where Smith was standing.

Renee testified that Smith jumped on Sullivan, coming at Sullivan with his "k n ife held high," as follows: Q. W h at did you see next? A. M ik e [Smith] jumped on him.

Q. O k ay, tell us what you saw.

A. M ik e came out with his knife held high.

Q. A n d you say he came out, was there some place that he was in s id e ? You say he came out. Was he in - A. H e jumped from the side of the house.

A cco rd in g to Renee, the two then fell to the ground, rolled around, and fought.

Renee could not tell exactly what was occurring between Sullivan and Smith b e c au s e they were "too tightly wrapped." According to Renee, Smith had a knife w h ile the two fought, but was hitting Sullivan with the hand holding the knife.

Renee did not see Smith strike or cut Sullivan with his knife. Renee saw Sullivan w ith his own knife after a minute or two, although she did not see Sullivan pull it o u t. Renee watched for a few minutes, but Janice returned to the backyard and to o k her into the house. Renee then went to one of the bedrooms and watched the f ig h t from a window, but she watched through the window only for a very short tim e because Janice retrieved her and locked them both in a bathroom. The next tim e Renee saw Sullivan, he was getting into his truck, and his shirt was covered in b lo o d and had a hole in it.

K ir k testified that his memory was very sketchy, but he said he investigated th e scene of the incident, spoke with the police officers assigned to the case, and in te rv ie w e d "just about everybody that was suggested to me to be a witness to that in c id e n t or possessed information about the deceased Michael Smith, and folks that k n ew Mr. Sullivan and Janice." Kirk could not remember many facts about the tr ia l, such as whether Sullivan's daughters4 testified; nor could he remember ap p ea rin g or arguing at a motion for new trial, whether he interviewed Kitty's th en -b o yfrien d David Hyatt, or what had happened to the majority of his case file.

In response to questioning about whether the defendant Sullivan ever told K irk that Smith was the attacker, Kirk replied that he understood that Sullivan went to Kitty's home "reasonably assured" that he would find Smith there with Janice an d that the defendant Sullivan did not tell him that Smith attacked. In describing S u lliv a n 's account of the facts to Kirk, Kirk stated Sullivan "went in the backyard fo r a very specific purpose," expecting to find Smith there, and "[h]e was not attack ed by Mr. Smith." Kirk testified that Sullivan's chief defense was heat of p assio n , and Kirk attempted to get the verdict reduced to manslaughter. No one ev er came forward to say that Smith attacked Sullivan. Kirk also testified that he fo u n d nothing to indicate that Smith had a knife on that day.

Kirk testified that he had interviewed Janice and Kitty Sullivan and that, to h is knowledge, there were no eyewitnesses other than Sullivan. Janice, Renee's m o th er, supplied a list of names of individuals who had information for the trial, b u t Renee was not on Janice's list. Janice did not describe anyone as an e ye w itn e s s. Kirk further testified that the evidence did not indicate that Renee saw an yth in g , and moreover, Sullivan specifically told Kirk that Renee did not witness th e fight. Kirk was surprised when Kitty testified that Renee was standing at the b ack door when Sullivan walked outside and at that point, he probably asked the d e f en d a n t Sullivan at trial whether Renee was at the back door, and Sullivan p r o b a b ly answered in the negative, but Kirk could not remember. Kirk ack n o w led g ed that he had interviewed children in preparation for other cases, g e n e r a lly while their parents were present, but stated that he would not have taken it upon himself to interview Renee because he "would not do that to a child." Sullivan testified that he never barred Kirk from speaking with his children, a n d he asked Kirk to speak with Renee in the days preceding the trial. Sullivan s ta te d that he asked Kirk approximately three to six times during trial to put Renee o n the stand, but Kirk put him off. Sullivan did not think that Janice prevented K irk from interviewing Renee. Sullivan stated that Kirk probably did not rem em b er being told that he should interview Renee or have her testify because S u lliv a n said he did not press the matter with Kirk "[o]ut of respect." As to April 27, 1989, Sullivan testified in 2001 that Smith had a knife at the f ig h t. However, Sullivan admitted that he did not tell Kirk about Smith's knife b ecau se he did not remember the details of the fight for approximately a year and a h a lf after his conviction. Sullivan also did not tell Kirk that his memory was in co m p lete because he did not realize it at the time. On cross-examination, S u lliv an clarified that Smith had jumped on him from the side towards his back, an d Sullivan glimpsed Smith's knife. Sullivan stated that during the fight the two n ev er stood up. Sullivan believed Smith dropped his knife because Sullivan did n o t see it again, but he was not sure what had happened to Smith's knife. Sullivan testified that he had a slight cut on his stomach, and he remembered wounding S m ith in two places.

M. S eco n d R&R and Supplemental R&R A fter further briefing by both parties, the magistrate judge issued a second re p o rt and recommendation ("Second R&R"), recommending that Sullivan's § 2254 petition be denied. The magistrate judge found that two statements were m a d e at trial by the prosecutor and Kirk that no eyewitnesses existed, but Sullivan d id not speak up at those times. Next, the magistrate judge determined that a r ea so n a b le attorney could have decided that he should not call Renee to testify u n d e r any circumstances. The magistrate judge noted that Renee had testified S m ith had a knife but that the medical and testimonial evidence, including S u lliv an 's own account of the event at trial, contradicted Renee's testimony and v itia te d the credibility of Renee's testimony. The magistrate judge thus found that b ased on the totality of the evidence, Kirk's actions were reasonable and not d eficien t performance.

The magistrate judge also noted that there was no evidence that Kirk's a ctio n s prejudiced Sullivan because there was no reasonable possibility, after co m p arin g Renee's testimony to the remainder of the evidence, of a different o u tco m e at the trial. The magistrate judge stated that there was no dispute in the ev id en ce about whether Smith jumped Sullivan as he went into the back yard, and th a t fact did not ameliorate the consequences of Sullivan's drawing his knife when h e and Smith broke apart during the fight. And as noted earlier, Renee's testimony th at Smith was armed with a knife was contrary to all the physical evidence and ev en Smith's testimony at trial. That inconsistency, along with multiple in co n sisten cies between her testimony at ages 11 and 17, convinced the magistrate ju d g e that there was no probability the jury would have credited her testimony.

After Sullivan filed objections to the Second R&R, the magistrate judge issu ed a supplemental report and recommendation ("Supplemental R&R"), finding, in te r alia, that a portion of Sullivan's testimony indicated that he had told Kirk that R en ee was an eyewitness, but Sullivan's admission that he did not press the point w ith Kirk "border[ed] on the incredible." The magistrate judge further determined th at Renee's "testimony was so contrary to the evidence . . . that there [was] no reaso n ab le probability" of a different outcome. N. D is tr ic t Court Order A fter Sullivan objected to the magistrate judge's Supplemental R&R, the d is tr ic t court asked the parties to brief additional issues. Subsequently, the district co u rt denied Sullivan's § 2254 petition, adopting the Second R&R and S u p p le m e n ta l R&R to the extent they found that Sullivan did not show the required p reju d ice. The district court found that the physical and medical evidence did not s u p p o r t Renee's version of events. The district court stressed that "Sullivan h im self [testified] that he never saw a knife, and certainly never testified that Smith a tta ck e d him with his `knife held high.'" The district court thus determined, based o n the inconsistences between Renee's testimony that Smith first attacked Sullivan w ith a knife and the other evidence in the case that showed no knife was found on S m ith , that Sullivan failed to establish prejudice under Strickland v. Washington, 4 6 6 U.S. 668 , 104 S.Ct. 2052 (1984).

However, the district court found that Sullivan did tell Kirk that Renee was a n eyewitness to the fight because the magistrate judge did not expressly reject S u lliv an 's testimony on this point. Nevertheless, the district court chose not to rule o n whether Kirk's performance was reasonable or deficient.

Sullivan filed a notice of appeal and applied for a certificate of appealability ("C O A "), which the district court denied. This Court granted a COA on the issue o f "[w]hether trial counsel was ineffective for failing to interview Renee Sullivan, o r to call her as a witness at trial?" II. STANDARD OF REVIEW I n reviewing a district court's denial of a § 2254 habeas petition, we review q u estio n s of law and mixed questions of fact and law de novo. LeCroy v. Sec'y, F la. Dep't. of Corr., 421 F.3d 1237, 1259 (11th Cir. 2005), cert. denied, 126 S. Ct.

1 4 5 8 (2006). We review findings of fact only for clear error. Id.5 III. DISCUSSION T h e only issue on appeal is whether Sullivan's trial counsel was co n stitu tio n ally deficient in failing to interview Renee Sullivan or call her as a w itn e s s. We first outline the legal principles governing ineffective assistance claim s and then apply those principles to Sullivan's claim.

A. Governing legal principles "It is well established that the Supreme Court's decision in Strickland is the `c o n tr o llin g legal authority' to be applied to ineffective assistance of counsel claim s." Robinson v. Moore, 300 F.3d 1320, 1343 (11th Cir. 2002) (quoting W illiam s v. Taylor, 529 U.S. 362, 406 120 S. Ct. 1495 (2000)). To prevail, a p e titio n e r "must show both incompetence and prejudice." Chandler v. United S tates, 218 F.3d 1305, 1312 (11th Cir. 2000) (en banc).

The standard governing counsel's performance is "reasonableness under p rev ailin g professional norms." Strickland, 466 U.S. at 688, 104 S. Ct. at 2065.

"The purpose of ineffectiveness review is not to grade counsel's performance," but to determine whether that performance fell within the broad range "of what might b e a reasonable approach at trial." Chandler, 218 F.3d at 1313. "To state the o b v io u s: the trial lawyers, in every case, could have done something more or so m eth in g different. So, omissions are inevitable. But, the issue is not what is p o ssib le or `what is prudent or appropriate, but only what is constitutionally co m p elled .'" Id. (quoting Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 3126 ( 1 9 8 7 ) ) . The burden of persuasion is on the petitioner to prove by a preponderance o f the evidence that counsel's performance was unreasonable. Id. at 1313-14.

"[A ] court must indulge a strong presumption that counsel's conduct falls w ith in the wide range of reasonable professional assistance; that is, the defendant m u s t overcome the presumption that, under the circumstances, the challenged actio n might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S . Ct. at 2065 (quotation marks and citation omitted). "[B]ecause counsel's c o n d u c t is presumed reasonable, for a petitioner to show that the conduct was u n reaso n ab le, a petitioner must establish that no competent counsel would have tak en the action that his counsel did take." Chandler, 218 F.3d at 1315.

As for the second prong, "[a] petitioner's burden of establishing that his la w y er 's deficient performance prejudiced his case is high." Robinson, 300 F.3d at 1 3 4 3 -4 4 (quotation marks, citation, and punctuation omitted). "Under the p reju d ice prong of Strickland, it is not enough for the defendant to show that the erro rs had some conceivable effect on the outcome of the proceeding." Grayson v. T h o m p so n , 257 F.3d 1194, 1225 (11th Cir. 2001) (quotation marks and citation o m itted ). Instead, the petitioner "must show that there is a reasonable probability th at, but for counsel's unprofessional errors, the result of the proceeding would h av e been different." Chandler, 218 F.3d at 1312-13 (quotation marks and citation o m itted ). This prejudice burden is heavy where the petitioner alleges ineffective assistan ce in failing to call a witness because "often allegations of what a witness w o u ld have testified to are largely speculative." United States v. Guerra, 628 F.2d 4 1 0 , 413 (5th Cir. 1980).6 B. F a ilu r e to Interview or Call Renee S u lliv an 's argument is that Kirk knew that Renee was present at the scene of S m ith 's death and, accordingly, that he was ineffective in failing to interview her to determine what she saw. The district court denied Sullivan's § 2254 petition b ased on Sullivan's failure to establish prejudice and did not address the p e r fo r m a n c e prong of Strickland. Because we agree with the district court that S u lliv an failed to establish prejudice, we affirm on that ground and do not address th e performance prong. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient p reju d ice, which we expect will often be so, that course should be followed.").

As explained above, to meet Strickland's prejudice prong, Sullivan must estab lish "a reasonable probability that, but for counsel's unprofessional errors, the resu lt of the proceeding would have been different." Chandler, 218 F.3d at 13121 3 (quotation marks and citation omitted). Sullivan argues on appeal that Renee w as the sole eyewitness to the fight and her testimony would have supported his arg u m en t that Smith was the initial aggressor and attacked Sullivan first with a k n if e.7 Thus, Sullivan argues, there is a reasonable probability that, had his trial co u n sel interviewed Renee and called her as a witness at trial, the jury first would h av e believed Renee and therefore then would have believed his self-defense a rg u m e n t, or at least convicted him of manslaughter in the heat of passion rather th a n murder.

S u lliv a n 's argument fails because Renee's testimony wholly lacked cred ib ility for several reasons. First, Renee changed her story and gave in c o n s is te n t versions of what happened at the scene. For example, Renee testified in her 1995 deposition ­ given six years after the murder, when she was eleven y ea rs old ­ that Smith pulled a knife from his back pocket and then attacked S u lliv a n , stabbing him three or four times. However, at the 2001 evidentiary h e a rin g , at age seventeen, Renee changed her story, testifying that she never saw S m ith strike or cut Sullivan with Smith's knife. Renee also maintained at the 2001 h e a rin g that Smith initiated the encounter by coming at Sullivan with his "knife h eld high," as opposed to pulling his knife from his back pocket. In addition, R e n e e changed her story as to where she was when the fight first started. In her 1 9 9 5 deposition, she testified that as Sullivan went outside, she and her mother Jan ice went inside, and she watched Smith attack Sullivan from a window.

However, in 2001, Renee testified that only her mother went inside and that alth o u g h her mother thought she followed her, Renee stayed outside and saw Smith ju m p out with his knife held high and land on her father.

Second, even setting aside the obvious inconsistencies in Renee's own testim o n y, both of Renee's accounts are entirely inconsistent with the physical and testim o n ial evidence presented at trial. For example, photographs of the defendant S u lliv a n taken the day after the murder, when he turned himself in to police, e sta b lis h that Sullivan suffered no stab wounds, but only a single, minor scratch acro ss his stomach. The photographs of Sullivan are in marked contrast with those o f Smith's body, which reveal seven deep, gaping wounds over Smith's body that resu lted in his death, not to mention numerous less severe cuts, abrasions, and b ru ises. The photographs negate Renee's 1995 deposition testimony that Smith h ad a knife and stabbed Sullivan multiple times. While this may help explain why R en ee changed her story at the 2001 hearing and testified that she never saw Smith strik e or cut Sullivan, Renee's change in her story, along with the photographs, to g eth er significantly undermine her credibility.

Moreover, although Renee claimed Smith had his own knife, no knife was d isco v ered on Smith's body or at the scene, and none of the other witnesses who w ere at Kitty Sullivan's house the day of the murder saw Smith with a knife any tim e that day. Indeed, even Sullivan himself admitted three times at trial that he d id not see Smith with a weapon, that Smith never was in control of Sullivan's k n ife, and that the scratch across Sullivan's stomach was inflicted by Sullivan's o w n knife as the two struggled. Sullivan also never claimed that Smith ever stab b ed him.8 In light of Sullivan's testimony at trial that he did not see a knife on S m ith and the clear evidence that Smith did not use his knife against Sullivan, n e ith e r version of Renee's testimony ­ that Smith attacked Sullivan with his "knife h eld high" or that Smith stabbed Sullivan multiple times ­ is credible.

In addition, Dr. Lauridson, the state medical examiner, testified that in light o f the extent and nature of Smith's seven deep, gaping stab wounds, one of which w a s on Smith's back, it was "highly unlikely" that the wounds were inflicted as tw o individuals rolled on the ground or by a person defending himself against the v ictim , as Renee testified. Dr. Lauridson's testimony, along with the photographs, estab lish es a one-sided attack by Sullivan against Smith and not the type of s tr u g g le described by Renee. In short, none of the trial evidence supported R en ee's version of the facts, and overwhelming evidence contradicted it.

Finally, we can only speculate as to which version of Renee's testimony w o u ld have been offered had she been called to testify in Sullivan's trial. See G u e r ra , 628 F.2d at 413. All we have is her 1995 deposition and 2001 evidentiary h earin g testimony, and that testimony is inconsistent. Perhaps her testimony in 1 9 9 0 would have been different from that in 1995 and 2001. But even assuming th at Renee would have testified at trial in full support of her father's self-defense sto ry, as set forth in either her deposition or her evidentiary hearing testimony, we co n clu d e that Renee's testimony lacked credibility for several reasons. As such, S u lliv an has not carried his burden to show a reasonable probability that Renee's te stim o n y would have changed the outcome of his trial. See Thompson v. Nagle, 1 1 8 F.3d 1442, 1453 (11th Cir. 1997) (affirming denial of habeas corpus petition b ecau se potential witnesses, who were not called and whose testimony allegedly w o u ld have testified in petitioner's favor at trial, were not believable); Wiley v. W ain w rig h t, 793 F.2d 1190, 1194-95 (11th Cir. 1986) (same). To support a d if fe re n t outcome based on Renee's testimony, the jury would have had to reject th e substantial physical and other testimonial evidence presented at trial in favor of a six-year-old girl's inconsistent testimony about an altercation that she allegedly w itn essed a year before and upon which her father's freedom depended. Simply p u t, Sullivan has failed to establish a reasonable probability of such a result.

Accordingly, we conclude that the district court correctly determined that Renee's testim o n y lacked credibility and thus that Sullivan has failed to establish that he w as prejudiced by his trial counsel's failure to interview Renee or call her as a w itn ess at trial.9 IV . CONCLUSION F o r the foregoing reasons, we affirm the district court's denial of Sullivan's § 2254 petition.

A F F IR M E D . W I L S O N , Circuit Judge, dissenting: W illiam L. Sullivan is an unsympathetic criminal defendant who killed a m an . The majority opinion makes that clear in its description of the facts. Yet, the S ix th Amendment to the United States Constitution entitles him to "the Assistance o f Counsel for his defense", and the Supreme Court has interpreted that to mean th e "effective" assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 1 0 4 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Sullivan's only defense to the ch arg e of first degree murder was that he acted in self-defense, and there was a c ru c ia l witness available to testify in support of this defense. His lawyer's failure to interview the only eyewitness who could corroborate Sullivan's claim of selfd efen se is surely ineffective assistance of counsel.

Kirk's ineffective performance prejudiced Sullivan. Understandably, the m ajo rity focuses only on Strickland's prejudice prong in finding that Sullivan failed to prove ineffective assistance of counsel. The majority must focus on the p r e ju d ic e prong because Kirk's actions were utterly ineffective under Strickland's p e r fo r m a n c e prong. As the majority notes, the district court found that Kirk was a w a re that Renee was the only eyewitness and never interviewed her. A lawyer m ak in g a strategic decision not to put a witness on the stand can many times be d efen d ed as reasonable. See, e.g., Alexander v. Dugger, 841 F.2d 371, 375 (11th C ir. 1988). A lawyer can rarely, however, claim that it is reasonable never even to talk to the only eyewitness to the events surrounding the alleged crime.

Determining the facts is the most basic requirement of being able to mount an effectiv e (or even a competent) defense. See House v. Balkcom, 725 F.2d 608, 618 (1 1 th Cir. 1984) ("Pretrial investigation, principally because it provides a basis u p o n which most of the defense case must rest, is, perhaps, the most critical stage o f a lawyer's preparation."). A lawyer does not have to explore every hypothetical situ atio n that could have possibly occurred. Id. If a lawyer, however, is aware that th e r e is only one eyewitness to the events at issue, the lawyer should at the very least find out what that witness saw. See id. ("While we do not require that a la w y er be a private investigator in order to discern every possible avenue which m ay hurt or help the client, we do require that the lawyer make an effort to in v estig ate the obvious."). Kirk did not do this and thus failed his duties to his c lie n t.1 I disagree with the majority's conclusion that Renee's testimony would not h a v e mattered. The majority holds that Renee's testimony, even if admitted at S u lliv a n 's trial, would not have changed the outcome because of its internal in c o n s is te n c ie s and inconsistencies with the rest of the evidence regarding whether S m ith had a knife. Indeed there were inconsistencies between Renee's testimony th at Smith had a knife and the overwhelming evidence indicating that he did not.

The majority fails to recognize, however, that Renee's testimony was entirely c o n s is te n t with Sullivan's claim that Smith, with or without a knife, was n ev erth eless the aggressor. Both times when Renee offered sworn testimony, she testified that Smith attacked Sullivan first.

T h e inconsistencies regarding whether or not Smith had a knife indicate that R en ee's testimony would arguably not have changed the outcome with regard to S u lliv a n 's self-defense claim.2 Nevertheless, because Renee's testimony was u n w a v e rin g ly consistent with Sullivan's claim that Smith was the aggressor, there is still a reasonable probability that the jury could have, at the least, found that S u lliv an was moved to act by "a sudden heat of passion caused by provocation reco g n ized by law" and reduced the verdict to manslaughter if presented with R en ee's testimony. Ala. Code §§ 13A-6-2(b); 13A-6-3(a)(2).3 At one point during 2 Although even this is debatable. The police indeed never recovered the knife that Renee claimed Smith had. However, they never recovered Sullivan's knife either. The absence of the knife does not definitively mean that it did not exist.

3 Sullivan received a sentence of life imprisonment for first degree murder. If convicted of manslaughter, he would have been sentenced to a maximum of 20 years imprisonment. Ala.

Code §§ 13A-6-3(b); 13A-5-6(a)(2). Had this been the case, Sullivan would be close to o ra l argument, the state, which appeared more focused on arguing that Kirk's rep resen tatio n satisfied Strickland's performance prong, even conceded that p r e ju d ic e existed if one assumed inadequate performance: C o u r t: Let's assume that this defense attorney, what's his name, T o m m y King? S tate: Uh, Kirk.

C o u r t: Tommy Kirk. He had interviewed this little girl, and he had d ecid ed , "She's going to help my client. I'm gonna put her on the w itn e s s stand." She'd taken the witness stand and she'd testified that S m ith was the aggressor, and not Sullivan, and Sullivan was d efen d in g himself. If she had testified to that, could that have led to a c o n v ic tio n of a lesser charge like manslaughter, or even, uh, an a c q u itta l? S tate: Yes.4 T h e Supreme Court provides that prejudice takes place when "there is a reasonable p ro b ab ility that, but for counsel's unprofessional errors, the result of the p r o c e e d in g would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2 0 6 8 . "A reasonable probability is a probability sufficient to undermine c o n f id e n c e in the outcome." Id. Given the great potential that Renee's eyewitness testim o n y had to affect the outcome of Sullivan's case by supporting a conviction o f a lesser included charge, which would have resulted in a shorter sentence, co n fid en ce in the outcome of the proceeding is undermined.

Because Renee was the sole eyewitness and consistently supported S u lliv a n 's claim that Smith was the aggressor, Kirk's failure to so much as in terv iew her undermines the outcome of the case and prejudiced Sullivan. See S a n d ers v. Cook, 99 Fed. Appx. 778, 781 (9th Cir. 2004) (unpublished m em o ran d u m ) (state court erred in finding that failure to interview and call sole e ye w itn e s s was not prejudicial "[i]n a case in which the determinative question was w h eth er the defendant intended to discharge the weapon, and where only the testim o n y of the eyewitnesses was capable of providing direct evidence as to how th e discharge occurred"); see also, e.g,. Riley v. Payne, 352 F.3d 1313, 1321 (9th C ir. 2003) ("Counsel's unexplained failure to interview a witness who would have s aid that the victim in anger threatened to shoot Riley undermines our confidence in the jury verdict rejecting Riley's plea of self-defense. We conclude, that . . .

R iley was prejudiced by Clower's omission."); Anderson v. Johnson, 338 F.3d 3 8 2 , 393-94 (5th Cir. 2003) (counsel's failure to interview one of two adult eyew itn esses was ineffective assistance of counsel); Chambers v. Armontrout, 907 F .2 d 825, 831 (8th Cir. 1990) (en banc) (counsel's failure to interview only e ye w itn e s s who could have corroborated defendant's claim of self-defense was in effectiv e assistance of counsel); Mitchell v. Ayers, 309 F. Supp. 2d 1146, 1156 (N .D . Cal. 2004) (attorney's failure to interview "an available witness who would h av e corroborated petitioner's otherwise uncorroborated testimony as to the reason p etitio n er entered the Gonzalez home, specifically, that he did so out of fear for his safety and not for the purpose of committing theft" was ineffective assistance of co u n sel that prejudiced petitioner).

Although I lament the logistical inconvenience of re-trying Sullivan so long after the events have taken place, this does not excuse the constitutional violation.

Sullivan, unbecoming though he may be, still deserved effective representation.

He did not receive it, and to say that he did is to render ineffective assistance of c o u n s el claims virtually meaningless. I would therefore remand the case to be retried so that Sullivan can have his day in court with at least the minimum level of effectiv e representation the Constitution guarantees.

2 The photographs of Smith's wounds are in the record and clearly show seven serious, large, gaping stab wounds, extensive bleeding, plus multiple other cuts, abrasions, and bruises. In contrast, the photographs of Sullivan show no cuts and only one scratch that is so minor as to be hardly visible.

3 The state also called Janice Sullivan, but she asserted the marital privilege and did not testify about the events of April 27, 1989.

4 In addition to Renee, Sullivan has two other daughters.

5 In this case, the state does not claim that we should apply the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") to any state court rulings. Rather, both parties on appeal raise only issues as to the district court's findings and conclusions after its evidentiary hearing, and both parties agree on the standard of review of the district court's fact findings and conclusions of law. Thus, given how the parties have chosen to litigate the case, we do not address AEDPA.

6 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

7 There is a factual issue whether Renee actually saw the start of the fight. Under one version of the evidence, she was out in the back yard when the fight started, but there was also evidence that she was already at the back door of Kitty's house or perhaps already inside the house. For purposes of this appeal, we assume Renee saw the start of the fight. The inconsistencies over where Renee was would further weaken her testimony, however.

8 We understand Sullivan's argument that he could have acted in self-defense if he reasonably feared that Smith had a knife and would harm him with it, even if Smith did not actually have a knife. However, Renee testified that Smith had a knife and drew his knife first. That testimony was crucial to her story, and the fact that all the other evidence contradicts that testimony is highly relevant to her credibility and thus the value of her testimony.

9 The dissent acknowledges that "[t]he inconsistencies regarding whether or not Smith had a knife indicate that Renee's testimony would arguably not have changed the outcome with regard to Sullivan's self-defense claim." Dissenting Op. at. The dissent argues instead that Renee was consistent in her testimony that Smith was the aggressor and that her testimony on that one point could have changed the outcome from murder to manslaughter. What the dissent ignores is that Renee's testimony wholly lacked credibility. Her changed testimony itself and the overwhelming physical and testimonial evidence refuting it ­ including Sullivan's own trial testimony ­ did not simply undermine her credibility on isolated points; it made her wholly unbelievable. Accordingly, Sullivan has failed to establish a reasonable probability that Renee's testimony would have affected the outcome of his trial.

1 Amazingly, Kirk tried to defend his decision by relying on Renee's age. Imagine if the state adopted a similar view­people could commit murder and have the police interview no eyewitnesses if the only eyewitnesses were young children. We would be outraged at a prosecutor who failed to interview a sole child eyewitness in a murder case; we should be equally intolerant of a defense attorney who blunders just as egregiously. completing his sentence because he was sentenced on April 16, 1990.

4 When pressed on this issue, the state back-pedaled from this statement without any clear explanation, perhaps realizing that this concession was completely inconsistent with the state's position that, even if Sullivan's counsel's failure to interview Renee satisfied Strickland's performance prong, such failure would not have prejudiced Sullivan.