this appeal stems from the district court's erroneous denial of mr reddy's petition for his b s corpus based on the ineffective assistance of his state trial counsel in particular mr reddy's state court counsel failed to introduce  trial evidence of mr reddy's diagnosed psychiatric condition post traumatic stress disorder despite the fact that that evidence was highly significant to his defense under ohio law now the state does not dispute or or even discuss most of the points that mr ready made in his briefing but i'd like to start by responding to the main argument that the state does make in its brief the state asserts that psychiatric evidence would not have reddy's trial under ohio law as we described in our reply brief that contention is at odds with said settled ohio law including the two thousand and seven decision of the ohio court of appeals in the state you warner case cited in our brief in which the court explicitly held to that quote evidence that the defendant is suffering from post traumatic stress disorder is appropriate in a case where the defendant seeks a voluntary manslaughter instruction and that conclusion is consistent with a number of other ohio cases also cited in our brief which make clear that this type of testimony would in fact have been admissible so the state's argument on that point is is flatly incorrect and not a basis for denial here beyond that point i'd like to address to mean arguments the first is that the failure of counsel to introduce evidence of p t s d was ineffective assistance of counsel because the evidence was clearly relevant and there was no strategic reason to exclude it and the second argument is that this court should apply at the novo review standard here because the state court misconstrued mr reddy's claim this court can conclude that it was not strict trial strategy and the reason is that this trial counsel argued in his closing argument that this was voluntary manslaughter in fact as the state of ohio court recognized that was essentially his entire strategy there was no argument about innocence here there was an argument that a lesser charge should apply and if you look at the report of dr fabian which we can treat is essentially a proffer of what he would have testified to  says not only that he has p t s d but quote that there is a nexus between mr reddy's mental illness his abusive history with his mother and his homicidal behavior counseling that's where i would like to to go with because here's my here's my problem i'd like you to address in a lot of these p t s d cases you have a person who seems to be relatively quote normal and then they do something and you say ah you know he had brain injury ten years ago or he fought in iraq or something and nobody knew about it in this case the court hadn't read into the record the lucky report which talks about varieties of mental illness of bipolar disorder of suicides of oppositional defiant disorder and then you read the fabian report and a lot of it is quite similar it's true it uses the term p t s d as something that's additional to what's in the lucky report but the judge here and it wasn't even a jury clearly knew about the abuse clearly knew about the mental problems and the exact sum mary that you just gave doesn't refer to p t s d i believe there is a nexus between his mental illness his abusive history and clearly the judge and it was all in the record  about mental illness and abusive history so the question is in this case why is the addition of the term p t s d so vital a few points in the  that the report that you're referring to was not part of the trial it was part of the discussion of competency on an entirely different subject trial counsel did not introduce it on that but the judge having to same judge right but but the larger point your honor is that under ohio law a fact finder does not need to consider voluntary manslaughter and i should note the trial judge stated that she did not consider voluntary manslaughter and under ohio law that was permissible if there if unless there is evidence on the two different problems of the voluntary manslaughter statute the objective problem and a subjective problem there was copious evidence on the objective prongs here but there was no evidence on the subject of prop what what is your citation that the judge said that she did not consider the voluntary manslaughter because i thought she certainly gave gave arguments  as to why she wouldn't especially during the discussion of the motion for acquittal on her she says if you were a jury wouldn't you say they should be charged wouldn't be that be your analysis and he which at the recent thing that occurred in this case she specifically acknowledged there was a colloquy between the defendant and the judge and he argued that he had not had a chance to argue voluntary manslaughter and have a direct edge considerate and she and she acknowledged the legal problem that he was pointing out quote by the court rejecting the argument that it was a perfect murder as opposed to aggravated murder you were prevented from going on to what's called in a fear an inferior offense going to talk about the inferior offense the voluntary manslaughter so she explicitly said that she had not considered but that's because she had found aggravated murder and then ultimately the court of appeals said that was wrong and that's why i sort of have this feeling that isn't your problem with the ohio court of appeals decision in rejecting part of what the trial court did but not all of it no your honor and you're not attacking the ohio court of appeals decision here as i understand it you're attacking only the ineffective assistance of counsel that's correct but the finding of aggravated murder is that the judge made was a finding on state of mind whether d was directly linked to the killing had that evidence been introduced that the court would not have find found prior calculation and would have considered voluntary manslaughter as she would have been hit on someone and then when they get into the fight there p t s d causes them to be in a state of rage there would still be prior calculation or design i mean that's the legal finding the court made here maybe it was right or wrong but that's why it is logically inconsistent with with the only beam in the murder occurring because of rage or we would argue that the the report as laid out yeah right ok but but it's important to point out that the report does not just say p t s d it also drives that link and that was missing from the earlier testimony generally about about  just just so we're not missing your record argument your link is that same as last sentence about nexus we would combine both the link language with the other statements about the fact that he had p t s d but yes that's correct i also should should note that the trial judge in this case explicitly stated that she found the report to be significant when she saw it at the recent unsing when it was presented by appellate count and actually seen it at the sentencing as well i did see it at the sentencing there was then an extended colloquy about it at the recent thing and in that colloquy she read a number of statements from the reporter into the into the record including this statement about the link that we've discussed and she specifically said that she found it to be significant and so we would argue and it's important your honor in considering this prejudice question that mr reddy's counsel presented no witnesses at trial the only witnesses were witnesses for the prosecution and the evidence of abuse that you referred to was only brought out through those witnesses had there been a psychiatry wrist testifying for mr reddy who would have laid out in detail mr reddy's mental state and how that mental state was directly linked to the homicide that would have made a a very significant when we you jimi just said that he called no witnesses but these prosecution witnesses had already testified to a lot of abuse is that correct that's right and that seemed to be the strategy that he was following that look you know the abuse from the mother the history is is so clear that it  fully supports our argument that this was all enough in a sudden fit of passion which the judge then overcame with the judge's view of the bloodstains and someone your honor we entirely agree that that was his strategy and that's why there was no strategic reason to not introduce this evidence because it was highly supportive of that point that he was in fact trying to make and made the link that was missing from what he was saying and just the last point i'd to battered child syndrome but in that case the court found that the trial court had erred by rift by excluding evidence of battered child syndrome despite the fact that there was evidence of abuse in that case so the ohio courts have made clear that evidence of mental illness is not cumulative of evidence of abuse as the district  the court jonathan corey from the ohio attorney general's office appearing on behalf of respondent oppose the war do you still maintain that this was in the missile yes your honor you have supreme court affirmed recently in state versus former at the defense of diminished capacity is not recognized in ohio but i don't think the system in this capacity yes it is your honor the opponent states in their brief in the statement of the issues specifically that this evidence at issue would have shown that mr reddy lacked the state of mind and intent to commit the crime for which he was convicted so i think right there the opponents admitting that this is diminished is a distinction between dismiss diminished capacity and what's the term that's used inferior inferior char which that he had the capacity to commit the crime but because he also had the mental state of being in a fit of rage or passion then you get to voluntary manslaughter diminished capacity is he didn't have the ability to to form to form the the basic element of the charge and the inferior offense is that he had an additional mental state that made him less culpable even though he had the capacity to form the correct and well your honor that seems to be a distinction without a difference without just proving that he had the requisite intent for murder essentially without finding that there was an acquittal on the conviction of murder the court would not be required to consider the lesser offense the inferior degree offense of voluntary manslaughter and you have supreme court has said that in state versus shane and so they said that a jury instruction was not warranted on involuntary manslaughter if there was not an acquittal on the on the charge of murder that of ordinary murder of aggravated murder i believe that that was ordinary murder in that case but i believe it would apply even even stronger to aggravated murder that's what i was saying i thought it was the other way around that  murder prevents you from getting to voluntary manslaughter but ordinary murder would not right your honor well i think that in either case certainly aggravated murder but also in murder without an acquittal on  you would you would always find that the elements of murder are there and then you would have to consider whether there are mitigating factors so it wouldn't be that you acquit them of essentially for jury instruction to be required on an inferior degree offense in a murder prosecution there must be sufficient evidence to allow a reasonable rejection of the greater offense as well as that as if that's that's that's a that's a statement of evidence necessary to be entitled to an instruction right i mean and one wonders if they really meant exactly that but that that's not the same as say i mean are you saying let's step back for a moment the first question was whether you still take the position that this was inadmissible  that you you sort of went into a second issue which is assuming it's it's other it is admissible as a matter of law are you saying that this is not a case where there was any strickland there was no evidence of the subjective prong of voluntary manslaughter whether he was actually in a sudden fit of rage at the time of the crime and could this have provided that subjective evidence no it could not your honor and the case is each case that the appellant cites the a the defendant in those cases testified in his trial state versus warner for example the experts i get your testimony that came in was meant to bolster or support the testimony of the defendant in that case what do you think the doctor maybe of testimony could provide at that link because it seems that even  diagnosis could not speak to mr ready state of mind during the actual crime but that coupled with the no we're talking subjective now but that coupled with the other objective in the  well your honor finder stand your question correctly it certainly could be considered but it would not satisfy that subjective prong because dr fayemi his analysis could absolutely you know provide a link and potentially bolster that the mr reddy had he testified but it can really only say that he's maybe prone to a sudden fit of rage or had p t s d but it cannot speak to whether at the time of the crime he flew into not to satisfy the subjective prong they certainly could support it but in this case i don't believe that they do does offend does a defendant always have to testify to get the manslaughter instruction  i suppose it would depend on the evidence of the case but in this situation and in every single one of the cases that the appellant cites any of the cases that were a man did in order to instruct on voluntary manslaughter the defendant did testify in those cases a poser could if there were a situation where there were there were other witnesses and other witnesses testified that in the vernacular he talked about during the during the fray that would be something that you could do without testifying yourself i suppose again your honor i think that it that it certainly could bolster the argument but i do not think it could satisfy you how supreme court actually in the sense that witnesses as to what happened would at least be circumstantial evidence because judge white's question is is sort of pushing you toward the point of obviously a lot of times you don't want the defendant to testify specially in a jury case and so if you're going to have a strategy of trying to get voluntary manslaughter you know you can't have a rule that says that you always have to have the person testify right and be that this this was a just just to clarify but as a sort of point in your favor the right judge that i was raising earlier the judge knew this stuff it wasn't a question of how do you try to sell it to the jury well your honor at least in the in the ohio supreme court state versus thomas it's a i two thousand and fourteen case this was a conviction aggravated murder in a jury trial and there was a witness to the murder and the court concluded there was nothing in the record that indicated he was actually in a fit of rage because that witness though they were there to to see the murder they could not provide insight into his actual state of mind or level of agitation free and thorough that i'm glad you raised that because that was the exactly back to the point that judge white brave that's what you seem to be thing is that only the defendant who knows what's going on in his mind his or her mind can satisfy that subjective element and dangerous road to take because then we automatically saying that you have to give up that right not to testify in order to get consideration of the him it back that's not the case and you have to be able to  circumstantial evidence of the wood with that the money and just the overall circumstance of the fattah file that subjective problem based on inferences that you draw from that universe of evidence isn't that right well your honor for if i understand correctly i think that it's important to point out that this is in the context of a stricklin claim so we're really looking at whether or not trial counsel was prejudicial here and whether the ap prejudiced by trial counsel decision and we would say that he's not because of this idea that he cannot satisfy the subjective problem but also because the evidence here was sufficient to convict of murder which is important to point out that the state appellate court made a point to say that they were pointing to evidence that mr reddy admitted that he purposely pressed his hands to his mother's neck to render her unconscious which ultimately killed her and so the evidence was sufficient for murder is evidence that that happened after he no your honor not in this situation but but even if it could be the case again we're really just looking at whether or not trial counsel was ineffective for for not introducing this into and we would argue that obviously the answer to that is no  of mitigation that well other than his own testimony perhaps it would be but i think it's important point out and i'd like to return to state versus warner  the main case cited by the opponent again warner did testify in that case but that case was remanded because there was not a jury instruction on voluntary manslaughter but there was also an assignment of  in that case that the evidence was insufficient for murder and that assignment of error was overruled so again that's that's a case where the evidence was sufficient for murder and it was a jury issue a jury issue was the reason it got remanded in this situation the trier of fact was the judge and she's presumed to have considered those lesser offenses and as your honor pointed out there's nothing saying that she didn't in the letter what you call the lesser offense is this inferior degree pod technically it's not technically either diminished capacity or lesser included and again as i understand it and tell me if this is wrong that a defendant this is citing state of the roads for example a defendant whose conduct satisfied his the elements of murder then can get an inferior degree charge if he can show something different which shows a state of mind he it's already met the elements for murder isn't that that isn't that what the law is that every and not every voluntary manslaughter but this type of voluntary manslaughter presumes that you've met the elements for murder and then you have an additional mental state of being sudden passion or sudden fit of rage yes  i'd like to address three main points the first one is that the state agreed just a moment ago that there was evidence presented at trial on the objective prong of the voluntary manslaughter test and also agree that there was no evidence presented on the subject of prague that is a key statement because that because there was evidence there was no evidence on the subject of prom that meant that the trial court was not required to consider voluntary manslaughter and as we discussed she did not had this evidence been introduced and again the state appears to agree that this evidence was relevant to the subjective prong that would have there would have been a reasonable probability that that would have changed the result termite in the court under strickland you do not need to make a finding that it definitely would have changed the result the question here is whether there is a reasonable probability and given the structure of the voluntary manslaughter statute and in the confessions that the state has just made we would argue that there's a strong basis for fine for making that finding and the state appears to assert that it would have been necessary for mr reddy to testify we would argue that there's no basis at all  for such for such a requirement now the second point i'd like to address is this question of the prior knowledge of the judge that judge box that you raised on that question the fact that the judge had a general knowledge that mr reddy had some mental issues that discussion occurred in the context of discussing discussing competency we would argue that having  psychiatrist testify at the trial in the context of an argument that there was voluntary manslaughter would have been an entirely different different question again because he would have testified both to the p would have explained that p t s d can directly lead to a fit of rage exactly as occurred in this and he will you don't know that that's what the testimony would end up to be you have the report which we've kicked back and forth but you sort of that the testimony is going to be as strong or as direct as that that's one of the things that lawyers have to do in terms of deciding what track to take your honor but given what is in the report which is actually very significant in itself we think you think we can make a reasonable assumption that there would have been a discussion about what p t s d is and based on you know the d s m manual it lays out very clearly that p t linked to fits of rage as was discussed in the warner decision and the third point i just in in my last minute seconds just raise the debt novo standard of review the state has not disputed that here that we seem to be in agreement service to the system of justice and we appreciate it that case will be submitted and the court may call the next