concurring and writing separately.

I have serious doubts as to whether Stanley D. Lingar is entitled to the relief that he seeks in this motion. I continue to believe strongly, however, that Lingar’s counsel was ineffective in telling the jury in the sentencing phase of Lingar’s trial that it could only consider statutory mitigating factors. As I stated previously in Lingar v. Bowersox, 176 F.3d 453, 462 (8th Cir.1999) (Heaney, J., dissenting):

The jury could and should have been given the opportunity [to] consider all mitigating factors, including a history of sexual abuse, substance abuse, and blackouts; a mental evaluation revealing borderline mental retardation, acute paranoid and depressive disorders; expression of remorse; and indications that Lingar was a good candidate for rehabilitation. Lingar was clearly prejudiced by his counsel’s failure to develop and present this evidence. There is no reasonable probability that • a jury advised of these circumstances would have imposed the death sentence on this 20-year-old, mentally retarded and mentally disturbed young man.

It is my hope that the United States Supreme Court, who now has this case pending before it on a petition for certiora-ri, will consider the whole record and give Lingar the relief he seeks, but for the reasons stated in my dissent in Lingar.

The mandate shall issue forthwith.