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gave a “ ‘low key’ ” closing argument, after which defense counsel waived closing argument, thereby “preventing the lead prosecutor, who by all accounts was an extremely effective advocate, from arguing in rebuttal.”  (Ibid.)  Under these circumstances, the high court held, a state court’s characterization of counsel’s waiver of final argument as a competent tactical choice was not an “unreasonable” application of Strickland v. Washington, supra, 466 U.S. 668.  (Cone, supra, at pp. __-__ [122 S.Ct. at pp. 1852-1854].)  Observing that the waiver of closing argument is “plainly of the same ilk as other specific attorney errors we have held subject to Strickland’s performance and prejudice components” (id. at p. ___ [122 S.Ct. at p. 1852]), the high court in Cone concluded that its holding in dicta in Cronic, supra, 466 U.S. 648—that prejudice may be presumed “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing” (id. at p. 659)—was inapplicable to defense counsel’s waiver of closing argument.

Defendant seeks to distinguish Cone on its facts, pointing out that by the time of the capital sentencing hearing in that case, counsel had already put considerable mitigating evidence before the jury in connection with the guilt and sanity phases of trial, and in his opening penalty phase statement had brought that evidence to the jury’s attention, urging them to consider it in determining the appropriate penalty.  But we find another distinguishing aspect of Cone of greater significance here—Cone had reached the high court in the procedural posture of a federal habeas corpus proceeding “[a]fter a hearing in which [defendant’s] trial counsel testified” (Cone, supra, 535 U.S. at p. ___ [122 S.Ct. at p. 1845]), an evidentiary hearing that in turn furnished the basis for the state criminal court’s rejection of Cone’s claim that his counsel rendered ineffective assistance by failing to present mitigating evidence and waiving final argument at the capital sentencing hearing, and its denial of postconviction habeas corpus relief.  (Ibid.)

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