Partial Concurrences and Partial Dissents by Judges REINHARDT and TROTT.
CANBY, Circuit Judge:
Melvin Meffery Wade, a California state prisoner sentenced to death, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition. Wade was convicted in the San Bernardino County Superior Court of first-degree murder. We review de novo the district court’s denial of the habeas petition. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). We affirm the district court’s denial of relief on the merits of those claims challenging Wade’s conviction. We hold, however, that Wade’s death sentence cannot stand for two reasons. First, Wade is entitled to a new special circumstances determination because the torture-murder special circumstance instruction failed to meet the requirements of the Eighth Amendment.1 Second, Wade received ineffective assistance of counsel at the penalty phase of his trial.
Finally, we reject Wade’s various challenges to his habeas proceedings in district court.
I
FACTS
The facts of this case are set out at greater length in People v. Wade, 44 Cal.3d 975, 244 Cal.Rptr. 905, 750 P.2d 794, cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 237 (1988). Wade was 24 years old at the time of the offense. He was living with his wife, Irabell “Cookie” Strong, and four of Cookie’s children, one of whom was Joyce Tolliver, the victim.
On the morning of April 10, 1981, after accusing 10-year-old Joyce of not properly washing herself, Wade began hitting her. He proceeded to beat her with a wooden board. He then ordered her to get inside a duffel bag, and told one of the other children to zip the bag. He then put the bag containing Joyce in the unfinished attic.
Joyce eventually freed herself from the bag and asked if she could come down. As she came down, Wade began beating her again, shouting that he was “Michael the Archangel” and that he would kill Joyce because she was a “devil.” Wade continued to beat her throughout the evening, and at one point attempted to hang her from a nail on the wall with a dog leash.
Later, Wade also hit Cookie and then ran away. Cookie asked the manager of the motel where they lived to call the police.2 When the police arrived, they found Joyce dead on the bedroom floor. A subsequent autopsy revealed that Joyce died from cranial, cerebral, abdominal, and soft-tissue injuries.
Shortly after the police arrived, Wade returned to the motel with his hands in the air and said: “Here I am. I’m the one you want. I guess I hit her too hard. I guess I hit her too hard.” Wade was then arrested.
Evidence was admitted at trial that Wade had been physically and sexually abused by Jack, his mother’s boyfriend, from the age of three. Jack also would lock Wade in a closet for hours at a time. Wade, while in the closet, would talk to an imaginary friend. Eventually, this friend, called “Othello,” began to talk back to him. Wade began experi-[1316]*1316eneing blackouts at the age of 12, and received psychological counseling throughout his childhood. He also attempted suicide three times.
All of the defense medical and psychological experts determined that Wade had an alternate personality called “Othello,” although one viewed the phenomenon as being one of Wade’s believing that he was possessed by devils. Two of the experts encountered additional personalities named “Michael” and “Joe.” While the experts testified that Wade was mild-mannered, “Othello” was hostile, boisterous, and violent. Evidence was also presented that Wade was borderline mentally retarded with an IQ of about 70.
During the penalty phase of his trial, Wade testified that he was unaware he had killed Joyce and that he loved her. He also testified briefly about the abuse he received as a child. At his counsel’s request, Wade brought forth “Othello,” who testified that he felt no sorrow for Joyce’s death and asked that the jury sentence Wade to death.
II
PROCEDURAL HISTORY
Wade was convicted of murder and sentenced to death on May 21, 1982. On direct appeal, Wade’s death sentence initially was reversed because the trial court had instructed the jury that it must not be swayed by sympathy in determining Wade’s punishment. People v. Wade, 43 Cal.3d 366, 233 Cal.Rptr. 48, 59, 729 P.2d 239, 250 (1987). On rehearing, however, the California Supreme Court changed its previous stance and affirmed Wade’s conviction and sentence. People v. Wade, 44 Cal.3d 975, 244 Cal.Rptr. 905, 907, 750 P.2d 794, 796 (1988). Although the Court held that the “heinous, atrocious or cruel” special circumstance found by the jury was unconstitutionally vague, it affirmed Wade’s death sentence on the basis of the torture-murder special circumstance. Id. 233 Cal.Rptr. at 57-59, 729 P.2d at 248-50. The United States Supreme Court- denied certiorari. Wade v. California, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 237 (1988).
Wade filed a petition for habeas corpus in the district court, pursuant to 28 U.S.C. § 2254. The district court denied the petition after holding an evidentiary hearing on an ineffective assistance of counsel claim. Wade v. Vasquez, 752 F.Supp. 931 (C.D.Cal.1990). On appeal, this court, after appointing special counsel, ordered a limited remand on an issue of alleged conflict of interest of habeas counsel. Wade v. Vasquez, No. 90-56332, unpublished memorandum disposition (9th Cir. April 21, 1992). After conducting a two-day hearing, the district court held that there was no conflict of interest and denied the claim. Wade v. Vasquez, No. CV 89-0173-R, unpublished memorandum disposition (C.D.Cal. Dee. 14, 1992). This appeal followed.
Ill
GUILT PHASE CONTENTIONS
Wade contends that trial counsel provided ineffective assistance in violation of the Sixth Amendment during several portions of the guilt phase. We reject this contention.
In order to demonstrate that his counsel was ineffective, Wade must show that counsel’s performance fell below that of a reasonable attorney and that counsel’s errors created a reasonable probability that, but for the errors, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). We “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065. Furthermore:
Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.
Id. at 690-91, 104 S.Ct. at 2066.
Wade’s first contention, and the one that is most troubling concerning counsel’s guilt phase performance, is that counsel did [1317]*1317not adequately investigate and prepare before the start of trial. Wade further argues that counsel had no theory of the defense at the time the trial commenced. As evidence of his counsel’s lack of preparation, Wade points to the fact that his counsel, who took over the case from prior counsel, billed only twelve and one-half hours prior to the start of trial. Moreover, Wade contends that had counsel been prepared, he would have presented a “battered child syndrome” defense as recognized in People v. Steger, 16 Cal.3d 539, 128 Cal.Rptr. 161, 167, 546 P.2d 665, 671 (1976).
Trial counsel, however, testified at the evi-dentiary hearing in the district court that he did not bill anywhere near the actual amount of time spent on the case because, as other testimony also indicated, the county courts were very frugal with funds for appointed counsel in capital cases. This explanation was found as a fact by the district court. Wade has not demonstrated that the finding is clearly erroneous.
Counsel’s preparation prior to trial certainly could have been more thorough. At the beginning of the trial, counsel had reports from some experts that Wade’s capacity to commit premeditated murder was questionable, but Wade’s mental health picture was incomplete. Jury selection began only two months after counsel, Wade’s second attorney, was appointed. Counsel could have asked for a continuance until he received the reports from the remaining experts who were examining Wade, but he failed to do so. Counsel did not decide to present a defense of multiple personality disorder until a week after the jury had been sworn in, which is when he began to receive reports from his experts that Wade might suffer from this disorder. However, even if we were to hold that counsel’s preparation was below that of a reasonable attorney, we must still address whether, but for counsel’s lack of preparation, there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. We conclude that Wade cannot demonstrate prejudice under this standard.
Wade contends that counsel’s lack of preparation deprived Wade of effective assistance because, had counsel been properly prepared, he would have presented a defense based on the battered child syndrome. That defense, according to Wade, would have been better than the multiple personality disorder defense presented at trial. Neither the law nor the facts of Wade’s ease support a conclusion, however, that Wade’s counsel fell below the Strickland standard in presenting the defense he did.
In People v. Steger, upon which Wade relies, the California Supreme Court reversed a conviction of first degree murder by torture where the evidence demonstrated that the defendant severely beat her child but failed to demonstrate that the defendant intended to torture the victim. Id., 128 Cal.Rptr. at 167, 546 P.2d at 671. The court noted that the evidence showed that the beatings were a misguided attempt at discipline; the court rejected the People’s argument that the jury could infer an intent to torture because the beating was inflicted over a long period of time. Id. In so holding, the court stated:
The People emphasize that the child’s wounds were inflicted over a long period of time. In some cases this fact might lend support to a torture murder conviction. For example, if a defendant had trussed up his victim, proof that pain was inflicted _ continuously for a lengthy period could well lead to a conclusion that the victim was tortured.
Id. The court held that the jury may consider all the circumstances surrounding the killing, including the severity of the victim’s wounds, as one factor in determining whether the defendant intended to torture the victim. Id. 128 Cal.Rptr. at 165, 546 P.2d at 669. The court only briefly discussed the defense of battered child syndrome, stating that a person suffering from the syndrome exhibits uncontrollable displays of physical abuse against the child. Id. 128 Cal.Rptr. at 167 n. 4, 546 P.2d at 671 n. 4. The court noted that the defendant, like someone suffering from battered child syndrome, displayed uncontrolled outbursts in beating the victim, emphasizing the fact that there was nothing deliberate about the beating. Id.
[1318]*1318The facts surrounding Wade’s offense are significantly different from those in Steger. Evidence was presented that Wade locked the victim up in a duffle bag, attempted to hang her, and beat her over a 22-hour period, frequently with boards. The evidence presented in Steger merely suggested that the defendant had hit the victim on prior occasions. While Wade had done so as well, Wade’s conduct on the night of the crime was different from any punishment he had inflicted previously upon the children.
Counsel’s defense was centered on the fact that Wade’s conduct was aberrational. Counsel presented to the jury evidence that Wade suffers from multiple personality disorder, and that because of this disorder, Wade killed the victim. Wade’s statements that he was “Michael the Archangel” and that he was beating the victim because she was the devil supported the defense that Wade was suffering from this disorder on the night of the offense. There is no reason to conclude that the jury would have been more favorably impressed by the defense that Wade did not have the capacity to form the intent to kill or torture the victim simply because he had been beaten as a child and was disciplining the victim in the same way that he had been punished. The facts of the case lend more support to the position that Wade did not form the requisite intent because he suffered from multiple personality disorder. Therefore, Wade cannot demonstrate prejudice from counsel’s failure to present a defense of battered child syndrome. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
Wade’s next contention is that counsel was ineffective in calling Dr. Allison, a mental health expert, to the stand. Allison testified, contrary to other defense experts, that Wade did not suffer from multiple personality disorder. Because of this testimony, Wade maintains that counsel was ineffective in having Allison testify.
Although Allison disagreed with other defense experts concerning the multiple personality diagnosis, his testimony was favorable to Wade. Allison testified that misdiagnosis of multiple personality is common, and that he too had misdiagnosed Wade as having multiple personality disorder. Allison went on to testify that Wade suffered from a dissociative disorder and that he believed that Wade was not faking or malingering. At the conclusion of his testimony, Allison stated that in his opinion, Wade did not intend to kill the victim and was legally insane at the time of the offense. He determined that Wade’s dissociative disorder was an unconscious belief by Wade that he was possessed by demons. Allison testified that he did not personally believe in demons, but that Wade’s unconscious belief amounted to an atypical dissociative disorder which rendered him legally insane at the time of the offense. In light of this testimony, Wade cannot demonstrate that counsel’s decision to use Allison’s testimony was sufficiently prejudicial to constitute ineffective assistance. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
Wade also contends that counsel, due to his lack of preparation, failed to examine the jurors adequately on voir dire concerning diminished capacity and insanity defenses. It is true that counsel did not question the jury on these defenses at voir dire, although he attempted to do so when he called for a mistrial upon receiving reports that Wade suffered from multiple personality disorder. Again, although counsel’s preparation prior to voir dire could have been more thorough, we cannot say that, under all of the circumstances of this case, any prejudice involved was sufficient to warrant reversal.
Wade further contends that counsel was ineffective at the guilt phase because he did not present corroborating witnesses to support Wade’s multiple personality defense, his abuse as a child, his low IQ, and his use of PCP. Evidence of Wade’s IQ, however, was presented to the jury through his school records as well as through expert testimony. There was abundant testimony by experts concerning Wade’s multiple personality. The experts also related Wade’s abuse as a child; we cannot say that Wade’s counsel fell below the Strickland standard in failing to buttress that testimony with that of other witnesses. Finally, although evidence of Wade’s PCP use was alluded to, counsel purposely did not [1319]*1319rely on this use as a defense because he felt that the jury would only use such evidence in aggravation. Moreover, there was no evidence that Wade ingested PCP on the day of the offense. This decision of counsel does not amount to ineffective assistance. See Strickland, 466 U.S. at 691,104 S.Ct. at 2066.
Finally, Wade contends that counsel’s closing argument at the guilt phase amounted to ineffective assistance because counsel distanced himself from Wade. It is true, as Wade notes, that counsel stated that he accepted the case as an appointment and said to his wife that he was not defending Wade but representing him. Counsel also stated that he thought the crime was horrible and that his own wife sent the victim’s parents money to put flowers on the victim’s grave. If this were all that counsel had stated, then Wade’s contention would have merit. Counsel went on, however, to discuss the evidence supporting Wade’s diagnosis of multiple personality disorder. He said that Wade not only convinced numerous doctors that he had multiple personalities, but also convinced his own lawyer. ■ Counsel’s tactic was to demonstrate that despite the horrible nature of the crime and his own personal feelings, the jury should not precipitate another tragedy by convicting Wade of first degree murder when he had lacked the intent to kill. This tactic does not amount to ineffective assistance. See Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066.
To conclude, even considering the cumulative effect of Wade’s contentions concerning counsel’s performance, see Ewing v. Williams, 596 F.2d 391, 395 (9th Cir.1979), we hold that counsel’s performance at the guilt phase did not deprive Wade of a fair trial. Accordingly, we affirm the district court’s judgment with respect to this claim.
IV
SANITY PHASE CONTENTIONS
Wade contends that counsel was ineffective at the sanity phase because he waived additional argument and asked the jury to rely on the guilt phase evidence. Counsel, however, presented at the guilt phase the testimony of two experts that Wade was legally insane in order to support his defense that Wade had a diminished capacity due to his multiple personality disorder. Counsel was not ineffective in failing to repeat the same evidence that the jury already had considered and rejected at the guilt phase. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
Y
SPECIAL CIRCUMSTANCES CONTENTIONS
Wade contends that the jury instructions regarding the torture-murder special circumstance, CahPenal Code § 190.2(a)(18), failed to narrow the class of capital crimes sufficiently to meet the requirements of the Eighth Amendment. We agree.
The Eighth Amendment requires that a jury’s discretion be sufficiently channeled to allow for a principled distinction between the subset of murders for which the sentence of death may be imposed and the majority of murders which are not subject to the death penalty. Zant v. Stephens, 462 U.S. 862, 876-77, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983); Godfrey v. Georgia, 446 U.S. 420, 428-29, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980). In deciding whether an aggravating factor violates the Eighth Amendment, a federal court must first determine whether the statutory language defining the factor is itself too vague to provide any guidance to the sentencer. Walton v. Arizona, 497 U.S. 639, 654, 110 S.Ct. 3047, 3057-58, 111 L.Ed.2d 511 (1990). If so, the next step is to determine whether the state courts have construed the vague terms of the statute to provide some guidance to the sen-tencer. Id.
The special circumstance at issue subjects a defendant to the possibility of a death sentence if the jury finds that
[t]he murder was intentional and involved the infliction of torture. For the purpose of this section torture requires proof of the infliction of extreme physical pain no matter how long its duration.
Cal.Penal Code § 190.2(a)(18) (West 1988). On its face, this special circumstance does [1320]*1320not require the jury to find an intent to torture. In that respect, the statute differs from its predecessor, which specified that “torture requires proof of an intent to inflict extreme and prolonged pain.” Cal.Penal Code § 190.2(c)(4) (Deering 1977) (repealed 1978).
The California Supreme Court has recognized the deficiency of the current version of the special circumstance, and has held that section 190.2(a)(18) must be interpreted to require that the jury be instructed that the defendant must have intended to cause extreme pain to the victim. People v. Davenport, 41 Cal.3d 247, 221 Cal.Rptr. 794, 808-09, 710 P.2d 861, 876-76 (1985). In so ruling, the court stated:
This court has observed on numerous occasions that in most murders, presumably severe pain precedes the death of the victim. Thus, a special circumstance which requires only an intentional killing in which the victim suffered extreme pain would be capable of application to virtually any intentional, first degree murder with the possible exception of those occasions on which the victim’s death was instantaneous. Such a distinction may have nothing to do with the mental state or culpability of the defendant and would not seem to provide a principled basis for distinguishing capital murder from any other murder.
Id. 221 Cal.Rptr. at 804, 710 P.2d at 871 (citations omitted). With this reasoning we agree. Without the saving construction placed on it by the California Supreme Court, the torture special circumstance would fail to provide a principled basis for distinguishing capital murder from any other murder. Accordingly, it would fail to meet the Eighth Amendment standard prescribed by Zant, 462 U.S. at 876-77, 103 S.Ct. at 2742, and Godfrey, 446 U.S. at 428-29, 100 S.Ct. at 1764-65. To avoid this constitutional problem, the jury must be instructed that an intent to inflict extreme pain is an element of the special circumstance. ‘When a jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process. It is not enough to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face.” Walton, 497 U.S. at 653, 110 S.Ct. at 3057.
The torture special circumstance instruction in Wade’s case was clearly deficient under these principles; the jury was not told that it must find that Wade intended to inflict extreme pain. Despite the shortcomings in the instruction, the California Supreme Court affirmed the sentence. In so doing, it rejected Wade’s Eighth Amendment challenge on the following grounds:
Although the special circumstance instruction, viewed in isolation, did not, by its express terms, explain that the “infliction of torture” element of the special circumstance included an intent-to-inflict-cruel-pain requirement, we believe that in light of the accompanying torture-murder instruction and the argument of counsel on this point there is no reasonable likelihood that the jury was misled on this issue.
Wade, 244 Cal.Rptr. at 916, 750 P.2d at 805.
We do not agree that the constitutionally deficient special circumstance instruction is cured by a spillover effect from the instructions regarding guilt. Unlike the California Supreme Court and the dissenting opinion herein, we cannot assume that the jury would carry the definition of torture over from the guilt instruction and apply it in its deliberations on the torture-murder special circumstance. The jury was instructed that, if it found Wade guilty of murder in the first degree, it “must then determine if the murder was committed under one or both of the ... special circumstances.” (Emphasis added.) The jury was then instructed on exactly which facts it must find in order ultimately to find the torture-murder special circumstance, and intent to inflict extreme pain was not among them. The judge stated that he was going to give the jury the printed instructions to follow in its deliberations, and we see no basis for concluding that the jury deviated from the step-by-step directions set forth in those instructions.
In holding that the jury had been adequately instructed, the California Supreme Court determined only that there was no “reasonable likelihood” that the jury was misled by the faulty instruction. While this is the proper standard for determining the [1321]*1321effect of an ambiguous jury instruction, see Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1197-98, 108 L.Ed.2d 316 (1990), the instruction at issue here was not ambiguous. The jury was clearly instructed that:
To find that the special circumstance, referred to in these instructions as murder involving infliction of torture, is true, each of the following facts must be proved:
1. That the murder was intentional; and
2. That the murder involved the infliction of torture.
To prove the infliction of torture, the infliction of extreme physical pain must be proved no matter how long its duration.
There is no ambiguity in these instructions. They clearly and conspicuously require the jury to find intent to murder, and equally clearly and conspicuously do not require the jury to find intent to inflict extreme physical pain.3
Boyde does not sanction use of the “reasonable likelihood” standard when the disputed instruction is erroneous on its face. Where a jury instruction omits a necessary element of a special circumstance, constitutional error has occurred. See Walton, 497 U.S. at 653, 110 S.Ct. at 3057. We are not free to assume that the jurors inferred the missing element from their general experience or from other instructions, for the law presumes that jurors carefully follow the instructions given to them. The Supreme Court has repeatedly stated that it “presumes that jurors, conscious of the gravity of their task, attend closely to the particular language of the trial court’s instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.” Francis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S.Ct. 1965, 1976 n. 9, 85 L.Ed.2d 344 (1985). See also Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1706-07, 95 L.Ed.2d 176 (1987) (referring to “the almost invariable assumption of the law that jurors follow their instructions”); Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979) (opinion of Eehnquist, J.) (“A crucial assumption underlying [the] system [of trial by jury] is that juries will follow the instructions given them by the trial judge. Were this not so, it would be pointless for a trial court to instruct a jury, and even more pointless for an appellate court to reverse a criminal conviction because the jury was improperly instructed.”)
If the other instructions and what the dissent refers to as “the ordinary meaning of the word ‘torture’ ” are not sufficient to cure the defect in the special circumstance instruction, then the prosecutor’s closing argument surely cannot do so. In general, a prosecutor’s argument carries less weight than a jury instruction because:
The former are usually billed in advance to the jury as matters of argument, not evidence, and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.
Boyde v. California, 494 U.S. 370, 384, 110 S.Ct. 1190, 1206, 108 L.Ed.2d 316 (1990) (citation omitted). Moreover, neither the prosecutor nor Wade’s counsel ever informed the jury that it must find that Wade intended to torture the victim before finding the torture-murder special circumstance. The portion of the prosecutor’s closing argument that the California Supreme Court relies on does not suggest to the jury that the torture-murder special circumstance requires a finding of intent to torture.4 We conclude that the [1322]*1322instructions to the jury regarding the circumstances under which it could find Wade eligible for death violated the Eighth Amendment in failing adequately to guide the jury’s discretion.
If a factor used to determine whether a defendant is eligible for the death penalty fails to narrow adequately the class of capital crimes, a reviewing court may affirm the death sentence only by finding that consideration of the improper aggravating factor was harmless or by reweighing the evidence without considering the factor. Sochor v. Florida, — U.S. -, -, 112 S.Ct. 2114, 2122-23, 119 L.Ed.2d 326 (1992). The error in this case was not harmless, because it necessarily had a “substantial and injurious effect or influence in determining the jury’s verdict” in imposing a sentence of death. Brecht v. Abrahamson, — U.S. -, -, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993). In determining whether an error is harmless, “the question is not Vere they [the jurors] right in their judgment, regardless of the error or its effect on the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision.’ ” Brecht, — U.S. at -, 113 S.Ct. at 1724 (Stevens, J., concurring) (quoting Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1247-48, 90 L.Ed. 1557 (1946)); see also Sullivan v. Louisiana, — U.S. -, -, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993) (“The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error”). Here, the effect of the error was to permit the jury to find Wade eligible for the death penalty without having to make any finding of his intent to torture.5 The error thus influenced the jury’s verdict.6
Moreover, we cannot conclude that, in light of the other instructions, the jury necessarily found that Wade had an intent to inflict extreme pain. It is true that the instruction regarding the crime of murder by torture included an intent requirement. But the jury was also instructed on an alternate theory of first-degree murder—that of regular premeditated murder. There is no way to determine on which theory the jury convicted. Consequently, it cannot be said that, in convicting Wade, the jury necessarily found that he had intended to torture the victim.
We cannot, therefore, uphold the torture-murder special circumstance on a harmless error theory. The alternative means of upholding a death sentence based on an invalid eligibility factor—a reweighing by the state court of the evidence without regard to the invalid factor—is not open because the only other special circumstance found by the jury, “heinous, atrocious or cruel” murder, was invalidated by the California Supreme Court. Without a valid special circumstance finding, Wade is ineligible for the death penalty. See Cal.Penal Code § 190.2 (West 1988). Therefore, the writ must issue vacating Wade’s death sentence, and no new sentence of [1323]*1323death may be imposed without a new determination of special circumstances.7
YI
PENALTY PHASE CONTENTIONS
Wade contends that counsel was ineffective in failing to prepare adequately for and to present evidence in the penalty phase.8 Wade asserts that counsel was ineffective in failing to call his sister, Sharon Wade Curtis, and his mother, Shirley Gross, as witnesses to testify about his abuse as a child. Wade makes the same argument regarding forensic experts. He also argues that counsel’s stated reason for not presenting evidence of child abuse—that it was already before the jury at the guilt phase—is not persuasive because the jury during the guilt phase was told to consider that evidence only as the basis of the medical opinion and not for its truth. Finally, Wade contends that counsel was ineffective in his closing argument, and that his ineffectiveness was further exacerbated by his summoning of “Othello,” who challenged the jury to sentence Wade to death.
To demonstrate that his counsel was ineffective, Wade must show that counsel’s performance fell below that of a reasonable attorney and that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. We conclude that Wade has shown that his counsel “made errors so serious that [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. In so ruling, we consider the cumulative effect of counsel’s errors. See Ewing, 596 F.2d at 396.
Trial counsel cited tactical reasons for not presenting corroborating evidence of Wade’s child abuse at the guilt phase. Counsel suggests that Wade’s mother and sister would not have been particularly helpful witnesses, and counsel can be given the benefit of the doubt on that issue for purposes of the penalty phase. It is difficult to find a tactical reason, however, for not presenting any significant evidence of abuse at the penalty phase. The State contends that Wade cannot demonstrate prejudice because the evidence was presented at the guilt phase. The problem with this argument, as Wade notes, is that the jury was instructed that it could not consider such evidence for its truth. Although, at the penalty phase, the jury was instructed to consider evidence presented during all phases of the trial, the restriction on use of the evidence of child abuse was not removed.
The only significant evidence of mitigation provided at the penalty phase, then, was Wade’s own brief affirmative answer to counsel’s question whether Wade had told the truth to his doctors about having been abused by his mother’s boyfriend, Jack. The dissenting opinion here argues that this question and answer reflects a clever tactic to render all of. the earlier limited-use abuse testimony admissible for its truth. But that point was never made to the jury. All that the jury had before it on abuse, to consider for its truth, was Wade’s brief, unadorned answer. Counsel made no point at all about child abuse in the penalty phase. This “tactic” is inexplicable.
Wade also contends that counsel was ineffective when he made the choice to call forth “Othello.” Perhaps it can be argued that it was a reasonable tactic to let the jury, despite the fact that it had already rejected a multiple personality defense in the guilt phase, hear from “Othello,” but the substance of Othello’s testimony can only have been damaging to Wade. Othello was profane, insulting, and effectively challenged the jury to execute Wade, because Othello wanted to kill him anyway. Some of counsel’s questions seemed destined to produce adverse results:
[1324]*1324Q. ... You killed Joyce Tolliver, didn’t you?
A. So what, man?
Q. Does that mean yes?
A. Wasn’t just me.
Q. So Joyce died?
A. You can say it like that, yeah.
Q. At your hands?
A. Not just the part on mines.
RT 6329. And again:
Q. ... Let’s assume that you don’t have the power you think you have and that you can’t kill Melvin on December 8th or at any other time. Okay? And let’s also assume that this jury sentences that body to die in the gas chamber. Okay? Would you have the guts to allow Melvin to black out and you be the one to be gased? Would you have those guts?
A. How are you gonna gas something that don’t exist? You know what I mean?
Q. You mean you’re a spirit and don’t exist? Is that what you are talking about?
A. What do you think?
RT 6336. In apologizing to the jury for the coarseness of Othello’s testimony, counsel stated: “I didn’t know what the testimony would be.” RT 6468. That certainly seems to have been the case, and that fact and the results it produced do not speak well for the decision of counsel to propound those questions. With Othello’s repellent testimony, and a virtually total absence of evidence of his abuse as a child, Wade was left with no mitigating evidence at all.
If any doubt remains that counsel was ineffective at the penalty phase, it is erased by counsel’s closing argument, which is reproduced in full as an appendix to Judge Reinhardt’s concurring opinion. He began his closing argument by asking the jury to spare Wade’s life, if for no other reason than to let doctors examine him as a “human guinea pig.” Counsel conceded that he thought the jury had already made up its mind to sentence Wade to death by stating: “I believe the die has already been cast. I think that you as individuals without consulting each other collectively based upon your past verdicts in this case have decided what to do.” At the conclusion of the argument, counsel gave up any effort to persuade the jury to impose a sentence other than death by stating:
I just want to conclude with, considering the disorder, the emotional disturbance that the evidence has suggested to you by way of the physicians in this case and the psychologists, I don’t think that Melvin Wade, Melvin Meffery Wade, can actually, can be said to lose this case. As has been expressed to me by Melvin on many occasions, he can’t live with that beast from within any longer and if in your wisdom you think the appropriate punishment is death, you may be also giving an escape once again by analogy the gift of life to Melvin Meffery Wade to be free from this horror that he and only he knows so well.
There is simply no tactical reason to argue to the jury that executing Wade would be an outcome favorable to Wade. In a similar context, the Supreme Court has held that a prosecutor’s argument which diminishes the seriousness of the jury’s penalty determination is extremely prejudicial. See Caldwell v. Mississippi 472 U.S. 320, 332-38, 105 S.Ct. 2633, 2641-42, 86 L.Ed.2d 231 (1985). Counsel’s closing argument effectively relieved the jury of any doubt or anguish it might feel in sentencing Wade to death. By arguing to the jury that executing Wade would benefit Wade by freeing him of his mental illness, counsel’s argument resulted in the “breakdown in the adversarial process that our system counts on to produce just results.”9 Strickland, 466 U.S. at 696, 104 S.Ct. at 2069.
[1325]*1325Assessing the cumulative effect of counsel’s errors, we conclude that counsel’s performance was seriously deficient, and that there is a reasonable probability that, absent these errors, the result of the proceeding would have been different. Although several of counsel’s individual decisions, taken in isolation, might arguably have been justified, there can be no justification for his overall performance when those actions are viewed in context. Counsel’s presentation at the penalty phase focused exclusively on Wade’s multiple personality, despite the fact that the jury had twice rejected the multiple personality defense. Although counsel briefly asked Wade whether he had told the psychiatrists the truth about the abuse he experienced as a child, he did not remind the jury of the facts regarding this abuse, and in his closing argument, counsel utterly failed to mention the history of abuse.
In sum, Wade’s counsel abandoned a potentially forceful mitigating circumstance in favor of exclusive reliance on a theory which the jury had rejected twice before, and which was presented in a manner that clearly risked alienating the jury. In combination with the indefensible closing argument, these errors dictate the conclusion that counsel’s performance was constitutionally deficient. Had Wade received a competent defense, a reasonable probability exists that the jury would have returned a sentence of life imprisonment without the possibility of parole. Id. at 687, 104 S.Ct. at 2064.
Therefore, Wade has demonstrated that counsel was ineffective in his representation at the penalty phase, and because of his ineffectiveness, Wade was denied a fair and reliable penalty trial. See Lockhart v. Fretwell, — U.S. -, -, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993) (reaffirming that petitioner must demonstrate unreliable and unfair trial in order to succeed on claim of ineffective assistance of counsel). His death penalty therefore cannot stand.10
VII
DISTRICT COURT HEARING
Wade contends that the district court denied him various rights in the course of his habeas hearing. Because we are affirming the portion of the district court’s decision upholding the determination of Wade’s guilt, we address these contentions.
1. Denial of right to attend hearing
Wade first contends that the district court violated 28 U.S.C. §§ 2243 and 2254 by denying him the right to be present at his habeas hearing. Wade asserts that, because the district court ordered an evidentiary hearing on factual matters in which Wade participated, he had a right to be present. Wade relies on the provision of section 2243 requiring the respondent to produce the body of the person detained. See Walker v. Johnston, 312 U.S. 275, 285, 61 S.Ct. 574, 578-79, 85 L.Ed. 830 (1941).
The Supreme Court’ has made it clear, however, that a petitioner does not have an automatic right to be present at a hearing in which he is collaterally attacking his criminal conviction. See Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962); Sanders v. United States, 373 U.S. 1, 20, 83 S.Ct. 1068, 1079-80, 10 L.Ed.2d 148 (1963); see also Christy v. United States, 437 F.2d 54, 55 (9th Cir.1971). Wade argues that these statements are inapplicable because they were made in connection with collateral attacks on federal criminal convictions under 28 U.S.C. § 2255, which expressly permits hearings in the absence of the petitioner, while section 2254 does not. We do not agree, however, that [1326]*1326the district court is required to order the production of a state prisoner under circumstances when it would not be required to order the production of a federal prisoner. On this question, the requirements of sections 2254 and 2255 are the same. See Moorhead v. United States, 456 F.2d 992, 996 (3d Cir.1972) (citing United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952)). The question, then, is whether the district court abused its discretion in declining to order Wade to be brought to the hearing. See Barnes v. United States, 579 F.2d 364, 365 (6th Cir.1978).
We cannot say that the district court abused its discretion in this ease. The issues at the evidentiary hearing were whether counsel had rendered ineffective assistance, and whether jurors had received improper communications. Wade was not expected to testify on either subject. Indeed, immediately prior to the scheduled evidentiary hearing, habeas counsel moved for relief on the ground that Wade was incompetent to assist in his case. Prior to the rescheduled eviden-tiary hearing, habeas counsel stated that Wade would not be able to recollect the facts of the crime. The district court denied the request for Wade’s presence, but told Wade’s habeas counsel that if any issues came up requiring him to confer with Wade, the court would give him that opportunity. Counsel was told that if Wade had evidence to give, then a showing to that effect should be made and Wade could be brought in. No such showing was made. On this record, we find no abuse of discretion.11
2. Scope of the hearing.
Wade contends that the district court impermissibly limited the scope of the hearing on ineffective assistance to the question whether Wade’s trial counsel had failed to prepare adequately. Wade contends that this limitation prevented him from showing the full extent of trial counsel’s ineffective assistance during the course of the trial. Wade also contends that the district court, after impermissibly limiting the scope of the hearing, permitted the State to introduce evidence supporting the adequacy of trial counsel’s representation during trial.
Although the district court did state at one point that the issue for evidentiary hearing was the inadequate preparation of counsel for trial, we agree with the State that Wade and his habeas counsel could not reasonably have considered the issue to be so narrowly limited. Habeas counsel had emphasized inadequate preparation of trial counsel, primarily because trial counsel had billed only 12.5 hours prior to trial, but the thrust of their argument was necessarily directed toward counsel’s trial performance. As the State points out, there is no constitutional right to a particular degree of preparation for trial; faulty preparation is meaningful only to the extent that it results in ineffective assistance of counsel at critical stages of the criminal proceeding. The district court elsewhere at the beginning of the hearing characterized the issue as being that of “how Mr. Ames handled the trial.” Wade’s habeas counsel could not have been misled.
Indeed, the State’s evidence of which Wade complains—the testimony of the judge who presided at Wade’s trial—was presented out of order before Wade put on his evidence. The judge’s testimony, to the effect that Ames had performed competently at the trial, made clear that trial performance was in issue.
We also find no merit in Wade’s contention that the district court improperly limited his expert evidence regarding the battered child syndrome and evidence of PCP use. Sufficient evidence regarding the basics of the [1327]*1327battered child syndrome were introduced; the limitations enforced by the district court were reasonably designed to restrict the issue to competence of counsel, on the basis of what was reasonably known by counsel at the time of trial. As for the use of PCP, there was no showing that Wade was using PCP at the time of the offense; there was a sufficient basis for decision as to whether trial counsel had properly rejected that defense.
3. Conflict of habeas counsel.
Wade contends that his counsel at the habeas hearing had a conflict of interest that invalidated the collateral proceedings; he would have us order the district court to begin anew with different counsel. When Wade raised this issue in a prior appeal, we appointed special counsel to pursue this point, and special counsel have presented Wade’s claim to the district court on remand, and have briefed and argued the issue here. There is a paucity of precedent in this area, probably for the reason the State suggests: there is no constitutional right to the assistance of counsel in federal habeas proceedings. Coleman v. Thompson, 501 U.S. 722, 752-53, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991). We need not decide, however, the effect of that fact on the question of conflict; we assume for purposes of decision that an actual conflict of interest on the part of habe-as counsel would give rise to some form of relief. We conclude that on this record, no such conflict has been shown.
The claim of conflict arose from the fact that Barry Helft, a deputy public defender who was to be lead counsel in Wade’s habeas proceeding, had been married until some 13 years earlier to the daughter of Wade’s trial counsel. Wade contends that this relationship inhibited Helft, as well as others in his office, from actively pursuing an investigation of trial counsel, with a view toward determining the true reasons that lay behind his trial tactics.
Although this relationship was known to Wade’s habeas counsel and their supervisor during the five months prior to the first habeas hearing that Helft worked on the case, the issue was not raised by either counsel until the eve of the hearing. When the relationship was disclosed to the district court, the court declined to disqualify the Public Defender’s office, but did remove Helft, leaving deputy public defender Ayoob to conduct the proceedings for Wade. Helft was permitted to remain at the counsel table to assist Ayoob if desired.
After a further evidentiary hearing on remand, the district court concluded that the showing of conflict was utterly insubstantial. It is hard to argue with that conclusion. The evidence indicated that Helft had had very little contact with his former wife during the past 12 years, and had had virtually no relationship and almost no contact with Wade’s trial counsel even dining the marriage. In law, he certainly had no duty to Wade’s trial counsel that conflicted with his duty to Wade. In fact, the district court found that there was no actual inhibition of the vigorous pursuit of Wade’s collateral action due to the previous relationship between Helft and Wade’s trial counsel. Nor was there any reason why the entire office of the Public Defender, with numbers of attorneys who handled death penalty cases, was inhibited from investigating the case, or from providing a replacement for Helft as habeas counsel. The district court’s findings are supported both by the testimony of habeas counsel and their supervisor, and by the court’s credibility determinations; the findings are not clearly erroneous.
Finally, the allegations that special counsel insists that habeas counsel should have pursued, concerning practices and attitudes of trial counsel decades before Wade’s criminal trial, bear an extremely tenuous relationship to the issue of effective assistance of counsel at Wade’s trial. The district court could properly conclude that Wade’s habeas action could not have been prejudiced by the alleged failure to investigate these matters further. We conclude that the district court did not err in rejecting the claim of conflict.
VIII
CONCLUSION
The district court’s denial of habeas relief on Wade’s claim of ineffective assistance of [1328]*1328counsel at the guilt phase is AFFIRMED. The district court’s denial of Wade’s claims relating to the special circumstance finding and penalty phase are REVERSED and the case is REMANDED to the district court with instructions to issue the writ invalidating Wade’s death sentence as now imposed. In light of our disposition, we do not reach the remainder of Wade’s contentions.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.