we'll call that case now todd wesson here versus darryl but now right here st for mr dale lady and then rebecca smith this case but because of the inclement weather and the danger of flooding if their house in denham springs they were unable to make it that day but they really wanted to be here and they've kept up with the case ever since its inception and you know call me on a regular basis when you know what's going on with the case got the death penalty in this case and ultimately the death penalty got reversed by judge brady in the federal district court on a hay vs plane and i just want to remind the court that the no the reason we're here is because of the actions of  no but i think it's important to keep the facts in mind because judge brady found essentially that the kid should be reversed because of the ineffectiveness of his post conviction counseling the ineffective this was of a trial counsel and i'm here to maintain that no he was found guilty and sentenced to death because of his own actions so i think the facts are important but i take your honour's point we're really here on the the primary issue that arose in federal court but i did want to remind the court of the facts that here you know we're here on the summit's only yes or yes or what happened in the federal district court basically we we had a s application it was filed a believe in about two thousand and four it raised all the claims that have been raised in the state post conviction action i know in some of your cases you refer to it as a state a b s action and wheezing and we call them those convictions so if i call it post conviction  please understand i'm referring to a state pavia section i think which is what most your case is call it anyway following that the petition was amended at some point and then it was amended again in two thousand and ten nearly six years after the initial federal petition was filed it was amended a another time judge brady issued and jeff brady has been you know pretty harsh on us with our death penalty cases in the middle district but judge brady initially issued a seventy seven dollars page opinion affirming this case he analyzed the particularly the ineffectiveness at the penalty phase claiming and found that there was no ineffectiveness proven and i think his words were something to the effect of what post conviction counsel and what haiti is counsel wanted was to basically paint a different picture of todd wesson jer's life than had been painted trial so he found that it wasn't anything new it wasn't ineffectiveness it was just they should have done this instead of doing that and now is essentially what his ruling was within a couple of weeks of that ruling martinez came out martinez versus ryan and u s supreme court case and martinez created a limited exception to get around the coleman doctrine of basically saying that cases that are procedurally barred in this state court g m b brought in federal court so martinez established an exception to that coleman rule and basically what it allows us is to prove to to make an allegation that your st post conviction counsel or your initial review counsel was ineffective in not bringing a claim in it is that ineffectiveness that caused the claim not to be raised and if you can use that as cause and prejudice then you might get your claim heard in federal court in the st instance now we have maintained all along that that the ruling the judge brady ultimately made on the martinez question in his is final ruling on following the martinez hearing is there was no new claim here the claim that was raised in two thousand and ten was the same claim that was st asserted in two thousand and four in federal court and in state post conviction what judge brady referred to that when he said he had it he was going to allow a hearing and i got this in my brief also he kept saying he was allowed a hearing to allow additional evidence jury support for that claim so additional evidence not an additional claim then there's a big distinction there because it is merely additional evidence of a claim that has already been brought this court is quite clearly said that is not a martinez claim i think most recently this court said that in the villain way  versus stevens you simply have the same type of allegation made to where basically somebody made the allegation in state court and for whatever reason didn't prove up that claim then they come to federal court and they say hey we want to prove up the claim we couldn't prove in st and that's essentially what you had here the hearing that we had under martinez was an attempt to prove up the claim that was made in state court and it was initially made in the federal hades now if you look at our answers and if you look at what judge perry did in his initial review he handled the case as it should be in when we've cited repeatedly to cohen versus pinholes or it's a u s supreme court case that basically says when the federal court is reviewing a hey be a scorpius claim that you're limited to the record that was before the state court meaning everything should be brought up in state court st litigated in state court and then the federal court is essentially reviewing that to find if there is constitutional error not well it would be unfair and it would volley the laws of comedy and all that other two to allow new evidence in federal court that's what collins it so the state has argued repeatedly that every attempt in every reference it was made and all of the petitions were filed in federal district court that any evidence that you're referring to that was not in the state court record is new evidence that must be excluded but calo and we've made that they argument throughout this proceeding and that's what we're saying here and essentially that's what bill in the way of us said and i believe that's also what  claim is not what the evidence is because if you look at collin if you look at cases like harrington versus richter shire oh all of those cases i think most all if not all of them came out of the th circuit they were all summary dismissals and what the law is on that is as long as the state court rules on the merits then this court is reviewing whether or not that merits based decision was an unreasonable application of federal law so whether evidence was presented or not to the the federal courts are limited but what the state court record is if it's a summary dismissal you're lunt limited by that summary dismissal and you review that summary dismissal but you don't automatically allow the new evidence in federal court to overcome the lack of evidentiary support this presented in the state court record so so there may have not have been much evidence because a trial judge dismissed it summarily your argument is that the defense counsel was so pathetic in the state court he didn't have anything but all but except a general brady's initial ruling in this he basically found that the initial trial counsel put on seventeen witnesses and we've made a list of who all they were including a psychologist and a psychiatry as a commutation expert friends and family including a former chief justice's wife that testified on his behalf so there was a mitigation case that was presented here and that medication case in judge brady's initial ruling he found to be quite extensive and he faced said that he thought it was quite well done in mitigation case and that basically they were arguing in favor of you know a different picture saying well you tried that the fence and at last he mentioned that it looked like they gambled on a case approving a centrally that todd weston there was generally a good guy but he became a different guy when he was drinking so they bet on this alcohol the fence and saying that when he becomes drunk burn you know has extended drinking that he suddenly becomes a violent different person all the claim with oh you're to investigate properly that was part of the clin counsel adequately investigated he would uncover a lot more evidence yes ma'am i believe that claim was made by a person we can knowingly forego evidence that you don't know about so it seems to me you've got to persuade us perhaps that the evidence is in more detail it's still along the same lines of what was presented to the truck in the truck and the words it seems to me when you get a failure to investigate klein that you needed is best you can tell us what evidence there was in the trial court record that is similar to the new the quote new evidence that the proper  misses me try to restate my question one of the climbs was failure to adequately investigate right the one thing of trial cancel had investigated all of this childhood history the knocks to the head the load all of the things that now you say should have been turned at you can't if you knew about it consciously chose not to put it on it's one thing but you can't consciously choose a struct trial strategy if he doesn't know about this other i mean so how do you address that argument well you begin we did we didn't have the testimony of either of the trial attorneys in this case we had some affidavits but of course we weren't able to cross examine all those affidavits we never had a hearing  hades i believe that claim was made again i don't know exactly you know what specific evidence they were saying wasn't revealed i mean it if it's related to you know what was presented in state i mean in the federal court basically you had some of the same witnesses that testified in the state state court trial testified in federal court some of the same family members the only significant different testimony would have been dr woods testimony where he said that he thought maybe there had been some childhood stroke or that maybe there was some brain development problems or whatever that came up but what happened in state court and i believe if you look at mr diesel since testimony who is the state court post conviction attorney he said he made the allegations in state court he tried to get funding and more time to investigate those but that the and that's that's part of the problem because that is that points to to get on even if we get to martina's even if we say that this is a procedural default because it dicks this claim wasn't raised in state court and it is a procedural default then we can get to martinez and martinez says you can look at the the defaulted claim on federal hey b s even if you get there you have to prove the state post conviction counsel was ineffective well if state post conviction counsel raised the issue to the trial judge in the trial just says i'm not giving you more money to investigate that and i'm not giving you more time to investigate that then that is a trial court ruling that you're complaining about now not the not the in effect of this of the attorney the attorney who raised the issue he brought it to the attention of the fed of the state trial court judge in the state prop or judge says i'm not giving any funding and i'm not giving any more time so how is that attorney error that's not attorney earth it's an error at all it's error on this thing court and that error was not appealed no no i mean they they took they took risks of supreme court but not not on that particular issue yes ma'am not on the funding or the discovery and you know you should've allowed me more time to investigate basically the supreme court essentially ruled on the summary dismissal by the district court judge judge brady make it additional or different findings regarding ineffectiveness skills he did when we when we had the martini and then that was another interesting thing is in in most of the cases dealing with the with martinez i think this is the only case where we've ever actually had a martinez hearing  n judge brady decided that he was going to hold the martina's hearing and also have the hearing on the ineffectiveness of trial counsel at the same time so really what that ended up the judge brady did make regarding  ok well the st minute that he made which we think is in error is that this was a procedurally barred claim in the st place basically throughout the proceedings judge brady referred this to this is additional live in injury support of the claim that was made in two thousand and four suddenly whenever martinez came out i want you to focus on judge brady made about state but basically i think he said something the effect of that he hadn't been trained that he was trying to educate himself in the process that he didn't have a lot of time to prepare and basically that he you know he didn't bring this in this particular client again and you know in this particular claim dealing dealing with the  woods testimony or whatever really even at the hearing mr diesel's and said hey i all i needed was more time and more money in the courts would give me that so basically because he did not have the time and money he found that he was ineffective it was his name phase evidence that you know we should look for in a low in the actual functioning i think was one of the things that was allege in the state court that's what judge brady said i'll allow you to explore that and i think under federal rules they were given some money they hard some people and those people were the people that ultimately testified in the court and i just wanted to mention i think a part of the problem we have here though also is judge brady in his initial ruling saying that were he wanted to have a martinez hearing said that this is all based on the two thousand and ten amended petition and he said that  i can you know conduct the martina's inquiry well if he allows an amended petition in two thousand and ten and we assert that that was way beyond the one year federal statutory limits that were available in cases such as male versus felix and cases along that nature say you know that although rule fifteen allow some expansion and allows possible amendments it certainly doesn't change the twenty to four hundred and forty one year time with attention so we would assert that if if if this is all based on the two thousand and ten demitted petition then that petition cannot relate back to the two thousand and four petition so it must be on time and under male versus felix it can only read relate back if it does not fundamentally alter the c if it fundamentally alters a claim and makes it a new claim then the amendment is too late if it doesn't fundamentally alter the the evidence and become a new claim then we don't have a martinez hearing because they're just seeking to introduce additional those cases new evidence to support a claim that you didn't prove in state court is barred by cullen had a dearth of ready writing this as being a different cry and i don't think he explained it very well at he basically said i should have found that the new additional evidence constance it didn't change did enough that it should have been treated as a procedurally barred claim well it's not a procedurally barred claim it is evidence that should be excluded under c federal court for the st time so fundamentally alters the original post conviction claim and the original claim that was in the two thousand and four haiti is petition if it alters it to that extent that it is a new claim then i say that it's time board under mail  let's say you lose on then i want you to get it which is what's tell us why it's not and you claim to actually why it's not a new claim federally because essentially actually actually because a centrally it's  all of the evidence is there intended to bolster the original claim so if the evidence is being admitted to bolster the original claim or is judge brady calls it the additional evidentiary support of the initial clients that sometimes it can get you over a hurdle whatever that hurley i to ignore all of the previous evidence that was admitted at trial and otherwise all of the evidence that he had previously said was not in effect so if you look at all that new evidence in the light of this claim what do we find at this hearing we have some additional witnesses from the family that said he had a poor family upbringing his father had a bad upbringing his father may have abused him when he was a child and that he may have had strokes when he was a child and that the left and right side of his brain may not communicate well with all of those added together i think the court has to weigh all of that in light of the evidence that was presented at trial and in light of what the jury saw and that's why i referred to the facts initially whenever i stepped up here because the jury that was waiting this had to look at it in light of everything else ok jury had no problem convicting him given top questions or the death penalty now if you would put before them and said oh did you know that he might have had a stroke when he was a kid and maybe he's now using his left hand instead of his right hand i don't think that would have had a whole lot of effect now if there would have been something that says you know he can't operate at a particular level retarded or something like that it might have risen to that level but here the even the person that testified in federal court said no he's not retarded he's got a nine thousand and ninety one i q he's otherwise functioning well and he seems to have overcome whatever these difficulties was that he faced and was in his younger years and that these mini strokes or whatever may or may not have caused him to wear a brace when he was younger but he overcome all about it when you're sitting there on the jury and you hear this lady being shot killed and bleeding out on that not on one tape you realized that you know todd wesson didn't kill her because he might have had a stroke when he was a kid you know that's what the jury has to look at you know judge brady was looking at the one issue o huge on the prejudice problem and i think you know that's that's where most of the cases in the most of the cases dealing with ineffective counsel usually end up looking at does it actually prejudice the defendant he wesson here doesn't have to show that these abnormalities caused him to do anything nuts or just have to he wants to show that to show that he may or may be less culpable but and somebody who doesn't have a lot of pride in louisiana anything could be mitigation have the jury didn't hear that yes the problem here the jury didn't hear that that evidence that tends to maybe humanity humanize him a little bit more and maybe if they had heard that maybe a single juror were voted against definitely but i don't think maybe as a standard that we're looking at it out and you know in all of these cases i know your honor has seen plenty of them for whatever trial strategy the defense attorney uses at trial a post conviction attorneys going to come up here and said well they should have done something else because he got the death penalty they don't say that the defendant has to show the different there would have been a different result right you have to show it as a result of ability that the new evidence the evidence that were left go and look at the record to look at the petition city folley file two separate petitions and they raise numerous claims they were not boilerplate language they were not some formulary they were specifically tailored to the facts of this case and he made specific arguments related to this defendant now  characterized it in federal habeas when he testified on the stand he's like oh i just called it out as you know pull out the hat kind of deal no go and look at what he found out he raised the issues judge anderson in the state district court ruled against him that is that is the problem in this case on page response to it he found one hundred page application and like a one hundred and fifty page nd application so i mean that there was plenty of work that he did here but the work failed because the judge ruled against him and i've been way over my time i want to reserve a couple of minutes for rebuttal but that's all right ok did you have any other questions judge brady did not abuse his substantial discretion when he concluded that the claim filed in the twenty two capital heaviest petition  this matter both related back to the original filing in twenty two thousand and four and also presented materially that it presented evidence that materially altered the claim presented and state post conviction by mr guess listen and therefore was default it which gets us to martinez now with respect to the issue it's clear that a claim can be materially altered in federal court from what was presented in state court and therefore not be exhausted and procedurally defaulted if the legal basis for the a claim can be materially altered if the facts in support of that claim are so substantially different than what was presented to the state court it's a new client actually in judge brady's mind and i agree that he did not abused his discretion in reaching this conclusion when you look at the claim presented and the two thousand and ten petition it's an ineffective assistance of counsel cla and did raise an ineffective assistance of counsel claim in state court as you noted judge owen that that claim included trial counsel's failure to investigate a case that we cited this is very much a fact think a space analysis i mean you can't just look to one case and say oh it's like that or it's not like that and raised a number of issues based upon the record of the trial itself that's all he had he made that very clear in his evidentiary hearing testimony the court found him credible and it was not contested that mr because listen a st year associate who was assigned this case without any help from anyone in his firm and who could get no help from the capital defense community was on his i took a desk and created a claim of ineffective assistance and based on what he saw which raise red flags by the way in the state trial and said you know he put on seventeen witnesses the light witnesses were you know one or two pages that most do not appear to be prepared he obviously didn't talk to the expert witnesses a ledge really nothing that would support what counsel would have found had he done such an investigation he says if he had conducted an adequate social history he would have been aware of family history of health problems specifically referring to mr west injures cesar's and his his sister seizures essentially that's it so that claim was denied understandably given what was before the court the court denied it saying it called seventeen witnesses he said you know maybe why would he prepare his witnesses his expert witnesses to testify and call them in advance what are we going to tell them the law you know in the court focused on at the nod and then we get to federal court and that same claim in that same form is father mr guest list and again with no help with no mitigation investigation with no other than a couple of phone calls to family which is how we presumably learned about the seizures no records nothing more he raises the same claim based upon the record and as our experts and as this court now those just isn't trial court and state post conviction just look at the record is not enough especially when there are red flags that say you should go further mr guest list unlike mr hecker did not conduct a mitigation investigation did not harm anybody to do a mitigation investigation and talk to the family the judge found this he found him to be credible a couple times over the phone according to troy wesson juror who testified and was found credible mr hacker talked to the family for an hour in a group setting that was his preparation for the penalty phase and asked choi west and sure mr todd west and your my clients brother to get a few witnesses there to court to testify as character witnesses bo failed mr wesson jury in failed our system of justice and as a result once we got to federal hate the us and we all got new attorneys got involved including us and we did that proper mitigation investigation looking at but it goes in great detail about what would have been found had mr gillis lesson and trial counsel under sake and the investigation required by strickland from pill what's new that he was born into a family with significant history of seizure disorders mental retardation cerebral palsy that the defendant suffered neurologic and psychiatric symptoms impacted that impacted his ability to function in life that he fell behind academically that he was regularly humiliated by his father who singled him out for cruel treatment that his mother and father came from generations of family mr  his brothers and sister cynthia were the st in that generation on both paternal maternal side to be off the plantation where they lived essentially not much different as plantation workers than slavery days convulsions as a child and with specific reference to his inability to walk of seizures he had seizures as a child in the state were yes so there you have it that's all he alleged based upon a conversation with the injured never lived independently horse was interest father was via a violent alcoholic who hit him threaten his wife routinely and assaulted her in front of the children a family history of neurologic and psychiatric compare months of family history of isn't taught todd was centers difficulties and in his inability to even function as an adult independently his own inability to do anything more than a low paying jobs says we don't have to prove that that brain impairment quote caused the crime what we're doing is assessing that the jury should have the information it needs if the mitigation  i he was the black sheep of this family why he couldn't learn that you know fighting back with his alcoholic father was only going to cause him more misery why he couldn't adjust his conduct even from a child on up to meet the demands of his father and his family and why he had he he ended up with low paying jobs some some criminality here or there nothing like this ever in his life and that all of that none of that was even hinted at in the state post conviction petition how can on the merits once he found that martinez applied and again i can if the carry claim had been adjudicated yes pin holster would applied it wasn't it was a wholly different claim because of the incredible additional evidence of normal logic brain damage i mean mr gets lost and never even suggested beyond  a childhood seizure that todd wesson juror had any mental health problems not even close you know i think if we were just arguing if i were just up here trying to argue that that supports the judge's brady was not wrong he did not abuse his discretion when he found that this claim balancing the facts in the case and looking at the two petitions all those things that  specialist put on evidence that wasn't put on at trial in state post conviction that this you know of the horrible horrible childhood that this this defendant had none of that had been presented before he presented considering that underpin holster this claim is the same claim it was decided in state court and brought it here we're not looking at that we've gone way beyond supplementing here this is a new claim that's materially off  cause of the incredible amount of facts that are true mitigation investigation presented an established by the way ultimately the prejudice that is the other big battle we always have in the strickland claims and i might add that this claim the fact that the claim was materially materially the state post conviction pla standard as relation back fifteen c mainly from pronouncing correctly supreme court case relation back says is there a common core of facts here that would allow for a relation back and admittedly an amendment that alleges ineffectiveness doesn't automatically relate back if you alleged ineffectiveness before i think in may only the defendant had alleged thousand and four petition followed by mr getz wilson that mirrored his state petition that was ineffectiveness that was at the penalty phase that was mr hecker that was a failure to do all those things there's no that's a different standard there's nothing inconsistent with these two standards and so judge brady did not abused his discretion when he allowed for the relation back so that this two thousand and ten claim which is never presented to the state court well it's timely filed it was defaulted but you know before the case was over martinez was handed down and incredibly we had in the end a petition tons of evidence of mr sore and just listens inadequacies and so it was like a the the district court judge brady of course he was there mr kessler testified at least half a day judge brady found him to be credible and he concluded he didn't do a mitigation investigation he didn't know how to do a mitigation investigation he had no help yes he had no money and he didn't have time but he was ineffective because he did not do what needed to be done because he didn't know what to do he was  well what he was asking for was finding because when he went and he details this at length in his testimony when he went to the lie down or which was losing a public defender border he went to the tobacco plaintiff's case said here it's yours and oh by the way according to mr because listen he said you still have to be productive you still to do everything we expect of you as a st year says he and so he did the best he could i'm not saying mr guess listen his stupid various motions what he said i need funding or expert assistance for a medication investigation and so he did know to do that he did and he say what all was needed what did what did i say i was they said and what i'm saying then in the state post conviction that in a state capital case whether it's a trial or a post conviction you've got to do a full mitigation and the reason he couldn't do it was because the state works had no funding no the reason he couldn't do that didn't but you know why he should have gotten his car and drove into baton rouge and done the investigate him and himself you don't say oh i can't get in there ologist you could do an m r i now but you know what he could do he could go do the investigation that shows all the things that he didn't allege that we have since alleged based on the family history background records et say we've got a problem here we've got a family history of cardiovascular disease a mill retardation of cerebral process that he is alleged to my knowledge that the state courts violated constitutional rights because i did not fund the request no we don't that's not an issue the issue that really the issue has gotten the funding it's likely he would have uncovered all that you've uncovered according to mr guest list and he doesn't know he would not know what to do with the funding if he had he felt that unschooled but certainly if he had the funding that would have been a step in the right direction but without the funding he gets in the car he goes to baton rouge and he starts knocking on doors that's what he does materially change what he or she presented a lot he would have discovered for instance that linda weston jurors who lived on the plantation in germania until she was alive and that her brother has three daughters who live in a house trailer near germania who are mentally retarded and on disability he's not mentally retarded no he's not miscible but read dr wood's testimony read information he could have gone back to the district court and said i know i was just doing dollar boilerplate stuff before saying oh you got to do it you got to do it but here's the reason i found out that these these three women are mentally retarded and i found out that that cynthia doesn't just have cerebral palsy and a seizure she's not only retarded his see mr i found out that his mothers had to feed  about get a ninety i q i believe or ninety one this is how it's relevant i mean when you go to a doctor the doctor wants to know your family history and most of us have parents with our problems and and this goes i don't think most of us have three cousins at least with mental retardation and for mental health experts didn't i believe he did ok but without any allegations you know he's not he has not suggested anything he did not suggest a single thing in support of that specific to this case he just said everybody tells me this is what i've got to do here it is it was almost like a trained dog i mean he did not know and then to insult to injury once he filed his two thousand and one petition he assumed that he was off the case and for a year and a half when he could have been gathering additional information he did nothing in the case he didn't even go to see its client now that is ineffectiveness and that is as mr guest listened to his credit in the hearing in front of judge brady acknowledged and admitted this is all on him he's not blaming just the judge anderson for not giving him more time he's got more time he just didn't use it and he's not even blaming with regard to the failure to appoint experts or mitigation assistants again he didn't go out there and do his due diligence to bring back to judge anderson specific issues that were relevant to this particular case you do your  red flags you i've had experts i've said we'll look at this and write me an affidavit in support that that i need a hard why do i need a hard he didn't none of that and as he said quite honestly and sincerely he said i don't know how to began asking for what i needed i didn't know where to start i was lost you know i'm not quoting him exactly but if you look at mr gessler since testimony it is a powerful and his acknowledgement and he still it is law firm you know he said he was a partner at the herman herman whatever katz law firm  herman herman herman cain it was something like that that he of he's a partner there and he said i had help i had no help from the firm i had no help from anybody in the capital defense community other than these sort of standard  followed the affidavit from that community i didn't get the experts i needed to me we were to agree with you that this is a new claim it's exhausted why should we send it back to state court we why why what's your best case on federal courts can just go ahead and proceed without a either staying or dismissing to allow exhaustion because the state court it's a successive petition and understand what may or may not act on a watch shouldn't the federal court best in this best case and there's there's cases that have have said this is exhausted because you do not have a vehicle for take it back to stay to state court because the state law which quote new client we don't have a state court ruling on the nuclear we don't know if they would procedurally default it we don't know if they decide on their rights now why should we give the state courts used to if we agree with you to say why should they have to say when their law is clear we don't know what they would do they might they might send in a lot of tribune on martina's and then it's a new claim we don't know what they that's certainly hasn't happened in texas and i have no reason to believe it is actually that well maybe i read a bunch of cases but and any case and i have to sit down but i think that we have to saying that the louisiana coast would give me louisiana he had been at one point the way i met him was he volunteered during during this period where there were no attorneys to do a capital habeas case that came into the western district of life yet and i met him then and then soon court would do because i haven't actually seen it when it's been sent back we recall what the federal rule is on that i don't that but again i think it i think you have to consider in this case though the interplay between the colon problem what the new evidence to support an old claim whole lot but i'd be willing to send you a letter i'd be willing to research anything coming yes ma'am no problem again strickland you're going back to strickland talk about ineffectiveness strickland has a lot of warnings in there about hindsight and nd guessing and of course like i said earlier any time you have one of these cases you can always nd guess what you try something and it loses it's always easy to go back and say oh we should have done more we should have done something else obviously what we did wasn't good enough and i think a lot of what's going on here is nd guessing what did mr diesel some do i mean all ultimately everything on if if you get to the martinez question everything's going to turn on whether or not he was ineffective what did he do his testimony is that he wasn't sure he wouldn't contacted every capital litigator he could think of including law dab including various bit soup agencies that represent different capital defendants and he asked them what types of things do i need to do what's the st thing you do when you bring a claim in the st your lawyer notices you follow pleading he follow the pleading in this case he found the post conviction it was a very thorough post conviction it was not boilerplate it was not something you can find on the internet it was directly related to this defendant and what happened at the trial yes he had to use the trial court record because that's that's where he's going to gain his facts and what not so he filed the pleading the judge so merrily dismissed the pleading the judge denied the motions requesting fines what more could mr gleason do at that time i dare say that if it had been the attorneys that testified in federal court mr clements been before judge anderson before and has had similar rulings so in all his expertise in all the matters that he got he still can overcome a trial judge that rules against you and summarily dismiss your assault more time he was denied so judge brady's finding that it was mr gleason's fault i think it flies in the face of the record it falls on the face of what happened in the state court proceeding but judge brady didn't look at the state court proceeding judge brady focused primarily on the quote the didn't have enough time and money if you look at it it's all in if he truly thought he was ineffective he should have reported himself to the bar association i mean if this court finds it is in effect if you're saying that he was acting as if the guy had no attorney at all that isn't under strictly that's a pretty heavy finding so if you're going to throw yourself on the sword and say oh i was totally ineffective and i then i totally screwed the pooch on this one then you got it you i think you have some consequences there did a terrific back then and this is a given or that was the testimony your honor but if you aren't and he didn't do anything for a while he followed in again we did know that we're dealing with the case in the district court i don't know what he filed in the supreme court until he testified to it all i know with us in the state district court he was still in contact he was talking to me he was  following stuff he was asking me to give him more time we had up on a conversations about you know can you give me more time to do this can you give me more time to do it i told him so and i'll give you all the time in the world if you would just follow a finished petition so we can get a ruling on it i mean that's what we told him from the  case that we've been involved in if you will try to go forward and bring a claim rather than violent a shell petition and trying to settle on it for six years if you will file a claim i would give you all the time in the world because i need time to respond so i need time to read the record so i've never jammed anybody on tot but he followed his pleading in this case and judge and he went in assuming the judge anderson was going to give him more time the judge anderson was going to have discovery the judge anderson was then you're allowing to have a hearing two or three years from now but that didn't happen it was s dismissed that's what he didn't expect but mr dixon worked on this case throughout the ied testified he contacted other people he's a short guy you know this is not no dummy he's a short guy who to this day continues to represent todd west and you're in federal district court on the lethal injection lawsuit so he stayed with this case all along he filed it in the initial federal habeas petition in this case and he worked with counsel throughout so did did he say he was ineffective on the stand he said it was ineffective but he always qualified it i didn't have time or money i was ineffective because i didn't get the stuff yes ma'am but he didn't say it that way you know he said i didn't have the time and money that i needed i needed more time and more money but he did everything he could in the two or three years he was representing todd west injured state court i think he's still on record in fact i'm kind of shocked he wasn't here today but in regard to all the family evidence about todd wesson during his family living on or near a plantation type westerner was born and raised in baton rouge in mayfair subdivision  i don't know that he specifically asked for i know that he asked for more mental health evaluation and anything related to low intellectual functioning which is what they hung this on in federal court is that with this was all about her would was all going to prove low intellectual functioning and at trial todd west and her had a psychiatry stand a psychologist so they could have explored that then why they didn't i don't know but he had the tools that he needed at trial so judge anderson when he reviewed it said i'm not giving you this to read litigate the entire case basically which was essentially what mr diesel son was asking to do so the judge denied it that's the judge's denial that's it and last thing in relation to the two thousand and ten amendment if the two thousand and ten amendment is the st time that this is brought to the federal court then i still stand by you can't get around the one year time limitation although mail says it has to be the same core facts or whatever counsel admitted these are all new facts this is all a new claim based on new facts is what she's saying now well if it's a new cla facts it can survive under mail in rule fifteen and get around the federal one year time limitation because what was filed in two thousand and ten was untimely this court had previously ruled and given todd wesson direct little tolling the judge said he had until october of two thousand and