Interesting disagreement between Judge Duncan and Judge Gregory

In Buckner v. Polk, Judge Gregory dissented from the denial of rehearing en banc, and Judge Duncan wrote to elaborate further on the panel decision, where the decision involved the obligation of defense counsel to investigate the mental health of a defendant in a death penalty case.

Evidently, Judge Gregory is seeing something in the facts that others do not, as Chief Judge Wilkins and Judges Widener, Wilkinson, Niemeyer, Williams, Michael, Motz, Traxler, King, Shedd, and Duncan voted to deny rehearing en banc. Judge Gregory cites, among other things, the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, in effect at the time of the petitioner's trial. I would not have thought that these guidelines were promulgated for the purpose of stating the measure of whether the defendant that to which he is entitled under the Sixth Amendment.