Mirzayance

*143 MEMORANDUM *

The Warden appeals the district court’s grant of Alexandre Mirzayance’s petition for writ of habeas corpus based on ineffective assistance of counsel in his state trial court proceedings. We affirm.

I.

We are required by the Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996) (“AEDPA”) to give significant deference to the decision of the state court. Where, as here, the state court has provided an adjudication on the merits of the habeas claim but has not explained its underlying reasoning or held an evidentiary hearing, however, we conduct an independent review of the record to determine whether the state court’s final resolution of the case was an unreasonable application of clearly established federal law. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003) (“Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable.”); Greene v. Lambert, 288 F.3d 1081, 1088-89 (9th Cir.2002) (explaining AEDPA standard of review where state court provides no reasoned explanation for its…

concurring in part and dissenting in part.

I concur in the conclusion of Part II of the memorandum disposition finding the district court and the magistrate judge misapprehended our prior remand order. However, as to Parts III and IV, I respectfully dissent as I believe the majority has erred in concluding petitioner’s counsel’s decision to advise the petitioner to withdraw his NGI plea constituted deficient performance under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Strickland mandates a highly deferential review of counsel’s performance, viewed at the time of counsel’s conduct. Id. at 689-90 , 104 S.Ct. at 2065 . “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. In addition, findings of fact made by the district court are reviewed for clear error. Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir.2001). This standard is significantly deferential because “findings of fact are made on the basis of evidentiary hearings and usually…