please the court deputy attorney general see a lot of costello appearing on behalf of respondent i would like to reserve five minutes every battle i would like to start by addressing the claim of ineffective assistance of counsel at the penalty phase the claim on respondents across appeal beginning with the absence of any supreme court authority addressing three important factors that are issued in this case first the petitioner who interferes with counsel's investigation of his family background second a petitioner who even half there having received a death sentence and in a post conviction setting refuses to discuss the details or in some instances even admit the most mitigating aspect of his background  present conditions and three where the petitioner then despite that does not present any evidence establishing that he would have allowed counsel to present the evidence that he later claims should have been presented and here although the objection at the time of trial did not expressly extend to prison conditions the reason for that is that the issue simply did not come up at the time of trial so there was nothing for petitioner to object to so so help me for a minute with where we are in this he is review were under ed so they're correct correct so we're looking at the opinion of the california supreme court correct correct and the question for us is whether they out opinion was an unreasonable application of supreme court precedent or a reasonable determination of the facts correct correct but a threshold issue that the supreme court and this court have both identified is whether or not at the very outset there is any supreme court authority clearly dictating how a case should be resolved and in the winter game case well there is there certainly are supreme court cases about what an attorney has to do to be effective correct i mean beginning with strickland in general that is true however despite strickland and despite other cases applying strickland the supreme court found in landrigan that a different situation is presented when there is an interfering defendant and that it had never addressed a situation with an interfering defendant and because of that there was no clearly established law in terms of those kinds of situations that would have dictated the result of that kind of a case and because of that since we have a comparable situation here despite strickland it's simply too broad of a case to dictate what is supposed to happen when you have a defendant who interferes at the time of trial with  avenue of medication that even after receiving the death sentence and having an opportunity to discuss it and make that part of his record refuses to talk about it refuses to admit important details and then presents no evidence that he would have allowed counsel to present it but what about williams versus taylor in williams versus taylor council failed to investigate his childhood this only because they incorrectly believe that state live did not allow that to happen that is not what happened in this case in this case the attorneys even over petitioners objection went to talk to his mother and then when they reported back to him and told him about that he was very upset and adamantly opposed to them continuing down that path of investigation and went so far as to threaten to disrupt the trial if counsel continued to do that and  contradicted testimony at the evidentiary hearing was that petitioner not only objected to his mother but he simply didn't want his family dragged into the case he didn't want them contacted he didn't want them and there was other evidence right the referees they could using standard techniques like a standard at the time of the referee hearing they could have gathered information about his mental state they could have gathered present records on her and about they like there are two other areas of mitigation however the california supreme court reasonably found that counsel performed atic we with respect to those two areas as to the prison conditions the court here counsel tried to contact him on multiple occasions multiple occasions even after the penalty phase he lived in l a there's even evidence that andrew requested they evidence against carol brooks because that because they all knew each other there is no evidence from mr miller and and andrews did not testify to the effect that he pointed his attorneys to mr populus for any kind of potential mitigating evidence at the penalty phase and so the california supreme court found counsel was not on notice so i thought there was evidence in the record and i quote counsel instructed the investigator to check out all angles on  is that the attorney testified and the investigators and petitioner has even argued that those investigators were limited to the guilt phase their role was limited to that phase of the trial they were not involved in investigating the penalty phase of the trial so when in context when counsel says to go ahead and investigate populus to all areas that's in the cut her to yes investigate him as to all areas that's in the context of the guilt phase of the trial not the penalty phase well i guess i guess it's my worry with populace being the way to get to saying meigs without going through the family so that we destroy your argument as relates to not going to the family  that it seems to me that going there and doing something about that i would have been a absolutely good thing to do but they had no reason to know or suspect that populace would have had any additional information about the penalty phase there was nothing the council had no triggering information that would have prompted an attorney or raised any red flags about the prison conditions at issue in this case they even went and reviewed the prior conviction files in mobile alabama and nothing very flecked to what the conditions of confinement were like in l a bama fifteen or so years earlier you agree with me that if counsel were aware of the pretty good mitigating evidence for the defendant and if they'd been aware of it it seems to me they did present if we're looking right now at only the amount means evidence perhaps the theoretically coun may have sought to present that separately but that is not the claim that petitioner presented to the california supreme court his claim was that all of this evidence mount me it's the mobile county jail and all of the album of prison conditions as well as family background and mental health that is his claim everything had to be presented so the california supreme court didn't consider a claim that was limited to the amount means everyone over there it's one of the many claims they made we could go through each one and look at it and you've addressed mental health that's why i wanted you to look at meg's i mean it seems to me that if i look at what miller says he says that he would have presented evidence of racially motivated conditions that's exactly what mount meigs is so we're really stark again back with karl populace if we eliminate that you can't go through the mother or the family who knew about it and  right only if counsel had some reason to believe the populace had we knew possibles was down there with him to me he knew that he knew him i don't know if he knew that they were incarcerated together and even still did not reveal anything to counsel andrews did not reveal anything to counsel there wasn't anything that counsel had that would have triggered them to investigate the prison conditions separate and apart from the prior convictions in and of themselves and there's no percy rule that would have required counsel to do that petitioner is not pointed to any authority testimony or evidence establishing that the prevailing professional norms in one thousand nine hundred eighty four required counsel as a matter of course to investigate the prior conditions of confinement for a prior conviction well let's just go ahead sorry so the the supreme court decisions they were clearly established at the time the california supreme court decided that was i guess berger strategically determined not to bring this mitigating evidence my my colleague here says that there wasn't any strategic reason for not going to mount me as it is they could with the california supreme court be unreasonable in concluding there was a strategic reason the court did find that counsel had concerns about digging through his prior conduct in prison because it could reflect perhaps good acts but also bad acts well here's the brawl if i look at this record it's hard for me to determine the council or the new strategy at all so if i come up with a strategy i've got to come up with something the california supreme court in my book invented well in frankly is a reasonable under supreme court precedent for the california supreme court to invent some strategic reasons after the fact it's for what counsel did it's not a matter of inventing strategic reasons the lead attorney in this case had passed away by the time of the evidence you're hearing so there was no testimony from lead counsel about what his strategy was and in light of that the presumption of competence to everything he said applies and moreover the court did look at his closing argument to try to detect what his strategy was that is the same approach that the supreme court took in pin holster so there's nothing unreasonable about trying to gauge what counsel strategy was by looking at the closing argument and in addition to that the court has said that in a case where like that where you don't have the reasons on the record the court is required to entertain all the possible strategic reasons that counsel might have had for acting as they did and that is what the california supreme court did reasonably so in conformity with u s supreme court cases in this case the same is true for the mental health evidence there is no there was nothing before council that should have prompted a mental health investigation the referee the district court and the california supreme court all agreed about that miller was asked about a ten or so year old motion to continue one of petitioners prior conviction cases on the basis of a possible investigation for insanity but as he also testified nothing ever came of that there was no insanity issue presented there were no reports and so it turned out when he was and when he was evaluated later there was no truly mitigating mental health issue that came of that testimony because his experts had performed all manner of tests that were not done properly his mother did tell him didn't she that he was a slow learner she did say that but that by itself does not indicate a mental health mitigating case and in fact petitioners i q turns out to be ninety three which is in the average range and so that by itself not withstanding and counsel have been talking to petitioner on a regular basis they're interacting with him they're dealing with him they're talking to him if they have no reason to suspect based on their numerous conversations with him that there's any genuine mental health issues to be investigated they're not obligated to do that and even attorney goldstein and the post conviction citing said she did not detect any mental health issues but would have investigated it anyway just as a matter of course but that's not what the case law requires even despite his criminal history i mean they knew his extensive criminal history and the nature of his criminal history and then that he was in a juvenile that he ran into trouble really early on nothing of that presents that above the what you call the normal sort of level or need to investigate i don't think that the mere fact that a defendant has committed prior criminal acts or has prior conviction vixens necessarily demonstrates that he has a mental well not just any the kind that he did here  g he was apparently involved in a robbery that resulted in murder they knew that there was evidence they said he was a follower he had other crimes and he had this whole history of being abandoned as a kid that is not something that was disclosed to come closer and he wasn't truly abandoned he was left with his grandparents in a home full of family members and adults and other children and that family raised him the mother didn't leave to go to detroit but he was not abandoned and left in foster care or anything of that nature and even in addition to all of that well the california supreme court reasonably concluded that there was no prejudice when considering all of the mitigating evidence and all of the aggravating evidence while the prison conditions in alabama were absolutely terrible that and would have engendered some sympathy that is not the end of the inquiry the california supreme court reasonably found based on three factors that there was no prejudice in the end because number one of the circumstances of the crime number two the double edged nature of the mitigating evidence and number three the substantially damaging rebuttal evidence that would have been admitted in response as well through the years and really rebuttal evidence to to admit as it relates to say death penalty that's not the best it goes without saying that the undiscovered mitigating evidence to give his old my will of influence the jury's appraisal of the defendant's that is true but it would not explain the three horrendous murders that petitioner committed in this case he tortured the first victim he slashed him about the face he stabbed him six times in the chest and then fatally shot him in the neck he violently raped nineteen year old brandon so the prosecutor didn't go into all this in the penalty phase right the prosecutor showed the photos of the victims and the evidence of the prior convictions but didn't go into what happened after he got out of the mount meigs he committed another crime that resulted in a felony murder and shot at the taxi driver and all the rest of that evidence so the california supreme court said well  there was a lot of rebuttal evidence that would come in had he opened the door and so why is they have not a reasonable conclusion or reasonable application supreme court precedent to say in light of that consideration it is a reasonable application in light of all of that the court did find although the jurors were aware of the park convictions themselves they did not know the details so in addition to the circumstances of the crime the jurors would have learned about all this additional aggravating rebuttal evidence and damaging cross examination that would have occurred which includes learning about petitioner shooting at would also several times in nearly shooting him in the head as they fled from the war his robbery murder that he help women hostages in a separate attempt to rob a laundromat and how to do young woman around the neck and pointed a loaded gun at her head and threatened to shoot her or the police all this new information would have come out petitioners experts would have been vigorously cross examined and forced to testify just like the state hearing in excruciating detail about the horrendous circumstances of this case the prior robbery murder petitioners escapes domestic violence against in these tender scent domestic violence against angela ma attempt to escape and a threat to kill another inmate but no reason to discuss to look into his mental this is the aggravating rebuttal evidence that came out but no but this is what this is what the lawyers knew about him they didn't know the details of all the car convictions except for the the shooting doll i don't and but they didn't know all of the information that came out later and there is no supreme court case that sets a petitioners prior criminal history in and of itself in every case gives rise to a constitutional obligation to search for mental health evidence of the mitigating phase if that was the case just about every death penalty case would require a mental health expert and the court has never  understand that but this is emphasize the heinous nature of this crime and then the heinous nature of the other crime that the lawyers knew about and are just trying to figure out if that distinguishes this case f  others i don't believe that it does in terms of investigating potential mental health in fact in this case and the other thing that the jurors would have learned about was the prosecution diagnosing him as a sociopath and his own experts having to admit that he met the diagnostic criteria for that that is not mitigating that's actually aggravating or at least would have been argued that way to the jurors in this case and so even if they had investigated that their response would have been well all this can simply be attributed to the fact that the defendant is an anti social personality or sociopath as opposed to any other kind of mitigating mental health problem and so there is a major double edged nature to pursuing a mental health defense in this kind of a case and it would certainly be aggravating for the prosecutor to argue to the jurors that she was simply a violent criminal for all of his life spend most of his time in prison rather really resorted to crime every time he was released and all of these violent crimes are simply attributable to the fact that he is a sociopath so even though this evidence was not presented at the penalty phase considering all of the substantially aggravating rebuttal evidence that would have been admitted and in addition to what i've mentioned so far there's also two stabbings that petitioner committed in prison and all of it taken together could simply have reinforced for the jurors that petitioner through the testimony of all these hardened criminals that he was simply another hardened criminal who was desensitized to violence so we're really looking at whether the california supreme court was unreasonable and so concluding right because we're under the the doubly deferential standard for a strickland claim absolutely correct there either has to be a supreme court case that clearly dictated and mandated that court to find that in view of all this evidence there was nothing  nothing could have possibly occurred but a finding of prejudice and there is no supreme court case that accounts for this kind of evidence on both sides and that's only if we go beyond the threshold question about whether or not the special circumstances of this case regarding the interference and no trigon target ring information about the prisons would have allowed the analysis to go beyond that threshold question in the first place but even if so viewing all of this evidence together as of two thousand and two there was supreme court case that required absolutely required the california supreme court to find that there was prejudiced so what they did in finding no prejudice was reasonable under supreme court holdings do you want to save the rest of your us with making this life or death decision based not only on the capital crime but of personal characteristics background and other factors relating to the personal history of the person being charged with a capital and in this case the jury didn't have the opportunity to perform that function because counsel simply did not do their jobs and so we're looking at whether the california supreme court can reasonably appl supreme court precedent yes and saying that the lawyers were not deficient so we need to find a identify what the supreme court precedent is that the california supreme court had recently applied and at the time of the decision we're looking at berger well and william this is my understanding yes those are the three cases that were decided as of the time two thousand and two when the california supreme court decided this  case the case lot though does indicate that it's reasonable to look at post state court decisions because the post adept stricklin decisions none of them create new post dated california or supreme court decision making this determination yeah and there seems to yes and there seems to be president out there circuit precedent which indicates that that methodology is proper because the the other cases run pillow sears all those cases are in line with with strickland create no new rules what evidence is there in the record the tailing what the professional standards were for defense counsel in death penalty cases in one thousand nine hundred eighty four there were three separate actually four separate stricklin experts presented there was testimony by an attorney expert you know we're talking only about the attorneys there's nothing about professional standards themselves because all what i'm looking at is the california supreme court effectively looked at what happened here and said based on the evidence in this record it felt like the professional standards for death penalty were upheld and i looked because i looked at all the cases i looked at williams i looked at do i only look at the at the experts are they the ones that are going to tell me that well the experts i think referenced the standards but i think the supreme court well i don't think the experts were very good even telling me what the standards were and the experts aside i think that the cases rely on the a b a standards which were in existence as of nineteen eighty yeah but nobody presented that the california supreme court i'm trying to figure out why the california supreme court's decision on this is not reasonable i'm looking at what's in the record so that i can determine what they can look at and what they've gotten front of them i couldn't find anything that was presented to them about certain standards that this council was to have applied in that year in one thousand nine hundred eighty four well i think the case is unusual to the extent that we did address the issue of standards through the strickland experts in other investigation and set forth and strickland was well established and i don't think the color i can go with strickland standard because that's pretty easy standard to apply and then when i look at the california supreme court they would know better what california lawyers are supposed to do than i would i'm not after all just tonight over yahoo so i'd look at them and i have to give them reasonable deference for whether they think that was professional standard violated  and the problem with with the analysis by the california supreme court is it followed the decision falls back on attributing strategic decision making to the lawyers in the absence of any investigation right so also the base isn't pinholes to require that because pin holster says i must affirmatively entertain the range of possible reasons counsel may have had for proceeding in their investigation as they did if i think the california supreme court's explanation of why counsel did or not develop the mitigation evidence was reasonable then i have to deny the writ because did i read present law as stated by harrington versus richter which is the sister case of pinholes here in terms of this well i was on arrington so i know it pretty well too but if aims to be the panel holster outlines what a court must do and then here i am on appeal having to give deference and if there's nothing in the record to suggest that what the california supreme court has said it was reasonable for counsel to do that they can come up with that reasonable probability i'm kinder starcom i'm not well you can certainly go back to the california supreme court's own construction of the sixth amendment predating this case to see what they consider to be hundred eighty by the california supreme court to hey b s non capital case setting forth the obligations of counsel to perform basic investigation there's a whole string of california supreme court cases going back into the sixt outlining cases that the court set forth a standard that i'd be glad and would see permission to outline for the court in a letter brief perhaps but that step standards were well established by the time this california supreme court decided this case when i worked my worry is that what you're arguing is that you're arguing that i should require defense counsel constitutionally is required to conduct a certain kind of investigation and if into certain areas of andrews live and it seems to me when i look at p i cannot get there if i were just looking at williams or wiggins or wrong pillow which sleep pretty open what i can do and what i can pick about and where i can go pam i got pretty well a lot to  with to help you and the district court have those cases in front of it but it made its decision then pinhole stor came back and pin holster changed the whole standard that's my worry because i don't think pin holster says that there's counselor cause to sri choir to conduct a certain degree or a certain kind of investigation now but i think pin holster in every other case it's been decided by the supreme court through strickland forward indicate that the council has to conduct some investigation that they can't just sit by and conduct no investigation and that the investigation has to be constitutionally adequate how is this case mr andrews was prosecuted this was a case where when when mr andrews went to trial the jury was instructed in this case that if mitigate that if aggravating factors outweighed mitigating factors in any degree then the jury shall impose death now that particular instruction was called misleading by the california supreme court in this fairy cakes and but it wasn't until  seventy five that that instruction got changed to the california system to indicate that a jury had the discretion to not return a death or in other words this is a mandatory sentencing formula so under a mandatory sentencing formula if counsel present no mitigating evidence the result is a foregone conclusion if there's going to be a death sentence by virtue of that the law that the jury is given i aggravating outweighs mitigating you shall impose a sentence of death so i'm not sure that that statute existed in that form in the others the other cases but it is a factor which this court has pointed to as underscoring counsels ineffectiveness in a system like that so one thing that distinguishes this case from the others is that punk's was operating under system in which they had to produce some mitigating evidence or they the same standard in landrigan yes i don't believe they get i think this particular case at the point in time when it was tried was fairly unique in that sense that we had this minatory sentencing formula and so we have to look at when we talk about the downsides of presenting certain mitigating evidence we have to look at the other side of the equation which is of counsel didn't present mitigating what was the result going to be the result was going to be given the aggravation that the government produced here deford so council had to weigh the statute under which he was operating and they had to in those circumstances at least conduct some basic investigation into the defendant's background in history now that the state referee based on hearing the evidence from the stricken experts and everybody else made a factual finding that the kind of evidence that eventually got presented at the reference hearing could have been discovered through routine investigative steps in other words just said there was nothing unusual about the investigation which led to the however this i'm not sure i follow well i'm just trying to say what difference when you're looking at what the california supreme court did as it understood the professional standards of this of a counsel at the time and said so ok and the problem is the factual record before the california supreme court did not justify the conclusions of the california supreme court many because the reality was the council did not engage in any strategic decision making but for entertaining the possibilities the actual thinking of the council is not really relevant well i think it is it is clearly relevant because here are some verses richter at page seven ninety says courts may not indulge post heart rationalization for council's decision making that contradicts the available evidence of counsel's actions and that goes to the point you are making judgments about pinholes what is the current standard the current standard as i read it is that if there is a state supreme court decision that doesn't explain the reasoning of that decision then the court should hypothesize reasons for why the supreme court is deciding the way they do however does not apply to councils tactical actions when counsel states what his actions are based on but i'm having trouble seeing why the california supreme court's reasoning was unreasonable i mean we have the evidence we have about the attorney's motivations one of them passed away so we don't have any declaration of testimonies from him but the california supreme court said look there was a lot of bad stuff in the record medications in the eye of the beholder they had a very short the prosecution said basically nothing at the penalty phase and it was reasonable not to go into these areas and that doesn't seems to be tactical decision making to the lawyers when there is no evidence that they made so we don't know one way or the other is this a contradiction as it perhaps or was it harrington i mean this isn't like the council is on record saying i'm not going to investigate because i'm too lazy i mean they they did do some investigation they decided not to put on a medication case and the courts have that was raised and all in light of what could have come out had they gone down that road and that seems to be supported by the record i don't see why it's not well in light though in light of what it could have come out i think is where the problem lies because again we have to look at what the available options were and what the evidence was that  not expert testimony mr andrews was sociopathic there was that he escaped from jail that he shot at the taxi driver and asked him was involved in a felony murder he helicon to the hostages had i mean that's all the record so regardless of the mental health evidence that information i guess was readily available or was available well first well the evidence the evidence in the record by the government by the prosecution was the circumstances on more evidence in medication about matt makes or whatever then the prosecutor would have put on more and there was plenty of at stuff to put on that that was what the california supreme court concluded and what i didn't finish evidence so that was the aggravating evidence that got put in regardless of what counsel did in the case so in that scenario where you have all that aggravation on one side of the scale it's on reasonable in that circumstance under this mandatory sentencing formula to say well i'm better off doing nothing then putting on some very compelling mitigation about the client being sexually assaulted when he was very young child because of my fear that the government may come back and produce a psychologist who would say that mr andrews had antisocial traits well that was something the jury already knew from the aggravating evidence that he  anti social traits there was nothing no downside to a rebuttal psychologist saying in my opinion mr anderson had anti social traits the key was trying to explain how he got those anti social traits and was a pretty good character he turned himself in and he didn't have much of a bad record and the court the california supreme court just to watch that saying here the evidence was much more ambiguous do you disagree with  that i do disagree with that because factually there was evidence that he was extremely well adjusted even within this dysfunctional prison system there was evidence that he had saved another inmate's life in the prison system there was evidence that he was go adjust well in the future in the confines of a well run prison system and there was evidence overall that unlike the predators in the alabama prison system he was not of that type that he as the referee said was more prey than predator so it was i think overall looking at the mitigation a case where there are some very powerful themes here which would have at least given the jury something to balance against the aggravating factors and in our view given the strength of the seven minutes especially the sexual assault evidence of not many exist the things that happened to him when he was very young that that that was enough where it could have led under the under the prejudiced pandered at least one juror to a different wayne of the balance here and could have lead to a life sentence despite those it seems to be the serious aggravating nature of this crime you think that's that's true i mean heard the prosecutor know you're pre commit what the facts but this crimes pretty heinous and yes as are most capital crimes now this one of course is three three three murders a rape yeah and then within the murders of a murder of a what i would call a good samaritan well actually one of our claims here was that mr chisholm was not a good smell co worker in the drug business with that i i take your point here and i think it's important to emphasize that we actually addressed the question of prejudice empirically in the evidence here because we had testimony from at least two people one of our stricken experts tried a case very similar to this case in fact more activity that was five or six homicides including rape and he put on  exact kind of mitigation that we had here in terms of the a segregated juvenile facility destroying the client's life and he received a life verdict of five murders we also produced evidence by  dr craig haney who indicated that of the last ten cases he had worked on involving similar mitigation that nine of those cases had resulted in life verdicts and one of those was a quadruple murder and involved one of the victims involving out a young child the reported cases from this circuit all state that mitigation can make a difference even in the most aggravated of crimes so yes the  crimes were aggravated yes they were entitled to weight in the balance but their correct presentation the kind of mitigation that we're dealing with here can and has made a difference in the vast majority of cases where where this kind of evidence has been presented and then we have to determine whether the california supreme court's a terminations on this was unreasonable and you're saying that they got the prejudiced prong mostly because of the palm prints is there anything you'd like to talk about with respect to the palm prints because it seems like at every turn on your uncertified claims the palm prints out weigh guilt or arguments sure and i guess my first response is when we made a brady claim or relating to the prom palm print evidence that the government's response to the california supreme court was that palm prints were only some evidence of guilt and the california supreme court itself in the direct appeal pointed to the debacle with the palm print evidence as being the reason why the jury  first trial and hung significantly in favor of acquittal as to some of the counts the kind of palm print evidence that was presented in this case was not your typical strong fingerprint evidence because there was this factual issue that the one of the fingerprints examiner had i don't mis identified according to him the palm print evidence to begin with so that was a feature of the first trial evidence that didn't get presented this is on the uncertified claims had fingerprint evidence other alleged perpetrators in close proximity to the victim and that was never present so  the palm print everyone said i could adopt the government's position was some evidence of guilt but it would not have precluded counsel from pursuing the defense that they said they were pursuing which is reasonable doubt at the guilt phase and lingering doubt in the penalty phase they're chosen defense was to put that defense on and they mention in passing that kevin davis fingerprints had been and in this residence they never even brought out where in the the other perpetrators that we painted a picture of in the briefs also had fingerprints on the premises as well so it could very well have been argued that yes mr anders his prints were in that apartment so were kevin davis so were anthony cheney from one of the issues i wanted to address is the contention that we were claiming that all of this mitigating evidence had to be presented and that of course is not our contention and all we were cast in the state supreme court demonstrating what mitigating evidence was available we did that that's not to say the coun who had conducted a reasonable investigation was obligated to present all of it but certainly the evidence concerning mt max was powerful and as the chord just recently in the  well the only way they're going to get to mt makes it through carl populus right i don't think that's true the what other way with they've got to it there i think what what we have this i mean they can go through the family chance and to me to say well the investigators were only told to interview him about guilt phase issues really i think underscores the inadequacy of the investigation because nobody was doing the penalty phase  and here as you say they had this person right here in los angeles and in their own neighborhood who knew mister anderson's background had been subjected to the same kinds of things he had been subjected to and would have opened the floodgates to all these other folks as well as to the paper trail here we always instead of so let's say he's the way then what supreme court precedent do i go to to say that it was on reasonable professional systems for counsel not to contact what precedent look at based on pin holes when there's nothing in the record about what it that the more the professional standards the the supreme court has suggested what happened was certainly professional all done well within the standard i'm trying to think about where do i go to the supreme court present to undo what the california supreme court said that's all i'm trying to help you i'm looking over the place well i think you start with strickland i asked one doesn't do it and a amplified by by whims and all williams is gone frankly pin holster in my view that williams you can put williams that you can put wigan's you could put wrong pilla and all the things they said about what i should do when somebody didn't do enough investigation and really focus in on not doing enough and when it comes to pin holster and i read what they say in pin holster i have a tough time with those three cases anymore it says right there the const the court rejects any constitutional duty to investigate a reviewing court may have permanently entertain the range of possible reasons counsel may have had for proceeding as they did which is exactly what california supreme court did and i think that that is my position that in light of that's the quote i read you from richter that that statement from pin holster applies to a situation where you don't know what counsel's tactical decision making was here we do know what the council's decision making was because we had testimony from miller and it's also not true that there's nothing in the record for mr lenoir there is in the record a declaration by him it's exhibit one seven eight at the evidence or hearing which was admitted in evidence and it is said excerpts of record five seven ninety nine which talked about his penalty phase investigation and what he says in that declaration is we were looking for good character and good deeds that was the focus of their mitigation investigation and of course good deeds and good character are all all fine and go but that's not what made a geisha is all about typically mitigation is typically about things that happen to the client which are not necessarily good and in this case something horrible that happened to the client but to confine your investigation to good deeds and good character isn't an reasonable restriction of counsel's duty to investigate and that is something that is in the record as to his reasoning and mr miller for his part and his stated rationale was had i known especially of the other racial issues in this case he said he would have put this evidence out so this is not a situation as it was and pinholes as i understand kindles there there was not that testimony of here are my tactical justifications and that its claims the statement and richter which says you cannot engage in posts have post hoc rationalization they contradict counsel stated rationale and that's exactly what the california supreme court did here they made up justifications they said that the strategy here was to circumscribe mr andrews's background nowhere in the record is there any evidence to support that that was a tactical decision by anybody and of course you cannot have a strategy of circumscribing background unless you know what that background is and here are these lawyers did not know what his background was so they could not under the cases starting with strickland going forward even under pinholes or you cannot have tactical decision making when you do not do the basic investigation which gives you the facts to decide to make reasonable tactics and you are well here from the government eighty four and in fact of significance he admitted that she could not think of a single case where counsel at that time in around one thousand nine hundred four looked into investigated or presented current prison inmates  potential mitigating evidence to show that the defendant on trial at the time had suffered these kinds of conditions nor could he identify any literature suggesting that counsel do so and so what we have in the record is that this wasn't the standard for counsel at the time of trial and the california supreme court said that the type of evidence and the length of both sides that was reflected at the hearing was not accurately reflected in the referee made the same finding of what was done at the time of trial rather presentations were much shorter more comparable to what actually happened in this case and so that is a significant admission by petitioner strickland expert that's why i wasn't asking him to rule o unlike what counsel argued counsel defense counsel did perform some investigation into mitigating evidence this is not a case of zero investigation even over the petitioners strenuous objection counsel went without informing him and interviewed his mother and as the california supreme court found they not only talked to her about her background but also his background although when they came back his response was so severe that they decided not to continue but they did do that even though he objected to them doing so they also went to alabama and got the records regarding his prior convictions a significant piece of mitigating evidence resulted from that it showed that petitioner w not the actual shooter in the prior robbery murder and they presented that information to the jury so to rely a back on some instruction and saying that because there's no mitigating evidence the death penalty was mandated that not only would not have applied at the time of the trial in this case even based on the case the evidence presented in aggravation in mitigation then but it certainly would not have applied in view of all the mitigating and aggravating evidence that came out at the evidence you're hearing from the california supreme court cases that counsel has referenced were mostly general cases setting forth akin to strickland standards that counsel must be diligent in representing the client and diligent in conducting investigations t do with choosing between mental defenses and they found that counsel has to investigate those things before making that choice that's not an issue in this case in terms of the references to the prosecutor ar sociopath that is simply another term for anti social personality disorder and there is no question that experts that dr macneill in particular testified that petitioner has that disorder and even petitioners experts at least two of them had to admit that he met that criteria and even couched it in the phrases of course he did and obviously he did the fingerprints here there is no defense expert declaration there is no evidence whatsoever that the prints found next to brandon's naked strangled body are not petitioner's prints although there was a mis labeling that occurred not a misidentification which i would suggest are different it wasn't a matter of these prints are so close we're not don't know the difference the three fingerprint experts who later testified said that those prints even though they were initially mislabeled as wheeler's did not resemble wheeler's palm prints at all and they all three that those prints belonged to the petitioner petitioner has never come forward with any evidence showing that the two prints right next to brandon's body on either side of her body did not belong to him there is no possible way that he can overcome that for prejudice and he go face claim going back to the claim of penalty phase ineffective assistance even the dissenting justice who found the mitigating evidence in this case compelling said that had petitioners counsel discovered and presented all of that mitigating evidence the jury might still have returned a verdict of death because the three murders petitioner committed were strong evidence in aggravation and that doesn't even discuss the aggravating rebuttal evidence with that she didn't say that there was no possible way any rational juror could still have imposed the death penalty what that statement demonstrates is at a minimum there was at least room for the majority to disagree with that in a reasonable fashion i would submit that the district court judgment granting penalty phase relief should be reverse