messenger was lost one of the messenger the battle was lost argued today that this proverb is a direct metaphor of the reason why my client anthony shore seeks this briefing today and ask for your reli received from mr schorr the battle that he has lost is the death sentence and the execution by lethal injection the nail the nail i would argue is the fact that he had a traumatic brain injury injury anthony shore and whether they relate that to your honor during the investigation and then by trial counsel it was determined that mr schorr and his  ports or her as a stand in a serious car accident in one thousand nine hundred one now that was further developed by federal habeas counsel and our investigator we found out that he also sustained another injury when he was a young man on a bicycle the shores application for certificate of appeal ability is based on three claims those three claims your honor are first ineffective assistance of counsel done by the trial counsel by not doing a proper investigation of mitigation circumstances also by trial counsel and support again of the first claim of not properly submitting evidence of traumatic brain injury to the trial court during punishment phase for mitigation and third again this is part of the first plan and effective assistance of counsel of trial express wishes or be followed so your honor i mean could my client's express wish if you're being followed by counsel your honor we believe that ignorance is not a strategy mr shore's decision this goes back for one of the nail was based off an accurate understanding of what evidence and defense you can raise any guidance you gave to callous all and there's very little of that on the record or on any guidance he gave the council was based off a misunderstanding that he did not have anything to explain well we doesn't that put us in that we can't we can't assume that can we that he had a misunderstanding or didn't know because the texas court of criminal appeals said viewing the record as the whole of the trial court implicitly and correctly ascertain that appellant made a competent knowing intelligent and voluntary waiver of his right to present mitigation evidence so it keeps can't argue now before us that he didn't understand when the state court has made a factual determination to the contrary can you under the deferential of the standards that we must follow isn't that a significant hurdle for you counsel daughter it is and i would like to point out two things on that subject first of all the waiver if a waiver is found we do not believe it can be found because the records not show that and i would say that for two reasons the first off during punishment there was an opening argument the state presented their case and then became the opportunity for mr short's counsel present his case record was any waiver before opening organs counsel reason why that's important your honour's is because it's in that opening oregon which the opening argument his counsel made to the jury in punishment that they first said that they believed that mr schorr deserved to die that he wanted to die that mr schorr knew he had known no available defense to explain his actions and that none could be presented this was all done before the judge or is counsel for anything in the record about whether or not there was a waiver and again our argument would fall back to your honor as when the waiver was actually brought up it was very simply the judge asking mr schorr if he agreed with what is counsel has said  understand you think it would be a bad thing to do for your client and i mean i understand the seriousness of the situation but what legal authority tells us we can disregard the factual findings of the state court state hey vs level and the tribal council level should have or could have been affected counsel we believe that because it was not offered to the state to have us level that mr shore's claim on the waiver  schorr or traumatic brain injury how it should have the same protections are you just raising this for preservation of a or at this point no your honor because don't we have from finding precedent in the fifth circuit the forecloses that argument and we are rule of orderliness court and therefore we can't do anything different even if you believe in if we agreed with you your honor we believe that that is true but we also believe that i briefing and also we're guarding the opinion given by a federal district court deals with whether or not we can procedurally bring some of these claims and present new evidence and i would like to address that very briefly before going to our lives they've was prevented by his counsel's failure to present these claims and that now we're able to present it for the first time at the federal habeas level because it's the same thing as whether he had no counsel or actually as we argued in effect of the council argument your honor our interpretation would be that first of all we are not aware of any guidance to state his counsel tell him not to present it and we also would argue that our client had no idea such a defense existed simply as a normal procedure and his pretrial questioning by the mitigation expert gave his life story and said yeah i was in a car accident a car accident which i was unconscious and one of the hospital and had surgery and tell gives us we believe the right to bring where new evidence is found that procedurally changes such as significant extent the original claims and flushes them out to more heavier claims the ability to admit new investigation by our expert who actually want an interview mr schorr to us and says a possible head trauma now based upon understanding that there were two possible issues of head trauma we conducted when requested or and given authorization by the courts to conduct an m r i that m r i and the expert opinion based upon the results of that m r i is new evidence we hang our hat on on arguing this traumatic brain injury effect which i will say very clearly to this the the second procedural area which was exhaustive claims we believe is covered by brown versus tell the third and again this is  believe that we are allowed to bring this claim through the miscarriage of justice exception we understand that to bring this exception we must show that our client was factually innocent either by guilt or punishment we're not here suited for this court verdict on the guilty verdict without any waiver any discussion out of present the jury or for the presence of the jury this was for short counsel that came third prosecutor in the courtroom and through their opening your argument basically state's position that full of arguments is listed there for your view also following the state's case at this point to all counsel and the court finally decide to put something on the record and that's when that his counsel did not present any argument and wassail it for the rest the trial finally the third act and that is what occurred after trial and this is what is important after trial federal hate is counsel discovered that mr schorr had an actionable real defense unlike what his lawyer told the jury prior to any waivers question with the judge again remind the court and i will say i will say again what is what his lawyer told the jury evidence is going to show he has no explanation for why he is the way he is he has no explanation for what he has done what we are saying is had he known about this traumatic brain injury mr schorr would have had that explanation would it because i don't think the experts establish between even the new experts and the alternative of fetal alcohol syndrome the mother drinking too much while you all the baby was in the womb and that either one of these effects could have an effect causing behavior abnormalities and anyone suffer from them but it could be any kind of behavior it could be emotional alber it i thought it was a very broad range of behavioral i've been around to if it wasn't would lead to violent destructive tendencies and it today is a much more well known and discussed issue amongst our population again this is brought about by reports in the media and movies and modern t v dealing with veterans returning with facts that change the way they behave we believe that one juror upon hearing this type of testimony could on the second special issue have found we're not saying that this is exactly why if he sure did this things that he did that we are saying it could be a problem with the briefing in this case not by prior counsel who may or may not have been an active based on your arguments i'm asking do we have can we consider this argument we believe that a record of a waiver could have been made by a trial counsel it could have been made by the trial court but it was not made and if you look at what was said it is difficult to find anything there because that waiver was not made properly and we believe it is unreliable and the reason why it's on the liable is how can one make a waiver even if a waiver is made if you feel is not know what he is waving finally one of the cases  a waiver if one if you find that a waiver was made was not made it with no in the later evidence he would put before the court namely that he had traumatic brain injury but is there any evidence other than the m r i that  actually was below average intelligence and a lot of supposition but is there any evidence that he actually suffered from not knowing right from judge the only evidence that we could possibly she claims and sure did this when he was between the ages of say three and five and she's only two or three years younger this is one of the things that we believe callista was ineffective in addressing during trial we believe they should have on cross who lives in houston trout council mitigation expert never interviewed him when we interviewed him which was not horribly thought in very easily and quickly he said i certainly would know two things one if my three or four year old son kill a kitten into it my three or four year old son stabbed a screwdriver into my baby daughter's head i don't have any recollection of that occurring and we believe that his test where th testimony ok thank you first it was the petitioner and not trial counsel that is responsible for the absence of mitigating evidence at trial second and more importantly even if he could somehow blame his attorneys for this there's absolutely no way on this record that he can prove prejudice the state's case against him was virtually insurmountable the state presented overwhelming and compelling evidence that anthony sure was a serial rapist and a serial murderer of young women and young girls it is difficult to imagine what any mitigating evidence was going to convince the jury in this case that a life sentence was appropriate rather than a death sentence and then finally the only way for him to get around these first two points is to argue for the creation of new constitutional law which this court in the supreme court has already acknowledged is teed barred and otherwise barred at the heart of this case obviously is the directive that he gave to counsel not to proceed to forego let me back up the directive to forgo a punishment case  that's exactly what it was it was specifically he told his attorneys that we can see this from the record that he did not want him to present a punishment case he wanted him to instruct the jury that to answer the special issues in a way that the death penalty resulted now in his brief there are a lot of issues that arise out of this however the only question before this court is whether reasonable jurors would disagree that he has overcome the presumption of correctness that attaches to the state courts finding that he did in fact direct his counsel to waive both evidence and argument and if you cannot overcome this presumption which we would argue he cannot then that forecloses his ineffective assistance of counsel claim your respect to do with  says the presumption obviously is that it's on the record but i don't think there's any precedent from the supreme court or from this court that would say that when it comes to matters of trial strategy which this isn't the c c a the court of criminal appeals said this was and i think even again the supreme court acknowledged that this is about the presentation of evidence for the decision not to say it's a matter of trial strategy that there has to be one any kind of knowing or voluntary waiver or even nor do they say that there has to be any kind of colloquy on the record in fact there are instances when they petition or may waive guilt or innocence punish our evidence in a in a child case in a capital case and decide to go for punishment and there's never been any kind of requirement that has to be on the record and so in  this case there is no firmly established law to that respect and because we are in federal havey it's the only question is whether he's overcome the deference that is afforded to the state court and he can't and if i can go back to the argument about the existence of the directive because that's what it was his instruction to counsel and the only thing that he has to rebut the presumption of correctness that applies to this he doesn't have any evidence he has no new evidence and as the district court correctly pointed out there's no affidavits from trial counsel there's nothing all he has is an alternative interpretation of the record and reasonable jurists are not going to find it debatable in that respect not only is it an interpreter an alternative interpretation the record it's one where he isolates a single sentence and he pulls it out of context he gives it an extremely narrow reading and says the only thing that his counsel or that his client really wanted was for the his attorneys not to argue and that's not the case you have to look at the record as a whole and if you look at the whole record you will see that at the beginning of the punishment phase counsel stood up during the opening arguments and told the jury this is that what i would do i don't think this is a good idea this is against my experience and my advice but my client wants me to tell you to answer the special issue is in a way that the death penalty will result and he didn't just want to be silent he wanted to get the government absolutely and that's what counsel indicated in the record was that he wanted the death penalty and he in t told the jury that he was going to sit silent with first with the exception of possibly some legal things he might say and he proceeded to sit silent through thirty five punishment witnesses making only certain a few objections and then when it came time for closing arguments counsel got back on the record and said you will remember your honor that this is what we did in the opening statements and then he again said hey i even went back to the same morning to make sure that this is what he wanted me to do and he informed me most insistently that this is what he wanted and then when they trial judge asked mr schorr if that was an accurate reading or an accurate what counsel said was accurate he said that's absolutely or that's a very accurate so i don't think there's any question in this case that he was asking his attorney to get him the death penalty but even if we could go behind the state court ruling in this regard which i know you are true should not is there going to be make it so that he's going to get the death penalty no your honor in fact i would say the very opposite is true there is a lot of evidence throughout the punishment phase from various witnesses and then it's argued even during closing arguments by the prosecutor about how smart and intelligent he is and so there's really no question about his competence his understanding i think that again i don't think we can go beyond that if we're going to go beyond if you want to read into counsel statements when he says when he tells the jury that this is against my advice i think we can read from that that he's telling his client i don't think this is a good idea in fact you know because he went back and asked him again are you sure this is what you want to do so there's really no question that he understood that the result of his actions was going to be the death penalty and that by foregoing a punishment defense that's precisely what would happen and not only did he understand that but counsel informed the jury that he wanted the jury to know that he thought he deserved that and if they thought that that's what he was deserved and he was fine with it so even if there were which there isn't any sort of knowing and waiver requirement there it is right there it's not one of those cases that we sometimes see where the person is despondent and suicidal or something and that they're not mentally capable he says i deserve to be punished in wants to die there is no issues at all with respect to his competence in fact i think the district court points out with respect to confidence  that the trial judge had just prior to punishment taking taken the the true please with respect to the two indecencies of the revocation of the indecency so he was the judge had assured himself in that respect of his competence so i don't think there's either irrespective and i don't want to take a lot of time from the court because we believe that there simply is no way for him to overcome well he just hasn't overcome that presumption but regardless even if he could like i said in my second point even if you were somehow able to blame his attorneys there's absolutely no way on this record for him to prove prejudice first of all his brain scan evidence and the other evidence of the affidavit from mr shore's father is foreclosed in this proceeding up in holster very clearly addresses that there's no issue about that and even if there weren't issue about it it would render his claim on exhausted and he absolutely cannot avail himself of martina's or trevino because to do that he would have to show a substantive underlying claim he simply cannot i believe the not the state firmly believes that he could have omitted this ineffective assistance of counsel claim all together from his state habeas petition and not been deficient because of his client's directive at trial so there's no way for him to get past a procedural bar but regardless pinholes to replies i think that the cases that we cited in our brief with respect to that i believe it was the u s and tried to make that very clear that when you confront a situation like this it's  controls and but again the district where i think we're in the alternative in the alternative in the alternative in a lot of instances and so let's say somehow this court could consider the brain damage evidence he still cannot prove prejudice on one hand we have to remember that it's not a little mountain he's climbing it's a huge mountain of x of aggravating and damaging evidence on punishment even aside from the three extraneous rapes and murders you have another extraneous rape you have several brought friends and his wife and his daughters talking about sexual assaults so you're talking about a huge amount and that he has to come in the mitigating evidence that he's presented in this case is in no way compelling the first part about his dad to do court clearly and correctly held that that's attacking a very tiny part of the evidence in this trial which was his sister's testimony about the kitten and about what he used to do when he was a young child obviously that that's a part of it but it's a small part of it wasn't even really touched that much in the the state's closing argument even beyond that and i think more importantly with respect to the brain damage evidence there is the district court called i tentative inconclusive and that's exactly what it is all you have in this case the only evidence you have is a brain scan that shows that the experts were to look at and said i think this is traumatic brain injury there's absolutely no clinical assessment of this particular defendant to try to link that to his behavior in this case and because he doesn't have that there is no reasonable jurist who's going to find that that was mitigating because all they're saying is it could possibly it might in other cases it tends to do this we have nothing connecting that we have nothing connecting the two and even if you did if you look at the things that was cited by the experts and they talk about difficulty with reasoning and problem solving that was one of the potential effects of the brain damage that he was showing what we have testimony in the record that he was superior to superior intelligence the prosecutor are argued during closing arguments that he probably smarter than the rest of us the the sexual offender counselor who testified said he had superior abstract reasoning so again just reiterating the point that we've got a list of potentials but we don't have anything saying that this is actually true of anthony shore in this case and then it you also have nothing that connects even if some of this were true even if he was impulsive you don't have anything that shows that the crimes that he committed were impulsive you have the opposite and you're not going to convince a jury that his stalking of these victims he comes prepared with the literature and with the dowel and he knows when their birthdays are and then he continues with the one sexual abuse victim to contact her the one he didn't kill that he was actually ironically proud of himself for being able to control his behavior and not kill her he continues to do this afterwards so you're not going to be able to connect these and show him whole city and so i'm not going to disputing that perhaps he doesn't have brain damage what we're saying is that there is absolutely no evidence connecting whatever possible damage he suffered to the crimes in this case enough to convince the jury to find that this serial killer should not be sentenced to death and you is rather brief and i'm happy to answer any questions but we just so firmly believe that there's no way that reasonable jurists are going to debate this case that unless you have additional questions we're going to give our time back to the court all right thank you we have the argument a couple of the claims made by the state and their argument the first one goes towards the waiver when trial counsel made their statements to the jury in opening wrong and simply the court now thirty minutes to forty five minutes later or several days later after the state's argument coming back and then trying to tell the jury well the proper waiver would tell the court that a proper waiver was done is simply inexcusable it was argued that perhaps mr schorr showed confidence in front of the jury during the waiver which is done during his pleading guilty to the indecency with a child charges which he was on probation for when he was later charged with capital murder he would argue that that is irrelevant we're not arguing that whether mr schorr was competent or not we are simply arguing that the traumatic brain injury that he suffered could have had an effect upon his moral culpability we're not saying that is the reason why he committed his crimes we are simply saying that it could be a compounding factor or reason that elevated himself from simply perhaps stalking someone to go on to the next horrible level which we've heard evidence of her state attorney go into of the rapes and murders he was later charging convicted of in this capital murder trial or also go into the sister's testimony i do understand this was a small portion of the state's argument during this punishment for the reason why we raise it as we believe as i'm sure it struck out to you when you read the fa perhaps some more of the salacious evidence against mr schorr by showing that to the jury as our public has seen in horror movies and serial killer books that he was murdering small animals and torturing children a young age effect upon that of the jury is dramatic we believe it is significant that it could have been challenging was not by an active effective counsel insurmountable burden again we believe that with a single juror someone who understands him believes that the effect of a traumatic brain injury something again our society is more familiar with and careful with and there were two decades ago yet fact of that upon the behavior of mr schorr could be enough to convince somebody that is moral culpability it was excusable thank you for my son i thank you for your court appointed we appreciate the work you put in on the braves and we are at recess