Visciotti

Opinion by Judges PREGERSON and TASHIMA; Dissent by Judge PREGERSON.

OPINION

PREGERSON, Circuit Judge, authored Sections I, II, and III-B, with which Judges TASHIMA and BERZON concur. TASHIMA, Circuit Judge, authored Section III-A, with which Judge BERZON concurs, and from which Judge PREGERSON dissents.

John Visciotti (“Visciotti”), a California state prisoner, was convicted of first de *1101 gree murder, attempted murder, and robbery, and sentenced to death. After exhausting his claims in state court, Visciotti brought a federal habeas petition alleging, among other claims, ineffective assistance by his counsel during the guilt and penalty phases of his trial. The district court granted Visciotti’s habeas petition as to his sentence but denied habeas relief as to his conviction. Warden Woodford appealed and Visciotti cross-appealed the district court’s decision. We affirm the district court’s decision in its entirety.

I.

The following events, as described by the California Supreme Court, led to Vis-ciotti’s prosecution and conviction.

People v. Visciotti, 2 Cal.4th 1, 28-30 , 5 Cal.Rptr.2d 495 , 825 P.2d 388 (1992).

Roger Agajanian (“Agajanian”) was retained by…

dissenting.

The majority denies Visciotti’s claim of ineffective assistance of counsel during the guilt phase on the ground that Agajanian’s performance, while arguably deficient, did not prejudice the outcome of Visciotti’s trial. I believe that Agajanian’s deficient performance during the guilt phase was per se prejudicial pursuant to the Supreme Court’s decision in United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984). Accordingly, I dissent from Section III A of the majority opinion.

In Cronic , the Supreme Court identified certain circumstances where counsel’s performance is “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified,” including where a defendant “is denied counsel at a critical stage of his trial” and where counsel “fails to subject the prosecution’s case to meaningful adversarial testing.” Id. at 658-59 , 104 S.Ct. 2039 . I believe that Agajanian abandoned Visciotti at a “critical stage” of the guilt phase of trial and “fail[ed] to subject the prosecution’s case to meaningful adversarial testing” because he conceded that Visciotti was guilty of first degree murder during his…