addressing first year effective assistance of counsel i think it's important to look at the arguments of counsel during the closing argument to see how unprepared counsel was to put on a mitigation picked case first counsel told the jury that mr l had a normal childhood until the age of ten was demonstrably false he said the deadbeat mom while pregnant but there was no evidence submitted during the mitigation phase which covered a total of thirty three pages to support that he told the jury that dad threw eddie's life into chaos and again there was no evidence or testimony in support of that he tends to be argued to the jury that any came back from his time with his father an inference from that big that happened because of the i mean that's a bike be a reasonable inference or conclusion based on that testimony it may have been if that was the way that the counsel was using the argument but that's not how counsel was presenting it as a but for causation but was instead presenting it as an established fact without having the evidence to in fact support that additionally counsel argued to the jury that mom was in fact the only constant figure in eddie's ninety's like again that assertion was not borne out by evidence not proven by any of the evidence and in fact is now known to be demonstrably false it will never know what happened during that time with dad was the council's argument and in fact we do know what happened during that time and how the council bothered to investigate this matter they also would have known there are significant number of police reports that demonstrate that dad raped eddie while he was there that he had that the father had molested the oldest song mendez and not eddie charged with child molesting somebody of mendez yes of the brother not of eddie do you agree with this  it's really difficult for a defense counsel in some of these cases to figure out where to stop at presenting  the council's decisions are challenge typically the position seems to be that he should have admitted every single thing he could possibly admit but seeing it from a practical standpoint there's some point we each the efforts to protect the defendant as an antacid helpless hopeless human being become more an argument for some jurors who might think that reflects adversely on the value it is a lie to it may mean that they're more likely to impose the death than it's rather than l so do you concede there is some blind drawing that council has to do in order to avoid that extreme negative reaction actually to the defendant and if counsel does their proper investigation and makes that strategic decision the wall says that that decision is almost unassailable what we have in this case however is counsel didn't do that investigation there investigator the mitigation investigator was repeatedly telling them that they were not obtaining the records that they knew existed from both baltimore children's services the school districts in baltimore were not providing the services thirty days before the trial they go to the trial judge and they say we need a subpoena because we can't get these records and the judge immediately signs the subpoena what they didn't do was then say judge we need a continuance of our trial so that our people can be prepared on the first day of one tear they get a fax from the the psychiatric expert that they had retained saying where are the records i haven't seen any files or did those records appear before the mitigation hearings started no they did not appear until after he had been sentenced to death and the number in the thousands of pages when the case went to post conviction the public defenders had those records and they got there were no that investigator or counsel did not see these records until after the proceeding  has been no evidentiary hearing in this case at any level as to what counsel did know or didn't know what we know is that they didn't have those records they never saw those records they didn't even have them is in the case in the  least had the records never looked at them but they gave those records to the jury in this case counsel never even had them so when counsel gets up and makes this argument about this exam these examples of a bad childhood the council doesn't know whether those are false statements true statements misrepresentations by anybody has no evidence on which to base that they're making a strategic decision to not put on this type of evidence is an under reasonable decision when you don't have the predicate facts to decide i agree judge given the warriors knew this and decided our best tactic is to present with this type of claim that we have we've not understand cave's telling evidence that the records would have shown it was it that he was bipolar or that he was very bought against other people was valid and school were i think was there something else the most important records are the early childhood history of th landing the first ten years of his life where his father is ray being him as a toddler where he's being forced to watch his father stab and rape his mother when he's in the house when his father tries to burn the house down when his mother abandoned him to the care of his older brother who then sexually assaults both eddie and his sister by forcing them to perform oral sex on them all of this happened that's much more development impact that explains why when he starts to be thirteen or fourteen years old he starts manifesting psychotic behavior here's a child who's at thirteen years old and he's being prescribed lithium because he's being diagnosed as bipolar and yet the jury was told in this case that up until the age of ten he had a normal childhood by no stretch of any imagination was what eddie lang was raised in a normal childhood normal children aren't raped at the age of three by their father they're not abandoned by their mother they're not left with somebody who is forcing them to perform oral sex on them they're not having cigarettes burned on their body they're not thirty three pages only twenty two of which at the mitigation phase are direct evidence from count from the defense side the remaining pages or cross examination by the prosecutor those twenty two pages given by the jury no understanding of what any length of life was nor what was it that resulted in him at the age of nineteen years old being thrown away by his mother shipped off to the boondocks ohio which is what his mother calls can to fend for himself in a place he knows nobody has no support system there's a kid who's been since the age of thirteen every diagnosis he's received every medical treatment he's been given has said this kid needs intensive inpatient distant family connection the brother had been in canton for a while but it wasn't that he even go to live with the brother how they picked canton from baltimore i have no idea but that's what they did to him of course that heard this evidence and post conviction was an unreasonable determination of facts they determined that this evidence was simply cumulative and that counsel had made a strategic decision to simply play up and use mom to show that mom was a good mother well first counsel had no information in which to predicate that claim and we also know based on the records that they didn't find that we now have that that is absolutely false well they obviously had talked to the mother before they put her on they talked to her for twenty five minutes before they put her on the stand but who all that talking just lawyers to get the lawyers the mitigation investigator met with her evidence that is in the mother's affidavit submitted in post conviction in which she explains her conversations with the lawyers and it was twenty five minutes just before they put her on the stand and she had met with the investigator several weeks before the trial she happened to be in town the investigator was also in town and the investigator asked her for help in obtaining the records and that's it that was her entire contact with the lawyers and the investigator in this case the investigator never collected a  social history for mother never did a social work at work up on what was going on in the family well all of those things were there in the investigator knew those were things that he needed to do he was trying to get that but because the record keepers were not providing the records and i would point out that they department of children services in this case is the same children services department that failed to provide the records in the wigan's the case they finally obtained a subpoena they sent a subpoena and we're told well we'll process it and will get you the information as soon as we begin to process and after mr lang was sentenced to death the records were deliberately so the trial counsel didn't ask for a continuance and is there any affidavit from the truck council as to what his strategy was and why he was doing when you know there is no no course that's it that's the defendant's burden is it or the petitioner heard that it did put it in the record and it tabbed or the whole proceed that is true and i don't know whether or not post conviction counsel were rejected from that argument we did seek to do that discovery in district court we asked for leave to do depositions on the issue of ineffective assistance of counsel and specifically requested the ability to depose trial counsel to find out what their strategies were and we were denied that opportunity so we never did get you're going to got an affidavit us but  our counsel may have been able to and again i don't know whether the prior counsel tried and were that defense counsel refused to cooperate with them we have no idea but that would certainly be something that if we would go back on an evidentiary hearing in this develop the facts and find out what did trial counsel do what did trial counsel say why didn't they ask for a continuance when you asked for the subpoena the very next thing should be after the judge signs it said judge them we're going to need time once we get these records they want to figure out what they mean they were they were given access to the forensic psychiatrist dr small dr small and is constantly asking them i need the records in order to do an evaluation in order to do my job in this case i need to have access to these materials where are th so i'm curious about doctors did he do a report no he did not he had no foundation in which he could do a report that he yes he had interviewed mr lang but without the records there were other things that he needed to do that he simply couldn't do a doctor smiled and had talked to counsel that it yes yes he helped yes yes he could who could any value to me i can you can say i performed a psychological evaluations but that's not what the only thing the psychologist or psychiatrist does at the mitigation phase of the case that the idea behind both your mitigation investigator and then you psychiatrist who will testify is to explain to the jury what all of these materials mean and what does it mean and what is the impact on the development of a child to have these particular things happening to him the problem was th doctor small and had nothing upon which to make a basis to do anything for mitigation because none of those materials had been obtained and when he was asked if he was asked by the trial lawyers are you ready to testify his answer would have to be no i have no foundation on which i can give any evidence or opinion to this jerk is what you are just what you just said evan evidentiary basis in the record as what we know is that they got funding from the court to get a mitigation investigator they got funding to get the forensic psychiatrist and then they didn't do anything to ensure that they could do their jobs the mitigation investigator never compiled the records that were necessary for the forensic psychiatrist to do his evaluation and report in testimony to the jury so when you have an expert who cannot testify because he doesn't have his materials it's not a strategic decision to say we're not going to put on a mental health case that's the a pedant me of what strickland says that is not a strategic decision based on a reasonable investigation and we know that the lawyers knew that this was material that they wanted because they were meeting they asked the judge for the subpoena to get the records they knew they needed them they just didn't do anything to have them in time to use them at the proceedings there is some question that the trial court the state trial court asked of the trial counsel for lying about whether you have enough assistance to prepare your mitigation case i don't remember the exact question but i thought that the trial counsel had said yes i'm adequately prepared to my didn't i don't recall that exact interchange it would not be unlikely to have a judge ask his counsel ready to proceed and for counsel to say yes what we know is they weren't they just they were prepared you have your psychiatrist the day that they're getting ready for the mitigation phase writing in his in his notes that are in the record just heard from mitigation investigator records are coming that's the day of the mitigation hearing that lasted thirty three pages a court did order that they were to be produced and he did they did and eventually the government agencies in baltimore did reveal them but not until after he was sentenced to death so getting the subpoena was what counsel should have done but then the next thing counsel should have done is ask for the continuance so that the records could be received between the investigator and the department who said while we have to process them we have to review them redact as necessary and we will provide them but the court ordered that the records be produced before the medication yes that was thirty days before the trial even started but counsel never asked for the continuance and as this court recognized in bigelow that at the point that counsel gets information that needs to be investigated the thirsting the lawyer should do is ask for the continuance to do the investigation and they never once asked for that continuance and that's why we look at this this is not some sort of strategic decision i'm built on knowing what our case is knowing what our facts are this is going to be our mitigation strategy this was a case built on the fact that they didn't know anything about what was happening and so the only thing they had to put on it mitigation was mom and sister because they were in the courtroom they didn't even know what mom had to say and whether or not what mom was telling them about a normal childhood was true and we know now it was sort of put on a mitigation in which case then we should have a hearing and find out those things but it's clear that they never took her on cross examination that what she said in her testimony was different than what she had told them outside the court room so i assume it without rebuttal closing argument the prosecutor stands up and says everything the fence counsel just told him is pure speculation it's not substantiated by any of the abbott there's been no testimony about this and that was exactly true but if the burden of the petitioner where does that leave us that leaves us it had to show what what was told by the other or what that  wers knew or any of that stuff but but what we know is what they did they didn't know what we know is that what mom testified about wasn't true that this jury wasn't given the proper information about what is mitigating evidence unlike the ration johnson case where the least the lawyers gave the dri the records of lawyers never looked at the records but they least gave the records to the jury so the jury could look through it in that case the court said that's still not enough or you're saying the mother perjured herself on the stand i don't think mom necessarily perjured herself i think mom told a story that isn't a true story of what life was like for and cream during his childhood you've got to point out that that's not true i think of our defense lawyer to show this mother or somebody pretty mean you may have over her you may have to and you may choose not to i'm not disagreeing that you can make a strategic decision to try to portray somebody in a nicer light than they may be but you've got to make that strategic decision in you have to know what you're giving up why i'm curious why the state courts thought there were some strategy to make the mother seem nicer i mean what how does that help that the state court found them i think first off i think it's an unreasonable determination of the facts when you look at the material that they had i don't think there was a strategic decision to make mom look not so happy so what what could be the or how courts reason to say that that's a strategy that's a way to until until then to go live with the parents their dad not under the facts of this case not under the facts that we now know the trial counsel should have known you could make that in another case that may be a legitimate strategy but that's what we are supposed to do our job is to investigate figure out how we're going to present the best case that we can in present and i agree that that's not going to be subject to ineffective review or certainly not a grant under the amendment of twenty t four but when you make a decision like that not knowing anything about your treat your client's history in mom comes on and says everything was fine until dad took him that's just not true die was only rescued because his grandmother found him crying in the trash bin the defense counsel put mother on and put mom on trucks and this court in one of all income this case found that the lawyers failure to do those other things in mitigation was ineffective assistance good afternoon my name is brenda rico and i represent the warden in this case would like to start off by saying that believe mr benz a may have missed characterize a little bit the mother's testimony the mother actually did testify that she was beaten while she was pregnant there was a direct question by defense counsel to say how was you eddy's dad while you were pregnant she says he was violent also testified that he was on antidepressants before the age of ten those are both in the record she also testified that i'm both direct and on cross about that being on the end i depressants before age ten the prosecutor actually in cross exam asks so everything wasn't kind of peaches and cream before you know he went to dad's and she admits that he was on been seeing he had gone to specialist even before going to dad and now the visitation with dad was a court ordered she had been preventing him from seeing dad up until age ten until the court ordered her to send prevented dad from seeing him because of his violence and because he was abusive and she testified to that on direct so it was in the record that dad was an abusive figure even before age ten now this characterization of lang's childhood before the age of ten being normal was a solitary statement by defense counsel in closing so in his argument which is not testimony which is not evidence it was a one on one comment that was made the testimony from both sister and mom was that when length came back he was happy for initially when he first back and then everything kind of started to spiral but both sister and mom had head and conceded that he wasn't a perfect child before age ten why do you think yes your honor i will if this is normal this is what the situation was yes your honor and i can can i get it for the is true that i mean clearly th individual's law was never normal that's correct would concede that he did not have a typical normal healthy childhood the testimony really begins at age ten because that's where there's that break he goes to see dad he doesn't come back he comes back according to sr they used to play together they're only two years apart he comes back at age twelve thirteen and he's a completely different doesn't want to play doesn't want to do things course he's also a teenager so he probably doesn't want to you know play with his older sister but that's beside the point he comes back you know different but mon testifies that even before the prosecutor asks and it's in now you told us that even before eddie went with his father he was on medication for depression and anger things like that for depression yes i'm sorry search of little before that i want to ask you some questions about eddie before he left before he was taken from you at age ten can you describe what eddie was like emotionally and mentally answered ed he was the type of child that he was the type of child that like all kids he was a little i think question was he rambunctious answer he had tantrums he had tantrums fits he whine he cried he had his little outbursts so mom testifies to that before age ten so the  medical records the psycho social records whatever kind of records baltimore had or the places where he was growing up were not provided and were not available to the a gator and the doctor small who was supposed to write a report and be a witness at mitigation and so there was a fatal flaw in terms of what good defense counsel at trial was presenting as the case how would you respond first of all we don't know if dr small town was supposed to write a report and testify psychologist don't always write reports and they don't always testify in these capital cases they assist in in preparing the attorneys for mitigation but they do not always write reports and sometimes that not writing reports is by design so the state doesn't have to get a copy of them so we do know that doctor smiled and did examine records in fact looking at his billing statement he spent over eight hours of consultation between doctor smiled and the mitigation specialist he met with counsel and mitigation specialist for seven hours he not reading of some balkan war records were received earlier and perhaps the bulk of the mr binns as argument sounded like there were no baltimore documents until after trial that's not   i would assume it was the records that they put and that post conviction but i do not i did not don't compare which documents were were which i'm sorry your honor i can do that and supplement if if the c it or documents your honor based on the testimony of my i would say as the state court did that it was cumulative to what was presented not he did not have a you know stellar childhood before age ten montana defied to the fact that dad was abusive the records indicate dad was abusive mom testified that dad had a history of being a child molester and that there was speculation that he had been sexually molested but that he'd never admit that so that stuff was before the jury the fact that these additional documents would have you know shown that is it was already in front of the jury and that's what the difference is it's not a complete lack of having this information the jury had it and in fact this jury strategy apparently partially worked he only had one death sentences for two yes the counsel strategy apparently honor however the defense counsel at the beginning of the mitigation phase and again at the end of the mitigation phase put out what his strategy was and his strategy was he wanted to humanize andy to make the jury understand he was stock in how long an attorney stands up there and talks to a jury i was trying to prosecutor for eight years and sometimes reading the jury you could tell that they just wanted you to shut up so that they could go and get their ducks job done so without being the attorney in front of that jury to know whether you should keep going or or you know just say your piece and be done you know anything else would be speculation and it's for the trial attorneys who are up there in front of the jury you know much like him being in front of a panel sometimes you can tell when you just want to sit down and shut up so the where there were there were a number of really negative of events that happened in  life and one concern that your opponent is raising is which ones of those were presented or not so for instance just to take one example the fact of the older brother  raping him before he went to live with his father was that introduced by the defense counsel it was not your honor however the fact that he may have possibly been sexually molested once through the mother saying she thought gets the father had done that but she didn't know because that he wouldn't admit it yes and if anyone that met that father had done it he certainly probably would not have admitted that brother had done so would there be records of that i don't know because when mom testify she said that when the older brother admitted that the senior had molested him he was age twenty two when he made the admission and no police report was filed at that point so the child molestation that any senior went to prison for was not of the older brother it was of a different child but said it was that in some of the sac at trick records that are produced or is that something that was admitted later after conviction mom testified she testified she testified they asked questions about the older brother and the older brother had admitted to her it when he was twenty two and even on i believe it was on cross exam the prosecutor asked to jamaica did he make a police report and he said no he was twenty two years old and didn't want to you know look like i think she said like a weakling or or some something so he did not make a complaint if eddie sr had gone to prison for child molestation it was not for that child at with a poor another child here's someone else it was somebody we don't know who but it clearly wasn't the older brother and it clearly wasn't eddie so it was by process of elimination somebody else whether it was in the family or out of the family here out that was just curiosity i mostly i don't know what the records that eventually were produced by the baltimore government side  so i believe that they were detailing specific instances of abuse prior to the age of ten but have you looked at those records i did your honor i obviously could not recites them verbatim they were in the state court record which has been made part of the federal record through the post conviction so those are all in the state court append that the warden would have filed with the return of read if you want i actually do have that entire appendix with me and can get you page numbers if you i just you know in terms of some of these cases different orders appear at different times and when one makes representations to what the records say i'm just curious whether you have personally reviewed the records i did when i first wrote the brief your honor i did i concede i did not go back and reread all the post conviction records last night before before argument but there there are records and conviction and indicated that you know some of the records indicate that he struggled to accept consequences for his behavior to take responsibility for his actions lang struggled with frustration tolerance impulse control problems and had your honor and we don't know what dr small to figure it out before the mitigation hearing you mean we don't know what dr small those conclusions were before the mitigation hearing because that wasn't in the record right and i've seen this quite frequently that the mitigation specialists you know do not do reports they sit there and they consult with counsel so they don't always the psychologists do not always do reports at the trial phase and a lot of the times it's to prevent the state from having to get those documents because it was before you know kind of open were sceptical discovery back then there  jim crates was in the courtroom during mitigation in fact the trial court put on the record that the court had afforded funds for mitigation specialist and a psychologist and that one individual was in the courtroom he interviewed the defendant on two different occasions on january twenty third and june fifth he had over eight hours of consultations with the mitigation specialist i don't have the exact hours of how many times how many hours he spent with the defendant he also met with both the sister and with the mom prior to testimony in fact his records indicate that he met with the sister once and with mom twice he began looking at case documents back in january he also reviewed in addition what his documents were there in jail would presume in january would have been the discovery packets all of the tastes information provided by the state at that early stage because that shortly after he's been appointed what i'm trying to figure out is when would it be logical for a doctor small going to be able to make any conclusions about the  life experiences and psychological state of mr well your honor he also reviewed additional records on june twenty seventh for a total of five hours of document review that material that i do not recall the date of that subpoena i can get that for he if you if you would like i do not recall the date of that or are you defending this bug that the for the performance of counsel or the ada so he has not just the strickland hurdle to overcome he also has the reasonability problem to overcome well how would you compare this case to weaken your honor i believe that this is different than wigan's because in this case they did talk to the mitigation specialist they did have testimony and really the mitigation documents that he's claiming should have been put in not only would they have been double edge sword but they also are cumulative to what testimony that was put in front of the jury and as judge given stated there is a time when you have to as defense counsel choose your strategy and their strategy was to humanize eddie because they had enough information to know that these documents could be a double edged sword he spent time in psychiatric facilities they ted testimony about that in fact he had if you heard from a mother that the child had been in and out of mental facilities twenty eight times you would think this is a very mentally ill person who should be maybe even raising an insanity defense or saying he was not competent or at least instead of human izing him as a normal for womanizing him as a very sick mentally ill person that again is a double edged sword to some juries this was essentially a drug deal gone bad and to kind of characterize him as a mentally ill unstable individual very well could have landed him with two death sentences rather than one drug dealer and therefore a life sentence for the perpetrator was enough when you're killing a drug dealer i mean there are many gaps limitations that there are many explanations however if they're following their charge which is what they should be doing they have to weigh the aggravating circumstances with the mitigating factors and have to find beyond a reasonable doubt that the aggravating circumstances overcome be mitigating factors and they did do that finding f courts say that so you can't do anything about it exactly your honor and that does happen all the time the jury nullification does happen so maybe we shouldn't make a conclusion as to whether as to why the jury decided to give only a life sentence for the one i think it's a logical inference based on if you we're assuming that juries follow what they're told to do and rules which i believe is the presumption that we have to make that presumption that juries follow the the orders of the court so i believe that that would be a valid presumption that their strategy was effective they had enough information to make that choice to put mom and sister on the mitigation specialist who would have most direct knowledge of what the records are is in the court room advising the attorneys on what questions to ask but that assumes that the records were all available at that time right that enough of the records not all of the records there's nothing anywhere that says all of the records must be obtained there always be more records to obtain and scouts all in post conviction and he because they always come up with more records that should have been obtained were all these records from eleanor are there some records from a while or i believe their own maryland and delaware and delaware i think there may have been some from delaware because that's where he was at for two years when did they move back ohio he moved to ohio shortly before i believe the murder he would never was there to start with i don't believe there was any ohio records to be had he grew up in maryland he was in delaware for the two years that he was abducted by his father and then returned to maryland and then somehow and i'm not clear as to how he ended up in canton ohio doing drug deals i don't so i think i think the characterization of the record that that none of this was before the jury is absolutely wrong the jury did know that you know prior to age ten that you know he had had some bad things happen did  he no the extent of the bad things no it didn't but they knew that he was not you know they know that he had been hit in the head with a baseball bat that specific nobody did they did know that he had been abused and that mom kept dad away because of the abuse and that basically mom had been pimp had basically had to pimp or self out to pay the rent to dad resulting in her pregnancy with eddie so that you know after she became pregnant he became violent she testified to that very early on in her testimony that that was the reason she did not allow eddie to go to delaware to visit dad until she was court ordered to do so why did the court so you know she did she testified she fought that and lost so what the court's reasoning behind that i don't know that he answered that is not my record but she did testify that she prevented him from going up until she was court ordered to do so and because of his violence and when asked directly why didn't you let me see dad it was because dad was violent and my understanding of of one fact in the record was that the testified after mom testified to both before and after that before he had been placed on medication because obese tantrums and fits she called them and for depression so unless there are any other questions believe that the district court opinion should be affirmed and that the findings of the ohio courts were reasonable in light of  facts and reasonable interpretation and they were not contrary to your and i'm reasonable interpretation of strickland our application of strickland and was reasonable application the facts they were any questions thank you thank you attorney general's position is that if counsel happens to blindly luckily get a witness to say something mitigating they fulfilled their duty under the six the moment and that's simply not true counsel's obligation is to investigate prepare and present the case for their crimes simply having mom say on one occasion he was on medication for depression doesn't tell the jury what was really going on telling him that he suffered from fits doesn't reveal that there are multiple police reports and baltimore children's services reports documenting dad's sexual assaults on he at the age of three noting cigarette burns at the age of for it would be a medication if some of these facts had come out like that that he was disrespectful and posi been a belated so violent that they would take him in certain foster places actually that would make perfect sense it was he would have that it would make perfect sense if you understand the issues of bipolar you understand the issues of childhood trauma  understand the issues of physical assault and sexual assault on a child that's why you have an expert doesn't simply come in and say oh yes he had a bad child or had a good child but you explain what those life events do to the development of a child's brain what is it like to be thirteen years old and being given lithium and then have your mom take your lithium away because she thinks it's hurting your liver so he goes on medicaid but your theory that the best defense is to put on the worst case for your client in on how rough and tough it was lived in the slums and was manipulative and so violent they couldn't control it in some cases yet or at least to have that information and decide how are we going to put on this information but the lawyers in this case had none of this the post conviction record covers four hundred pages of materials that council never saw those four hundred pages include police reports documenting the physical abuse against mom documenting the physical and sexual assaults on their children services records that demonstrate this child was repeatedly referred for inpatient treatment none of which was provided throughout eddie's young wife everybody failed him his mother failed to protect him from an abusive father she failed to protect him from a sexually predator brother she left him alone when he went to delaware she didn't look for him for four months she was happy as she said in her reprieve in her affidavit in post conviction for the reprieve that she didn't have to worry about where he was or what he was doing she didn't look for him because she wanted back to contrary to the prosecutor's position in the attorney general's position that this strategy would think you hear a defense lawyer i agree to it but you've got to know where that line is you get to know what your information is strict and very clear we will give deference and we under twenty to fifty four will give double deference to state judgment for strategic decisions a decision made in the absence of evidence is not a strategic decision that's where these lawyers fail and we know that based on the record developed in post specifically one of the issues in the post conviction appeal was the denial of discovery and a bit unsure here and the court of appeals in this case ruled as ohio law requires there is no discovery or hearings in state post conviction so when you have a state appellate process or state fact finding process that doesn't provide the defendant the opportunity to develop those facts to answer that question i'd love to be able to answer your question judge and tell you this is what he said but this is a court process simply doesn't do that so if ohio law does not allow discovery or the development as you indicate then why shouldn't and i take it the u s supreme court is not addressed the they're not in that type of situation where where the state law prohibits the development of the record because where else where can the record be developed nowhere we asked in the district court we ask for leave to depose trial counsel to put them under oath put them in or a subpoena bring him in an answer those questions do you have some argument under twenty to fifty four as to why you know because normally the federal courts are pretty much restricted in terms of the development of evidence i will go straight to the language of twenty two fifty four itself and adjudication on the merits that's a term of ar williams case remains valid that there is an opportunity in federal habeas to develop facts not developed in state court so the four hundred page record that your opponent was referring to was all material that post conviction stuff and they were able to collect them but they still didn't get discovery they asked for it they didn't get to have an injury hearing they asked for in the court of appeals in this case said ohio law does not provide for discovery of state post conviction does the statute now provides it but it didn't at the time what year did the law change i remember correctly it would have been two thousand and fourteen