Baldwin

Albert Johnson appeals a district court order denying his petition for a writ of habeas corpus. Albert and his brother Kevin Johnson were charged together by an Oregon grand jury with rape and sodomy, but were tried separately. Albert was convicted of three counts of rape in the first degree. After exhausting state remedies, he brought this habeas corpus petition in federal district court, claiming ineffective assistance of counsel at trial. The claim is unusual, because one aspect of the alleged ineffectiveness was the failure of counsel to investigate and discredit Albert’s unconvincing denial that he was present at the scene of the alleged crime. With proper investigation and advice by his counsel, Albert asserts, he would have presented a more convincing defense: that he was present at the scene of the alleged crime but that no rape occurred. Alternatively, he might have elected not to testify at all.

*836 The district court agreed that counsel’s performance had been objectively deficient, but held that Albert was not prejudiced by his attorney’s objectively deficient performance. Albert appeals, contending that he was prejudiced. We find merit in his contention, and…

dissenting:

I cannot agree that a defendant whose lie didn’t work has been prejudiced, and I don’t believe Albert’s lie was central to his defense, which was that Wilson’s story was preposterous. I would therefore affirm.