Gochicoa v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-50596
_______________
PEDRO L. GOCHICOA,
Petitioner-Appellee-
Cross-Appellant,
VERSUS
GARY L. JOHNSON,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellant-
Cross-Appellee.
_________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________
December 29, 2000
Before SMITH and DENNIS, Circuit
Judges, and HARMON, District Judge.*
JERRY E. SMITH, Circuit Judge:
Gary Johnson, on behalf of the State of
Texas (“the state”), appeals the grant of a writ
of habeas corpus under 28 U.S.C. § 2254, and
the petitioner, Pedro Gochicoa (“Gochicoa”)
cross-appeals the district court’s refusal to find
prejudice from ineffective assistance of
counsel. We affirm in part, reverse in part,
* District Judge of the Southern District of
Texas, sitting by designation.

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and render judgment in favor of the state.
I.
The district court originally granted habeas
relief to Gochicoa based on violations of the
Confrontation Clause via hearsay testimony
and related argument. See Gochicoa v.
Johnson (“Gochicoa I”), 972 F. Supp. 380
(W.D. Tex. 1996). Concluding that the
admission of the hearsay evidence did not vio-
late the Confrontation Clause, we reversed.
See Gochicoa v. Johnson (“Gochicoa II”), 118
F.3d 440 (5th Cir. 1997). On remand, the
district court again granted habeas relief, this
time based on the constructive complete denial
of counsel. See Gochicoa v. Johnson
(“Gochicoa III”), 53 F. Supp. 2d 943 (W.D.
Tex. 1999).
A.
While responding to a call complaining of a
“suspicious person,” Officer Victor Prieto of
the Pecos, Texas, police department
encountered Jorge Gochicoa (“Jorge”), Pedro
Gochicoa’s brother, sitting in a parked car
near an apartment building.1 As Prieto spoke
to Jorge, Pedro approached the car from an
alley, greeted Prieto “nervously,” and said to
his brother “let’s go.” Prieto questioned the
Gochicoas briefly and then allowed them to
leave.
Immediately after the brothers left, Deputy
Andy Gomez arrived and told Prieto that the
sheriff’s department had also received a call,
this time from a confidential informant, report-
ing that a man named Manuel Salcido was in
the area selling heroin to Gochicoa. Gomez
and Prieto then proceeded to search the alley
from which Gochicoa had emerged.
As they searched, a young man named Mi-
chael Carrasco approached the officers and
told them he had been watching the alley from
an apartment window approximately 100 to
150 feet away. Carrasco reported that when
Gochicoa rounded the corner of the alley and
saw Prieto, he quickly reached into his pocket
and made a motion as if he were throwing
something to the ground. Carrasco, however,
did not actually see anything leave Gochicoa’s
hand. Carrasco led the officers in the direction
of Gochicoa’s gesture, where they found a
small red balloon containing nineteen dosage
units of heroin. The officers found no other
objects or refuse on the ground in the area.
Police arrested Gochicoa two days later and
charged him with felony possession of heroin.
At trial, the state did not identify the
confidential informant or call the informant to
testify, but mentioned the telephone call from
the informant several times during its case in
chief. During his opening statement, the pro-
secutor made the following remark: “Deputy
Gomez . . . pulls up and tells [Prieto] that he
has gotten a tip from a confidential informant
concerning the defendant, and they start
searching the area where [Gochicoa] was com-
ing from for contraband that has been left
behind.”
During the prosecutor’s direct examination
of Prieto, the following exchange took place:
Q: Did you say anything to [Gochicoa]?
A: No, sir.
Q: Did you have any reason at this point
in time to stop him, to investigate any
crime that may have been committed, or
1 This statement of the facts and proceedings
underlying Gochicoa’s conviction is adopted from
Gochicoa II, 118 F.3d at 441-44.

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do anything else concerning [Gochicoa]?
A: No, sir, I had no reason.
Q: Did you in fact allow them to drive
away?
A: Yes, sir.
Q: At about that time as they were
driving away, did a peace officer
approach your position?
A: Yes, sir.
Q: What officer was that?
A: It was Reeves County Sheriff’s
Deputy Andy Gomez.
Q: Okay. And what was Deputy Go-
mez’s purpose in being thereSSdo you
have any idea?
A: He advised me that he had some in-
formation that [Gochicoa] was selling
. . . .
MR. PAINTER [Gochicoa’s attorney]:
Your Honor, I object. That’s hearsay.
MR. ZAVODA [prosecutor]: I’ll
withdraw the question, Your Honor.
THE COURT: Sustained.
Gochicoa’s counsel did not ask that the an-
swer be stricken or that the jury be instructed
to disregard the testimony. Moreover, despite
the ruling, the prosecutor elicited testimony
from Prieto that indirectly apprised the jury of
the substance of the informant’s out-of-court
statement:
Q: Did you and Deputy Gomez have a
conversation?
A: Yes, sir.
Q: Without telling me what he said,
based upon that conversation did you
and Deputy Gomez undertake a search?
A: Yes, sir, we did.
Q: And where were you looking at?
What area were you searching?
A: We was looking on the alley mostly
from where I had seen [Gochicoa]
coming from.
Q: All right. And what were you
looking forSSyourself, personally?
A: Well, we were looking for any kind
of drugs.
Gochicoa’s counsel failed to object to this
continuing line of questioning.
On redirect examination of Prieto, the pro-
secutor again introduced the confidential in-
formant’s telephone message into evidence
without objection:
Q: Now you mentioned the name of
Manuel Salcido when you were
answering questions of Mr. Painter.
A: Yes, sir.
. . .
Q: You called him the other suspect.
Was he another person that was
supposed to be possessing heroin or

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selling heroin?
. . .
A: Yes, sir.
. . .
Q: And [Manuel Salcido’s residence is]
the general location that [Gochicoa] was
coming from, is that correct?
A: That is correct.
When Gomez took the stand, the
prosecutor again acknowledged the earlier
ruling and admonished Gomez not to reveal
the substance of the statement.
Q: You cannot tell me what the
confidential informant told you, but
based upon that information did you
proceed to the 1000 block of East 10th
in Pecos, Reeves County, Texas?
A: Yes, I did.
. . .
Q: Again, based upon the information
you received from the confidential
informant, did you and Victor
PrietoSSOfficer PrietoSSconduct a
search of the area where Officer Prieto
was at?
A: Yes, we did.
Q: What were you looking for?
A: I was looking for heroin is what I
was looking for.
Again, Gochicoa’s counsel did not object.
At closing, the prosecutor cited the substance
of the informant’s tip as direct evidence
against Gochicoa.
What do we know by direct
evidence? . . . We know that
[Gochicoa] was out at the project on
August 15, 1991, at about five or 5:15
P.M. We know his brother Jorge was
waiting for him to come back from
where he was at. We know that when
he saw Victor PrietoSSOfficer
PrietoSSthat Pedro got nervous. We
heard that from two different witnesses,
Officer Prieto and Michael Carrasco.
We know that Deputy Gomez had
information from a confidential
informant that Manuel Salcido was in
this area in his home selling heroin and
that [Gochicoa] was buying it at this
particular time.
Gochicoa’s counsel did not object to this
argument.
On appeal, Gochicoa’s attorney filed an
Anders brief2 and withdrew from the case.
Gochicoa then filed an appeal pro se, and the
Texas Court of Appeals affirmed his
conviction in an unpublished opinion.
Gochicoa filed a petition for writ of habeas
corpus with the Texas Court of Criminal
Appeals, which denied relief without written
order. Gochicoa then filed the instant federal
habeas petition.
Gochicoa asserts ineffective assistance of
counsel and violation of his Sixth Amendment
right of confrontation based on the hearsay ev-
2 See Anders v. California, 386 U.S. 738
(1967).

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idence. The district court found that the con-
fidential informant’s statements were offered
for the truth of the matter asserted, that they
were hearsay under Texas law, that the
hearsay violated Gochicoa’s rights under the
Confrontation Clause of the Sixth
Amendment, and that the error had a
substantial and injurious effect on the verdict
under Brecht v. Abrahamson, 507 U.S. 619
(1993) (setting forth “substantial and injurious
effect” test for harmless error on habeas
review). See Gochicoa I, 972 F. Supp. at 392.
The court therefore granted the writ, declining
to reach Gochicoa’s claims of ineffective
assistance of counsel. See id.
B.
On appeal, we determined that the ref-
erences to the confidential informant’s tip were
hearsay under Texas law but that the wrongful
admission did not violate the Confrontation
Clause under Dutton v. Evans, 400 U.S. 74,
87 (1970). See Gochicoa II, 118 F.3d at 445-
48.3 Although the hearsay did not fall within
a firmly rooted exception to the hearsay rule or
carry any particularized indicia of reliability, it
was “neither crucial to the prosecution nor
devastating to the defense in the context of the
trial as a whole.” Id. at 447.
We explained the Dutton “crucial” or
“devastating” test as follows:
The determination of whether the
evidence is “crucial” or “devastating,”
. . . recognizes that the erroneous
admission of unreliable hearsay may
nonetheless be harmless in light of other
evidence at trial; by examining whether
hearsay was “crucial” or “devastating,”
the court seeks to determine whether the
impermissible hearsay evidence was suf-
ficiently damaging to the defense to
warrant reversal.
Id. We reasoned that the “crucial” and “dev-
astating” prong of the Confrontation Clause
test is “therefore somewhat redundant in light
of the harmless error rule.” Id. at 447 n.5.4
We concluded that the most important pro-
secution witness was not the hearsay declar-
ant, but rather Carrasco, whom Gochicoa had
a full and fair opportunity to cross-examine:
[T]he tip from the informant standing
alone did not connect Gochicoa to the
balloon of heroin found in the public
alleyway; only Carrasco’s testimony
established an immediate, albeit
circumstantial, link between Gochicoa
and the drugs. Carrasco testified that,
as soon as Gochicoa spotted Officer
Prieto, he reached into his pocket and
made a gesture as if he were throwing
something to the ground. On the basis
of this information alone, Deputy
Gomez found the balloon filled with
heroin. Both Officer Prieto and Deputy
Gomez testified that there were no other
3 Because Gochicoa filed his habeas petition
before enactment of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L.
No. 104-132, 110 Stat. 1214 (1996), we applied
pre-AEDPA standards of review. See Gochicoa II,
118 F.3d at 444.
4 Gochicoa II interpreted United States v. Sar-
miento-Perez, 633 F.2d 1092 (5th Cir. Unit A Jan.
1981), as establishing that, “although ‘[m]uch has
been made of the “crucial” and “devastating” lang-
uage in Dutton . . . ,’ [the] test simply restates [the]
harmless error rule.” Gochicoa II, 118 F.3d at 447
n.5 (quoting Sarmiento-Perez, 633 F.2d at 1103
n.6).

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6
objects or refuse on the ground within a
ten yard radius of the area. Carrasco’s
testimony, coupled with Gochicoa’s
nervous behavior, presented strong
circumstantial evidence that Gochicoa
had exercised direct physical control
over the heroin.
Id. at 447. We therefore reversed the grant of
the writ of habeas corpus and remanded for
consideration of Gochicoa’s remaining claims.
See id. at 448.
C.
On remand, the district court considered
Gochicoa’s claim of ineffective assistance of
counsel, based on his attorney’s failure to
object to the inadmissible hearsay and to seek
disclosure of the informant’s identity.5 See
Gochicoa III, 53 F. Supp. 2d at 943. Unless
there is actual or constructive complete denial
of the assistance of counsel, a petitioner
asserting deficiencies in counsel’s performance
must satisfy the two-prong test articulated in
Strickland v. Washington, 466 U.S. 668, 692-
93 (1984).
This court has described Washington as
follows:
To obtain relief, a criminal
defendant must first demonstrate that
counsel’s performance was deficient.
The defendant must also demonstrate
that counsel’s deficient performance
prejudiced the defense. The proper
standard for measuring counsel’s
performance under the first prong of
[Washington] is reasonably effective
assistance. That is, the defendant must
show that counsel’s representation fell
below an objective standard of
reasonableness. Our scrutiny of
counsel’s performance must be highly
deferential, and we must make every
effort to eliminate the distorting effects
of hindsight . . . . [T]here is a strong
presumption that counsel's conduct falls
within the wide range of reasonable
professional assistance.
To satisfy the prejudice prong of
[Washington], the defendant must show
that there is a reasonable probability
that, but for counsel’s unprofessional
errors, the result of the proceeding
would have been different. A
reasonable probability is a probability
sufficient to undermine confidence in the
outcome. The defendant need not show
that counsel’s deficient conduct more
likely than not altered the outcome in
the case[,] [b]ut it is not enough . . . that
the errors had some conceivable effect
on the outcome of the proceeding.
Motley v. Collins, 18 F.3d 1223, 1226 (5th
Cir. 1994) (internal citations and quotation
marks omitted).
Relying on Harris v. Warden, 152 F.3d 430
(5th Cir. 1998), cert. denied, 526 U.S. 1053
(1999); White v. Johnson, 153 F.3d 197 (5th
Cir. 1998), cert. denied, 525 U.S. 1149
(1999); and Mayabb v. Johnson, 168 F.3d 863
(5th Cir.), cert. denied, 528 U.S. 969 (1999),
the district court held that it was precluded
from finding Washington prejudice on account
of our holding in Gochicoa II that the
5 The court noted that Gochicoa did not
independently develop the two grounds, because
they are both dependent on the trial hearsay. See
Gochicoa III, 53 F. Supp. 2d at 955. Gochicoa
likewise fails independently to develop the two
grounds on appeal.

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7
erroneous admission of hearsay was harmless.
See Gochicoa III, 53 F. Supp. 2d at 950. The
court found a constructive complete denial of
assistance of counsel, however, concluding
that the errors of counsel were so egregious
that the prosecution’s case was never
subjected to meaningful adversarial testing,
and therefore granted habeas relief. See id. at
950, 957.
Gochicoa moved to amend the judgment to
add an alternative basis, namely that the writ
was also granted under the Washington test.
The court denied the motion but granted a cer-
tificate of probable cause, allowing Gochicoa
to appeal its interpretation of the preclusive ef-
fect of our previous opinion.
II.
Gochicoa’s trial counsel, Ted Painter, failed
to object to the inadmissible hearsay and to
seek disclosure of the confidential informant’s
identity under one of the exceptions
enumerated in TEX. R. CRIM. EVID. 508.6 The
district court held that these failures
constituted a constructive complete denial of
counsel and therefore granted the writ without
considering Washington prejudice. See Gochi-
coa III, 53 F. Supp. 2d at 956-57. We review
findings of fact for clear error and conclusions
of law de novo. See Gochicoa II, 118 F.3d at
444. Both of the Washington prongs and con-
structive denial of counsel are mixed questions
of law and fact subject to de novo review.7
When a criminal defendant receives no
meaningful assistance from his court-appointed
lawyer, he is constructively denied his Sixth
Amendment right to counsel and need not
prove Washington prejudice.8 “A constructive
denial of counsel occurs in only a very narrow
spectrum of cases where the circumstances
leading to counsel’s ineffectiveness are so
egregious that the defendant was in effect
denied any meaningful assistance at all.”
Jackson, 150 F.3d at 525 (quoting Childress,
103 F.3d at 1229).
We have found constructive denial in cases
involving the absence of counsel from the
courtroom, conflicts of interest between
defense counsel and the defendant, and official
interference with the defense; and have stated
that constructive denial will be found when
counsel fails to subject the prosecution’s case
to any meaningful adversarial testing. See id.
For example, where counsel’s sole duty was to
execute a waiver of petitioner’s right to jury
trial, and therefore counsel was appointed one
to two minutes before the plea, never
investigated the facts, never discussed the
applicable law with petitioner, and never
advised petitioner of the rights petitioner was
surrendering, petitioner was constructively
denied counsel. See Childress, 103 F.3d at
1223-24, 1228 (Petitioner “does not argue that
he had a bad lawyer in the . . . proceedings,
but that he had none at all, except for the
purpose of waiving a jury trial.”).
In contrast, we have refused to find
constructive denial where defense counsel
investigated only certain issues, where 6 The rule allows the state to refuse to disclose
an informant’s identity, subject to three exceptions.
See Gochicoa III, 53 F. Supp. 2d at 956.
7 See Washington, 466 U.S. at 698; Childress
v. Johnson, 103 F.3d 1221, 1224 (5th Cir. 1997);
Motley, 18 F.3d at 1226.
8 See Jackson v. Johnson, 150 F.3d 520, 524
(5th Cir. 1998) (citing United States v. Cronic,
466 U.S. 648 (1984)), cert. denied, 526 U.S. 1041
(1999).

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8
counsel’s trial presentation was “somewhat
casual,” where counsel failed to pursue a
challenge based on racial bias in jury selection,
to object to a variation between the indictment
and the jury charge, or to raise a meritorious
issue on appeal. See Jackson, 150 F.3d at
525. Thus, prejudice is presumed, and
Washington’s second prong inapplicable, only
“when the defendant demonstrates that
counsel was not merely incompetent but inert,
distinguishing shoddy representation from no
representation at all.” Id. (internal quotation
marks omitted). “When the defendant
complains of errors, omissions, or strategic
blunders, prejudice is not presumed; bad
lawyering, regardless of how bad, does not
support the per se presumption of prejudice.”
Id. (internal quotation marks omitted). The
critical question “is whether the [petitioner]
asserts that he received incompetent counsel,
or none at all.” Childress, 103 F.3d at 1230.
According to Gochicoa, Painter met with
him twice, once in the county jail after his ar-
rest and once just before trial began. Painter
testified that he is unsure how many times he
met with Gochicoa, but that he reviewed the
district attorney’s file on the case, filed a gen-
eral motion for discovery and inspection of ev-
idence, visited the crime scene and took
pictures, questioned the police officers, re-
searched the confidential informant issue, and
questioned the witnesses, including Michael
Carrasco. Painter did not file a specific motion
to disclose the confidential informant’s
identity, nor did he file any motions in limine
to exclude information of, or evidence from,
the confidential informant. Nevertheless, he
cross-examined the state’s witnesses, made
two successful objections (one based on hear-
say), called Prieto as an adverse witness, and
called two witnesses during the punishment
phase.
The court’s conclusions that Painter “whol-
ly abdicated his role in the adversarial process”
and that “Painter’s performance was not mere-
ly incompetent, it was inert,” Gochicoa III, 53
F. Supp. 2d at 954, 955, are unsupported and
erroneous. “When the defendant receives at
least some meaningful assistance, he must
prove prejudice in order to obtain relief for
ineffective assistance of counsel.” Goodwin v.
Johnson, 132 F.3d 162, 176 n.10 (5th Cir.
1997).
Painter testified that he failed to object to
the hearsay beyond his one successful
objection because he believed that a less
argumentative approach was more effective,
because he believed the hearsay to be
immaterial, and because he planned to
concentrate his defense on witness Michael
Carrasco. In particular, he thought “the thrust
of the defense in this case was on a possession
issue and the credibility of Mr. Carrasco and
his location and how far away from the scene
he was.” Painter further believed that he did
request the identity of the confidential
informant through his general motion for
discovery, requesting information about “[t]he
persons whom the state does not intend to call
to testify in this case but who the state knows
possesses [sic] relevant information concerning
the offense.”
Irrespective of whether these allegedly stra-
tegic decisions were erroneous, Painter
presented some meaningful assistance to
Gochicoa. The court therefore erred by
applying the Cronic constructive-denial test
rather than the Washington ineffective-
assistance test.
III.
Having determined that the court erred by
granting habeas relief based on constructive

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9
denial of counsel, we must consider Gochi-
coa’s cross-appeal based on Washington.
Gochicoa bears the burden of proving both
Washington prongs, and if one of the elements
is det erminative, we need not consider the
other. See Washington, 466 U.S. at 697;
United States v. Kimler, 167 F.3d 889, 893
(5th Cir. 1999).
The court found that Painter lacked
credibility as a witness and that his failure to
object arose out of ignorance of the law, not
out of an informed trial strategy. See Go-
chicoa III, 53 F. Supp. 2d at 953-55. The
court likewise rejected Painter’s explanation
for his failure to file a motion to disclose the
informant’s identity.9 See id. at 955-56.
These findings would certainly satisfy the first
prong of Washington, deficient performance.
The court held, however, that it was precluded
from finding Washington prejudice based on
our prior opinion. See id. at 950.
In Harris, 152 F.3d at 440, we held that an
erroneous jury instruction was harmless error
and that, accordingly, counsel’s failure to ob-
ject to that instruction could not constitute in-
effective assistance. Likewise, in White, 153
F.3d at 208, we stated: “[O]ur conclusion that
the purported . . . error was harmless
forecloses any argument that deficiency in the
performance of [petitioner’s] trial counsel pre-
cipitated by the . . . error was prejudicial.”.10
Given our earlier determination that the
“crucial” and “devastating” prong of the Dut-
ton Confrontation Clause test is equivalent to
harmless error,11 our previous holding that the
9 The court was especially diligent in reviewing
Painter’s alleged strategy, because Painter had
been subject to bar discipline and had abused
alcohol. See Gochicoa III, 53 F. Supp. 2d at 950-
51. Painter was appointed to represent Gochicoa
in January 1992, at which point he had been li-
censed for approximately three years following a
six-year suspension. When he was appointed to
represent Gochicoa, Painter had neglected a legal
matter and failed to keep a client apprised of her
case, which failings would ultimately lead to his
being disbarred in 1994. In the disbarment
proceeding, Painter stated that “[d]uring the years
1990, 1991, and 1992, my addiction to alcohol
greatly affected my professional and personal life.”
There is no evidence, however, that Painter’s judg-
ment was affected by alcohol abuse during Gochi-
coa’s trial.
10 See also Mayabb, 168 F.3d at 869 (noting
that harmless error in a jury charge cannot be the
basis for Washington prejudice).
11 The prior panel’s conflation of the harmless
error standard with the “crucial” and “devastating”
prong of Dutton, and its decision that the error was
harmless, bind us as the law of this circuit. Of
course, one panel’s dictum cannot bind future
panels. See, e.g., Uniroyal Chem. Co. v. Deltech
Corp., 160 F.3d 238, 252 (5th Cir. 1998). A
faithful reading of Gochicoa II, however, does not
allow the conclusion that the statements at issue
were mere dictum. A statement should be con-
sidered dictum when it “could have been deleted
without seriously impairing the analytical
foundations of the holding—[and], being
peripheral, may not have received the full and
careful consideration of the court that uttered it.”
In re Cajun Elec. Power Coop, Inc., 109 F.3d 248,
256 (5th Cir. 1997) (citing Sarnoff v. Am. Home
Prods. Corp., 798 F.2d 1075, 1084 (7th
Cir.1986)) (modification in original, quotation
marks omitted).
When confronting decisions of prior panels,
however, we are bound by “not only the result but
also those portions of the opinion necessary to that
result . . . .” Seminole Tribe v. Florida, 517 U.S.
44, 67 (1996). Moreover, “[a]s a general rule, the
(continued...)

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10
inadmissible hearsay did not satisfy this Dutton
prong precluded the district court from finding
the hearsay prejudicial under Washington. See
Gochicoa II, 118 F.3d at 447. Because the
hearsay is not sufficiently damaging to warrant
reversal as a Confrontation Clause violation
(meaning any error was harmless), it is not
sufficiently damaging when re-framed as
ineffective assistance of counselSSit remains
harmless.12 We therefore REVERSE the grant
of habeas relief, AFFIRM the refusal to
consider Washington prejudice, and RENDER
judgment in favor of the state.
11(...continued)
principle of stare decisis directs us to adhere not
only to the holdings of our prior cases, but also to
their explications of the governing rules of law.”
County of Allegheny v. Am. Civil Liberties Union,
492 U.S. 573, 668 (1989) (Kennedy, J. concurring
and dissenting), quoted in Seminole Tribe, 517
U.S. at 67.
In Gochicoa II, we plainly relied on the concept
of harmless error when analyzing the hearsay
testimony under Dutton: First, we explained that
Dutton’s “crucial” and “devastating” prong “rec-
ognizes that the erroneous admission of unreliable
hearsay may nonetheless be harmless in light of
other evidence at trial . . . .” Gochicoa II, 118
F.3d at 447. We then proceeded to equate that
prong with harmless error analysis, see id. at 447
n.6, before finally concluding that the admitted
testimony was neither crucial nor devastating “in
the context of the trial as a whole.” Id. at 447.
Thus, our finding of harmless error in Gochicoa II
is entitled to respect not only as necessary to the
result, but also as an “explication of the governing
rules of law” in this case. See County of
Allegheny, 492 U.S. at 668.
12 Gochicoa urges us to reverse the district
court’s conclusion that our earlier holding—that
the hearsay testimony was not “crucial” or
“devastating” for purposes of a Dutton challenge
under the Confrontation Clause, see Gochicoa II,
118 F.3d at 447—precludes it from inquiring into
(continued...)
12(...continued)
whether the error was indeed harmless under
Washington. Gochicoa contends that, because his
Washington challenge involves his “right, under
Texas law, to have [hearsay testimony] excluded,”
our earlier analysis of the testimony under Dutton
allowed testimony that Texas law might have
excluded.
Nonetheless, the prior panel concluded that the
disputed testimony “was neither crucial to the pro-
secution nor devastating to the defense in the
context of the trial as a whole.” Id. In light of our
equation of Dutton’s crucial and devastating prong
with the harmless error standard, see id. at 447 n.6,
and irrespective of whether the testimony might
have been excluded under Texas law, its inclusion
is harmless as a matter of law, and the district
court correctly concluded that it could not revisit
the issue.

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11
DENNIS, Circuit Judge,
concurring in part and
dissenting in part:
I concur in part II of the
majority opinion insofar as it
holds that the district court
erred in finding a constructive
denial of counsel. I disagree,
however, with part III, which
rejects Gochicoa’s cross-appeal
b a s e d o n S t r i c k l a n d .
Therefore, I respectfully
dissent.
I.
Gochicoa II’s suggestion that
the “crucial” and “devastating”
factor of the Dutton
Confrontation Clause test is
equivalent to the harmless
error test for erroneously
admitted hearsay was an
erroneous dictum; actually,
Gochicoa II did not apply a
harmless error test at all.
Instead, it applied an inverted
sufficiency of evidence test:
If the erroneously admitted
hearsay evidence “standing
alone” was not a sufficient
basis for a conviction, it
therefore is not “crucial and
devastating” and hence could
not be grounds for reversal as
a Confrontation Clause
violation.
(a) The Erroneous Dictum
of Gochicoa II
The Supreme Court and this
court have in the past taken
great pains to point out that
h e a r s a y e r r o r s a n d
Confrontation Clause violations
are not fungible. On the
contrary, they have held that
the overlap between an
admission of hearsay and a
Confrontation Clause violation
is not complete; either may

-- 11 of 26 --

12
occur without the other. This
court, in Favre v. Henderson,
464 F.2d 359, 362 (5th Cir.
1972) (quoting Green v.
California, 399 U.S. 149, 155-
156 (1970)), stated:
While it may readily be
conceded that hearsay rules
and the Confrontation
Clause are generally
designed to protect similar
values, it is quite a
different thing to suggest
that the overlap is
complete and that the
Confrontation Clause is
nothing more or less than a
codification of the rules
of hearsay and their
exceptions as they existed
historically at common law.
Our decisions have never
established such a
congruence; indeed, we have
more than once found a
violation of confrontation
values even though the
statements in issue were
admitted under an arguably
r e c o g n i z e d h e a r s a y
exception. * * * The
converse is equally true:
merely because evidence is
admitted in violation of a
long-established hearsay
rule does not lead to the
automatic conclusion that
confrontation rights have
been denied.
See also Dutton v. Evans, 400
U.S. 74, 86 (1970) (“It seems
apparent that the Sixth
Amendment’s Confrontation
Clause and the evidentiary
hearsay rule stem from the same
roots. But this court has never
equated the two, and we decline
to do so now.”); United States
v. Sarmiento-Perez, 633 F.2d
1092, 1099 (5th Cir. 1981)
(“Conceptually, at least,
evidence sufficiently reliable
to qualify for admission under
a recognized exception to the
hearsay rule might yet offend
confrontation values; and,
conversely, the admission of
incriminating hearsay evidence
might well avoid impinging
confrontation rights.”) (citing
WEINSTEIN’S EVIDENCE ¶ 800[04];
MCCORMICK ON EVIDENCE, § 252);
Cupit v. Whitley, 28 F.3d 532,
536 (5th Cir. 1994) (“Although
the confrontation clause and
the hearsay rule are related,

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13
the Sixth Amendment right to
confrontation does not perforce
preclude the admission of any
hearsay testimony.”); Johnson
v. Blackburn, 778 F.2d 1044,
1051 (5th Cir. 1985) (same);
Spears v. Circuit Court, Ninth
Judicial District, 517 F.2d 360
(5th Cir. 1975) (same) (citing,
inter alia, Hoover v. Beto, 467
F.2d 516 (5th Cir. 1972); Park
v. Huff, 506 F.2d 849 (5th Cir.
1975)).
In my opinion, the panel in
Gochicoa II misinterpreted and
misapplied the controlling
precedents of the Supreme Court
and this Circuit in concluding
that there had been no
violation of Gochicoa’s
Confrontation Clause right.
Contrary to those decisions,
Gochicoa II seeks to truncate
and prioritize the factors of
Dutton and progeny to be taken
into consideration in
determining whether a
Confrontation Clause violation
has occurred. The Supreme
Court has never said that only
the first and fifth factors
need be considered or that any
factor can be totally
disregarded. Indeed, this
c o u r t h a s r e p e a t e d l y
demonstrated the importance of
considering all the Dutton
factors. See, e.g., Cupit, 28
F.3d at 537 (analyzing the five
Dutton factors separately and
stating that courts must assess
“a host of considerations” in
deciding whether or not
wrongfully admitted hearsay
evidence violates the
Confrontation Clause); Johnson
v. Blackburn, 778 F.2d 1044,
1051 (5th Cir. 1985) (placing
emphasis on the first and
fourth factors of the Dutton

-- 13 of 26 --

14
test only because factors two
and three were not applicable);
Spears, 517 F.2d at 365-66
(examining the five Dutton
factors); Favre, 464 F.2d at
363-64 (conducting an
individual examination of nine
factors described in Dutton).
To focus exclusively on the
first and fifth factors ignores
not only precedent in this
Circuit but also important
constitutional considerations.
Nor has the Supreme Court or
this court ever said that the
D u t t o n “ c r u c i a l ” a n d
“devastating” prong is really a
substitute for a harmless error
test rather than one of the
factors to be weighed in
determining whether a
Confrontation Clause violation
has occurred. In fact, Dutton
used those words to distinguish
prior cases in which much more
damaging confrontation errors
had occurred. Gochicoa II
badly misread the meaning of
this Circuit’s discussion of
Dutton’s phraseology in
Sarmiento-Perez, 633 F.2d at
1103 n.6. Before penning
footnote 6 of Sarmiento-Perez,
Judge Tate surveyed Supreme
Court precedent. He noted
that,

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15
In Dutton v. Evans, 400
U.S. 74, 91 S.Ct. 210, 27
L.Ed.2d 213 (1970), the
Supreme Court held that
t h e r i g h t o f
confrontation was not
violated by the admission
of a coconspirator's
inculpatory out-of-court
declaration that was
admissible under the
state's liberal hearsay
e x c e p t i o n , b u t
inadmissible under the
narrower federal hearsay
exception. The Dutton
court focused upon the
now- familiar "indicia of
reliability" standard as
t h e t h r e s h o l d o f
admissibility under the
confrontation clause. . .
Sarmiento-Perez, 633 F.2d at
1103. In so holding, the
Dutton court distinguished
earlier Supreme Court precedent
by stating:
This case does not
involve evidence in any
sense "crucial" or
"devastating," as did all
the cases just discussed.
It does not involve the
use, or misuse, of a
confession made in the
coercive atmosphere of an
official interrogation,
as did Douglas.... It
does not involve any
s u g g e s t i o n o f
prosecutorial misconduct
or even negligence, as
did ... Douglas....

-- 15 of 26 --

16
Id. (quoting Dutton v. Evans,
40 U.S. at 86-87).
At the bottom of the above
paragraph, Judge Tate attached
footnote 6. Judge Tate did not
say that the “crucial” and
“devastating” language in
Dutton and Douglas “simply
restates harmless error rule.”
Gochicoa II, 118 F.3d at 447
n.5. In footnote 6 of
Sarmiento-Perez Judge Tate
actually said:
Much has been made of the
" c r u c i a l " a n d
"devastating" language in
Dutton and Douglas. The
thrust of the language in
these decisions may be
read as intending nothing
more than the observation
that the evidence at
issue was or was not
sufficiently damaging to
the defense to be
considered grounds for
reversal:
This case cannot be
characterized as one
where the prejudice in
the denial of the right
of cross-examination
constituted a mere minor
lapse. The alleged
statements clearly bore
on a fundamental part of
the State's case against
the petitioner. The
c i r c u m s t a n c e s a r e
therefore such that
"inferences from a
witness's refusal to
answer added critical
w e i g h t t o t h e
prosecution's case in a
form not subject to
cross-examination, and
thus unfairly prejudiced
the defendant."

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17
Sarmiento-Perez, 633 F.2d at
1103 n.6 (quoting Douglas v.
Alabama, 380 U.S. 415, 420
(1965) (citations omitted)).
Going from bad to worse, the
court in Gochicoa II, after
mistakenly equating “crucial
and devastating” with “harmless
error,” proceeded to ignore the
hearsay “harmless error” test
and to convert the “crucial and
devastating” factor into an
inverted pro-prosecution
sufficiency of evidence test.
Almost immediately after its
misinterpretation of Sarmiento-
Perez, the court proceeded to
reject the district court’s
finding that the hearsay was
“crucial and devastating”
because “the tip from the
informant standing alone did
not connect Gochicoa to the
balloon of heroin found in the
public alleyway; only
C a r r a s c o ’ s t e s t i m o n y
established an immediate,
albeit circumstantial, link
between Gochicoa and the
drugs.” Gochicoa II, 118 F.3d
at 447 (emphasis added).
“Although the informant’s tip
certainly bolstered the state’s
case,” the Gochicoa II court
concluded that “the hearsay
evidence was neither crucial
nor devastating in the context
of the trial as a whole.”13 Id. In
13 In contrast to the court’s
approach in Gochicoa II, other
courts have applied the “crucial
and devastating” prong of Dutton
in an even-handed way more in
keeping with Dutton’s holding
that it be considered as merely
one of many factors or
considerations. For example, in
Cupit, the court “[v]iew[ed] the
evidence about which Cupit
complained through the . . .
prism of considerations” of the
other four factors. Cupit, 28
F.3d at 537. See also Favre, 464
F.2d at 364-67 (evaluating the
evidence without explicitly
applying a formalistic test);
Spears, 517 F.2d at 367
( e m p l o y i n g a l o o s e r
(continued...)

-- 17 of 26 --

18
other words, Gochicoa II reasoned
incoherently that if erroneously admitted
hearsay evidence was by itself insufficient to
support the defendant’s conviction, it could
not have been “crucial and devastating;”
therefore, it must have been harmless and not
reversible error.
(b) The Proper Confrontation
Clause Violation And
Harmless Error Tests
In a proper Confrontation Clause analysis
under Dutton, the court must, after analyzing
the Dutton factors, also determine the nature
of any error committed before deciding
whether it justifies reversal. See Cupit, 28
F.3d at 537. See also Spears, 517 F.2d at 367
(applying a harmless error test after examining
the factors in Dutton); Favre, 464 F.2d at 366
(same); Hoover v. Beto, 467 F.2d 516, 538
(5th Cir. 1972) (same). Because the errors of
Gochicoa’s counsel were his repeated failures
during trial to recognize and object to the
introduction of the inculpatory hearsay of an
out-of-court accuser, they were trial errors.14
13(...continued)
“significantly effect test” and
stating “[i]t is inconceivable
that the testimony of the
receptionist or nurse might
significantly affect the jury’s
basis for evaluating the validity
of the report and the opinions
based upon it”) (emphasis added);
Gochicoa II, 118 F.3d at 449 n.8
(Jolly, J., dissenting) (“I can
agree that the properly admitted
evidence in this case was
sufficient to allow a rational
jury to convict Gochicoa, but
that is not a question before
this court today. A
Confrontation Clause violation
may occur when inadmissible
evidence was devastating to the
defense, even if the properly
admitted evidence, viewed in
isolation, is sufficient to
sustain the verdict.”).
14 In addition to trial error,
there are two other types of
error. The second type is
structural error that vitiates
the proceedings. See Cupit, 28
F.3d at 537-38. A “[s]tructural
error is error ‘affecting the
framework within which a trial
proceeds.’” White v. Johnson, 153
F.3d 127, 201-02 (5th Cir. 1998)
(quoting Arizona v. Fulminante,
499 U.S. 279, 310 (1991)). This
type of error is so serious that
it cannot be considered harmless
(e.g., a biased judge or the
denial of counsel to the
defendant). See Cupit, 28 F.3d
at 537-38. The third type of
error recognized by the Court in
Brecht v. Abrahamson, 507 U.S.
619 (1993), is that of “an
unusual case” in which “a
(continued...)

-- 18 of 26 --

19
Indeed, the court in Cupit explicitly stated that
admission of hearsay testimony is classified as
a “classic trial error,” so actual prejudice must
be shown and a harmless error test should be
conducted. In Cupit, a federal habeas
proceeding concerning Cupit’s second degree
murder conviction in state court, this Circuit
held that the testimony of investigating officers
and witnesses about hearsay statements of an
alleged murder victim prior to his death did
not violate the accused’s Confrontation Clause
rights. Cupit, 28 F.3d at 536-37. But
assuming that they did, the court found that
their admission was harmless error under
Brecht, explaining that Brecht required the
application of the standard in Kotteakos v.
United States, 328 U.S. 750 (1946) (“whether
the . . . error ‘had substantial and injurious
effect or influence in determining the jury’s
verdict”), instead of the “harmless beyond a
reasonable doubt” standard in Chapman v.
California used to determine the
effect of constitutional errors
on direct review. See Cupit,
28 F.3d at 537-39; see also
United States v. Chapman, 193
F.3d 375, 379 (5th Cir. 2000).
Under this habeas “harmless
error” test, the conviction
cannot stand if the error had
“substantial influence” or “if
one is left in grave doubt.”
Cupit, 28 F.3d at 538 (citing
Kotteakos, 328 U.S. at 765;
Brecht, 113 S.Ct. at 1724
(Stevens, J. concurring)).
“Our task . . . is to determine
. . . whether the petitioner
has successfully established in
our minds grave doubt as to the
14(...continued)
deliberate and especially
egregious error of the trial
type, or one that is combined
with a pattern of prosecutorial
misconduct, might so infect the
integrity of the proceeding as to
warrant the grant of habeas
relief, even if it did not
substantially influence the
jury’s verdict.” Id. at 638 n.9.

-- 19 of 26 --

20
question of whether the assumed
wrongfully admitted hearsay
influenced the conviction.” Id.
at 538-39 (citing Lowery v.
Collins, 996 F.2d 770, 773 (5th
Cir. 1993)). Thus, in this
last respect, the Cupit court
anticipated the Supreme Court’s
holding in O’Neal v. McAninch,
513 U.S. 432, 436 (1995)
(“When a federal judge in a
habeas proceeding is in grave
doubt about whether a trial
error of federal law had
‘substantial and injurious
effect or influence in
determining jury’s verdict,’
that error is not harmless.
And, petitioner must win.”);
see also California v. Roy, 519
U.S. 2 (1996). By “grave
doubt,” the Supreme Court
explained, “we mean that in the
judge’s mind, the matter is so
evenly balanced that he feels
himself in virtual equipoise as
to the harmlessness of the
error.” O’Neal, 513 U.S. at
435. Thus, the ultimate
question becomes “whether the
petitioner has successfully
established in our minds grave
doubt as to the question of
whether the assumed wrongfully
admitted hearsay influenced the
conviction.” Cupit, 28 F.3d at
538-39. In evaluating the
trial error, the “strength of
the prosecution’s case is
probably the single most
important factor in determining
whether the error was
harmless.” Id. at 539.
While the court in Gochicoa
II purported to rely on a
harmless error test, it is
clear that the majority did not
undertake the above Brecht-
O’Neal-Roy analysis. The text
of the opinion evidences use of

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21
a different standard. Because
the “crucial and devastating”
Dutton factor is not the same
as the Brecht “harmless error”
test, and is certainly
different from Gochicoa II’s
eccentric “inverted sufficiency
test,” the Gochicoa II majority
fell into compounded legal
errors and failed to apply the
correct Confrontation Clause or
harmless error analysis.
II.
Because Gochicoa II’s errors
were either dictum or the
clearly erroneous application
of an incorrect legal principle
that would work a manifest
injustice, we are not bound by
those mistakes as the law of
this case; in Gochicoa II we
must apply correct legal
principles in deciding the
ineffective assistance of
counsel claim. T o
determine the binding effect of
Gochicoa II on this panel, the
law of the case doctrine must
be applied. First, the
doctrine of the law of the case
“‘posits that when a court
decides upon a rule of law,
that decision should continue
to govern the same issues in
subsequent states of the same
case.’” Christianson v. Colt
Indus. Operating Corp., 486
U.S. 800, 816 (1988) (quoting
Arizona v. California, 460 U.S.
605, 618 (1983)). This rule
serves to promote policies of
both finality and judicial
efficiency. See id. With
respect to rules of law, the
law of the case doctrine
applies even on interlocutory
appeals. See Royal Ins. Co. v.
Quinn-L Capital Corp., 3 F.3d

-- 21 of 26 --

22
877, 881 (5th Cir. 1993). With
regard to factual matters, this
doctrine applies only to issues
actually decided and does not
apply to obiter dicta. See 18
JAMES WM. MOORE ET. AL., MOORE’S
FEDERAL PRACTICE § 134.20[3], at
134-45 (3d ed. 1999) (“The
doctrine does not apply to
statements made by the court in
passing, or stated as possible
alternatives.”) If the issue
has been decided either
explicitly or by implication,
however, the law of the case
doctrine governs. See Royal
Ins., 3 F.3d at 881.
As applied in this Circuit,
the law of the case doctrine is
not absolute, and, in fact,
application of this doctrine is
discretionary. Courts,
however, “will generally refuse
to revisit a prior panel’s
decision unless ‘(i) the
evidence on a subsequent trial
was substantially different,
(ii) controlling authority has
since made a contrary decision
of the law applicable to such
issues, or (iii) the decision
was clearly erroneous and would
work a manifest injustice.’”
Free v. Abbott Labs., 164 F.3d
270, 272-73 (5th Cir. 1999)
(quoting North Miss. Comms.,
Inc. v. Jones, 951 F.2d 652,
656 (5th Cir. 1992)).
In the present case, we are
not bound by the dictum or the
rule of decision adopted by
Gochicoa II for several
reasons. First, Gochicoa II is
not law of the case with regard
to ineffective assistance of
counsel because Gochicoa II did
not address whether the
admission of the hearsay
evidence was harmless error

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23
under the Brecht-Cupit
analysis. Instead, the court
in Gochicoa II, while
purporting to examine harmless
error by its misguided
application of the “crucial and
devastating” factor and an
inverted sufficiency of
evidence test, not only failed
to correctly apply the Dutton
Confrontation Clause factors
but also failed to conduct the
Brecht harmless error test.15
Furthermore, a finding by the court in
Gochicoa II that the error was not “crucial and
devastating” does not bar this court from
considering Gochicoa’s ineffective assistance
of counsel claim. This Circuit has recognized
that an error does not have to be “crucial and
devastating” to be harmful under Brecht.
“[H]earsay testimony that is neither ‘crucial’
nor ‘devastating’ under Dutton may
nevertheless amount to reversible error under
Kotteakos.” United States v. Arias-Diaz, 497
F.2d 165, 172 (5th Cir. 1974). Consequently,
even a proper finding that an error was not
“crucial and devastating” does not bar a
subsequent finding of a “substantial and
injurious” error. Thus, this court should
address Gochicoa’s Sixth Amendment claim
on a clear slate, free of the clearly erroneous
and manifestly unjust rules of law applied by
Gochicoa II.
Assuming, arguendo, that the “crucial and
devastating” finding were broad enough to
15 Although the State of Texas
contends that White v. Johnson,
153 F.3d 197 (5th Cir. 1998), and
Harris v. Warden, 152 F.3d 430,
440 (5th Cir. 1998), bar
consideration of the ineffective
assistance of counsel claim
(because an earlier finding of
harmless error prevents
examination of the ineffective
assistance of counsel claim),
these cases prove wholly
inapplicable given the finding
that the court in Gochicoa II did
not apply the harmless error test
at all. Moreover, because Mayabb
v. Johnson, 168 F.3d 863 (5th Cir.
1999), was not a habeas case and,
therefore, may have employed a
different harmless error
standard, that case is doubly
inapplicable.

-- 23 of 26 --

24
subsume the Brecht harmless error test, this
court would not be bound by Gochicoa II
because a “decision that was clearly erroneous
and would work a manifest injustice” is an
exception to the law of the case doctrine.
Free, 164 F.3d at 272-73. In the pithy words
of the Seventh Circuit, Gochicoa sets off the
clearly erroneous standard because the topsy-
turviness of its rule application “strike[s] us as
wrong with the force of a five-week-old,
unrefrigerated dead fish.” Id. (quoting Parts &
Elec. Motors, Inc. v. Sterling Elec. Inc., 866
F.2d 228, 233 (7th Cir. 1988)). As the district
court stated, “Gochicoa was represented by
counsel whose inaction and lack of basic
knowledge resulted in a guilty verdict followed
by a sentence of sixty (60) years in Texas
prison.”
III.
Finally, application of Strickland to the
present case requires the conclusion that
Gochicoa was denied effective assistance of
counsel. To determine whether the plaintiff
was denied effective assistance of counsel,
courts must apply the two-pronged test of
Strickland, 466 U.S. 668, 692-93 (1984). To
prevail on a claim of ineffective assistance of
counsel, a petitioner must first show that
counsel’s performance was deficient. That is,
he must show that ”counsel’s representation
fell below an objective standard of
reasonableness.” Id. This showing is often
difficult, as the Supreme Court employs a
“highly deferential” approach that accords a
“strong presumption that counsel’s conduct
falls within the wide range of reasonable
professional assistance.” Id. at 689. The
second prong of the test requires that the
petitioner show prejudice due to counsel’s
performance. See id. In defining prejudice,
this Circuit has held that

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25
the defendant must show that there is
a reasonable probability that, but for
counsel’s professional errors, the result
of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine
confidence in the outcome. The
defendant need not show “that
counsel’s deficient conduct more likely
than not altered the outcome in the
case.” But it is not enough, under
Strickland, “that errors had some
conceivable effect on the outcome of
the proceeding.”
Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.
1994) (quoting Strickland, 466 U.S. at 693-
94)) (internal citations omitted).
Concerning the first prong of Strickland,
there appears to be little doubt that counsel’s
inept performance was deficient. As the
district court observed, knowledge of the very
basic rules of evidence is essential to any
competent representation in a criminal trial.
By failing to object to “obviously inadmissible
hearsay,” Gochicoa’s counsel demonstrated hi s
ignorance of these basic rules. The district
court unequivocally stated, “Except for
defense counsel, everyone in the courtroom on
the day of the trial understood that the
statements of the informant were hearsay....”
Order Granting Habeas Writ at 17.
With respect to the prejudice prong,
petitioner can clearly demonstrate a reasonable
probability that, but for counsel’s deficient
performance, “the result of the proceeding
would have been different.” The hearsay
testimony established a substantial and direct
link between Gochicoa and the heroin dealer
who lived in the very street and block where
Gochicoa was seen walking and the illegal
drugs were later found. Without the tipster’s
out-of-court statement that Gochicoa was

-- 25 of 26 --

26
buying from that dealer at that location at that
time, the state’s case, as likely as not, would
have foundered because it would have rested
only upon the tenuous basis of Gochicoa’s
nervousness and Carrasco’s testimony that at
dusk, he saw Gochicoa from 150 feet make a
throwing motion but did not see what object,
if any, he threw. See Gochicoa II, 118 F.3d at
442, 447. As Judge Jolly noted in his dissent,
“[T]he evidence that Gochicoa was in the area
to buy heroin [from an identified dealer who
lived there] provides a crucial link between the
defendant and the drugs.” Id. at 449 (Jolly, J.,
dissenting). Moreover, the prosecution’s
repeated reliance on the hearsay evidence
underscores its importance. See id. (Jolly, J.,
dissenting). Even the majority in Gochicoa II
admits that the remaining evidence was solely
“circumstantial” and that the hearsay testimony
“certainly bolstered the state’s case. . . .” Id.
at 447. Thus, any confidence in Gochicoa’s
conviction is undermined because, but for
counsel’s deficient performance in allowing the
admission of the hearsay, a reasonable
probability exists that the result of the
proceeding would have been different.
We should not assume that we are bound
by Gochicoa II’s distorted application of the
“crucial and devastating” factor as an inverted
sufficiency of evidence test. Thus, an
independent evaluation should be undertaken
with respect to Gochicoa’s ineffective
assistance of counsel claim applying the
Strickland analysis. Accordingly, I would
AFFIRM the grant of habeas, REVERSE the
district court’s refusal to consider Strickland
prejudice, and RENDER judgment on the
ineffective assistance of counsel claim in favor
of Gochicoa.

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