facts and let the evidence the georgia supreme court's resolution of this issue satisfies all three st of all it's our position that the georgia supreme court added a burden  below so how could this be an unreasonable application in light of hill in tampa well st i think that the district court and the state have misapprehended what  fourteen strikes true moves forty one percent of the potential electors ultimately the jury consisted of fifty percent african americans hill did not say that statistics alone can never support upon the that the that the trial court has to consider the totality of the circumstances to determine whether there is a pattern that creates an inference of discrimination right if it's if it's a number of factors that have to be considered i don't understand how what could georgia supreme court said about that is inconsistent with what we have well i think what this court has said in a chill of ask was is statistical evidence may support an inference of discrimination but only when it's placed in context and the court said for example the number of persons struck so the statistical  like only when couples of the revision such as the composition of an r and the race of the other struck all of that evidence was before the georgia supreme court and the court of the trial court and they said no you still have to have more more evidence besides the pattern in context and that i think is contrary to back then and contrary to this court's precedent that not counsel this is lisa branch that's not what the georgia supreme court said it looked at the no strike and the number of strike and then it just said and then there we find there's nothing out that le understand them to be saying that you have to look at the whole picture which is what we've said as well and when you look at that you've got  here that's thirty six persons if king women twenty one then state exercises nine of it strikes to remove women but it also accepted six women ledford struck four women do we have when we look at the totality of the circumstances how would we say that the decision of the georgia supreme court was an unreasonable application of something clearly established by the supreme court well i think if you take baths and itself and bass and was meant to be a sort of a permissive standard because therefore bass and is johnson of the court and johnson california v johnson or johnson we california said that this is not an onerous burden it is a burden of production production not a burden of persuasion at this point and we've put i guess what the supreme court precedent but it would seem to me we've said many times that to be extent that what the georgia supreme court is consistent with our own precedents our own understanding of the supreme court precedent we would be hard pressed to say that what the georgia supreme court held which was an unreasonable application of clearly established supreme court press and if they if they if they deal with the same way we do how do we going to say that's a reasonable well i think what we look at i think this court given these facts would find that this upon the foster case on usenet nine and seven of those nine were used against african americans and that eight percent of those used for sixty four percent of those were in either case i just can't imagine that you are far outside  use three quarters of your stripes to eliminate two thirds of the potential african are women jurors that raises an inference again it's a low bar raises an inference of discrimination that should allow the court then ultimate issue so we are position is unreasonable because it does not allow the course to get to step two and then ultimately to step three in making a final decision and the batson was meant to be give people or give the court the opportunity to try and ferret out discrimination and what would normally be a a process that is right for discrimination i think this  well i'm not i'm not asking for a bright line rule i'm saying that in this case that that this pattern of strikes in context gives rise to an inference and a finding that there was no inference of discrimination is contrary to that's and it's progeny and it's an unreasonable finding of determination of fact unless the evidence presented should this court say that and i believe there is some precedent that this court says  to one strike exercise for discriminatory reasons is enough to violate the constitution and that's the standard that that looking at that that's the prism that this court has to look through look at the alternat state says all three female alternates to it ends up accepting nine of the eight women or fifty percent of the women and you sixty nine percent of it strikes against women which brings us basically in the same position as tampa and such i think there's another factor in there that you know that the court needs to take into account the state tried to use another strike against women woman and was prevented because of the correct and they but that the idea is they would have thought they had another strike and they were going to strike another one and they could so you have you have there  what actually counted as a strike you know i think you do according to i mean that's like you said what about the wedding clearly established supreme court precedent tells us that that's not right you put it in context they were trying to strike even more women from the jury and that's just part of all of the circumstances that are including that i mean that you know that's like saying but if you know that then they get to come forward and say well but if we had one extra peremptory strike we were struck a man i mean that's so speculative die i don't know how it could possibly be considered i think it's considered under all of the circumstances like all the black pure as many blacks as it could from the jury that's speculation to i mean it's stating a fact about the record and drawing an inference from and if there are no further questions i will move on to the ineffectiveness of consequence prevailing professional norms and then prejudiced in a state like georgia is there's a reasonable possibility that at least one juror would have struck a different balance here trial coun l had the opportunity to prevent the jury from hearing any evidence about anti social personality disorder or psychopathy you know one thing i wonder about when i look at this case is the judge i think st of all this court's decisions and the training that they had you know have told them that this type of anti social personality disorder of events and psychopathy evidence is that i'd think more dry i don't know i don't i'm not going to argue that i think different because morton didn't have the opportunity to foreclose the interruption they had to get out in front of stuff that the state had a right to bring in here they could have prevented it clearly says that it's not a person no no it's not per se deficient performance to pay for this kind of that i'm not asking for a person i'm introduced compelling evidence in mitigation that was completely negated and sensually all raised by then introducing antisocial personality disorder and psychopathy they had evidence of that that would invoke sympathy from  had and the supreme court has recognized in puerto williams that mitigating evidence that humanizes the defendant creates a reasonable probability of a different outcome yet they had that they had all sorts of evidence people a lot of georgians maybe even members of the jury or people who are those are the members of the jurors have bad childhood have that event in her life and don't do this kind of crime disagreement evident brought up by the state that disagreed with that you know it was the one piece of the mental health puzzle to explain why such a heinous crime why he had committed such a heinous crime and aren't you health evidence that presented very aggravating circumstances and the supreme court said that was ineffective that should have done that to same thing here there's very little difference between what happened in buck that produced prove he's a future danger th  patent when you look at some of the things the way that the defense attorney described ledford trial without can he does things without considering the consequences of being where the harm is inflicting and without having empathy for the other individuals and that's the trial attorneys his defense attorney and they talk about he thinking in terms of this is what i want and i'm going to get it and if i don't get it you're in trouble that's the defense attorney describing his client because he got he didn't have introducing that evidence he had to he was sort of locked into that if he could have presented a very compelling evidence case  mitigation without that if you take that out the entire sentencing picture is is changed and different and much more compelling and there's a reasonable probability that at least one of the jurors would have sentenced him would have opted for something aspect of it but i think in this understanding on thing that when you got to the federal district court the only theory of cause to excuse your state procedural default that you argued was ineffective assistance and i agree with you th an effective assistance can in certain circumstances comes to cause but that's not really the argument you're making before i think you're making for us the way in hearses taylor argument because and i'm just saying can you do you think you can fairly change horses between the district court and here why haven't hearing and therefore we did not fail to develop the record and state post conviction i think you have to and i think that's why i stated something that's different from we had no reason argument i thought your i honor this is clint malcolm on behalf of the apple e may it please the court i guess i'll go back and start with the jury selection claim that the j v play just just to counter the argument from appellant in regards to the georgia supreme court's application of clearly established federal law if you look at the georgia supreme court's decision that clearly lays out the relevant and applicable  standard batson and j b require for these types of jury selection challenges so any notion that the trial court or the georgia supreme court somehow shifted the burden and made it more burdensome on the defendant to make a prime a face showing is simply not supported in the record moving to their other argument in regards to an unreasonable application of clearly established federal law i think it's important to remember that the only thing that counsel put forth to the trial court to support their claim that the state was striking women  disproportionately was the percentage seventy five percent of the print three strikes and that's excluding the alternatives but that was the number that was presented to the trial court the trial court looked at that number the trial court also referenced the fact that the state did not challenge six women prospective jurors and that unchallenged female jurors did in fact end up serving on the jury numbers i think it's pretty clear from the state court record what the numbers were thirty six venire was was the number in the in the panel fifteen were female twenty one were male that's approximate forty two percent to fifty eight percent breakdown there's there's just absolutely no supreme court precedent that shows the george the georgia supreme court somehow misapplied or stage it was seventy five percent here's the number your honor the court considered it looked at the strike list and there really wasn't any other argument offered on direct appeal to the georgia supreme court so those were those are the basic numbers i would also like to point out that i believe the client concedes in his briefs as well that there were no no issues in regards to specific questioning of any of the theme male jurors or lack thereof of questioning  appellant can point to to strengthen any sort of crime a face showing that there was an inference of discrimination discriminatory intent on behalf of the state to strike female jurors normally that's a factor i think that that would come into play  it simply wasn't there as noted by appellant if i know the questions on the jury selection claim i will move on to the and effective assistance of counsel as this court is aware strickland has said and of course this court has said that decisions made by attorneys strategic decisions after a thorough investigation which is certainly what you had here by very experienced death penalty attorneys are virtually unchallengable when you couple that with the deference afforded to a state court decision under the a t p a that burden becomes even harder to overcome and it this case simply is one of those rare cases that means that burden if you look at the decision that trial counsel was faced with it was it was a simple one that they could either present this mental health component to their mitigation case which they ultimately decided to do which was the most strategic and reasonable decision they could make or they could abandon it completely and that would mean they would present none of their mental health experts and they would be left presenting family members in a medication specialist that would be have been the alternative they would have faced if they decided we're not presenting any of this mental health evidence they certainly understood the dangers that it posed that the state was going to call their own experts in rebuttal and they were going to talk about things that were harmful to their mitigation case so when turn what they did to try to mitigate that blow was to bring it up themselves and their presentation to the jury i think that's that's the epitome of reasonable attorney performance if if the state or the other side has something they're going to hit you with and you think it's going to be damaging sometimes it's better to to bring that out and try to address that the best you can in your presentation and that's what mr berry mr west trial counsel in this case did they they presented very thorough mitigation case i think fifteen witnesses were presented multiple family members numerous mental health experts who all tried to present the  general mitigation case which was horrible upbringing all the things associated with his childhood couple this fall from a tree in an m r i that showed they argue showed brain damage things of that nature to try to at least explain to the jury how petitioner propellent got to the place where he committed this horrible murder so i certainly don't think when you when you apply strickland's in the context of a d p a in a case like this there there is not there are no grounds for relief that the anti social personality disorder that this court has never said that it is per se aggravating and it certainly never said that if if an attorney thinks that should be part of their mitigation case or they should bring it out like in morton because they knew it was coming out and they needed to deal with it they thought directly that somehow unreasonable especially when you have the level of investigation that these attorneys put forth in this case of course that's that's just a deficiency prong the prejudiced prong in this case i think presents a very big challenge for appellant the aggravating nature of the crime itself was not going to change no matter what trial counsel said or argued or what witnesses they presented the criminal history of this appellant and the similar transactions were not going to change no matter what medication defense they presented so it's it's a stretch for me to see any anyway where where simply putting forth family members in a mitigation for cause there making currently is that counsel were ineffective for not presenting the argument of the motion for a new trial in on direct appeal we would counter that with that in effect in this claim is in itself an exhausted and therefore not a valid basis to overcome the procedural fault of their jervis conduct claim georgia supreme court and the ineffective assistance of counsel claim as adjudicated by the state a b s court were both reasonable applications of clearly established federal law and the germans conduct claim as found by the state to the extent that the state responds saying that the only thing that was presented to the trial court on the g b issue was the percentage of strikes that's just fundamentally wrong the defense said raise that and then the prosecutor himself put on the record all of the strikes against women exercised by each side plus the juror the judge had this right to list as i believe  counsel for the respondent knowledged and that strike list it's part of the record and we like to it shows the race and gender of each juror so the court was keenly aware of the context that this court requires in so the court can had all of the relevant evidence before it to make a determination on whether this pattern of strikes when considered with the entire make up of the air as well as the race in this case the gender of the jurors struck was before it i'd also point out that in this case there was a analysis found that there was a prime a fresh case and then made the state give race neutral reasons and then decided the ultimate issue so i think the court should can consider that as well  deciding this case the also campa i think is distinguishable because in that court and that case this court found significant that the prosecution didn't use all of their strikes against in that case black jurors here they used all of their strikes and tried to use another lest there are any other questions on the g b kit claim i'm going to switch to  unchallengable there's an important omission there it's really read strategic choices made after a thorough investigation of the law and facts relevant to plausible options are virtually uncha here they never explored options tom west who was in charge of the penalty phase said he never considered not using mental health never considered it that is not a decision  because the he knew the state was going to hit them with this well he could have voted they could have avoided being hit it all they just had to say we're not going to put forth mental health evidence and i will say it was incredibly weak the radiologist who who's trained to read the m r i has said there's nothing wrong with it does matter fact reached out when he found out that the defense expert was going to say there was some some something represented in them or reached out to him to say you're wrong don't be and then they also knew that the state doctors who also had a look at the m r i said there was nothing there and what's really important is the fact that the medical records from that fall are devoid of anything indicating there was any kind of brain damage never lost consciousness they did an x ray of the neck and the head and found there was nothing there  the best that the defense experts could say was a fall like that is got to shake your head a little bit so they had scant evidence of brain damage and to rely on that to then introduce such damning evidence of psychopathy of anti social personality disorder is isn't reasonable this court's precedents show we don't have to complete the pictures as somebody suggested because introduce this there are dozens of cases in this court saying introducing stuff like antisocial personality disorder is is harmful and it wasn't ineffective not to present  make the jury like mr left for they weren't going to be able explain the crime and they were going to be able to get rid of the prior convictions the only thing they had the option of doing is presenting some evidence that might give the jury reason to exercise mercy