Bean

concurring in part and dissenting in part:

I join in most of the Court’s opinion but respectfully dissent from Parts III and V. I agree that Bean did not procedurally default his claim of ineffective assistance of counsel, that Bean received effective assistance of counsel at the guilt phase of the trial and that there was sufficient evidence to convict Bean of the Fox murder. I disagree, however, on the two remaining issues: I conclude that Bean received effective assistance of counsel at the penalty phase and that joinder of the Schatz and Fox indictments did not deprive Bean of a fundamentally fair trial.

I

While I recognize that Bean’s representation at the penalty phase was by no means flawless, it did not “so undermine[ ] the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

The Supreme Court has read the Sixth Amendment right to trial to include a right to counsel. See id. at 685 , 104 S.Ct. 2052 . To satisfy this right to counsel, it is not enough “that a person who happens to be a lawyer is present at trial alongside…

Opinion by Judge THOMAS; Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN.

Anthony Cornell Bean was convicted of the first-degree murder, robbery, and burglary of Beth Schatz and Eileen Fox and sentenced *1075 to death. After the district court granted Bean’s habeas petition as to his sentence but denied habeas relief as to his conviction, Warden Calderon appealed and Bean cross-appealed. We reverse the district court’s decision as to Bean’s conviction for the Fox charges, but otherwise affirm.

I

A

At some point during the early morning hours of June 26, 1980, a disturbance awakened George Schatz in his mobile home in Sacramento, California. Rising from his bed, he saw two young African-American men in his bedroom. One of these men ordered him to lie back down on the bed and forbade him to get up, while the other stood across the room. Schatz lay back down on his bed and stared straight up. He realized at this juncture that his fifty-six-year-old wife, Beth, was not in the bed with him. As Schatz lay without moving in his bed, he heard the noise that the two men were making as they moved around his home, and eventually lost consciousness.

When he regained…