Gerald Eugene Stano, Cross-Appellee v. Richard L. Dugger, Secretary, Florida Department of Corrections, Cross-Appellant

921 F.2d 1125, 1991 U.S. App. LEXIS 32, 1991 WL 629

Opinions

FAY, Circuit Judge:

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. § 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.

I. FACTUAL AND PROCEDURAL BACKGROUND ¹

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 Mul-doon 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 Sta-no.⁴ Pearl previously had represented Sta-no 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 Bick-rest 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 Biekrest 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 evi-dentiary 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 Biekrest 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 Biekrest and Mul-doon 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 “[pjrior 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 Biekrest 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 Sta-no’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 Bick-rest 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 Bick-rest 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 Bick-rest 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 Sta-no’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 sen-fences, and Pearl’s intent to investigate the murders further. Stano rejected this advice and pled guilty, waiving a sentencing jury. Judge Fawsett concluded that Sta-no’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 ease 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.

II. ANALYSIS

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; “[tjhis 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 understanding^ 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, Sta-no, not the state, initiated the immediate entry of his pleas. The record also satisfies the voluntariness requirements of Boy-kin 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 Faw-sett inquired at the district court evidentia-ry 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 Bick-rest 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 Far-etta’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 talismanie 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 Faret-ta, 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 ease 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 Faret-ta 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 Bick-rest 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 Fox-man 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 Far-etta 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 (11th Cir.1988) (“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 ha-beas 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 pri- or 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 Bick-rest and Muldoon murders, Pearl gave Sta-no 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 “[ajpart 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 Sta-no’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. Sta-no 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.

III. CONCLUSION

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.

1

. Our discussion of the background in this case will emphasize the procedural history and judicial rulings relevant to the two Sixth Amendment issues of self-representation and ineffective assistance of counsel considered by the en banc court.

2

. On August 15, 1982, Stano gave an oral, tape-recorded confession, which was transcribed, to the murder of Susan Bickrest to Sergeant Crow. Stano stated that he followed Bickrest to her apartment, and engaged her in casual conversation in the early morning hours of December 19, 1975. He described her attire as “blue jeans,” a "brown leather type jacket" with “some type” of “sandals ... with ... a[n] inclined heel on them.” App. 11-521. Stano persuaded Bick-rest to accompany him in his car. When Bick-rest began to complain during the drive, Stano struck her in the face. His blow sufficiently stunned her so that she remained silent for "a long period of time.” Id. at 523. When Stano stopped for a rest stop, Bickrest attempted to exit the car. Stano prevented her escape by pushing her back into the car and locking the doors. The drive continued until Stano stopped the car at a "sandy area, a beach area” that "looked like a pond.” Id. at 521, 523. There, Stano strangled Bickrest until she was either dead or unconscious, carried her to the edge of the water, and left the scene.

On December 20, 1975, two fishermen discovered Bickrest's body floating in Spruce Creek, approximately one-half mile west of Moody Bridge, which is located on a narrow dirt road in a wooded, remote area of Volusia County, Florida. Investigation of the area revealed a wooden platform shoe at the edge of the water near Moody Bridge. The shoe matched the single shoe found on Bickrest’s body. The soil along the edge of the creek was sandy, and water markings on the bridge indicated tidal activity.

The state medical examiner determined that the cause of Bickrest’s prolonged death was suffocation through a combination of strangulation and drowning. He also concluded that she sustained facial injuries prior to her death.

3

.On October 8, 1982, Stano wrote a full confession to the murder of Mary Kathleen Muldoon in the presence of Sergeant Crow. Stano explained that, in November, 1977, he met “a young lady wearing a jacket and pants combination” and invited her to ride in his car on the pretext of going to a beach party. App. 11-558. At the beach, Stano suggested that they engage in sexual intercourse; Muldoon was not interested. They began to argue, and Stano hit Mul-doon on the head and “knocked her half out because she didn’t say anything after that.” Id. Stano stopped the car by the side of the road in New Smyrna Beach and told Muldoon to open the door and to get out of the car. Sliding across the front seat, Stano also exited the car from the passenger’s side with his .22 automatic. Another argument ensued; Stano struck Mul-doon hard on the head and caused her to fall to the ground. He then "shot her in the right side of the head with the 22 Automatic.” Id. at 559. Stano returned to his car and drove to Daytona Beach, where he lived. In addition to his confession to Muldoon’s murder, Stano directed the sheriffs investigators to the exact location where the body was found.

Muldoon's body was located face down in a drainage ditch in an isolated, wooded area of New Smyrna Beach, Florida. Investigation of the area revealed tidal action in the drainage ditch that emptied into Turnbull Bay. Pieces of shell and dirt were embedded around the knees of the pants worn by Muldoon.

Based upon the autopsy performed on Mul-doon’s body, the cause of death was determined to be the gunshot head wound and drowning. The state medical examiner concluded that Mul-doon was shot at very close range while she was in a kneeling position. Although the bullet entered Muldoon’s brain, the medical examiner determined that death was not instantaneous. He also noted that Muldoon sustained facial lacerations prior to her death.

4

. In pertinent part, the arraignment proceedings were as follows:

THE COURT: State of Florida versus Gerald Eugene Stano, 83-188, Case 83-189. Let the record reflect that Mr. Stano is here in person. I remember him from prior dealings. He is represented by Howard Pearl of our Public Defender’s Office.

Howard, apparently, he’s charged with two additional murders.

MR. PEARL: Yes, Your Honor. In each of the two cases Mr. Stano has executed affidavits of insolvency and motions to be declared insolvent. I think the Court can take judicial notice that he remains insolvent from his last appearances before this Court.

THE COURT: ... Right now I’m going to appoint the Public Defender to represent you.

Is that what you want me to do, sir?

THE DEFENDANT: Yes.

THE COURT: For now I am going to appoint the Public Defender. Agreed?

THE DEFENDANT: Yes.

THE COURT: The Public Defender is appointed.

App. 10-285-86 (transcript of Stano’s arraignment before Judge Foxman, Feb. 8, 1983).

5

. The following discussion occurred before Sta-no entered his guilty pleas:

MR. PEARL: May it please the Court, the defendant moves for leave to withdraw his previously entered pleas of not guilty to the single counts of the two indictments and announces he is ready for arraignment and that he intends to enter a plea of guilty as charged to each of the charges of murder in the first degree.

Further, he intends to move the Court that the sentencing jury be waived and that the Court determine sentence in this cause.

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 has [sic] not yet been received by the State and Mr. Nixon [state 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 this 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 Mr. Nixon. I have confidence, certainly, in his integrity and honesty, and he assures me that the State can independently establish the corpus delecti in both of these cases. And Mr: Stano tells me that that is so.

Further, I have asked him 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.

App. 10-289-91 (transcript of plea proceedings before Judge Foxman, Mar. 11, 1983) (emphasis added).

6

. The state prosecutor related to the court the following information regarding the sufficiency of the state’s case and the missing similar fact evidence:

MR. NIXON: Your Honor, I would also add, for the benefit of the Court this morning, that I’m in fact prepared and have prepared documents that, during the entry of this plea, that both defense counsel as well as the Court will be able to examine, that the facts support very clearly, not only the pri-ma facie case, but evidence arising to proof beyond reasonable doubt as to Mr. Stano’s committing each of these homicides.

So, as far as the factual basis for taking of the plea, I’m prepared to present each of those documents and have the Court examine those so the Court is assured that, in fact, the plea is being entered in good faith and on a solid factual basis.

The materials Mr. Pearl referred to primarily of [sic] having to organize is [sic] not so much of substantive facts of each of these two cases. As the Court will see, the facts surrounding these [cases] are quite simple in terms of the two homicides. What was involved was the fact that, because of the number of other homicides around the state and because there was the possibility of

similar-fact evidence being used, that this is where the complexity of the analysis came in; not so much the facts of the particular cases he’s about to plead to, but the fact that the case would have been complex simply because of the State intending to present similar-fact evidence of other homicides occurring in different parts of the state of Florida.

So, I wanted to at least make sure that we understand that the complexity dealt more in my opinion with the sentencing phase of the case more so than the proof of the underlying homicide charges.

Id. at 291-93.

7

. The following questions concerning Stano’s psychiatric condition and competency to stand trial were asked by the court and answered by Stano during the plea proceedings:

Q. [THE COURT] Have you ever suffered from any mental or emotional disability or any psychiatric problem?

A. [THE DEFENDANT] No.

Q. Okay.

MR. PEARL: Your honor, may I point out at this time, for the record, that Mr. Stano has been extensively examined by a group of psychiatrists who, some of whom, believe that he does suffer from some impairment. But we are not making a claim that he is either incompetent now or that he was insane as the laws of the State of Florida require at the time of the commission of the crime. But I do not wish to be foreclosed from presenting evidence of impairment at the [sentencing] hearing.

THE COURT: Fair enough.

BY THE COURT:

Q. You understand that?

A. Yes, sir.

MR. NIXON: Likewise, Your Honor, at this stage of the plea dialogue, I would ask the Court, if I can, to take judicial notice that you have previously entered orders, more particularly, in Case No. 81-046-CC, in which the issue of Mr. Stano’s competency after examination of a number of psychiatric reports from Dr. George W. Barnard, Dr. Frank Carrera, Dr. Fernando Stern, Dr. Robert Davis, and Dr. Ann McMillan, the Court had in fact found Mr. Stano was competent, as the defendant, for entry of the plea.

BY THE COURT:

Q. That's true, Mr. Stano, you know we have had a number of other cases together.

A. Right.

Q. And we have had extensive psychiatric evaluations. And as best I can tell, you're competent to stand trial under the laws of the State of Florida and probably were not insane at the time of the offense?

Would you agree with that?

A. Yes.

Id. at 294-95 (emphasis added).

8

.The following explanation, regarding the consequences of pleading guilty, was given to Stano by Judge Foxman:

BY THE COURT:

Q. Mr. Stano, do you understand what you’re doing here today?

A. [THE DEFENDANT] Yes.

Q. Okay.

Mr. Stano, I want to talk to you a little bit about it.

Now, we have a single count in each case of first-degree murder. The only possible sentences in Florida — sentences in Florida— are life with a twenty-five year mandatory minimum, or death. And those are the only two possible sentences.

Normally, the way these cases proceed is that there’s a jury trial. Of course, if there's acquital [sic], it goes no further. If there’s a conviction of first-degree murder, the jury, the twelve-man jury that heard the case, meets in a second phase of the trial, what we call bifurcated proceedings. And they listen to evidence in mitigation and aggravation under Florida Statute 921.141. They come back with a recommendation as to life, or death, to the Judge. And the decision is the sole decision of the Judge. But under Florida law, the way it’s evolved, the Judge is pretty well bound by the jury recommendation.

And so, what you're doing in essence, is you're taking the jury out of the sentencing proceedings and it will proceed in front of me, and I will act as the Judge and jury under Florida Statute 921.141. The attorneys will present evidence in mitigation and aggravation, and I’ll make the sole decision.

So, in essence, what you’re doing is you’re taking the jury out of the proceedings.

A. (Nods head.)

Q. Okay. Sir, do you understand that?

A. Yes, sir.

Q. Okay. You have been through this with Mr. Pearl; have you not?

A. Yes, sir.

Q. Okay. Do you have any questions of me or Mr. Pearl at this time?

A. None.

Id. at 295-97 (emphasis added).

9

. As the plea colloquy proceeded, Judge Fox-man discussed with Stano the consequences of his pleading guilty, including sentencing:

BY THE COURT:

Q. Mr. Stano, "Guilty” means that you admit the truth of the charges against you.

A. [THE DEFENDANT] Yes, sir.

Q. You don’t have to plead guilty if you don’t want to.

By pleading guilty, you 're waiving your right to a jury trial as to guilt or innocence; at that trial, to be represented by a counsel; the right to confront witnesses against you; your right to compel the attendance of those who will testify on your behalf.

Once you plead guilty, you waive any defenses you might have. You severely restrict and limit your ability to appeal.

Is anybody forcing you to do this or twisting your arm?

A. No, sir.

Q. This is completely voluntary?

A. Yes.

Q. You understand that there's no deal with me on sentence. You get a fair sentence hearing, and that's all I can promise you.

A. Yes, sir.

Q. Do you feel that there’s any type of deal or anything else like that?

A. No, sir, not at all.

Id. at 299-300 (emphasis added).

10

. Judge Foxman ascertained the voluntariness of the change of plea from Pearl and Stano as well as Stano’s satisfaction with Pearl’s services as follows:

THE COURT: The plea is in no way conditional; is it?

MR. PEARL: No, sir, it is not.

THE COURT: It is an unconditional plea.

MR. PEARL: It’s an unconditional plea of guilty. All we have is the sentencing hearing to face.

THE COURT: Fair enough.

BY THE COURT:

Q. The plea is voluntary?

A. [THE DEFENDANT] Yes, sir.

Q. Are you satisfied with the services of Mr. Pearl?

A. Yes, I am.

Q. Do you have any complaints at all about his services to you as your attorney?

A. No.

Q. Okay.

Do you have any questions of Mr. Pearl, or myself at this time?

A. No, I don’t.

Id. at 302-03 (emphasis added).

11

.Following the presentation of the state’s evidence in the Muldoon case, Judge Foxman accepted Stano’s plea:

BY THE COURT:

Q. Mr. Stano, to the facts outlined by the State Attorney, the documents that he’s just admitted into evidence for the purposes of this plea, do you plead guilty?

A. [THE DEFENDANT] Yes, sir.

Q. All right. Do you have any questions of Mr. Pearl or myself?

A. No, sir.

THE COURT: All right. The Court accepts the plea. The Court finds it's made knowingly, intelligently, and voluntarily, that you have had the advice of counsel, of [a] competent attorney, with whom you say you are satisfied.

Id. at 312.

Similarly, following the presentation of the state’s evidence in the Biekrest case, Judge Fox-man accepted Stano’s plea:

BY THE COURT:

Q. Mr. Stano, as to the facts outlined by the State Attorney as to Susan Biekrest, how do you plead?

A. [THE DEFENDANT] Guilty.

Q. All right. Do you have any questions of me or Counsel?

A. No, sir.

THE COURT: Okay.

The plea is accepted.

The Court specifically finds that it is made knowingly, intelligently, and voluntarily, that you have had the advice of competent counsel with whom you say you’re satisfied.

Id. at 318-19.

12

. Prior to sentencing Stano to death in the Biekrest and Muldoon cases, Judge Foxman made the following observations:

THE COURT: All right. I have a couple of observations to make, Mr. Stano. This case is different than the other homicides I’ve seen because of the sheer number of convictions before Florida circuit courts. This is number seven and number eight.

As best I can tell, there are no connections between these murders; they don’t involve connected defendants and we have — this is the eighth conviction in a Florida circuit court of you for first degree murder.

The sheer magnitude of that number is hard to comprehend. I can see no motive for the killings, Mr. Stano. They seem to be completely senseless to me. Normally we see lust, passion, greed, a need to eliminate a witness, but, I don't see that here. These murders are completely senseless.

Finally, I detect no remorse whatsoever, no remorse for the two murders in front of me.

App. 10-329-30 (transcript of sentencing proceedings before Judge Foxman, June 13, 1983).

13

. The Florida Supreme Court also noted that Stano previously had confessed to nine murders, but was charged with and sentenced for only six homicides. Stano, 460 So.2d at 894 n. 2.

14

. The following dialogue, regarding Stano’s guilty pleas, occurred at the post-conviction hearing between Judge Foxman and Mark Olive, Stano’s new attorney, succeeding Pearl:

THE COURT: What if he was acting under the advice of his counsel not to [plead]? What if he told his counsel, I'm guilty, I want to plead guilty and get it over with? What is Pearl to do then?

MR. OLIVE: Judge, you know, for purposes of your question — and I don’t know — I don’t want to concede anything else, but for purposes of your question, that may have been exactly what happened, you know.

THE COURT: ... But what if the defendant directs counsel to enter the guilty plea, to allow it?

MR. OLIVE: ...

So, first of all, if the client says, plea me, plea me, that’s all there is to it, and the defense attorney has some problem that, he should tell the Court. And if the defendant is proceeding against the advice of counsel, I think that the Court should, under Foretta (phonetic) say, well, you’re representing yourself, Buddy. And if you're representing yourself the Court has to be satisfied that he has waived counsel.

That may be stretching the law some. I don’t think it is. I think that is the Foretta [sic] law.

App. 6-1267-69 (transcript of the post-conviction hearing before Judge Foxman, Dec. 1, 1986).

15

. Lewis Stark, the assistant state attorney, explained that Pearl did not move to set aside Stano’s guilty pleas after receipt of full discovery from the state prior to sentencing:

MR. STARK: ...

There was a period of time from March the 11th, the day the plea was entered, until June the 8th, 9th, and 10th and, finally, June the 13th with[in] which at any time during that period Howard [Pearl], after receiving full discovery from the state, could have moved for a motion to set aside that plea. None was ever done. I think that needs to be considered a little bit by the Court.

Id. at 1302.

16

.Regarding Stano's ineffective assistance of counsel claim relating to his guilty pleas when some of the state’s discovery had not been produced, Judge Foxman's order denying post-conviction relief states:

Trial counsel specifically stated he had not yet received full discovery; did not know the substantive facts concerning the two killings, couldn’t advise the Defendant whether there was sufficient evidence to convict him or not; and, was assured by the Defendant that the confessions were valid. The Defendant acknowledged all this on the record. In essence the Defendant waived his rights to later complain about those matters. Further, he isnt-ructed [sic] his attorney to proceed with the plea. Attorney Pearl did as he was told by this client. Since Pearl was acting at the express direction of his client the first criteria of Knight vs. St., 394 So.2d 997, (Fla.1981), cannot be said to have been met. Any "overt act" or "specific omission” was at the direction of Stano himself.

State v. Stano, Nos. 83-188-CC, 83-189-CC (Fla. Cir. Ct. Apr. 13, 1987) (order denying Stano Fla. R. Crim. P. 3.850 relief).

17

. The Florida Supreme Court recognized that Judge Foxman had accepted three previous guilty pleas to first-degree murders from Stano. Stano, 520 So.2d at 279.

18

. The Florida Supreme Court characterized Stano’s complaints regarding the circumstances under which he pled guilty as follows:

Stano first claims that the circumstances surrounding his guilty pleas violated his constitutional rights and that the trial court did not provide a record that conclusively shows that Stano knowingly, intelligently, and voluntarily waived his right to trial. In reality these issues boil down to a complaint about the voluntariness of Stano’s guilty pleas and trial counsel's effectiveness regarding these pleas.

Stano v. Dugger, 524 So.2d 1018, 1018-19 (Fla.1988) (Per Curiam).

19

. From 1972 through 1977, Pearl represented 300 felony, noncapital defendants per year. Since 1977, he handled only death penalty cases. From 1977 through 1983, with at least 25 capital cases a year, Pearl represented approximately 300 death penalty defendants and had approximately 75 capital trials. R3-123-24, 223 (transcript of the evidentiary hearing on Stano’s federal habeas corpus petition before Judge Faw-sett, May 17, 1988).

20

.Judge Fawsett specifically questioned Pearl as to whether Stano's pleading guilty was against his advice:

THE COURT: Mr. Pearl, are you testifying that Mr. Stano directed you to enter or to go through with a proceeding in which he entered a plea of guilty in the Bickrest and Muldoon cases against your advice?

THE WITNESS [Pearl]: Yes, ma’am.

THE COURT: When did you give him that advice?

THE WITNESS: Very shortly before we entered the plea. I had — shall I continue? THE COURT: Yes.

THE WITNESS: I had received some discovery from the state, and went to talk to Mr. Stano about it. As a matter of fact I think if I am not mistaken he sent for me because he wanted to talk to me and I wanted to talk to him and he announced to me that he wanted to enter a plea of guilty to the first degree murder charges and do so without delay to both of them. Wanted to waive a sentence jury and allow Judge Foxman alone to determine what his sentence would be. I advised him against it. I told him it would be premature, I had no opportunity to make a full investigation, or take depositions, or to verify any of the allegations of the two indictments, and that I could not predict for him what would happen if he were to enter a plea at that time.

That a death sentence was a possibility, if not a likelihood.

I told him that I just didn't know enough about those two cases at that time to be able to advise him with respect to whether he should ask for, whether he should demand a trial or enter a plea. And more over, I had no opportunity whatever except a very brief one to try to negotiate with the state on disposition of these cases ... the only approach I had made to Mr. Nixon, as assistant state attorney concerning — that was met with a refusal and he intended to go forward and seek the death penalty.

Nevertheless, in spite of my advice and against my advice, Mr. Stano insisted that he wanted to immediately enter a plea of guilty and to waive the sentencing jury and that was what was done. There is a plea dialogue in which I think I made clear what my position was when he entered his plea before Judge Foxman on a later date. To wit, March 11, 1983.

Id. at 196-97 (emphasis added).

21

. Stano had received a total of six life sentences for six murder convictions at the time of his pleas in this case. Id. at 201.

22

. Judge Fawsett questioned Pearl as follows concerning the advice that he gave Stano regarding Pearl’s strategy for the sentencing proceedings prior to Stano’s pleas:

THE COURT: Did you discuss the strategy with Mr. Stano on more than one occasion?

THE WITNESS [PEARL]: Your honor, I am unable to answer that. I think so. But I am not absolutely sure.

THE COURT: Did Mr. Stano register any objection or concurrence or any reaction?

THE WITNESS: He said that he understood. His reaction seemed to be that he felt more confidence than I did that Judge Foxman would in fact sentence him to two more life terms. He just — I think he was confident that Judge Foxman would do that. More confident then [sic] I was.

THE COURT: Did you discuss with Mr. Stano your view of the likelihood of Judge Foxman sentencing him to a life in prison term as opposed to execution.

THE WITNESS: Yes. I told him it was certainly possible, but at the same time he faced the very strong possibility of two death penalties instead, and that the state attorney had been saying to me that he would vigorously seek the death penalty because of the fact that these two additional murders had come out after the original arrangement had been closed down and as Mr. Nixon put it to me, there’s is no deal any more, and I have to seek the death penalty, or the public will become enraged. They will think that we have — we in the state attorneys]’ office] have no regard for human life.

I explained that to Mr. Stano. I told him he was at risk.

THE COURT: When did you explain this to him?

THE WITNESS: First before March 11th. 1 explained to him that he was at risk for the death penalty.

THE COURT: Before entry of the plea of guilty?

THE WITNESS: Yes, ma’am. There aren’t any deals, I had spoken to Mr. Nixon and Mr. Nixon said the deal was not any longer in operation and he was going the [sic] seek the death penalty, and Mr. Stano understood that. But nevertheless persisted and insisted on entering a plea.

And — but I can’t tell you with what frequency I discussed with Mr. Stano the strategy or approach to the sentencing hearing after the entry of the plea, once I know. How many more times then [sic] that I am unable to say.

Id. at 202-03 (emphasis added).

23

. Judge Fawsett and Mark Olive, Stano's attorney for his federal habeas corpus appeal, questioned Pearl as follows regarding his advice to Stano concerning the probability of his receiving the death penalty from Judge Foxman for pleading guilty to the Bickrest and Muldoon murders:

Q. [THE COURT] Did you give any reason to him [Stano] or reasons to him for your opinion that death would be more probable then [sic] life?

A. [THE WITNESS (Pearl) ] Yes, your Hon- or, but in these terms. I did not discuss with him the aggravating and mitigating statutory circumstance set forth in the sentence statute.

I did say to him, in substance, that because there had been three prior convictions in Vo-lusia County, of which Judge Foxman was aware and had in fact been involved, that he might very well take the position already taken by the state that two more could no longer be excused or passed off or otherwise treated lightly, as by life sentence, and that Judge Foxman might be convinced that he ought to give Mr. Stano a death sentence simply because of what you would call the reoccur-rence, Mr. Stano coming back into court, after having been before Judge Foxman before and having received the benefit of an agreement.

Q. What was Mr. Stano’s response, if any, to that advice?

A. He did not — his reaction was that he did not seem to think that Judge Foxman would sentence him to death and I think he expressed confidence that Judge Foxman would not, and I told him that Judge Foxman might very well do it in spite of that.

BY MR. OLIVE (redirect examination):

Q. You felt pretty darn certain a death sentence would come out of this, didn't you, sir? Any rational human being would think a death sentence would come out of this.

A. I handled enough of them by then, and this one had the ear marks, Mr. Olive.

Q. Very clear ear marks?

A. I couldn't be positive, you know, there wasn’t any way to be positive and I did express it to Mr. Stano in terms that it would absolutely, it was absolutely a dead probability beyond dispute he would get the death penalty. I did tell him that I thought it was likely, and the only thing I could tell you now that back then all I felt was that it was likely.

Q. He was, well, he was greatly at risk, wouldn't you say?

A. Certainly, sir.

Q. For the death penalty?

A. Yes.

Q. Greatly at risk?

A. Yes, sir.

Q. And yet you're telling us that in your conversations with him he was confident? Those are words you have used two or three times that he would get life?

A. Optimistic, confident, feeling that he transmitted to me was that he felt that Judge Foxman wouldn't do that to him. Of course I guess he felt that Paul Crow wouldn’t either, but that was, I mean these are feelings that he had, emotions that he had, and I am trying to express them but of course I don’t know precisely what was in his mind. Q. We have a PSI that talks about thirty[-]eight confessions, six convictions and you have got a judge who told him the last time he was there that he thought it was worth the death penalty, correct?

A. Yes.

Q. In light of all those circumstances it was your opinion at that time, not that it was likely, but that it was extremely probable that the death penalty would result in the case?

THE WITNESS: On a scale of ten, eight point two.

BY MR. OLIVE:

Q. Ten is you are going to get the death penalty?

A. Beyond doubt.

Id. at 236-39.

24

. Regarding Pearl’s counsel concerning the rights that Stano would waive by pleading guilty, state attorney Belle Turner questioned Pearl as follows at the evidentiary hearing before Judge Fawsett:

Q. [MS. TURNER (cross examination) ] Now you had discussions with your client before the pleas were entered in this case....

A. [THE WITNESS (PEARL) ] Well, in our interview I certainly asked him ... whether he had been advised of his rights, under Miranda [the] right to remain silent, right to demand counsel be present and so forth. He understood those rights when he made confessions and confessions were made voluntarily.

Q. Did he ever give you any indication that he was not guilty of these crimes?

A. He never denied to me that he had in fact committed the crimes. On the other hand it is not my practice in dealing with a client to ask that sort of question directly.

Q. But he gave you no indication of that otherwise; is that correct?

A. No. He did not.

Q. Now when you were discussing the, before the plea was entered, did you discuss with your client’s [sic] the rights that he would be giving up?

A. Yes.

Q. And what did you tell him?

A. Well, ... pretty much the same as a trial judge would go through a dialogue upon the taking of a plea.

I [Stano] was giving up certain rights such as the right to remain silent, the right to confront the witnesses against him, the right to a trial by jury, and so forth, that, you know, that bunch of rights which anyone gives up on the entry of a plea of guilty, plus of course giving up the right really to appeal any error which might have taken place in the proceedings up to the time of judgment.

Q. That’s because the pleas ratified prior confessions, is that true?

A. Yes, ratifies all of that. You can no longer attack evidences [sic] as being not reliable or not genuine.

Q. Plea is in fact an in-court confession, would you agree with that statement?

A. Has been said, probably that is true.

Q. Did you advise him of the state's burden of proof that if he did choose to go to a trial that the state would have to prove the case against him?

A. Didn't think I put it to him directly that way. I think in the course of our discussions 1 asked him whether he thought the state ... could prove that he had committed these two killings and he told me that he felt that he was sure that they could.

Id. at 226-29 (emphasis added).

25

. Judge Fawsett specifically questioned Pearl regarding the discovery which had not been produced to him at the time of Stano’s pleas:

THE COURT: Did you have discovery materials when you had the conference with Mr. Stano prior to the March 11, 1983 proceeding?

THE WITNESS [PEARL]: I had possession of them. I had not brought them with me.

THE COURT: Had you reviewed them?

THE WITNESS: I had. Such as had been furnished. Now discovery was not complete. There were additional materials that [the] state attorney was gathering up, and we had entered into an agreement that he would gather them all up and furnish them to me in one body, rather then [sic] trickling them out one page or two at a time.

THE COURT: Did you have these discovery documents prior to the sentencing proceeding?

THE WITNESS: Well, the additional discovery materials to which I alluded had to do with the proposed state plan to introduce similar fact evidence....

After the entry of the plea, the state apparently lost interest in gathering further materials or in presenting that proof. Since it would not have been an aggrevation [sic] or mitigation of the statute nine twenty one point-— nine twenty one point one four one.

So apparently the state abandoned that plan to present the similar fact evidence. So I had essentially everything else, everything as far as I knew, that had to do with the offense and ... involving the Muldoon [and] Bickrest killings.

Id. at 199-200 (emphasis added).

26

. Judge Fawsett questioned Pearl regarding Stano’s competency to enter a plea or to participate in the proceedings as follows:

BY THE COURT:

Q. Before you sit down, Mr. Pearl, in the course of your representing Mr. Stano in the Bickrest and Muldoon cases, was there anything that made you question whether he was either competent to enter a plea or participate in the proceedings, that actually occurred in the Muldoon and Bickrest cases or question his competency at the time [the] crimes were committed in those two cases?

A. [THE WITNESS (PEARL) ] No, your Hon- or, not competency. I didn’t question his competency, his ability to understand, to appreciate and deal with me and to deal with the issues involved. I am only a layman, but I thought that a person who would have done the sorts of things that Mr. Stano had done, had, in my opinion, had to have something wrong with his personality or his ability to understand and deal with reality.

I couldn’t detect insanity, but at the same time I felt that the acts are so anti social that insanity must be lurking there. I was trying as hard as I could to find something that even if it was not a Me Naughton [sic] defense of not guilty by reason of insanity, that I felt that the mental health professionals should have found that he was operating under extreme mental or emotional disturbance.

Q. Did you pursue mental health evaluations with that goal in mind?

A. Yes, and strong persistent cross examination of the mental health professionals during the hearing, trying to coax them or persuade them to expand their diagnosis in such a way as to include extreme mental or emotional disturbance.

But I was unsuccessful in doing so. They would not go that far.

Id. at 243-44 (emphasis added).

27

. Pearl responded as follows to state attorney Turner’s questioning regarding his investigation of the Bickrest and Muldoon murders concerning a basis to attack Stano's confessions or to request withdrawal of his guilty pleas:

Q. [MS. TURNER (cross examination) ] I am talking about during your representation of Mr. Stano and these two cases. Nothing in your investigation revealed to you, I am not talking about collateral attacks, I am talking about your representation and these two cases, nothing in your investigation revealed any basis to move to attack his confessions or to withdraw his pleas; is that correct?

A. [THE WITNESS (PEARL) ] That's correct. Nothing was brought to my attention.

Id. at 231 (emphasis added).

28

. Judge Fawsett entered the following factual findings pursuant to the evidentiary hearing:

THE COURT: The court finds that Mr. Stano was represented by a highly experienced attorney who advised him not to enter a plea of guilty to the charges of murder against him in the Susan Bickrest and Mary Kathleen Mul-doon cases; who advised that he wished to further investigate the case on behalf of Mr. Stano; and who further advised Mr. Stano that the probable outcome of a plea of guilty would be a sentence of death in view of Mr. Stano’s three prior convictions for murder entered before the same judge in Volusia County.

Mr. Stano rejected this advice, directed his counsel to proceed with the entry of guilty pleas and waiver of sentencing by jury.

Counsel followed the instructions of his client, but nevertheless continued his investigation of the case and sought to establish, among other things, the mental status of Mr. Stano as impaired, if not under a Me Naugh-ton [sic] type test, then at least in a manner sufficient to meet the statutory mitigating factor that the murders of Miss Muldoon and Miss Bickrest were committed while defendant was under the influence of extreme emotional disturbance.

Mr. Stano was examined by five mental health experts who either testified or were presented to the court by way of report. Neither the Me Naughton [sic] test or statutory aggravating factor were found by the trial court.

Further Mr. Stano’s attorney did not have any notice of alleged invalidity of prior conviction for murder which had been reduced to judgment against Mr. Stano.

In fact, Mr. Stano reaffirmed his guilt in the Muldoon and Bickrest murders as well as others on more than one occasion subsequent to the entry of his pleas of guilty in those two cases.

Mr. Stano now contends that his attorney was ineffective for failing to investigate and have suppressed or set aside these convictions or confessions. Mr. Stano chose a course of action which after valid legal proceedings in the Bickrest and Muldoon cases were held, resulted in the imposition of a sentence of death upon him for his crimes.

This court finds no error in those proceedings sufficient for a stay of execution to be entered.

R4-40-41 (emphasis added).

29

. Stano v. Dugger, No. 88-425-Civ-Orl-19 (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).

30

. The Supreme Court has clarified the consequences of a guilty plea by a defendant: "A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” Boykin, 395 U.S. at 242, 89 S.Ct. at 1711-12.

31

. The right to self-representation, established by Faretta, is guaranteed by statute in the federal courts and "generally must be timely and unequivocally asserted and accompanied by a valid waiver of counsel.” United States v. Davis, 604 F.2d 474, 482 n. 8 (7th Cir.1979); 28 U.S.C. § 1654; see Chapman v. United States, 553 F.2d 886, 890 (5th Cir.1977).

32

. Faretta clarifies the counsel’s role as assistant to the accused:

The counsel provision supplements this design [of self-representation implied in the Sixth Amendment], It speaks of the "assistance” of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists. It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. This allocation can only be justified, however, by the defendant’s consent, at the outset, to accept counsel as his representative. An unwanted counsel "represents” the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.

Faretta, 422 U.S. at 820-21, 95 S.Ct. at 2533-34 (citations and footnote omitted) (emphasis in original).

33

. The American Bar Association (ABA) Model Code of Professional Responsibility explains that decisions affecting the merits of the case or substantially prejudicing the rights of a client, including entry of a plea, belong to the client:

EC 7-7 In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on his lawyer.... A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable and as to the prospects of success on appeal, but it is for the client to decide what plea should be entered and whether an appeal should be taken.

ABA Model Code of Professional Responsibility, Canon 7, Ethical Consideration 7-7 (1980) (emphasis added). Although the ABA replaced the Model Code of Professional Responsibility with the ABA Model Rules of Professional Conduct in August, 1983, the Model Code of Professional Responsibility, as adopted by the Florida Supreme Court, was in effect in Florida when Stano entered his guilty pleas on March 11, 1983. Cf. ABA Model Rules of Professional Responsibility, Rule 1.2(a) ("A lawyer shall abide by a client's decisions concerning the objectives of representation ... and shall consult with the client as to the means by which they are to be pursued.”). As adopted by the Florida Supreme Court on January 1, 1987, the ABA Model Rules of Professional Responsibility presently are effective in Florida. Florida Bar Re Rules Regulating the Florida Bar, 494 So.2d 977 (Fla.) (per curiam), modified on other grounds, 507 So.2d 1366 (Fla.1986).

The role of counsel in a Faretta situation has been analogized to the tort doctrine of informed consent: patients/clients must be informed of the material risks prior to electing particular medical treatment/legal action, but the patient/client can refuse treatment/action once informed of those risks. Chused, Faretta and the Personal Defense: The Role of a Represented Defendant in Trial Tactics, 65 Calif.L.Rev. 636, 669-70 (1977). "The general rule is that control of trial decisions rests with counsel in all areas except the guilty plea and perhaps some other 'fundamental' decisions.” Id. at 655 (emphasis added). The legal and political processes also have been compared because the client’s claim (or fundamental decisions regarding his case) are considered to be his just as a citizen’s vote is his. Speigel, Lawyering and Client Decisionmak-ing: Informed Consent and the Legal Profession, 128 U.Pa.L.Rev. 41, 74 (1979). The case belongs to the client and "this claim of ownership gives the client a presumptive right of control.” Id. at 73. While an attorney's education and experience give him superior knowledge of generalized technical information, "[t]he client possesses superior knowledge of another sort — knowledge of the facts and circumstances of his case.” Id. at 100.

34

. The Seventh Circuit has described the decision to plead guilty as being the sole prerogative of the defendant:

It is undisputed that a defendant has a constitutional right to participate in the making of certain decisions which are fundamental to his defense. Included among these fundamental choices are the decisions to forgo the assistance of counsel and to waive trial by jury. Similarly, the decision to plead guilty is

one that must be made by the defendant, and is not one in which an attorney may speak for his client without consultation.

Johnson v. Duckworth, 793 F.2d 898, 900 (7th Cir.) (citations omitted) (emphasis added), cert. denied, 479 U.S. 937, 107 S.Ct. 416, 93 L.Ed.2d 367 (1986); see Faretta, 422 U.S. at 820-21, 95 S.Ct. at 2534 (The allocation of decisionmaking power must be with the defendant’s consent.).

35

.This court has spoken clearly regarding the less than prudent, but nevertheless voluntary guilty plea of a defendant:

In the final analysis, the appellant chose voluntarily to enter a guilty plea for his own personal reasons. Not only was he seeking his own wife’s release in Louisiana, he believed that the “biker's code” required him to help Ignazio [codefendant] and Ignazio’s wife. Furthermore, appellant benefited himself with the plea by avoiding a possible death sentence. Appellant was convinced by Igna-zio’s ill-conceived notion that the guilty pleas could be subsequently attacked and set aside on the basis of coercion and, therefore, knowingly and voluntarily entered into this "plan” by Ignazio to gain the immediate release of their wives while reserving a later attack upon their own guilty pleas. The fact that the plan was foolish and. stupid does not mean that the guilty pleas entered pursuant to it were involuntary in a constitutional sense. Whether the appellant chose to enter this plea out of a desire to help his friends, his wife, and himself, or out of a mistaken notion that he could escape its consequences at a later time, we agree with the district court's conclusion that appellant chose to do so out of his own free and voluntary will.

LoConte, 847 F.2d at 753 (emphasis added).

36

. This court has stressed the necessity of asserting the right to self-representation:

This case presents another example of the tension between the right to counsel and the right to self-representation. Because the assertion of one necessitates the waiver of the other, it is essential that trial courts carefully create a record that ensures that the decision to proceed pro se is being made knowingly, intelligently, and voluntarily.

Fant, 890 F.2d at 410.

37

. Faretta explains that the Sixth Amendment right to self-representation is the defendant's right to proceed pro se in conducting his trial: "And although he may conduct his own defense ultimately to his own detriment, this choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ ” 422 U.S. at 834, 95 S.Ct. at 2541 (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (1970) (Brennan, J„ concurring)) (emphasis added).

38

. The Supreme Court has explained the finality of a guilty plea with the exception of the voluntary and intelligent character of the plea as follows:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.

Tollett, 411 U.S. at 267, 93 S.Ct. at 1608.

39

. Compare Chatom, 858 F.2d at 1484-87 (Stressing that it is the exceptional situation when a single error by counsel will rise to the level of ineffective assistance of counsel under Cronic, this court determined that counsel’s failure to object to the results of an atomic absorption test, used by the state to show that petitioner's accomplice did not fire the gun which killed two sheriff’s deputies, fell below reasonable standards of performance and prejudiced Sixth Amendment adversarial testing. Because the state’s case against petitioner consisted of circumstantial evidence, the test evidence could have supported damaging inferences by the jury. Additionally, the issue of improper admission of the test was foreclosed on appeal. In granting habeas corpus relief, this court concluded that admission of the test results manifestly influenced the verdict, which reasonably may have been different absent this evidence.) ■with Kelly v. United States, 820 F.2d 1173 (11th Cir.) (per curiam) (Petitioner, convicted for drug offenses, moved to vacate his sentence based on ineffective assistance of counsel. Petitioner alleged conflict of interest between himself and his trial attorney, who subsequently pled guilty to drug charges in another federal case and testified against petitioner; inadequate time for trial preparation because petitioner retained his trial counsel two days before the trial began (petitioner’s original counsel, who also represented one of his codefendants, was the target of a continuing criminal investigation which resulted in petitioner’s indictment); substandard representation because his trial counsel was a drug addict; and unreasonable trial strategy by his attorney. Affirming the district court's denial of petitioner’s motion, this court concluded that petitioner did not show that his attorney’s performance undermined the trial result under the Strickland test and was convinced that the facts did not create a presumption of prejudice sufficient for the narrow Cronic exception.), cert. denied, 484 U.S. 966, 108 S.Ct. 458, 98 L.Ed.2d 398 (1987).