384
Stevens, J., dissenting
aggravating circumstance and also on robbery as an element of the crime.
Counsel's duty at this stage of the proceedings was clear. In addition to general investigation and preparation for the penalty phase, counsel's primary obligation was to advise the trial judge about the correct answer to this crucial question of law. Had he handled this professional responsibility with anything approaching the "reasonableness" demanded by Strickland, 466 U. S., at 687-691, he would have found an Eighth Circuit case directly in point, addressing the same Arkansas statute under which respondent was sentenced and holding such double counting unconstitutional. Collins v. Lockhart, 754 F. 2d 258, 261-265, cert. denied, 474 U. S. 1013 (1985). The failure to find that critically important case constitutes irrefutable evidence of counsel's inadequate performance. The fact that Collins was later overruled does not minimize in the slightest the force of that evidence.
Moreover, had counsel made a Collins objection to the pecuniary gain aggravating circumstance, we must assume that the trial court would have sustained it. As the District Court stated: "Although Collins has since been overruled, it was the law in the Eighth Circuit at the time of [respondent's] trial and this Court has no reason to believe that the trial court would have chosen to disregard it." 739 F. Supp. 1334, 1337 (ED Ark. 1990). Neither petitioner nor the Court relies on disagreement with this finding. See n. 5, supra. Nor could they. As we explained in Strickland, it is not open to the State to argue that an idiosyncratic state trial judge might have refused to follow circuit precedent and overruled a Collins objection. 466 U. S., at 695.
Applying Strickland to these facts, the District Court correctly held that counsel's failure to call the trial judge's attention to Collins constituted ineffective assistance and "seriously undermined the proper functioning of the adversarial process." 739 F. Supp., at 1336. Because it granted relief on this basis, the District Court found it unnecessary to
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