may please the court i am natalie armstead and i will be arguing this case on behalf of donald dallas mr dallas did not receive a fair trial why because the deputy attorney general who was forced to represent him in this capital murder case was conflicted the arkansas clearly established that of prior to trial a defense counsel makes a makes an objection to joint representation of conflicting interests and the trial court does not adequately inquire into that objection reversal is automatic dalla bama court of criminal appeals did not apply holloway when analyzing mr dallas's conflict but didn't hallway involve the representation of two co defendants in a criminal trial and isn't this a different situation here yeah sure are holloway did involve the representation of co defendants however the legal principle is still the same and the supreme court has held that it's the legal principle not the facts of a specific case that are what established a clearly established federal law more over the supreme court has specifically held that it's the language used in the holding not dicta in a case that governors whether something is clearly established here the holloway court repeatedly used the term joint representation of conflicting interests or simultaneous representation of conflicting interests rather than just using the term codefendant here we did still have joint representation of conflicting interests attorney igual cole on one hand represented donald dallas and on the other hand represented the state of alabama let me tell you the problem that i'm having with the argument maybe you can help me with  some years later the supreme court in meccans told us what they understood holloway to mean and the majority writing to the majority justice scalia wrote the following and tell me how we deal with it he says and i quote holloway thus creates an order an attic reversal rule only where defense counsel is forced to represent co defendants over  timely objection unless the trial court has determined that there is no conflict seems pretty clear that the supreme court took holloway to be confined to one circumstance were one lawyer represents co defendants sensually in the same case whether they're tried together or not and two there's got to be an objection and in the absence of both of those circumstances you're back with a different rule of the game and a call you it doesn't mean you're stuck with strickland but you've got to representation so i would st argue that that's just dicta and the clearly established language used in both solvent and holloway is that the one of those two cases applies any time there's joint representation of conflicting interests and the only difference between the two cases is whether an objection question we've said there's ticked and then there's supreme court dicta yeah and five members of the supreme court of the united states said the holloway rule of automatic reversal only applies where the point statement isn't necessarily meaning misreading it i think they did the language there it's just trying to differentiate it from situations when an objection was made i think they used co defendants but i think what they were really referring to was joint representation of conflicting interests and i would also point that court to would be georgia which is another supreme court case where they applied these frame right but they could have said the holloway rule creates an automatic reversal where the defense counsel is forced to represent two parties who have opposing the war conflicting interests over a timely objection but that's not how they put it and the reason of course was that his meccans explains is that it will do away with the kind of prejudice requirement that strickland imposes where you have the circumstance where the same lawyers representing two defendants criminal defendants co defendants same case timely objection because it's hard to under those circumstances it's really measuring prejudice is not an easy sort of thing to do and it's really unfair on so the court creates sort of this is this rule but i'm hard pressed to see how  is discussing the would case which is also a supreme court carry dealing with this it explains that was established that higher of us not just limited to co defendants but instead the act of representation of conflicting interests so i think the distinction is mickens is between concurrent or consecutive representation and i don't have the page number written down but i can find that in mickens where it discusses would before the robot will but i think that is what the language that kind of contradicts that previous sentence that it only applies to co defendants so i think macon's is really limited to the consecutive versus concurrent representation and here there is no doubt that we had concurrent representation establish a violation of the th amendment a defendant who raised no objection prior to trial must demonstrate actual conflict and adverse effect this shows that solomon is limited cases where no objection was made this court has also interpreted the difference between solomon and holloway as as to cases where their objection was mate and hamilton before this court held that solomon is limited to cases where no objection to joint representation was made trial prior to trial this is the only distinction between solomon and holloway which means that the c c a violated clearly established federal law by applying solomon and not how the way because there was no objection here so contrary to clearly established federal law the c c a never analyze this claim under holloway this means that this court must perform the holloway analysis de novo so the question becomes whether counsel made an objection with they did and whether the court adequately explored the nature of that objection prior to try or agricola objected to jointly representing both donald dallas and the office of the attorney general who represents the state of alabama as explained in stock in attorney has a significant risk of conflicts if you as allegiance to both parties of the litigation here i could call it clearly out allegiance to both the state of alabama and to donald dallas and he made this clear to the court just like holloway the trial court did not adequately explore the basis for defense counsel's representation that there was a conflict of interest the trial court did not give proper weight to agricola as representations that he felt conflicted at instead it disregarded these representations and held that and did not analyze the claim under the constitution as it should have as required by holloway but but such did involve a different circumstance where the criminal defense attorney was was representing not only the criminal defendant but also the attorney general personally and here we have a situation where it's not that direct of a conflict if there is a conflict representing a criminal defendant but also representing  one of the state agencies and i agree factually it different and i think the key language is whether or not the attorney has a significant risk of allegiance to two different parties and here agricola represented that he did in fact feel that he had allegiance to both parties under holloway the court was required to take that essentially as a statement under oath and could only decree only discredit his representation that he had a conflict under special circumstances so if it determined that the attorney was trying to delay the trial or for determined it was filed for some improper purpose he could discount those representations but aside subst unusual factors truth i understand the conflict that you're asserting the conflict will was where the same lawyer represented the defendant in this capital case and represented the park in the mental health department  which he was appointed as an attorney general said he was decided jacks to full discretion and control of the office of the attorney general let me ask the question this way what was the actual conflict between representing the defendant in this case and representing the department mental health in that class action it doesn't jump off that the that the page at me that the interests between his client and the capital case and the department were pitted against each other and it seems to me you have to really work hard to sort of dry out a theoretical possibility that if this and this and that then maybe there could be had by misapprehended or is there something more direct your honor i believe there is can i just clarify sure so you're asking if you apply sullivan what the actual conflict is right if it under the alternative argument that solomon applies so to show actual conflict under sol then you only have to show that the defendant o duties to parties who are the attorney owed duties to parties there st so here he still owed a duty to the state of alabama and the state of alabama was prosecuting donald dallas and that's where the actual conflict arises from because the state of alabama is a party to a capital trial does that answer your question i does there's nothing more direct than that i think that that is the direct nature i think that is a direct nature of the conflict because the parties what you're saying is as an appointed deputy attorney general to represent the department in this particular matter there was necessarily a conflict with the criminal defendant simply because he was representing the state in some corporate sense or its agency yes and i will point out that several courts have agreed that st there are several states that actually have laws against a deputy or special attorney general even if they're only working and civil matters representing defendants in capital cases and georgia is one of those states additionally  illinois and montana have both held in an actual conflict exists where defense counsel is a special attorney general even though limited specifically to non criminal work so seems important to me that he thought he had a conflict i mean regardless of anything else when he came to the judges that i have a conflict please take me off this case i mean your honor i completely agree and i think that is where we get into the adverse effect as well because he felt conflicted he removed himself from the process which automatically to in effect of representation he failed to investigate the guilt phase he failed to investigate mitigating evidence he failed to meet with his client he felt explore necessary experts and just over on the collected to prepare for this case he has even said in his rule thirty two deposition that he was spending fourteen to fifteen hours working for the state of alabama and he prioritized his duties to the state of alabama over his duties to donald atlas so if we get to the sol that he was actually conflict it was true and that we have to give credit to his statement that he personally felt conflicted and he felt they had a duty and in the language he was just serve two masters and under holloway back holloway we do we the court is supposed to credit that as the statement is made under oath what happens if we determine that hallway does not apply if there is no automatic reversal rule in effect what does that d defendant an opportunity to present evidence of actual conflict and adverse effect so if in fact this court finds holloway doesn't apply and that the c c a applied hot solid thing correctly it should still find that they unreasonably applied solid him by not giving mr dallas that opportunity proving actual conflict an adverse effect unnecessarily requires evidence outside the record to prove adverse effect you have to show either one that the attorney made a still on recently applied and it should remand this case for an evidentiary hearing an adverse effect so the fact that the court held a hearing on the motion to withdraw all you're saying is not sufficient that is not sufficient because under a solace in hearing it has to be post conviction because you have to show the conflict had an adverse effect on representation so you necessarily can't show that until after the trial is over so the c c a should have remanded for solomon hearing on whether those things occurred in a hearing like that has never occurred in this case we did proffer some evidence in the briefs of the type of evidence that could be presented at a hearing like that but it is not  it does not cover everything and mr dallas would be entitled to an opportunity to have such a hearing i i don't want to i want you to use with your time for what you think is important but i do think you have some things to talk about on the and effective assistance of counsel with regarding to the the medication case yes and i when you're ready i have a question about the procedural issues associated with it leigh so st i'd just like to point out that the trial court abused its discretion by claiming to consider this case on the merits but not wholly an eviden hearing and failing to assume the plaid facts are true and the mitigation under the shero standard the court was required to suman every fact played was true if it was not going to hold an eviden hearing since it was considering the claim on the merits in assessing prejudice the court musri weigh the evidence and aggravation against the total availability of mitigation evidence it did not do this because it discounted mitigation evidence that was plaid and it improperly increased aggravation evidence the most egregious example of this is that the district court considered mr dallas's rule thirty two petition aggravating evidence when it performed this balancing test it said in fact that the rule thirty to two petition was the most damning evidence of aggregation of aggravation before this court or any court to come in the future this is absolutely for ben and by the law the supreme court forbids punishing a person to loud and to do what the law plainly allows them to do additionally this is contrary to the facts because a petition is a legal document and mr dallas should not be faulting him for telling his mitigation story the court claimed that he was throwing his family members under the bus when he was mean merely plenty of facts that were true and thought that him for th ruling because that is not subject to this appeal so the court ruled that that rule was not friendly established and regularly followed and the state did not cross appeal that today so i believe this court has to accept that ruling at this point because it's not a matter of this appeal and i think we did submit a supplemental appendix with the whole ins on that and they did hold let me see if i have a case sorry  just give me one second i think the best support is that at the time of mr dallas's case which was what we have to go by not what happened after the rules were applied inconsistently and the district court found that ruling and that i guess i would stick with it's not subject to this appeal now if the court would like supplemental briefing on that we can provide it but since it isn't since it was not raised in this appeal i don't think it can bar federal review  for the purpose of my question counsel that there's no procedural bar a default district court went off on the merits the novo on the issue of prejudice help me with that tell me why the district court was wrong that is to say if you added together all of the new with all of the old all of the good with all of the bad there would be a substantial likelihood the result might have been different that is to say a sufficient likelihood undermining confidence in the result absolutely and there's a couple of reasons why that is the case and i think wigan's are on point here because here a lot of the missing mitigation evidence was even more substantial than the missing mitigation in those cases so i know those cases tell me it seems to me when i looked at it that much of that was cumulative although i explained in greater detail the assertions that were made at the guilt stage and the penalty stage but that some things were new yes that were not presented at all perhaps the most salient one was the claimed that the defendant had been sexually assaulted as a child that seems to me to be what was new or different i would contain only other difference that i could see other than expanding the details was the  nd mental health expert benedict hads the assertion that the defendant was suffering from attention deficit disorder and that was yes sure and i think there's a few more but those are probably what i point out is the two main points ok but as a nd and i will go through the things that i think are new but as a nd point i'd also like to point out that the details actually do matter in this case  is done on a case by case analysis in this case the court specifically said that it was not giving great weight to the defendant's turbulent upbringing so here any detail about the upbringing could have affected the trial judge's decision when it made that when it made that statement so the details are not just cumulative because there's a reasonable probability they would have affected the judge's view of the situation and as your honor mentioned there are several new things i think the biggest new thing being that donald was raped by a fifty nine year old man when he was a child and then was forced to watch the same man raped his crowther on top of that although the house was described to help me with that wasn't there evidence though from the sister cindy who said that she had sustained sexual assault as a child and her brother the defendant knew that so yes he was aware of he was aware in this violent home that she had been the victim animals and urine and mr dallas was even bit by a rat and his whole that is evidence that was not presented at the trial also the evidence of cognitive disorders in a d h to you that you mention that those cause problems with his executive functioning affected his thought process and made him more susceptible to the influence of others that was not presented and i know it's very important because it played right into the defense's defense at the church at the penalty phase impairment he did not say what but then he said it was a cognitive impairment that he had sustained and he was suffering from it but that was in the context of his evaluation of whether he was competent to state trial not in the context of mitigation thank may please the court my name is henry johnson i represent the respondents to begin with the st issue holloway of york inside does not apply to donald else his claim and holloway the court set forth the rule that whatever a trial court improperly requires joint representation over timely objection reversals automatic and it's important to remember the context in which hallway was decided and holloway a single public defender was appointed to represent three good co defendants and he objected multiple times both before and during trial asking the trial judge to appoint separate counsel for two of the co defendants because he couldn't represent all three the trial court refused did not hold a hearing and also  refused to allow him to cross examine any of the three on behalf of the other two and explaining its decision in holloway the supreme court emphasized the joint where presentation is suspect because what it tends to prevent these honey from doing in that the evil that accompanies don't representation is what the advocate finds himself compelled to refrain from doing not only a trial but also as a possible plea pretrial plea negotiations were sentencing and other words representing co defendants is very that's what holloway was all about and as your honor mentioned in mickens retailer the supreme court has clarified for us with the law as in two thousand and two in that is the holloway created an automatic reversal world only were defense counsel was forced to represent co defendants over his timely objection i know we have our standards of review about this but and i also know you were not there twenty four years ago when agricola said i've got a conflict please let me off this case but don't in your private moments don't you kind of wish everybody had said ok yeah you're right you can get off this case because now we would be standing here twenty four years later talking about it i mean i get your honour's questions and concerns but this isn't at the case and the supreme court even if you would consider mickens i mean has told us that these cases are about co defendants and this is not a case where you had co defendants this is a case where you had an attorney who was simultaneously representing the department of mental health and mental retardation  and on dialysis and look and it's even a question as to whether sullivan applies here or just simply strictly washington because in sullivan in order to establish a violation amendment defendant must demonstrate that an actual conflict of interest st of all actual conflict of interest to adversely affected his lawyers performance and here is the cortical appeals found there was no actual conflict of interest because the interests of the department of mental health and donald ellis were never in any way in conflict and it's important to note also just stepping back real quick in mickens the supreme court has clarified that whether sullivan applies outside the scope of multiple concurrent representation which is also known as joint representation and or representation it's an open question and in fact it's  important to note that the supreme court has never found a violation of the th amendment right to where a conflict of interest arose in a situation not involving a lawyers concurrent representation of multiple defendants there's never been a case outside the multiple concurrent representation other words co defendants she says the conflict in here is in representing the state court and and the defendant on the other simple as that and you don't have to show more you don't have to show any particular arity as to how those interests are pitted against each other it's enough as a general matter that on the one hand a lawyer is representing the state and on the other hand he's representing the defendant when the state is prosecuting how be it in a different proceeding in a different form with respect to my friend i would say that i have a disagreement with that that there's more that you have to show you have to show an actual conflict interest which adversely affected the the performance of the attorney i take it your position is there's no clearly established law that supports her position that's absolutely my position your honor and in looking one more time  retailer and as the court of criminal appeals reasonably found here dallas failed to show that agricola the attorney labored under an actual conflict of interest that affected counsel's performance as opposed to a mere theoretical division of loyalties  mere theoretical division of loyalty and i would submit that on this record dallas is not even shown at the racial division of loyalties occurred in this case well we do we don't believe i mean the district court primarily focused its decision with respect to the i c penalty phase claims on prejudice so not performance so that's my question i mean  you're not contesting that is performance was deficient but we're not conceding that it was deficient but we're focusing like the district court did on the prejudiced aspect well it's my understanding and i include sure that you understand the case better than i do but that he never neither agriculture nor duffy ever talked to any of the mitigation witnesses until after mr dallas had been convicted right before they put him on the stand i mean that's i mean that is a fact in this case is that there's actually a fact that the dispute your honor and i would point to the testimony of jeff duffy his other trial counsel regarding the mother  dallas he said that he took her call a couple of times before the trial but dallas had told him not to speak with her and therefore he didn't speak with ok so maybe he talked to her on the phone maybe he didn't but other than that i mean they were they were putting the mitigation witnesses on the stand without ever having talked to them and not really know what they were going to say well susan james there mitigation investigator and actually the through they hired five days before the trial that's correct you honor but it is interesting to look at the dynamics of this case susan james jeff duffy and al agricola had all worked together in a law firm for three years and they all came together again for this case and and so susan james was a very well experience trial attorney who had also been larry that medication but i mean if you don't have time to to you know put your experience to use i mean five days before the trial they hire her and i believe she did the best that she could under the heinous nature of the crime that we're discussing and going back to this turning to the issue number two if i may your honour's and part of why nobody up here is contesting the fact that this was a heinous crime and i know we have family here and and it's you know we're horrified about what happened to your family member and we are so sorry dallas still has a right to a trial and so we've got to talk about that so you know when i've read about   mentioned about her being molested and this is the question was now to mr dallas a sister can you tell us any specific instances of violence that did occur in the home that donna would know about answer yes question can you tell us what specific instance answer when i was molested a question anything else answer i don't know i mean there's just no follow up there's no and the fact was he had been molested and it worked well that's something we would dispute but i believe that your question your honor goes more to the effect was distance in terms of the deficient performance brought not to the prejudice wrong and that's what ault briefly address right now i mean it's important understand that there were four aggravating circumstances here that this was a robbery this was a kidnapping dallas was previously convicted of a felony involving the use of threat of violence to the person and that of course this capital offense was especially heinous atrocious and cruel is part of it is that overview the district court weighed the totality of the new mitigation evidence along with the old mitigation evidence against there was simply don't prejudice here and that was mainly because of what you wanted as marcus was was mentioning before that the evidence offered before the district court was in large part ninety percent cumulative well let's talk about what wasn't certainly it's clear that what comes out later are at least two things that are different the most salient of which were one that the nd mental health expert says that the defendant suffered from attention deficit disorder that was not an opinion offered by a run pro the st mental health expert that's recalled by mr dowse at the trial at the guilt phase and the nd thing that was new was that he had been the victim allegedly  sexual assault what about those two things even if you are right that the other stuff is cumulative the other stuff of course details at length things that have been mentioned but not in the same detail but let's talk about what's new what's new the st thing that is new dr benedict care argument is what was new was so significant that when added to the totality of the old there is a reasonable likelihood the result would have been different that's a standard we're charged with applying yes sure well the district court made short shrift of the a d h d diagnosis and saying and compared to the facts of the crime in the four aggravating circumstances that especially in light of dr run for his testimony although he didn't mention the a d s deed diagnosis and some of the cognitive deficit the doctor benedict was basically cumulative a doctor run for  said he was below average intelligence so the evidence proffered before the district court of actually district court to actually been more harmful than the evidence that was actually proffered trial turning to the sexual abuse allegation  allegation st appears and in an affidavit by his brother donald else's brother paul dallas in two thousand and seven that submitted to the district court as a district court correctly held and it's a very lengthy opinion dallas alleged no specific facts furnished no evidence showing that he ever informed his trial counsel or his mitigation expert that he had been sexually assaulted in the manner alleged in his brother polls affidavit so i'm just used the position of the save alabama the burden on the death row inmate to come forward and say i was sexually b s as a child that's not that no your honor that's not the law the law is certainly that they have a duty to investigate but the point is that there was no facts proffered to the district court the dallas did ever mention any of this that there was never any discussion if there ever is there any evidence that they were asked is there any evidence from the attorneys who represented mr doubts that they asked dallas in words or substance whether it was duffy agricola or susan james we ever assaulted sexually or otherwise i have no evidence out there is nothing in the rules thirty two dollars hearing that they were ever asked that and there's nothing that they were offered by way of the affidavit right one way or the other one way or the other no your honor that we certainly know they asked in the night his sister because his sister was asked on the stand whether she was molested and  scope of that i mean that was pretty limited i agree with you nothing else limited but she wasn't asked whether her brother whether her brother was ever sexually assaulted rank she was not asked that and so what she testified to before the jury was that she was the victim of sexual assault and that her brother was aware of it and that her brother was away and that house was a particularly violent one she described as quote that that's correct your honor she did describe it as hell  but going back to the how the district court handled the sexual abuse allegations it paid them great deal of attention in fact a page to fifty two of the district court opinion it wrote about us reading i want to make sure i get it right the most compelling piece of new mitigating evidence presented by petitioner to this court is the assertion by petitioners brother paul dallas and then it goes on to explain what that was and then the district court considers that assumes it to be true under  in finds that weighed against the totality of the aggravating evidence especially the egregiously heinous nature of the capital offense paul dallas's affidavit still does not satisfy the prejudice prong of struggle and that was how the district court analyzed this claim there's evidence that they were sexually molested by the same person who made the other child watch and so paul there are testifying as and the question t trial was to from duff from duffy was i'm not going to make you repeat a lot about what cindy said it but is there any differences and what she said about your upbringing and your background in that and the answer was no sir so that you know i guess i keep trying to get you to say you're not contesting the fact that this was deficient performance during the penalty phase again  i conceding that it was deficient performance but i know and i'm trying to understand by focusing your honor on the prejudice from because that's what the district court the district court shows the folks in the prejudiced wrong and if you can focus and dispose of a case on prejudice you don't have to address deficient performance that that's what i'm trying to try to base my argument on as saying why the district where should be affirmed let me go back to something you just said a moment or two ago you pointed out what the district court concluded but that's not a finding of fact to which we owe any differences and that is to say the district court said yes it's true that there was new evidence about sexual assault that came in  but it wouldn't make a difference when weighed against the particularly egregious aggravators most particularly the horrific deaths that the victim sustained that's correct your honor that's what the district court found that find fact finding by the district judge to which we are obliged to differ well there is there is there any fact finding by the district judge here to which we have to differ in terms of doesn't mean it's wrong  just saying are we not obliged to look at this the novel when asked the same question he asked that when you add the new to the old the good and the bad you shake it up and you ask is there a reason likelihood the result would be different yes judge marcus about a determination we make to know though just as the district court was required to make without giving any deference to the state court because the state court the trial yes your honor i would concede that's correct moving on briefly just to touch on the rd issue is my friend about the procedural default at issue here there are two separate issues there timeliness issue which was ruled upon by judge  thompson many many years ago and and then the procedural default issue which is before this court it's a compass within the certificate of appeal ability because the nd issue is whether the but if you're right why should we fuss with it why should we why should we just take the issue just the way the district court did look at it and over when asked the same question and not struggle with whether or not there was a a tolling or a default here it's a tricky kind of question the default whether it was  by the filing of the post trial motions it is trend that's not squarely answered by maples right it isn't but maples is very influential and i would say that the reason that the district court had never ruled on the procedural we've maintained for eighteen years and it's clearly an issue that is before this court now we obliged to answer that question your and your honor certainly not obliged to it of course neither there was a district or neither did the mabel's is perhaps the way mabel's came up the petitioner and mabel's missed his time for filing his notice of appeal just like dallas  to the way he phrased his his his argument was that the alabama rules the forty due to time for fine the notice of appeal were not firmly established or regularly followed which is the you yes thank you your honor the office of the attorney general just argued that a deputy attorney general did not have a conflict when he concurrently represented mr dallas when making this argument he said that the supreme court had never applied solvent or holloway to a case involving not involving co defendants this is not true and would be georgia the case the supreme court on their own merits remanded a case because they believe d there was a conflict where an attorney represented both employees who were being fined and their employer who had represented he was going to pay that fine that is not co defendants them lawyer was not a party to this case say when discussing it they say moreover the possibility that counsel was actively representing the conflicting interests of employer and defendant was sufficiently apparent at the time of the revocation hearing to pose upon the court a duty to inquire further so they're even in mickens their interpretating there and tempering would to say that you have to make this inquiry any time there's active representation of conflicting interests and not just limiting the case and of course the court recognized would be cited would be discussed would st page and a half yes and there was nothing in would they thought that altered this general proposition if you were right there would have been no reason for them to have added this and i think the focus of that st quote your reasoning should be the simultaneous i think simultaneous representation of conflicting interests can be interchange with simultaneous represent of code folks charged at the same time with the same crime but the language of holloway and it's a holding which the square has supplied specifically says joint representation of conflicting interests and judge martin jumping over to the procedural default there's a few things i want to point out the st is you asked for cases and those are forty three ga coverage this and also the there is an alabama case called ex parte hill that was decided in two thousand and their its head that the motion did toll the timing for filing so as counsel said that this has been firmly established since one thousand nine hundred and nine that is not true as until two thousand they were still holding in some cases that the time was told but importantly i want to jump to the fact that we don't even have to get there because this claim was defaulted when it was abandoned by council the district the rule thirty two  directly said the claim is a ban in brown levy halley this court's authority clearly holds that when a claim is abandoned its procedurally defaulted so the procedural default occurred early r and a later problem does not grant an earlier procedural default so here the claim was procedurally defaulted when it was abandoned at trial and therefore martinez squarely applies because martinez provides cause and prejudice to excuse a default when counsel is in effect evidence that true was true if ailed to do so it undermined the evidence impermissibly for example with pas affidavit it's sad that it was giving it less credit because paul did not make a timely outcry and because there was no perpetrator arrested that is improper at this point because at this point the district court was required to assume facts were true if failed to do so mr dallas entitle to a new trial st he's retired  entitle to automatic reversal under holloway nd if the court reaches the mitigation claim he is entitled to every man for a hearing on whether or not he can prove the claims pled in his petition thank you very much thank you both th