would avoid death-eligibility because he believed an attempt to convince the jury of second degree murder would be “an absurd request.” Counsel based this assessment on the egregiousness of the crime. He believed that because the victim was an abducted child who was brutally attacked, facts admitted by Hovey, the jury would lean heavily toward first degree murder, regardless of whatever evidence there might be to support a second degree conviction. There is no evidence to suggest that counsel formulated this theory of defense in response to the informants’ role in the prosecution’s case. Thus, counsel’s failure to investigate the informants does not bear on his trial strategy, and his choice was strategic, not incompetent. See Anderson v. Calderon, 232 F.3d 1053, 1087-90 (9th Cir.2000) (<HOLDING>); overruled on other grounds by Osband v.
holding that counsel was not deficient in seeking a conviction for first degree murder rather than felony murder in order to avoid exposing his client to the death penalty and concluding that counsel made a reasonable assessment that the jury would be very unlikely to let anderson off of the hook completely holding that where both firstdegree and felony murder were possible bases for a murder conviction a jury instruction that suggested the jury could rely on felony murder as the predicate offense for a conviction for conspiracy to commit murder was improper because under arizona law a conviction for conspiracy to commit firstdegree murder requires a specific intent to kill holding that indictment for murder in the first degree charges murder by whatever means it may have been committed regardless of the theory of murder presented to the grand jury holding that swanson and cronics presumption of prejudice does not apply where trial counsel conceded that defendant murdered the victim but asked the jury to convict him of firstdegree murder rather than felony murder in order to avoid eligibility for the death penalty holding that reversal of conviction for felony murder was required where jury failed to find the defendant guilty of the underlying felony as essential element of the felony murder offense