it please the court my name is sabrina graham i am here on behalf of the responding asking this court to reverse the lower court's grant of relief regarding petitioner senates this court was  at the full record that was before the state court and in the georgia supreme court it's clear that the petitioner was provided adequate fact findings and a full and fair hearing in the state a b s court decision or had three and a half years of discovery before he was given a two day what are we to make of the fact that the state he is still an ex party manner asked the prosecutor for in order just telling him what the result was in providing apparently no other guidelines considerations findings or anything what are we supposed to make of the fact that he did it on an ex parte basis and what we did make of the fact that the order that the judge signed up for bade him follow the first order of the proposed order from the prosecutor changing only the introduction and the conclusion but as i had been twenty five years their memories were quite dam on that i will state that all that they can remember was that the court had made its decision that it wanted to do the relief and at that time the court had before it one hundred sixty page with the presumption that the trial court did not read that order and we have no direct evidence in there i realize there are some grammatical errors in the in the forty page order but when you read the order and at that time i think it's important to point out that the order was provided hard copy this was in the time of e mail when it was sent to them but the court had a forty page order it made specific findings of fact inclusions of law that all near the arguments that had already been made to the court for all we know the the trial core informed his clerk to assumed to know and follow the law and based upon a few scrivener's errors in an order we're saying that he observed his role as as a judge and i think that that was is in error but even assuming that you have a problem with the way the state course on the order you still have the fact findings of the georgia supreme court before we get to that show i asked two questions i said one what inference if any was the district court free to draw and or we to draw from any difference really to be drawn from the ex parte nature because miss smith then took the order that she prepared prepared a cover letter which it stated exactly what the law that was because the prosecutor did the right thing correct but that's not what i'm focusing on in my question i'm simply asking what inference would one fairly draw from a judge saying to one of the parties give me an order x part of i don't know of any inference you would draw necessarily from the fact that he asked for an order ex parte order it's i mean i think it requires you to look at the whole whole record here if he'd in this court case and i draw the inference that the judge simply didn't want anyone to know that the draft came from the prosecutor i don't know that the record bears that out because it was mr english who testified in his deposition who was the clerk and he stated i asked judge and did he want me to call respondents counsel and request an order and so i don't know that that was necessarily so i don't know if the judge told him don't tell the other side or if this was something that the clerk just took upon himself not to inform the other side because the record is unclear as to that point and i mean that's that's that's my understanding of the record going to i think your second part of your question is what inference what can we do about the fact of the district court well i think the district court here honestly starts off with the presumption either that the court that the state court didn't look at the order or just overlooked certain things in the order and i think again that the law states that your soon the medicine follows the law and here other than a few scrivener's errors in there there's nothing here no direct evidence of that court did not in fact read that order and he had in fact read soon he had actually the the record of silent on that but you must assume that he had read petitioners one hundred  sixty page post here brief and respondents post here in brief which largely mirrored that order and when you put all of those things together in the fact that he did not signed that order until a month after miss smith had sent it to him it gives the firm impression that he did in fact do his job as as required but do we have any evidence from the law clerk that he did anything with respect to that or at least discuss the matter in any way with the with the state hippias judge or to the congress was his testimony i never spoke to him about it i understood mr inglis testimonies to be that he did not know what the judge did don't like quite a bit he never talked to the judge got the case he did not recall what he talked to the judge about the case on that was my understanding we don't know where the judge read the order not to correct cards and so that's a factual dispute it's subject to conflicting inferences which are to be drawn by the fact finder right correct which is the federal district court judge in this case it when i read that i read the district court order again and in it he doesn't specifically state that the judge that the state is judge did not read it he pull that out later i just don't have that but i made but to the extent that the district court's order depends upon a finding to that effect correct your position is that when they honor we would and for from there us that the federal district court judge and resolve that factual dispute in a way that supports the validity of his order correct and which would mean that he was armed it in a way that to do something because he put something in at the beginning in the end that wasn't in the order correct correct correct but and again i just go back to what we stated in our brief that if you're left with a firm conviction that the the fact finding is an  tallaght of the circumstances here then you can overturn that fact finding but if this court is disinclined to do that then it is still our position that you have the georgia supreme court making fact findings in this particular case that are also entitled to deferen fact finding that is it issue in this case regarding judge schuster and dr dudley but in so far as it made its review it said that they were only looking at it for clear a and b we find no clearer and therefore see these are the operative facts but i think this is not a fair way to finalize what they did i am i would take issue with that actually because you're stating that first of all the georgia supreme court adopts a lower court's findings of fact unless they're clearly erroneous so those findings of fact rise up to the georgia supreme court and become their own secondly i think in this particular instance the georgia supreme court was put on notice that  petitioner had a problem with the way that the order was signed specifically with regard to this credibility determination they reviewed that they reviewed the record and they said that and they specifically stated in their order that judge schuster had this phone call with d of that before it and to say that we would give it a presumption of correctness under combat of the polak if indeed they had made findings and selves but if all they did was review the findings by the state maybe a support the trial court and said there was no clear air i'm not sure that that's tantamount to saying that they made an independent  what am i missing well again i would go back to the fact that the argument was made by petitioner regarding the circumstances under which the order was signed then the georgia supreme court looked at the manner in which the order was put side and then it also made its o fact regarding that credibility determination i understand it also had the fact findings of the lower court but it's looking at the lower court order to determine whether or not there are clearly erroneous and if they are clearly  don't see how it was an independent review there of the record and of the issue specifically as to the credibility between to choose to dr dudley and in this court's original opinion which i realize was i let me ask you this question there was a powerful credibility question that the trial court had to answer who do you believe do you believe dudley what do you believe schuster well the trial court the state trial court plainly believed schuster he says on ambiguously and his order and the expert led schuster to believe it would be a waste of time to explore it and any further does the supreme court of georgia make a credibility determination has the tween the believe ability of the one or the other or do they just adopt that credibility finding made by the trial judge if they can just adopt a fact finding of a court without reviewing it without review different position than the state be a score in the sense of determining dr dudley's credibility because that was on a cold record right so i still think that they do make an implicit finding there that that conversation happened therefore and i think that was explicit and implicit credibility finding there that judge schuster said he had that conversation and judge schuster has testified to that now for twenty five years that they did in fact have that conversation even assuming that everything the tourney said was true his representation still arguably falls outside the wide range of reasonable professional system and other words he had if you had a kid and you know we used to see all the time how in mitigation the defendant you know i know it was a horrible crime but when he was four years only fell off the porch and h and everybody fell off the porch and it there ended up on death row it seemed to be that was the way the prosecutors dismissed it but here you've got a guy who indisputable when he was a little kid in the original record but why in the world would new present that and seek to get some expert testimony another mama referred to it in passing but they didn't have an expert talk about it and the kind of damage it could be done on it well i think when you look at the record as a whole that you can't say no competent counsel would have acted as trial counsel did and under the mandate of strickland i try to put myself in the role of at that time looking at what they knew their resources in the time that they had at that particular time they knew i'd been hit in the head they knew and i would correct but again they they knew that he had that injury they had him a value weighted they had no clue from talking to him an inner and they interacted a lot with him they had no evidence there that he had in minute health issues they did well had they had evidence that he could suddenly in a curiously change moods and get angry no they had one episode where he refused to meet with a mental health expert which could have been for a myriad of reasons he could have just been upset that day but what he said was you didn't make an appointment with me and maybe he did make you believe that with amber or not i mean you know people who are a locked up and they're awaiting trial for a you know a death penalty trial that gets and reasonable to say that they may not always want to meet with a mental health expert or whatever expert but again looking at the full record there you had they had no strong evidence here of mental health issues nothing from the family saying he had any mental health issues he'd had jobs throughout his life he'd been in the navy truck council was very clear that they did not see any issues regarding mental health they had evaluated dr dudley said in his in his particular report they found that to be not helpful because it said his decision making capabilities were not impaired and that he had no mitigating personality features and whether or not they had that conversation or not they still looked at it they had a client who was adamantly stating that he did not commit that crime and whatever they did was they got to the sentencing phase it's clear from their testimony that their fear of going in was that he was innocent and they argued that heart if he'll face if counsel did not testify that dr dudley had an oral conversation in which dr dudley told him never mind there's nothing worthwhile and for the exam dribbly available everybody agrees and could have been done you think that just because you're one expert that to rely on a phone to give you a number you ation says look this would be worthwhile getting this kind of examination thank god cost you anything well actually we don't know that judge barnes we don't know that it would've cost him anything what do we know that it would have cost him anything maybe so because they were fourteen in resources they had fourteen days to prepare they did not have strong evidence that report does not elicit strong evidence of mental health issues that's how they viewed it and they thought that the last part which was at the end tacked on the end wasn't enough for them no need looking for that he's just a crumb but council never ask why dr dudley put in the report it would be worthwhile to have this examination and then one hundred eighty degrees asked why have you changed your mind you said it was worthwhile and now you're saying it's not worth while the man's on trial for his life give me an explanation for your change well in that particular cases then i would say that the core is and he's got to explain once he's challenged on it why didn't you do this and i think is and he'd thought his explanation was i asked him about that part of the report and he said that he did not think that further evaluation would be helpful and that he was just a criminal and when you and he didn't far as we know he didn't ask but then why did you say it would be worthwhile i honestly i can't say if he did or not one way or the other because the record that's why i said so far as we the other defense lawyer admitted that his failure to have further testing was the result of inexperience rather than strategic strategic determination court i should have followed up on that and i and had i had more if this had not been my first death penalty case i expect i would have  and dudley told me it would be a waste of time but what are we to draw from and what could the district court fairly draw from the fact that the other defense lawyer said it was nothing strategic about it it was a mistake period well answering your first question what you can draw from it i would say you have to look back at the state b s court testimony of mr salah and in that and status testimony he stated that he did speak with dudley he wasn't specifically asked in that particular portion of the testimony if you talk to dudley about that part in fact he was never asked if you talked to deadly about the end the statements that were the end of the report but he stated you know we talked to deadly and then he was asked did you consider doing further evaluation and he specifically testified no we did not because he we were going on the residual doubt the theory that he was innocent he was adamant and also because he had not been cooperated with deadly so he gave a different answer in status which is only five years from trial then thirty years from trial he says oh i didn't you know i don't remember that but he's answered state abs didn't make any sense was refuted by the record they didn't go in residual doubt but they didn't go exclusively on really residual doubt and they did a pitiful job of doing anything on residual doubt the put him on the stand he didn't even deny or wasn't asked to deny that he committed the crime so he didn't even suggest there's any basis for doubting he committed the crime and then then they put in all the mercy medication evidence i don't understand how strategically is any different from him having all of that skull damage and brain damage well again i would go back to put myself in the place of counsel at the time of trial when they went to trial it was clear that they were attacking the innocence and that residual doubt was their strategy like all good play and once you hit contact sometimes they break apart in court what they were clear that their testimony from state habeas was that residual doubt was their strategy now i can't say that when they got to the into their closing arguments that they did not back off on that residual doubt but that may be because they were looking at twelve members in a box who were given them you know dirty looks and they felt like they needed to have some credibility with no surprising evident there was no no secret witness for the prosecution who came in and blew the defendant's theory of reasonable doubt out of the water but i think that they knew were they going to actually argue there were a couple of witnesses they felt like this they knew they were on the witness list but they brought him in at the last minute but having put that aside trial counsel vigorously defended him during the guilt innocence phase i mean they questioned all of the witnesses they did a bang up closing argument on why he was innocent but what  between the two counsels that the defendant and again i would state that he made something of that he did that and i needs him to draw some inferences and make some determination which presumably are entitled to deference unclear or if you and you know i understand there's a high bar there and again we would just state that in this particular instance you have mr selig given testimony five years after trial and testimony that's thirty years after trial and i don't know of any precedent that states that you have to give one now all i'm saying is that district judge says in the words of substance i give less credit to schuster and more it was at war with the account given by the other lawyers it wasn't a war in the original state hey b s hearing it only it only there was only this discrepancy when they got to no question about it but when they got to the district judge and that's why that's why i prefaced my question saying assuming we get to that point and the presumption disappears at that point we're now in district court and the trial judge is making a fact finding determination based on what he heard and hear the court along with jet martin i represent lawrence jefferson in this case the jury was not told a very compelling mitigating evidence that as the court is obviously where m to or i don't think it says it caused it but i well both experts say that he as a result of his organ i know had a lot i understand he had a lifetime problem but they say he had diminished capacity he had and if you look at the doctor  talks about he's got diminished impulse control which could be argued it doesn't have to be but could be argued to go to the to the crime to explain what would be an otherwise inexplicable crime transience outbursts of rage which aren't t i don't believe they pursued it recently i'm talking about really i'm talking about causation right at what i'm saying is you don't have to have causation to put in an independent phase is not a guilt phase i know not in the us put it this way the question i have is whether or not if the case were retried with the same overall evidence that the jury would be faced on the one hand with nothing with for causation but just somebody who's had brain damage correct but committed to murder correct and like as if he had cancer or some such thing out of the other scenario would be it caused and have a causal relationship to the murder but for i'll put it that way it caused the murder i don't think and i don't think you can say it caused the murder occurred but i think it could say it contributed to to it if you cheat if somebody chose to use that as a strategy the district courts that task deciding prejudice in this case was to take all of the in a trial all of the evidence was presented and the state abs proceed all of the evidence that was presented before the district court all of that evidence together take the best part and read and i prophesied as a new penalty phase correct ok and then also hypothesize the state's rebuttal of that case you think the judge did that i think he did and i  think i think what he says was that organic brain damage would explain no i'm requires the law requires for a prejudice to determination that all of that evidence be put them in the pot as it were and the case effectively retried without evidence because sometimes that the new evidence of better geisha in is so impeachable that there's no prejudice so you have to confront that problem and i didn't see that but i think he did i dealt with the evidence that he had there i'm talking about taking reconstructing this penalty phase by taking everything that had been presented and then then you take the but the best part of the evidence for the you said well they'd only present that and then you take the rebuttal evidence the cross examination of the state and then decide whether or not there's prejudice and i didn't say that but i understand your plot i think what he did was he talked in large part of the position the judge carnes took in dissent the first time around about the residual doubt and how there was actual it was a you know not just a residual doubt there was a mercy component of it this was consistent with that then he took the evidence that we presented in and talked about how the evidence we had and that there were problems with dr pachachi is that would be subject to cross examination by the defense and the state would have a competing been sufficient down to undermine our confidence in the outcome at the sentencing stage that obviously the standard is that there's a reasonable probability that post wigan's that there's a reason at least one juror because undermined i think it is a relatively an aggravated crime if you will it as i'd venture a guess that in today's day and age i doubt that they would even bring it as a death penalty case there's one victim there's a believe there was testimony from medical examiner that after that there was a blow to the back of the head that he believed that the person was unconscious the aggravating factors are that there was a robbery or that was committed during the course of another felony a b two aggravat or that some money was taken from the victim so i think it's relatively an aggravated also there is considerable there was a considerable work to do with the with a few of the state had some very compelling evidence that talked about it and actually i think went with if you will i think judge you called it mercy assuming guilt that type of strategy you this is a nother reason for mercy even if you don't connect it to the crime you can talk about how through no fault of his own he was you know he was run over by a car or truck on auto when he was two years old and as a result has had lifelong  difficulties and that's what was more fully developed in the state habeas hearing when mr jefferson's family was spoken to for more than probably the hour or so that they spent the trial the punishment in kentucky three days before the trial let's go back to the question judge show fight i asked you if we can use to her talent or the question was as i understand it whether either of the mental health experts americanas or really any of the three dudley americana is or price in words or substance said or strongly suggested that the frontal lobe organic brain damage would have caused or played a part in explaining the homicide the conduct of jefferson not that it might have not that it could have but in fact that it did play some part i don't think i did i cannot recall but i don't think explicitly any of them said that they talked about the deficits and the associated  three it changes the behavior of such a person for it means that he's quote less morally culpable because he's less able to control his behavior and then he says however quote someone over the head with a log it might have been a momentary fit of rage the operative word being might have which was not as common troll a book by someone who is impaired as it would be in a normal person who would have simply spoken to the man who worked it out in some other way then he says in the absence of any psychopathic or sociopathic tendency in jefferson and he said there was none it made it more likely that an occasional violent episode was the result of brain damage i think that's a pet the best you get could be a fair statement i would think i would think that would be about but i don't recall anything i didn't recall that specific best passage but i think that's probably about as close as you come to a causation you have to show causation you know succeed and i think answer is no why not druggy versus ten terms of this judge show five properly observes you've got to take all the old all the new put it in the hopper shake it up and say is there a reasonable probability i e sufficient to undermine confidence the result would have been different that is one juror reasonably show causation the jury can and in georgia especially the jury can consider anything as mitigation and they can impose that you know that sentence for any reason or no reason whatsoever i understand where you go and i think i agree with your point but actually in that case it was licably killed an innocent person so they were allowed to think that he was in full capet control of his faculties no problems and this happened where this type of mitigation evidence put him in a different light and puts the entire case in a different light because now you have a reason if if they're looking for causation you have a reason that this might have happened there's you know there's brain damage as dr pryce says his brain doesn't work like an ordinary brain works there are problems with it that affect his behavior and they said problems that he's had throughout his life his family describe some of the problems that he would fall out he would just for no reason   conscious standing up one minute on the ground the next that type of thing is classic mitigations classic it's exactly what the jury needs to decide a life and death decision that  like a mercy argument that that could be a mercy argument just just just have mercy on somebody who's suffering from this problem it could be and that's why i say it could be it would have been a consistent  well that's one way you could spin it i think you could also have this the characteristics the hallmark characteristics of frontal lobe damage you could use to explain why this inexplicable crime might have happened if you were going  residual doubt theory if you if you want to deny my looks or the testimony of the these experts and see if i could find something for example that would have justified colleague them in the guilt phase oh no i'm on the of the district court a deficient performance we've met the proper deficient performance pronk i think we have a whole host of red flags that schuster and or the trial attorney should and i think the important comment is that you were talking about before judge was after that outburst at the jail when and i think this is what's really important word judge dr dudley described mr jefferson's behavior of as agitated and disoriented or disorganized upset i think when confronted with that jefferson's response was i'm sorry i get that way sometimes so it's not an isolated episode i get that way sometimes man yeah man so that putting him on notice that this isn't a one time episode i think what's really i think very important and we didn't talk about it is the statement that he gave to police i described it the other day to one of my colleagues and coherent and she said that didn't do it justice i'm reading from the notes it's petitioner's exhibit thirteen these are what the the notes to the police officer i don't need to be around people i need to be executed i talk to myself i ain't crazy i don't know nothing i got hit by a car when i was a kid i can't read less that one i saw a man in my dream i call myself tony sometime i don't think i'm two people how quick can i be put to sleep i don't feel like anything about this or that statement after he's been arrested it's custodial statement in response to back being confronted with the police  we're charging you with this crime that statement alone would cause somebody to do mental health stuff but now on top of it we've got to of course they did do mental health stuff by the road in dudley and then dr dudley said i find this but i suspect organic brain damage and we need to do neuropsychological testing to determine if there's an organic ideology no reasonable tourney given those facts would have just punted no reasonable attorney would have failed to follow up on that regardless of whether it's two weeks from trial two months from tow or two years from trouble time and resources the time would only district court was entirely proper and the record clearly establishes that counsel didn't perform adequately i'd like to also judge marcus you talked about the conflict the district think this is important billing records from both cell and schuster that don't reflect any post post report conversations  in explanation he had an explanation about the belly he said he said it was some point it might not be complete i might have done more then but i think it's interesting to note that all of the phone calls that he had he's talking now the words you have pitched themselves as your argument i think the records impeach him right and i think the and mr sellers records also show phone calls before the report i think his were november work mr schuster's or in december and no phone calls after said january or february when the report is done so and then you have and i think this is important to go to the both the but superior court order and then the georgia supreme court of the never mention the fact that d specifically said i never told them not to pursue not pursue neuro psych testing i never told him he was just a criminal the but superior court order doesn't make mention of it and neither does the georgia supreme court or so i think there are no new fact finding the law suggests occurring back away been way back when the timeframe obtained here that findings by the highest court of the state are entitled to a presumption of correctness independent of any deference that we might keep to the trial court if the appellate court makes findings of fact they are presumptively correct how do we were view the findings of the supreme court they didn't make they did not make fact findings i think this quote particularly of the georgia supreme court the forty five page order in this case is well supported by citations to the record and adopted by the as his own we declined jefferson's invitation to accord the order less deference than mandated by o c ga nine eleven fifty two is the statute that says that findings of fact shall not be set aside unless clearly erroneous and due regard should be given to and yet it would list clearly they also say the same thing in the second paragraph of chief justice clark's opinion jefferson argument is all they found was that those were not clearly erroneous not that they were the actual facts are that contrary polar opposite facts would wrong doesn't this under georgia law it doesn't make facts right existing to determine whether or not there was a not but that term is enough evidence for the fact i can imagine a scenario where the georgia supreme court finds that the the lower court law there's no presumption where there's not a full and fair hearing anything else counts one second justification for how an otherwise largely inexplicably inexplicable crime could have occurred to substantially impacted them any mercy based your decision making on sentencing since it figures directly into the state of the murders mind and three weaken the aggravating circumstances of the crime so i think he's that the court is trying to consider all of the evidence both at trial and that was developed on an either never saw or overlooked so that's what i was referring to as they want you to think i was on your stand up on your argument them paraphrasing your roughly don't worry about the state collateral court ghostwriting because the in subsequent telephone conversation with jefferson's attorneys the psychologist indicated that further examination would not likely be beneficial because jefferson did not have serious mental health problems counsel explained that in light of this evidence as well as their own observations of jefferson and adamant are certain that he had not committed the crime they concluded that there was no reason to explore further any mental health issue i mean i'm sorry any minute issue or to call the psychologist to testify you have but that's that's adopting the state collateral court clearly erroneous you can't say we're going to review the facts only for clear or not to determine what we would decide if we were the fact finder and then when you're discussing the issues collateral court findings were not to be set aside because there was no lack of full and fair opportunity to develop the facts of which the supreme court united states specifically reversed  supreme court to send the case back to us and have us send the case back to the trial court to engage in this kind of fact finding if we were bound and they felt they were bound by the presumption of correctness by the georgia supreme court that is to say if they actually believe that the georgia supreme court had made its own independent findings rather than reviewing the trial court for clear era there would have been no reason for them to send it back unless they were prepared to say that the findings by the georgia supreme court were wrong so wrong that we couldn't have heard of them and that's not what they do here i mean at least they don't say a word about the get the petitioner a full and fair opportunity to develop the facts the supreme court of georgia here only a sleep over looked at didn't consider it didn't decide anything about it and merely determined that those flawed and defective fact findings were not clearly erroneous and therefore we're going to overlook the defect in the flaw in the fact findings that it is not sen