Gerald Eugene Stano appealed from the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Although Stano raised numerous claims on appeal, this court granted relief, subsequently vacated, under the Sixth and Fourteenth Amendments to the United States Constitution. Stano v. Dugger, 889 F.2d 962 (11th Cir.1989), vacated, 897 F.2d 1067 (11th Cir.1990) (per curiam). After rehearing en banc and thoroughly reviewing the two issues presented of self-representation and ineffective assistance of counsel, the en banc court concludes that Stano's Sixth Amendment claims are without merit on the facts of this case. We refer this case to the original panel for resolution of all other appellate issues.

This case concerns Stano's appeal of his death sentences pursuant to his confessing and pleading guilty to the murders of two young women in Volusia County, Florida. On August 15, 1982, Stano confessed to Sergeant Paul B. Crow of the Daytona Beach Police Department the murder of Susan Lynn Bickrest, who died from suffocation caused by strangulation and drowning.2 On October 8, 1982, Stano confessed to Sergeant Crow the murder of Mary Kathleen Muldoon, who died from a gunshot head wound and drowning.3 Stano was indicted by a Volusia County grand jury for the murders of Bickrest and Muldoon on January 18, 1983.

The Honorable S. James Foxman, circuit judge for Volusia County, arraigned Stano on February 8, 1983. With Stano's agreement, Judge Foxman appointed public defender Howard B. Pearl to represent Stano.4 Pearl previously had represented Stano for three guilty pleas to first-degree murders before Judge Foxman. On behalf of Stano, Pearl entered a not guilty plea to each of the two indictments. The court accepted these pleas.

Before Judge Foxman on March 11, 1983, Stano changed his pleas to guilty to the Bickrest and Muldoon murder indictments. Preliminary to the plea taking commenced, Pearl informed the court that, although all discovery from the state had not been produced, Stano wanted to plead guilty to the two murders.5 Lawrence Nixon, the state prosecutor, told the court that he had sufficient evidence to prove Stano's commission of the homicides. He explained that the missing discovery to which Pearl referred was similar fact evidence relating the Bickrest and Muldoon murders to other Florida homicides committed by Stano. This evidence was relevant to the sentencing phase and not to the proof of the murder charges at trial.6

With Pearl's concerns regarding the lack of full discovery on the record, Stano was placed under oath and the taking of the pleas proceeded. Stano testified that he was thirty-one years old, that he had a twelfth-grade education and computer training, and that he had worked as a cook, computer operator, and desk clerk in a gas station. The court determined that Stano had not had any psychiatric problems and that he had been evaluated competent to stand trial.7

Judge Foxman explained to Stano in detail the results of his pleading guilty, particularly the removal of the jury from the proceedings, and he ascertained that Stano had discussed these consequences with Pearl.8 Judge Foxman further discussed with Stano that pleading guilty waived his defenses and rights to a jury trial with representation by counsel; he elicited from Stano that his pleas were voluntary and emphasized that pleading guilty did not commit the judge to a particular sentence.9 Judge Foxman specifically determined that Stano was satisfied with the services of Pearl.10

Following the evidence produced by the state of each homicide, Stano pled guilty to the Bickrest and Muldoon murders. Judge Foxman concluded that Stano's pleas were knowing, intelligent and voluntary, and that Stano had the advice of competent counsel with whom he was satisfied.11 Judge Foxman accepted Stano's pleas and adjudicated him guilty.

Sentencing proceedings, including an evidentiary hearing, were conducted before Judge Foxman on June 8, 9 and 10, 1983; Stano was represented by Pearl. On June 13, 1983, Judge Foxman sentenced Stano to death in both the Bickrest and Muldoon cases. Judge Foxman commented at sentencing that he had been impressed by the number of Stano's murder convictions, his lack of motive and absence of remorse.12 He entered written factual findings supporting the death sentence in each case.

On direct appeal from the imposition of the death penalty in the Bickrest and Muldoon cases, the Supreme Court of Florida affirmed the adjudications of guilt and sentences of death by the trial court. Stano v. State, 460 So.2d 890 (Fla.1984) (per curiam), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985). The Florida Supreme Court noted that "[p]rior to these proceedings, Stano had pleaded guilty to six counts of first-degree murder for the killing of six young women and, pursuant to a plea bargain agreement, had been sentenced to six consecutive terms of life imprisonment without eligibility of parole for twenty-five years."13 Id. at 892. Subsequently, the governor of Florida signed a warrant for Stano's execution.

Pursuant to Florida Rule of Criminal Procedure 3.850, Stano requested post-conviction relief from the state trial court. Judge Foxman held a hearing on December 1, 1986. Judge Foxman expressed his frustration that Stano, claiming innocence of the Bickrest and Muldoon murders, was attacking his guilty pleas made under oath. Stano's present appellate counsel tenuously proposed that Stano was representing himself by entering a plea against his attorney's advice, and that the trial court should have engaged in the inquiry required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).14 Significantly, the state observed that Pearl did not move to set aside the pleas when he did receive full discovery during the time between Stano's entering the pleas and his sentencing.15 Judge Foxman granted a continuance of the hearing until January 27, 1987.

Judge Foxman's order, denying Stano post-conviction relief, was issued on April 13, 1987. With respect to the ineffective assistance of counsel claim resulting from Pearl's not having received all of the state's discovery, Judge Foxman concluded that, because Stano acknowledged the missing evidence and directed his attorney to proceed with the plea on the record, he waived his rights under Florida law to complain about these issues at a later date.16 In the interest of finality, Judge Foxman concluded that a court would not go behind a guilty plea given under oath after being assured that the plea was voluntary.

Finding the record conclusive, negating the necessity for an evidentiary hearing, the Florida Supreme Court affirmed the trial court's denial of post-conviction relief to Stano on February 25, 1988. Stano v. State, 520 So.2d 278 (Fla.1988) (per curiam). The Florida Supreme Court agreed with the trial court that Stano's guilty pleas were freely and voluntarily given without duress after discussions with his attorney, and that Stano had no questions to ask his counsel before pleading guilty.17 Id. at 280. The court specifically noted that Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), held that the two-part test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to challenges to guilty pleas, and that Stano's claims did not demonstrate that his counsel's performance fell below an objective standard of reasonableness or that, but for his counsel's unprofessional errors, the result would have been different. Stano, 520 So.2d at 280 & n. 2.

When the Florida governor signed another death warrant, Stano petitioned for a writ of habeas corpus and stay of execution. In denying the requested relief on May 16, 1988, the Florida Supreme Court concluded that Stano's claims of alleged constitutional violations essentially were complaints regarding the voluntariness of his guilty pleas and his counsel's effectiveness concerning the pleas.18 Stano v. Dugger, 524 So.2d 1018 (Fla.1988) (per curiam). Having addressed these complaints in Stano's direct appeal and in his petition for post-conviction relief, the court declined to revisit those issues, and found them to be raised improperly. Id. at 1019. The Florida Supreme Court specifically found that Stano's allegations of ineffective assistance of counsel were meritless because he had not established prejudice, the second part of the Strickland test for ineffectiveness. Id.

Following Stano's petition for habeas corpus relief to the United States District Court for the Middle District of Florida, the Honorable Patricia C. Fawsett conducted an evidentiary hearing on May 17, 1988. The testimony of Howard Pearl, Stano's court-appointed attorney, is significant to the Sixth Amendment issues in this case. In addition to his prior representation of Stano before his change of pleas in 1983, Pearl had represented approximately 300 death penalty inmates, approximately 75 of whom were defendants in capital trials.19 When Stano told Pearl that he wanted to change his pleas, Pearl advised Stano that he had not had an opportunity to investigate the cases completely because he had not received all of the state's evidence. Pearl also explained to Stano that he had not had the opportunity to negotiate with the state, that Stano's pleas were premature, and that death penalties was likely.20 Nevertheless, Stano insisted on pleading guilty immediately.

Pearl testified that he had a two-part strategy for defending Stano at the sentencing proceedings in an attempt to avoid the death penalty. First, he wanted to obtain testimony from mental health professionals that Stano was acting under a mental disability when he committed the Bickrest and Muldoon murders. Second, he sought the opportunity to persuade Judge Foxman that there should be proportionality, or the same sentences for Stano, since Judge Foxman had sentenced Stano to three life terms for three guilty pleas to similar first-degree murders in Volusia County.21 Judge Fawsett questioned Pearl in detail about the sentencing information and advice that he gave to Stano prior to his entering guilty pleas to the Bickrest and Muldoon murders.22

Furthermore, Pearl explained to Stano that he was at risk for the death penalty before he pled because the six prior murders to which Stano had pled guilty constituted statutory aggravating circumstances; the Bickrest and Muldoon cases could be aggravators for each other; and Florida law presumes death to be the proper penalty for one aggravating circumstance. Pearl also informed Stano of his belief that the death penalty probably would be imposed because Judge Foxman had taken three prior guilty pleas from Stano for murders in Volusia County in which Stano had benefitted from an agreement for life sentences with the state attorney. The agreement was not applicable to the Bickrest and Muldoon pleas, and Pearl, based on his experience, told Stano that guilty pleas to these additional murders made it "absolutely a dead probability beyond dispute he would get the death penalty." R3-237. Stano, however, was confident that Judge Foxman would give him additional life sentences.23 Although Pearl informed Stano of the rights that he would relinquish by pleading guilty, Stano, who never denied to Pearl that he committed the Bickrest and Muldoon murders and believed that the state could prove that he committed the two homicides, elected to proceed with pleading guilty.24

After Stano pled guilty and before he was sentenced, the state abandoned the legal theory of similar fact evidence that was supported by the unproduced discovery at the time of Stano's pleas. Therefore, Pearl had received from the state and reviewed all evidence regarding the Bickrest and Muldoon murders before the plea proceedings.25 Prior to Stano's sentencing, Pearl continued his investigation, including his pursuit of an insanity defense.

Preceding his sentencing, Stano was examined by five mental health experts, four of whom testified at his sentencing proceedings. In response to Judge Fawsett's questions regarding Stano's competency, Pearl explained that he did not question Stano's ability to understand the issues involved in the case, but that he diligently, although unsuccessfully, pursued an insanity defense for Stano as the only explanation for his murders.26 Pearl's complete investigation of the Bickrest and Muldoon homicides revealed no basis to attack Stano's confessions or to withdraw his pleas.27

Following closing remarks by the parties on May 18, 1988, Judge Fawsett entered factual findings on the record.28 The district court found that Stano's highly experienced counsel advised him not to plead guilty because of Stano's three previous guilty pleas to first-degree murders before Judge Foxman, the probable death sentences, and Pearl's intent to investigate the murders further. Stano rejected this advice and pled guilty, waiving a sentencing jury. Judge Fawsett concluded that Stano's claims of ineffective assistance of counsel were not valid after he chose to plead guilty following proper plea proceedings, resulting in the imposition of death sentences.

On May 18, 1988, Judge Fawsett also entered a written order denying Stano's petition for a writ of habeas corpus, his motion for a stay of execution, and a certificate of probable cause.29 With respect to Stano's claim that he effectively was acting pro se when he entered his guilty pleas to the murders of Bickrest and Muldoon because Pearl did so little to defend him, the district court recognized that the two-part Strickland test applies to guilty pleas in determining ineffective assistance of counsel. The district court recited the preliminary plea colloquy wherein Pearl disclosed to the court that full discovery had not been received and explained that Stano wanted to proceed with the pleas. Stano had agreed with Pearl's representations. Furthermore, Judge Fawsett noted that Stano stated that he was satisfied with his counsel's performance, that he had no questions to ask Pearl before pleading guilty, and that the trial judge had explained in detail the rights that Stano would waive by pleading guilty. The district court determined that Stano could not establish the prejudice aspect under Hill and Strickland. Even if Pearl had been able to obtain complete discovery, Judge Fawsett concluded that Stano did not show that, but for errors in Pearl's representation, he would not have pled guilty and would have insisted on going to trial.

Additionally, the district court found that Stano himself limited the effectiveness of his counsel by entering the guilty pleas against Pearl's advice:

It is clear from the record in this case that Mr. Stano, against advice from counsel, insisted upon entering pleas of guilty. Stano demanded that counsel permit him to plead guilty and waive a sentencing jury and persisted on going forward with this desire as soon as possible. The record shows, therefore, that Mr. Stano, himself, limited counsel's effectiveness by insisting upon a course of conduct that was contrary to counsel's warning that he was not prepared to advise Mr. Stano concerning his cases and contrary to counsel's warning that Stano could receive the death penalty.

Stano v. Dugger, No. 88-425-Civ-Orl-19 at 26-27 (M.D.Fla. May 18, 1988) (order denying Stano's petition for a writ of habeas corpus, stay of execution, and certificate of probable cause).

On May 18, 1988, this court granted a certificate of probable cause and stay of execution. Stano v. Dugger, 846 F.2d 1286 (11th Cir.1988) (per curiam). The court heard oral argument on February 27, 1989. A majority panel reversed the district court and directed it to grant Stano's petition for habeas corpus based on alternative Sixth Amendment theories: self-representation under Faretta and ineffective assistance of counsel under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), with respect to the repetitively reviewed preliminary plea colloquy. Stano v. Dugger, 889 F.2d 962 (11th Cir.1989) (Fay, J., dissenting).

A member of this court in active service requested a poll on the application for rehearing en banc. After a majority of the judges of the court in active service voted in favor of granting a rehearing en banc, the previous panel's decision was vacated. Stano v. Dugger, 897 F.2d 1067 (11th Cir.1990) (per curiam). On June 12, 1990, oral argument was heard by the en banc court solely on the Sixth Amendment claims of self-representation and ineffective assistance of counsel. We now explain these issues as decided by the en banc court.

A. The Requirements for Accepting a Guilty Plea Contrasted with the Prerequisites for Allowing a Defendant to Proceed Pro Se at Trial

Our analysis of Stano's Sixth Amendment self-representation claim requires us to examine constitutionally and to compare substantively the different inquiries that must be conducted by the trial court when a defendant elects to plead guilty or chooses to proceed pro se at trial. With life or liberty at stake, the accused's Sixth Amendment right to counsel must be protected by the trial court. See Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The Supreme Court has determined that the Sixth Amendment guarantees the accused "that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967) (footnote omitted); see Massiah v. United States, 377 U.S. 201, 204-05, 84 S.Ct. 1199, 1202, 12 L.Ed.2d 246 (1964) (The Court has stressed that a defendant's right to counsel is just as important at the pretrial stage as at trial.). The Court has safeguarded a state criminal defendant's Sixth Amendment right to counsel during critical stages of pretrial proceedings. See, e.g., Wade, 388 U.S. 218, 87 S.Ct. 1926 (post-indictment lineup); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (pretrial custodial interrogation); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (arraignment); see also Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977) (The Court has instructed that courts must indulge every reasonable presumption against waiver of the right to counsel; "[t]his strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings.").

Specifically addressing guilty pleas, the Court has stated:

Beyond the problem of trials and appeals is that of the guilty plea, a problem which looms large in misdemeanor as well as in felony cases. Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.

Argersinger v. Hamlin, 407 U.S. 25, 34, 92 S.Ct. 2006, 2011, 32 L.Ed.2d 530 (1972). Since the criminal defendant forgoes trial and his right to defend himself by pleading guilty, his right to counsel is especially important so that he will understand the basic rights that he waives by choosing to plead guilty. See Gaddy v. Linahan, 780 F.2d 935, 943 (11th Cir.1986) ("[A] plea of guilty represents, in essence, an admission as to each and every element of the offense." (citing McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969)). By pleading guilty, a defendant waives several constitutional rights, including the Fifth Amendment privilege against compulsory self-incrimination and the Sixth Amendment rights to a jury trial and to confrontation of one's accusers. Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir.1984) (per curiam) (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969)).

Nevertheless, it is not the attorney, but the defendant who enters a guilty plea and who is questioned by the court to determine whether the plea is made voluntarily, knowingly and intelligently. See Haring v. Prosise, 462 U.S. 306, 319, 103 S.Ct. 2368, 2376, 76 L.Ed.2d 595 (1983) (Since "a guilty plea is not simply 'an admission of past conduct,' but a waiver of constitutional trial rights such as the right to call witnesses, to confront and cross-examine one's accusers, and to trial by jury," the plea " 'not only must be voluntary but must be [a] knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances and likely consequences.' " (quoting Brady v. United States, 397 U.S. 742, 747-48, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970)); United States v. French, 719 F.2d 387, 390 (11th Cir.1983) (per curiam), cert. denied, 466 U.S. 960, 104 S.Ct. 2174, 80 L.Ed.2d 557 (1984). Although counsel is physically present with the defendant during plea proceedings, the actual plea is between the court and the defendant.

A factual basis is necessary for accepting of a guilty plea by a trial court when a defendant proclaims his innocence and yet pleads guilty. North Carolina v. Alford, 400 U.S. 25, 38 & n. 10, 91 S.Ct. 160, 167-68 & n. 10, 27 L.Ed.2d 162 (1970); Wallace v. Turner, 695 F.2d 545, 548 (11th Cir.1983). In Alford, the Supreme Court upheld a guilty plea from the accused who claimed to be innocent of the first-degree murder charge, when he intelligently believed that he would receive imprisonment if he pled and the death penalty if he underwent a trial because of the abundant damaging evidence against him:

Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.

Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt. Here the State had a strong case of first-degree murder against Alford. Whether he realized or disbelieved his guilt, he insisted on his plea because in his view he had absolutely nothing to gain by a trial and much to gain by pleading. Because of the overwhelming evidence against him, a trial was precisely what neither Alford nor his attorney desired. Confronted with the choice between a trial for first-degree murder, on the one hand, and a plea of guilty to second-degree murder, on the other, Alford quite reasonably chose the latter and thereby limited the maximum penalty to a 30-year term. When his plea is viewed in light of the evidence against him, which substantially negated his claim of innocence and which further provided a means by which the judge could test whether the plea was being intelligently entered, its validity cannot be seriously questioned. In view of the strong factual basis for the plea demonstrated by the State and Alford's clearly expressed desire to enter it despite his professed belief in his innocence, we hold that the trial judge did not commit constitutional error in accepting it.

400 U.S. at 37-38, 91 S.Ct. at 167-68 (citation and footnotes omitted).

The plea colloquy, provided in Rule 11 of the Federal Rules of Criminal Procedure, constitutes the constitutional minimum requirements for a knowing and voluntary plea for federal courts, but that rule is not binding on state courts. Gaddy, 780 F.2d at 943 n. 8; Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir.1980) (en banc), modified on other grounds, 646 F.2d 902 (5th Cir.) (per curiam), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981); see also Owens v. Wainwright, 698 F.2d 1111, 1113 (11th Cir.) (per curiam) ("Although federal law requires the judge personally to tell the defendant of the mandatory minimum sentence, Fed.R.Crim.P. 11(c)(1), Florida law does not."), cert. denied, 464 U.S. 834, 104 S.Ct. 117, 78 L.Ed.2d 116 (1983). A reviewing federal court may set aside a state court guilty plea only for failure to satisfy due process: "If a defendant understands the charges against him, understands the consequences of a guilty plea, and voluntarily chooses to plead guilty, without being coerced to do so, the guilty plea ... will be upheld on federal review." Frank, 646 F.2d at 882; see Boykin, 395 U.S. at 243-44, 89 S.Ct. at 1712 (Ignorance of the consequences of a guilty plea may require its rejection.).

Because a guilty plea is equivalent to a conviction,30 the trial court's determination of voluntariness must consider that "[i]gnorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality." Boykin, 395 U.S. at 242-43, 89 S.Ct. at 1712. In Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), after pleading guilty to second-degree murder, a defendant of unusually low mental capacity testified at a habeas corpus evidentiary hearing in federal district court that he would not have pled guilty if his attorneys had informed him that intent was an element of the offense. The Court determined that "clearly the plea could not be voluntary in the sense that it constituted an intelligent admission that he [the defendant] committed the offense unless the defendant received 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.' " 426 U.S. at 645, 96 S.Ct. at 2257-58 (quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941)). Unavoidable influence or pressure from sources such as codefendants, friends or family does not make a plea involuntary; "[i]t is only where the plea is coerced by conduct fairly attributable to the state that the due process clause of the Fourteenth Amendment is offended." LoConte v. Dugger, 847 F.2d 745, 753 (11th Cir.), cert. denied, 488 U.S. 958, 109 S.Ct. 397, 102 L.Ed.2d 386 (1988).

The inquiry into whether the plea is made intelligently does not mean that the court must determine whether the defendant is making a "smart" decision by pleading guilty. Instead, "[i]n order for a guilty plea to be entered knowingly and intelligently, the defendant must have not only the mental competence to understand and appreciate the nature and consequences of his plea but he also must be reasonably informed of the nature of the charges against him, the factual basis underlying those charges, and the legal options and alternatives that are available." Id. at 751. The defendant does not necessarily need to be told the nature of the offense and elements of the crime at the actual plea proceedings; a knowing and intelligent guilty plea may be entered on the basis of the receipt of this information, generally from defense counsel, before the plea proceedings. Id.; Gaddy, 780 F.2d at 944; see Moore v. Balkcom, 716 F.2d 1511, 1525 (11th Cir.1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984).

The record of the plea proceedings in this case reveals that Judge Foxman conducted a full and searching inquiry of Stano in complete compliance with Florida law, by the Florida courts, and with constitutional due process. The voluntariness of Stano's pleas is beyond question. Not only was he fully apprised of the charges against him by Pearl and the trial court, but also he had confessed to the Bickrest and Muldoon murders. Furthermore, Stano, not the state, initiated the immediate entry of his pleas. The record also satisfies the voluntariness requirements of Boykin because the detailed plea proceeding in this case refutes any claim that Stano swore falsely when entering his guilty pleas. See Miller v. Turner, 658 F.2d 348, 351 (5th Cir. Unit B Oct. 1981).

With respect to Stano's knowing and intelligent entry of his guilty pleas, we note that he was thirty-one years old, that he had completed the twelfth grade and computer training, and that he was gainfully employed. Stano's competency to enter his guilty pleas has not been an issue in this case. Pearl pursued an insanity defense through five experts, but he was unsuccessful in convincing them to expand their diagnoses to include extreme mental or emotional disturbance. When Judge Fawsett inquired at the district court evidentiary hearing into Stano's competence to plead or to participate in the proceedings in the Bickrest and Muldoon cases, Pearl responded that he did not question Stano's competency or his ability to work with Pearl and to understand the issues involved in these cases.

Furthermore, Stano was not a stranger to plea proceedings before Judge Foxman. Represented by Pearl, he had pled guilty to three previous first-degree murder indictments and received life sentences from Judge Foxman. Pearl had counseled Stano in detail regarding the Bickrest and Muldoon indictments, the evidence produced by the state, the consequences of guilty pleas, the likelihood of death sentences, and his strategy for defending Stano. With full knowledge of the charges against him and the rights that he was waiving, Stano pled guilty to the Bickrest and Muldoon murders because he believed, against his counsel's advice, that Judge Foxman again would give him life sentences. On the particular facts of this case, we conclude that Stano's guilty pleas were voluntary, knowing and intelligent.

In addition to the constitutional right to counsel in a criminal trial, the Supreme Court has confirmed the right to self-representation accorded a defendant in a state criminal trial under the Sixth and Fourteenth Amendments. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The right to counsel, however, is preeminent over the right to self-representation because the former attaches automatically and must be waived affirmatively to be lost, while the latter does "not attach unless and until it [i]s asserted." Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir.1986) (emphasis in original), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 801 (1987); Brown v. Wainwright, 665 F.2d 607, 610 (Former 5th Cir.1982) (en banc); see Strozier v. Newsome, 871 F.2d 995, 997 (11th Cir.1989). Only after the voluntary waiver of the constitutional right to counsel by assertion of the right to self-representation does it become incumbent upon the trial court to ascertain that the defendant "knowingly and intelligently" has relinquished the benefits of counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (citing Johnson, 304 U.S. at 464-65, 58 S.Ct. at 1023); Orazio v. Dugger, 876 F.2d 1508, 1512 (11th Cir.1989).

Under Faretta, the assertion of the right to self-representation by the defendant is essential. Faulting the trial judge for forcing a state-appointed public defender upon Faretta, who plainly had informed the court weeks before trial of his desire to proceed pro se, the Supreme Court described Faretta's assertion of his right to self-representation: "Here, weeks before trial, Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel. The record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will." Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (emphasis added).31 In response to this request, the judge conducted a hearing to ascertain Faretta's ability to conduct his own defense. Faretta, 422 U.S. at 808, 95 S.Ct. at 2528.

Our circuit has explained the minimum actions required of a defendant in order to assert the right to self-representation to the trial court, which then must conduct the requisite inquiry into the waiver of the right to counsel:

To invoke his Sixth Amendment right under Faretta a defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to his request. Insofar as the desire to proceed pro se is concerned, petitioner must do no more than state his request, either orally or in writing, unambiguously to the court so that no reasonable person can say that the request was not made. In this Circuit, the court must then conduct a hearing on the waiver of the right to counsel to determine whether the accused understands the risks of proceeding pro se.

Dorman, 798 F.2d at 1366 (citation omitted) (emphasis added); see Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir.), cert. denied, 469 U.S. 966, 105 S.Ct. 366, 83 L.Ed.2d 302 (1984). Therefore, trial courts are not required to divine when a criminal defendant is proceeding pro se. Under the reasonable person standard, the right to self-representation must be manifested to the trial court by an oral or written request in order to be recognized and to trigger the requisite examination by the court. See Jackson v. James, 839 F.2d 1513, 1516 (11th Cir.1988).

Consistent with the clear and unequivocal declaration of the choice to proceed pro se required by the Supreme Court in Faretta, Eleventh Circuit cases illustrate the specific written or oral request that the defendant must make to the trial court in order to assert the right to self-representation. See, e.g., Orazio, 876 F.2d at 1509, 1512 (Defendant-petitioner informed the trial judge that he wanted to represent himself at a hearing pursuant to his court-appointed counsel's request for withdrawal from representation.); Fitzpatrick v. Wainwright, 800 F.2d 1057, 1060-61, 1064-65 (11th Cir.1986) (Defendant-petitioner signed a waiver of his right to counsel before the court, stated verbally to the court that he understood that he was waiving his right to an attorney, and reiterated his desire to proceed pro se at a pretrial hearing.); Dorman, 798 F.2d at 1360-61, 1366-67 (Defendant-petitioner, citing Faretta, filed motions pro se, informed the trial judge by letters and a motion of his desire to have the public defender dismissed and to proceed pro se. He appealed to the state appellate court not only the trial judge's denial of his pro se motions, but also that judge's refusal to discharge the public defender and cited Faretta.); United States v. Edwards, 716 F.2d 822, 824 (11th Cir.1983) (per curiam) (Defendant-petitioner filed a motion seeking pro se representation and withdrawal of his public defender; the public defender also filed a motion requesting that the defendant be allowed to represent himself.); see also Raulerson, 732 F.2d at 809 ("Although a defendant need not 'continually renew his request to represent himself even after it is conclusively denied by the trial judge,' he must pursue the matter diligently." (quoting Brown, 665 F.2d at 612)). The Faretta case law does not provide for proceeding pro se without assertion of the right to self-representation. There simply is no precedent in this circuit for proceeding pro se by constructive notice without an obvious assertion of the right to self-representation. See Cross v. United States, 893 F.2d 1287, 1290 (11th Cir.) ("In recognition of the thin line that a district court must traverse in evaluating demands to proceed pro se, and the knowledge that shrewd litigants can exploit this difficult constitutional area by making ambiguous self-representation claims to inject error into the record, this Court has required an individual to clearly and unequivocally assert the desire to represent himself." (footnote omitted) (emphasis added), cert. denied, --- U.S. ----, 111 S.Ct. 138, 112 L.Ed.2d 105 (1990).

Once the right of self-representation has been asserted clearly and unequivocally, understandable to the trial court by the reasonable person standard, then and only then is that court, under Supreme Court and Eleventh Circuit case law, required to conduct the requisite inquiry to determine whether the criminal defendant's decision to represent himself is knowing, intelligent and voluntary. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; Fitzpatrick, 800 F.2d at 1064-68; Dorman, 798 F.2d at 1366. In contrast to the plea inquiry, the trial court conducts a different inquiry of a criminal defendant who has informed the court that he desires to represent himself. See Johnson, 304 U.S. at 464, 58 S.Ct. at 1023 (Since a waiver ordinarily requires abandoning a known right or privilege, "[t]he determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."). The Faretta holding has been described as the recognition that "a defendant may elect to act as his or her own advocate," thereby signifying the defense of one's own case. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983).

While the Court has not defined the particulars of a Faretta inquiry, this circuit has established the following factors that the trial court should consider in determining whether a criminal defendant is aware of the dangers of proceeding pro se:

"(1) the background, experience and conduct of the defendant including his age, educational background, and his physical and mental health; (2) the extent to which the defendant had contact with lawyers prior to the trial; (3) the defendant's knowledge of the nature of the charges, the possible defenses, and the possible penalty; (4) the defendant's understanding of the rules of procedure, evidence and courtroom decorum; (5) the defendant's experience in criminal trials; (6) whether standby counsel was appointed, and the extent to which he aided the defendant; (7) whether the waiver of counsel was the result of mistreatment or coercion; or (8) whether the defendant was trying to manipulate the events of the trial."

United States v. Fant, 890 F.2d 408, 409-10 (11th Cir.1989) (per curiam) (quoting Strozier, 871 F.2d at 998), cert. denied, --- U.S. ----, 110 S.Ct. 1498, 108 L.Ed.2d 633 (1990); see Fitzpatrick, 800 F.2d at 1065-67. These considerations, designed to elicit whether the defendant is capable of conducting his own trial, guide the trial court in its decision concerning the defendant's self-representation. The absence of certain factors, such as previous involvement in criminal trials and appointment of stand-by counsel, may be overcome if the trial court is convinced that the defendant sufficiently understands the disadvantages of proceeding pro se to satisfy the Faretta standard. See Fitzpatrick, 800 F.2d at 1067. "The ultimate test is not the trial court's express advice, but rather the defendant's understanding." Id. at 1065; see Greene v. United States, 880 F.2d 1299, 1303-04 (11th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1322, 108 L.Ed.2d 498 (1990). The inquiries required of the trial court obviously differ for determining if a defendant is competent to enter a plea as opposed to representing himself at trial.

The actual facts of this case are most significant and completely negate the applicability of Faretta. Stano did not proceed pro se because his desired, court-appointed attorney had represented and counseled him since his arraignment. While it should be sufficiently determinative that Stano did not assert or even faintly suggest his right to self-representation, the actions that he did take show that Faretta is plainly inapplicable. At his arraignment, Stano agreed to the appointment of Pearl and pled not guilty to the Bickrest and Muldoon murders before Judge Foxman, the same judge before whom he had pled guilty to first-degree murders three times previously. Subsequently, Stano initiated the conference with Pearl and told Pearl that he wanted to plead guilty to the Bickrest and Muldoon murders immediately. Pearl informed Stano that he did not have all discovery from the state, that he had not had time to investigate the cases fully, and that death was the likely sentence.

Nevertheless, Stano speculated that he would receive additional life sentences from Judge Foxman and elected to proceed with the pleas. Pearl explained his advice and Stano's decision to plead to Judge Foxman at the March 11, 1983 plea proceedings, preliminary to the actual plea taking. In response to Judge Foxman's questioning, Stano agreed with Pearl's representations. There was no need for the trial court to conduct a Faretta inquiry. Based upon Stano's history of pleading guilty and his actions in this case, it was and is patently apparent that he never envisioned representing himself and proceeding to trial.

Faretta explains that an attorney, "however expert, is still an assistant."32 422 U.S. at 820, 95 S.Ct. at 2533; see Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Even a defendant who hires trial counsel for the purpose of making strategic decisions does not relinquish to his attorney final authority to make fundamental decisions, such as the plea that he will enter.33 See Jones, 463 U.S. at 751, 103 S.Ct. at 3312 ("[T]he accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." (citing Wainwright v. Sykes, 433 U.S. 72, 93 n. 1, 97 S.Ct. 2497, 2510 n. 1, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring); ABA Standards for Criminal Justice 4-5.2, 21-2.2 (2d ed. 1980)); Faretta, 422 U.S. at 834, 95 S.Ct. at 2541 ("The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in this particular case counsel is to his advantage."); United States v. Joshi, 896 F.2d 1303, 1307 (11th Cir.) ("Among those rights that a defendant must personally waive are the right to go to trial or plead guilty...." (citing Boykin, 395 U.S. at 242, 89 S.Ct. at 1711)), cert. denied, --- U.S. ----, 111 S.Ct. 523, 112 L.Ed.2d 534 (1990); Poole v. United States, 832 F.2d 561, 563-64 (11th Cir.1987) (Because the trial judge must be assured that a guilty plea is made intelligently and voluntarily, "a guilty plea cannot be entered against a defendant 'solely on the consent of the defendant's agent--his lawyer.' " (quoting Henderson, 426 U.S. at 650, 96 S.Ct. at 2260) (White, J., concurring)), cert. denied, 488 U.S. 817, 109 S.Ct. 54, 102 L.Ed.2d 33 (1988); cf. Brookhart v. Janis, 384 U.S. 1, 7, 86 S.Ct. 1245, 1248, 16 L.Ed.2d 314 (1966) ("Our question therefore narrows down to whether counsel has power to enter a plea which is inconsistent with his client's expressed desire and thereby waive his client's constitutional right to plead not guilty and have a trial in which he can confront and cross-examine the witnesses against him. We hold that the constitutional rights of a defendant cannot be waived by his counsel under such circumstances."). The defendant remains the master of his case, particularly with respect to the entry of a guilty plea.34

Stano made deliberate choices in this case. He chose to have counsel, and never waived his right to counsel in any way whatsoever. He had advice from an experienced and conscientious attorney, who had represented him previously for first-degree murder pleas. Against the advice of counsel, he elected to change his pleas to guilty before Judge Foxman, who had accepted from Stano three previous guilty pleas to first-degree murders. Far from desiring additional counsel, Stano testified, when examined by Judge Foxman, that he was satisfied with Pearl's representation, and that he had no questions for him.

The former Fifth Circuit clarified that the analyses for a guilty plea and waiver of counsel are distinct. Lewellyn v. Wainwright, 593 F.2d 15 (5th Cir.1979) (per curiam). In Lewellyn, the habeas corpus petitioner signed a waiver of counsel form before he was arraigned in a state trial court in the Middle District of Florida. He then entered a plea of guilty to a felony charge. The parties agreed that the petitioner was not informed by the trial judge or the prosecutor of the maximum sentence that could be imposed. Sentenced to imprisonment for six months to twenty years, the petitioner took no direct appeal. He filed a motion to vacate the judgment and sentence, and alleged that his guilty plea was invalid because he had not been advised of the consequences.

Following an evidentiary hearing on the federal habeas corpus petition, the magistrate concluded that petitioner's waiver of counsel was valid, but that his guilty plea was not made knowingly and intelligently. The magistrate reasoned that, because the petitioner was ignorant of the potential sentence at the time he pled, the plea could not have been entered knowingly and intelligently. Determining that the failure of the state trial judge to ascertain whether the petitioner knew the maximum sentence that he could incur rendered his guilty plea unintelligent and was a denial of due process, the district court adopted the magistrate's report and recommendation and granted the writ. The judgment and sentence subsequently were vacated.

On appeal, the State of Florida contended that the district court erred in finding a due process violation because the petitioner's valid waiver of his right to counsel also waived any claim that the entry of his guilty plea was deficient. The state argued that the Boykin requirement that guilty pleas be knowing and voluntary was modified by Faretta, which stated that a defendant electing to defend himself cannot complain on appeal that the quality of his defense amounted to a denial of effective assistance of counsel. Id. at 16; see Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46. Acknowledging that Faretta mandates that a waiver of counsel not only must be made knowingly and intelligently by the defendant, but also that the trial court must caution the defendant regarding the dangers and disadvantages of self-representation so that an intelligent choice can be made, the court distinguished the self-representation and plea inquiries by the trial court: "The state's reliance on Faretta is unfounded. Faretta addressed the constitutional origins of the right of self-representation; it does not address, much less hint at, the requirement for a valid guilty plea." Lewellyn, 593 F.2d at 16 (emphasis added).

Against his attorney's advice, Stano speculated that he would receive life sentences from Judge Foxman if he pled guilty to the Bickrest and Muldoon murders, because that judge had not sentenced him to death for three previous guilty pleas to first-degree murders. See LoConte, 847 F.2d at 752-53 ("[F]or his own reasons--to save himself from a possible death sentence and to secure the release of his wife," the defendant pled guilty.); Johnson v. United States, 838 F.2d 201, 204 (7th Cir.1988) (Viewing his opportunities of seeking a reduction of sentence in the district court as "superior" to pursuing an appeal, the defendant's "choice was impelled by the attractiveness of an opportunity and not the terror of the alternative." ). Stano gambled and lost; he cannot challenge his election to plead guilty retrospectively because the sentences were not as he had expected. The decision to plead guilty was his to make, and we do not review the prudence of his decision.35 We review Stano's guilty pleas only to determine if they met the constitutional due process requirements of being knowing, intelligent and voluntary. We have concluded that his pleas satisfy these constitutional requisites.

In contrast, the inquiry by the trial court when a defendant has asserted his Sixth Amendment right to self-representation serves a distinctly different purpose. Because the right to counsel is so precious to our jurisprudence, the waiver of this right must be asserted.36 The trial court's inquiry into a knowing, intelligent and voluntary decision to proceed pro se under Faretta is tailored to elicit whether the defendant is capable of conducting his own defense.37 In this circuit, the defendant is questioned specifically regarding his knowledge of the rules of procedure, evidence and courtroom decorum.

By definition, a defendant who pleads guilty relinquishes his defense. He, therefore, does not need to be examined as to his understanding of courtroom procedure. While the due process knowing, intelligent and voluntary plea taking questions are subsumed in a Faretta examination, a more extensive colloquy must transpire in order for the trial court to satisfy itself that the defendant is aware of the dangers of conducting his own defense. Under Supreme Court and binding circuit precedent, the Faretta inquiry is reserved for advising a defendant of the disadvantages of proceeding pro se at trial; the plea inquiry is employed for determining whether a defendant's plea is knowing, intelligent and voluntary sufficient to meet constitutional due process.

B. Determining Ineffective Assistance of Counsel in Guilty Plea Proceedings

Stano's claim of ineffective assistance of counsel requires our constitutional scrutiny of Pearl's representation and advice concerning the plea proceedings. The Sixth Amendment right to counsel implicitly includes the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 & n. 14, 90 S.Ct. 1441, 1449 & n. 14, 25 L.Ed.2d 763 (1970); Chatom v. White, 858 F.2d 1479, 1484 (11th Cir.1988), cert. denied, 489 U.S. 1054, 109 S.Ct. 1316, 103 L.Ed.2d 585 (1989); see Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932). A defendant is entitled to this constitutional guarantee of effective assistance of counsel whether he is represented by a retained or court-appointed attorney. Scott v. Wainwright, 698 F.2d 427, 429 (11th Cir.1983). In our review of Stano's allegation of ineffective assistance of counsel, we are not bound by the determination of the Florida courts or the federal district court. Gates v. Zant, 863 F.2d 1492, 1496 (11th Cir.) (per curiam), cert. denied, --- U.S. ----, 110 S.Ct. 353, 107 L.Ed.2d 340 (1989).

"A guilty plea is open to attack on the ground that counsel did not provide the defendant with 'reasonably competent advice.' " Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980) (quoting McMann, 397 U.S. at 770, 90 S.Ct. at 1448). The Supreme Court has held "that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Slicker v. Dugger, 878 F.2d 1380, 1381 n. 1 (11th Cir.1989) (per curiam); Holmes v. United States, 876 F.2d 1545, 1551 (11th Cir.1989); McCoy v. Wainwright, 804 F.2d 1196, 1198 (11th Cir.1986) (per curiam). In order to obtain relief under the familiar Strickland test, a usual basis of appeal in habeas corpus petitions, a convicted defendant complaining of ineffective assistance of counsel must show: 1) "that counsel's representation fell below an objective standard of reasonableness," and 2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984); Heath v. Jones, 863 F.2d 815, 821 (11th Cir.1989) (per curiam); see Futch v. Dugger, 874 F.2d 1483, 1486 (11th Cir.1989); Tafero v. Wainwright, 796 F.2d 1314, 1319 (11th Cir.1986) (per curiam), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 782 (1987). Without both showings, a defendant's conviction or death sentence cannot be attributed to "a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Under the first part of the Strickland test, "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." 466 U.S. at 688, 104 S.Ct. at 2065. As a corollary, the appropriate standard for evaluating counsel's pretrial investigation is "reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." 466 U.S. at 691, 104 S.Ct. at 2066; Foster v. Dugger, 823 F.2d 402, 405 (11th Cir.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2915, 101 L.Ed.2d 946 (1988); see Greene v. United States, 880 F.2d 1299, 1306 (11th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1322, 108 L.Ed.2d 498 (1990); Futch, 874 F.2d at 1486; see also Chatom, 858 F.2d at 1485 ("Counsel's representation must be shown to fall below an objective standard of reasonableness."). The Court also noted that an attorney had an obligation "to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. The Court, however, recognized that "[j]udicial scrutiny of counsel's performance must be highly deferential," and that courts should make certain "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." 466 U.S. at 689, 104 S.Ct. at 2065; Foster, 823 F.2d at 405. In order to succeed on an ineffective assistance of counsel claim, a defendant must surmount "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Chatom, 858 F.2d at 1485.

Overcoming the first part of the Strickland test does not guarantee relief. Regarding the second part of the test, the Court has recognized that "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Moreover, Hill clarified the Strickland second or "prejudice" requirement in the context of guilty pleas: "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." 474 U.S. at 59, 106 S.Ct. at 370; Tahamtani v. Lankford, 846 F.2d 712, 714 (11th Cir.1988) (per curiam); see Long v. United States, 883 F.2d 966, 968 n. 4 (11th Cir.1989) (per curiam); Agan v. Dugger, 835 F.2d 1337, 1340 n. 6 (11th Cir.1987), cert. denied, 487 U.S. 1205, 108 S.Ct. 2846, 101 L.Ed.2d 884 (1988); see also Holmes, 876 F.2d at 1553, Slicker v. Wainwright, 809 F.2d 768, 770 (11th Cir.1987) (These cases were remanded to the district court to determine if accurate, rather than incorrect, information by the defense counsel as to the length of sentence would have changed the defendant's plea.); cf. Betancourt v. Willis, 814 F.2d 1546, 1549 (11th Cir.1987) (This court affirmed the district court's granting a habeas corpus petition based upon its conclusion that petitioner's plea was not voluntary and that his counsel provided ineffective assistance because the evidence was "uncontroverted that petitioner was completely unaware of the ultimate consequences of his plea because his counsel misrepresented the existence of a sentence reduction agreement."). The Hill court explained the prejudice requirement with specific regard to a defense counsel's alleged failure to investigate potentially exculpatory evidence:

In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.

474 U.S. at 59, 106 S.Ct. at 370; McCoy, 804 F.2d at 1198-99.

The Supreme Court has given finality to guilty pleas by precluding claims of constitutional deprivations occurring prior to entry of the plea. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973); see Tiemens v. United States, 724 F.2d 928, 929 (11th Cir.) (per curiam) ("[A] guilty plea waives all nonjurisdictional defects occurring prior to the time of the plea, including violations of the defendant's rights to a speedy trial and due process."), cert. denied, 469 U.S. 837, 105 S.Ct. 134, 83 L.Ed.2d 74 (1984). The Court allows only challenges to the voluntary and intelligent entry of the plea if a convicted defendant can prove "serious derelictions" in his counsel's advice regarding the plea.38 McMann, 397 U.S. at 774, 90 S.Ct. at 1450; Tollett, 411 U.S. at 267, 93 S.Ct. at 1608; see Hill, 474 U.S. at 56, 106 S.Ct. at 369 ("The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' " (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)). Without "reasonably effective assistance of counsel in connection with the decision to plead guilty," a defendant cannot enter a knowing and voluntary plea because the plea does not represent an informed choice. McCoy, 804 F.2d at 1198; Scott, 698 F.2d at 429. Based upon his familiarity with the facts and law, defense counsel must advise the defendant. Scott, 698 F.2d at 429. "Counsel's advice need not be errorless, and need not involve every conceivable defense, no matter how peripheral to the normal focus of counsel's inquiry, but it must be within the realm of competence demanded of attorneys representing criminal defendants." Id. (emphasis added); see McMann, 397 U.S. at 771, 90 S.Ct. at 1449; Long, 883 F.2d at 969.

The Supreme Court has recognized that the decision to plead guilty may occur without all of the state's evidence and necessarily takes place without knowledge of all facts revealed by witnesses at trial. McMann, 397 U.S. at 769-70, 90 S.Ct. at 1448. "[C]ounsel owes a lesser duty to a client who pleads guilty than to one who decides to go to trial, and in the former case counsel need only provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between accepting the prosecution's offer and going to trial." Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir.1984) (per curiam); Downs-Morgan v. United States, 765 F.2d 1534, 1539 (11th Cir.1985). An attorney's responsibility is to investigate and to evaluate his client's options in the course of the subject legal proceedings and then to advise the client as to the merits of each. Tafero, 796 F.2d at 1320; Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987). When a defendant preempts his attorney's defense strategy, he thereafter cannot claim ineffective assistance of counsel. Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985), cert. denied, 483 U.S. 1026, 107 S.Ct. 3248, 97 L.Ed.2d 774 (1987); see Thompson, 787 F.2d at 1452; Foster v. Strickland, 707 F.2d 1339, 1343-44 (11th Cir.1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984); see also Alvord v. Wainwright, 725 F.2d 1282, 1289 (11th Cir.), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984) (An attorney ethically is bound to follow a competent client's decision regarding the defense of his case.). A defendant may partially waive his right to counsel by insisting on a course of conduct contrary to advice by his counsel. See Tafero, 796 F.2d at 1320; Mitchell, 762 F.2d at 889-90; Foster, 707 F.2d at 1343-44.

Applying these legal principles to this case, we note that, following his appointment at Stano's arraignment through the critical stages of pleading and sentencing, Pearl counseled Stano regarding the state's case against him. When Stano told Pearl that he wanted to plead guilty to the Bickrest and Muldoon murders, Pearl gave Stano most appropriate advice: Stano should refrain from pleading guilty because all discovery had not been received from the state and the death penalty would be the probable result. He stressed to Stano that he had been unable to investigate the cases completely without all of the state's evidence. Pearl informed Stano of the defense theories of proportionality and insanity that he wanted to pursue. Pearl's investigation subsequent to the pleas, including Stano's examination by mental health experts, revealed no grounds on which to attack Stano's confessions or to withdraw his pleas.

Stano's allegation of ineffective assistance of counsel as to Pearl's representation at the plea proceedings is based upon his failure to have reviewed all of the state's evidence. Not only did Pearl advise Stano not to plead guilty because he had not had the opportunity to review this evidence, but also the unreceived similar fact discovery about which he complains was received prior to sentencing. If this discovery had constituted a basis for attacking the pleas, then Pearl could have made a motion to set aside the pleas prior to sentencing.

Ironically, the state abandoned the theory that this discovery was to support. The absent evidence, therefore, is meaningless. Consequently, this discovery, unreviewed by Pearl at the entry of the pleas, could not have resulted in Stano's decision to go to trial instead of pleading guilty and would not have affected his sentence. See Zamora v. Dugger, 834 F.2d 956 (11th Cir.1987) (This court affirmed the district court's denial of habeas corpus relief because none of petitioner's allegations of ineffective assistance of counsel would have caused the jury verdict to be unreliable.).

Stano was not acting without reasoned advice from a highly experienced criminal defense attorney; he simply refused to take that counsel advise. Under the circumstances, Pearl gave Stano proper advice well within the competence of a criminal defense attorney. There was nothing more that he could have done. The decision whether to plead guilty, however, belonged to Stano. He apparently believed, against Pearl's advice, that he would receive life sentences if he pled guilty.

The record of the plea proceedings also contradicts any subsequent claim by Stano that Pearl's representation was deficient. When questioned by Judge Foxman, Stano agreed with Pearl's preliminary statement regarding his desire to plead guilty despite the lack of receipt of all evidence from the state. Stano also admitted during the plea proceedings that his plea was voluntary, that he was satisfied with the services of Pearl, that he had no complaints regarding Pearl's representation, and that he had no questions for Pearl. Stano's competence is not at issue. His guilty pleas were entered voluntarily, knowingly and intelligently. Pearl's advice was to the contrary. Proceeding against counsel's advice is not proceeding without counsel's advice. Under our deferential review and considering all the facts in this case, we cannot find that Pearl's representation of Stano with respect to the plea proceedings was below an objective standard of reasonableness for a criminal defense attorney.

In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Supreme Court created an exception to the Strickland standard for ineffective assistance of counsel and acknowledged that certain circumstances are so egregiously prejudicial that ineffective assistance of counsel will be presumed. 466 U.S. at 658, 104 S.Ct. at 2046. This companion case to Strickland explains its applicability by the examples of complete denial of counsel, absence of counsel at a critical stage, and defense counsel's total failure to test significantly the prosecution's case. Cronic, 466 U.S. at 659, 104 S.Ct. at 2047; see Harding v. Davis, 878 F.2d 1341, 1345 (11th Cir.1989); Heath, 863 F.2d at 821; Warner v. Ford, 752 F.2d 622, 624 (11th Cir.1985); see also Chadwick v. Green, 740 F.2d 897, 901 (11th Cir.1984) (Failure of counsel "to investigate and pursue all avenues of defense" more appropriately is analyzed under Strickland "rather than as a fundamental breakdown of the adversarial process such that prejudice is presumed under Cronic.") The crux of Cronic is that the right to effective assistance of counsel is "the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing." 466 U.S. at 656, 104 S.Ct. at 2045. Citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), as an example of a situation causing a presumption of prejudice despite the presence of competent counsel, the Court admonishes that "[a]part from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, 466 U.S. at 659 n. 26, 104 S.Ct. at 2047 n. 26; see Chadwick, 740 F.2d at 900 (Powell presents the "rare case" where prejudice is presumed.).

Furthermore, this circuit has held that " 'Cronic represents a narrow exception which the Supreme Court has carved out of the general rule that a petitioner claiming ineffective assistance of counsel must demonstrate that he was prejudiced by specific alleged errors in his counsel's performance. Consequently, the burden of proof under Cronic is a very heavy one.' " Stone v. Dugger, 837 F.2d 1477, 1479 (11th Cir.1988) (per curiam) (quoting Smith v. Wainwright, 777 F.2d 609, 620 (11th Cir.1985) (emphasis in original), cert. denied, 477 U.S. 905, 106 S.Ct. 3275, 91 L.Ed.2d 565 (1986)), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 821 (1989); Harding, 878 F.2d at 1345; Chadwick, 740 F.2d at 900. Comparing Cronic and Strickland, this court has concluded that "it becomes evident that Cronic's presumption of prejudice applies to 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."39 Chadwick, 740 F.2d at 901.

The juxtaposition of the facts of the Court's example, Powell, and Cronic makes evident the factual circumstances required for the application of the Cronic exception. In Powell, an out-of-state attorney initially appeared on behalf of multiple defendants on the day of trial. Although the case was a highly publicized capital crime, the court decided to proceed with trial immediately and provided the out-of-state attorney with the assistance of the local bar. Under such circumstances, the Court found that the likelihood that counsel could have performed effectively was so remote as to make the trial inherently unfair.

In Cronic, the defendant in a complex check kiting case claimed that he was prejudiced by representation by a young, court-appointed, real estate attorney, who had never tried a jury case and was allowed only twenty-five days for pretrial preparation, as opposed to four and one-half years that the government had to investigate and prepare the case. Rejecting the contention that a presumption of prejudice resulted because of the lawyer's youth and inexperience, the Supreme Court stated that "[e]very experienced criminal defense attorney once tried his first criminal case," and found that the case was "not one in which the surrounding circumstances make it unlikely that the defendant could have received the effective assistance of counsel." Cronic, 466 U.S. at 665-66, 104 S.Ct. at 2050-51. In rejecting the claim of denial of the Sixth Amendment right to counsel, the Cronic reference to Powell, with its unique and blatant facts creating a presumption of ineffective assistance of counsel, makes evident that exceptions to the Strickland standard are appropriate only when the circumstances would offend basic concepts of due process. When such prejudicial circumstances exist, the concern is with procedural fair trial requirements, and not with whether the defendant would have been found guilty.

Comparing the facts of this case to Powell and Cronic obviously shows that Stano's plea proceedings do not approach the Cronic exception to the Strickland standard for ineffective assistance of counsel. If the inexperience and youth of the Cronic attorney were found to be effective assistance of counsel, then certainly Pearl, an experienced public defender who had represented 300 death penalty defendants in approximately 75 trials, was exceptionally qualified to provide Stano effective assistance of counsel. As we have found, Pearl gave Stano appropriate advice regarding the guilty pleas that Stano elected to enter. Stano was not forced into his decision by circumstances that are so inherently unfair as to transgress due process.

Cronic recognizes that "because we presume that the lawyer is competent to provide the guiding hand that the defendant needs, the burden rests on the accused to demonstrate a constitutional violation." 466 U.S. at 658, 104 S.Ct. at 2046 (citing Michel v. Louisiana, 350 U.S. 91, 100-01, 76 S.Ct. 158, 163-64, 100 L.Ed. 83 (1955)). Stano plainly has not met the prejudice requirement of Hill /Strickland by demonstrating that, but for Pearl's assistance, he would not have entered guilty pleas in the Bickrest and Muldoon cases and would have insisted on going to trial. Stano's ineffective assistance of counsel claim has been reviewed in the state courts and thoroughly examined in an evidentiary hearing in federal district court to no avail. The Florida Supreme Court, relying on Hill/Strickland, aptly describes the inadequacy of Stano's allegation of ineffective assistance of counsel:

By insisting on pleading guilty and by telling counsel that he had confessed freely and voluntarily, Stano rendered any further investigation pointless. Stano had been found competent to stand trial and, therefore, competent to assist in his defense. We cannot see how acceding to the wishes of a competent client could or should be construed as ineffectiveness years after the fact and only when execution of sentence is imminent. The record conclusively demonstrates no substandard performance by Stano's counsel regarding his investigation.

Stano v. State, 520 So.2d 278, 280-81 (Fla.1988) (per curiam). We also find no merit to Stano's Sixth Amendment claim of ineffective assistance of counsel. We conclude that a competent, knowledgeable defendant can make an informed, voluntary choice to plead guilty and that he subsequently cannot fault his attorney for ineffective assistance of counsel after receiving an unexpected sentence.

After rehearing Stano's Sixth Amendment claims en banc, we conclude that he has not raised a constitutionally cognizable issue on this record under either self-representation or ineffective assistance of counsel analysis. We refer all other appellate issues presented by Stano to the original panel for resolution. The decision of the district court to deny Stano habeas corpus relief with respect to his Sixth Amendment claims is AFFIRMED.

ANDERSON, Circuit Judge, concurring, in which KRAVITCH, Circuit Judge, joins:

I join Part II.B. of Judge Fay's opinion holding that Stano's claim of ineffective assistance of counsel has no merit. I also join in that portion of Part II.A. of Judge Fay's opinion holding that the circumstances of this case did not trigger the procedures outlined in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In other words, I join all of the opinion, except I do not join any dicta suggesting that the Faretta right is inapplicable to the guilty plea stage.

TJOFLAT, Chief Judge, dissenting, in which JOHNSON, Circuit Judge, joins:

I respectfully dissent from the court's decision today. That decision emphasizes that a defendant has a right to plead guilty, and to do so even against a lawyer's advice. I agree. The majority, however, misses the point of this case: the petitioner pled guilty without the advice of counsel. The petitioner's nominal lawyer failed to undertake even the most minimal inquiry necessary to constitute assistance of counsel. Of course, a defendant who has invoked his right to counsel still has the right to plead guilty without counsel, but before the court can accept his plea, the court must ensure that the defendant unequivocally asserts his right to proceed pro se and knowingly and intelligently waives his right to counsel. Absent such a waiver, the court has an obligation not to accept the plea until the defendant has assistance of counsel. In my view, the court in this case failed to discharge that obligation: it accepted the pleas of an uncounseled defendant without ensuring that the defendant clearly and unequivocally asserted his right to proceed pro se and knowingly and intelligently waived his right to counsel. Accordingly, the petitioner's convictions must be set aside.

In 1982, Gerald Eugene Stano confessed to the murders of Susan Bickrest and Mary Kathleen Muldoon. In early 1983, a Florida grand jury indicted him for both murders. On March 11, 1983, Stano, accompanied by his court-appointed attorney, Howard B. Pearl, pled guilty to both charges. After a brief exchange with Pearl and Stano, the trial judge accepted the guilty pleas. Three months later, the judge sentenced Stano to death in both cases.

The Supreme Court of Florida affirmed the convictions and sentences on direct appeal, and the state courts denied Stano post-conviction relief. The district court also denied Stano's petition for a writ of habeas corpus. On appeal, a panel of this court granted Stano relief. A majority of this court, however, voted to hear the case en banc and the panel's decision was vacated. The court today affirms the district court's denial of relief.

The plea hearing now at issue commenced with an exchange between Mr. Pearl and the court that is crucial to the case before this court. In the course of this exchange, Mr. Pearl told the court that he had not yet received discovery from the State and therefore he could not give Stano any informed advice on how to plead. The exchange was as follows:

MR. PEARL: Before proceeding, Your Honor, as I have told Mr. Stano I would do, there are a couple of things I would like to inform the Court about in his presence that might appropriately be made a part of the plea dialogue.

At this time, Your Honor, I have not yet received full discovery from the state with respect to these cases and, therefore, am not prepared to say that I know all of the substantive facts concerning these two killings. The delay has been because much of the materials have not yet been received by the State and [the prosecutor] told me he would like to gather everything up at once and submit it to me rather than in installments. I agreed with that.

THE COURT: So, you're not complaining, you're just stating this for the record.

MR. PEARL: No, that is not a complaint. I'm just making my position clear in Mr. Stano's presence about the entry of his plea; that is to say, that I am not fully prepared to advise him as to whether the State has sufficient evidence to convict him or not. He is convinced that they do.

I have spoken with [the prosecutor]. I have confidence, certainly, in his integrity and honesty, and he assures me that the State can independently establish the corpus delicti in both of these cases. And Mr. Stano tells me that is so.

Further, I have asked [Stano] about the admissions or confessions that he has made to Detective Paul Crow. And he assures me that those statements were made voluntarily, they were made competently, and intelligently after warning of his rights and that, therefore, there does not exist a good possibility that either of his admissions could be suppressed on a hearing.

He feels that he wants to go forward and enter this plea rather than go through a trial or even a delay at this time.

I have agreed that certainly he has the right to do so, but that he should know, and it should be on the record, that I am not fully prepared at this time as his attorney to advise him with respect to the advisability of a trial or not.

He tells me he does not want a trial.

THE COURT: Okay.

Mr. Stano, do you care to comment on what Mr. Pearl has just said?

THE DEFENDANT: No. I believe everything was quite sufficient that he said.

THE COURT: He stated things accurately?

THE DEFENDANT: Yes.

THE COURT: You're in agreement with what he said?

THE DEFENDANT: Yes, sir.

(Emphasis added.)

In my view, this colloquy put the court on notice that Pearl could not provide his client with meaningful legal representation. As a result, the colloquy triggered a duty on the court's part to intervene, either by determining that Stano wanted to waive his right to counsel and proceed pro se or by postponing the proceeding until Stano had meaningful representation. The court, however, did not intervene but instead accepted Stano's pleas.1 In so doing, the court denied Stano the process he was due and thus violated his fundamental right to a fair proceeding. Accordingly, Stano's convictions should be set aside.

The sixth amendment to the United States Constitution provides, in pertinent part, that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The courts have long recognized that this right to counsel is fundamental to due process of law and is thus an essential component of a fair criminal prosecution. As Justice Sutherland wrote in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932):

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction, because he does not know how to establish his innocence. If that be true of men of intelligence, how much more is it true of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.

Id. at 68-69, 53 S.Ct. at 64 (emphasis added). Following these principles, the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), held that the sixth amendment requires the government to provide counsel for a defendant in federal court unless he competently and intelligently waives his right to counsel. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Court held that the sixth amendment right to counsel is a fundamental right, essential to a fair trial and to due process of law, and that it therefore applies to the states through incorporation into the fourteenth amendment.2 The right to assistance of counsel, moreover, attaches at all critical stages of the criminal justice system, and a plea hearing is such a stage.3 See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

Thus, as the Court pronounced in Johnson--a pronouncement made applicable in Gideon to the state courts--"[t]he Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel." 304 U.S. at 463, 58 S.Ct. at 1022-23 (footnote omitted). The Court explained the duties that this rule imposed on trial courts: