please the court very scary quote for the district court powerful evidence of a pervasive pattern of severe child abuse and to find his early years while the respondent property nothing on the basis of that record the district court readily identified the underlying factual dispute between the parties why evidence of parents child abuse never made it before his jury but then erred when it proceeded to draw a series of inferences in the respondents favor discounted terry's pro three underlying factual disputes issue st whether trial counsel presented all the evidence of child abuse of which they were aware nd whether terri's mitigation investigator or retained social history x or withheld evidence of child abuse from child or whether terri's trial counsel ignore or otherwise misread flags for child abuse in their own file three issues are material because they go to the core of terry's underlying claim that his trial counsel were ineffective any reasonably competent attorney would have reviewed the patient investigators knows what i've recognized and understood the significance of the child abuse documented there and what i where trial counsel described any strategic reason for not preventing this evidence and in this case there's no reason why they wouldn't there's no double as it was all mitigating and it would be consistent with their underlying strategy and consistent with  family members felt over his the possibility of an execution and child abuse which indicates not an empathy with the  indicated that they intended to provide evidence of child abuse and they did not describe a strategic reason for not doing so and beyond that you know both things did testify about the family being a black hole and the jury heard some  incidental descriptions of abuse that perry suffered so the idea that trial counsel presentation was inconsistent somehow with the evidence that federal hevia counsel on time or i think is not supported by the record and beyond but i'm and you can you can believe one of the although but it would it would be somewhat more difficult to believe both you know their words there was a good attempt to brain condition that's correct your honor but i think that our position on this is that the two forms of mitigation were actually consistent with each other and reinforced each other while the brain damage evidence is mitigating on its own and the child abuse evidence is mitigating on its own the two kinds of mitigation evidence together what have presented an even stronger case because as dr maddox's affidavit in federal court  indicated there is evidence that child abuse and severe trauma as a child can actually contribute to brain development and so strict and let me ask you a question if i could i'd like you to give us a conceptual framework here you're asking for martinez here is that correct yes you're ok could you repeat give us spend a standard of review that we need to apply in considering your arguments and specifically do we need to even consider prejudice in title meant a substantial claim that trial counsel were in effect there and that therefore we are not entitled to an enduring so i think that's the you know standard articulated in sigman is completely consistent with what we're asking for here which is just  release and so our view is that on rebound it would be appropriate but if we are really hearing under an abuse of discretion standard and if we're through viewing what seems to be a standard strickland claim we can of course of firm on any  judgment which is apparent from the record and i don't see you know you know there was a long debate over whether the standard for prejudice should be a reasonable possibility or a reasonable probability and of course the supreme court after that debate was cooking for a while decided on the reasonable probability standard which should mean something and i don't know the supreme court is also instructed us to turn st if we could to the prejudice prong of the strickland inquiry and i think that it's hard to blame the lawyer here for the fact that he had a very very difficult case brutally raping and and murdering this woman and then beatin her the death with trauma wounds on her her head and you have a confession here so the when all of these things and plus the forensic evidence all of these things leave there's no question of  here and above and beyond that what concerned me from this record was i didn't see any expression of remorse which is a really unusual n a s kinds of cases and you have this letter by mr terry saying quote it's still so good to hurt people unquote and then then on top of all that you have abusive past girlfriends and terrible prison record  an extensive criminal history and you know before the confession another really implausible standard of what what happened and so you find myself is i think it's wrong to blame attorneys for the fact that they have an almost impossible case given the absence of remorse and the brutality of the crime and the beating of the victim and the extensive criminal history and the misbehavior in jail and  and i don't think the best lawyer in the world could've could've turned this around it sometimes it's not the lawyer's fault and we blame the lawyers for the fact that  i think the courts would look to a lot of the supreme court cases that addressed strickland claims for example and wrong tell us the court was confronted with a situation where the client had basically committed and nearly identical crime just you know recently before the murder that put him on death row and the court nevertheless granted relief in that case because the court indicated that the the role that the court is supposed to play when it a sort of the that the expert her expert for you is this case the record shows that she did in fact talk to a number of these family members and knew at least about some of the abuses that terry had suffered that she made termination based on her expertise to see that the way to go in this case would be to not focus on the use so much as opposed to focusing on the neglect and so the question i have is of course you say that the lawyers really didn't make a considered judgment one way or the other but her silence i don't think by itself suggests a lack of a strategy or a lack of consideration of a strategy so assuming for the moment that the lawyers made that consider judgment with this that and that the ineffective assistance i know you say that these are not inconsistent but there is i think an inherent inconsistency in that in those theories and if the board had made that considered judgment and consulting is expert proof he be faulted for that so i think this case stronger is very similar to if not stronger than what happened and the nd winston case and that case the attorneys gave records relating to mitigation evidence to their expert their mental health expert nelson out and then they relied on what nelson did with those  school records without reviewing themselves and so i think to you know a significant extent this is similar in the sense that trial counsel here had before them and available to them i wouldn't of child abuse they even if what they did was give you know that evidence to their experts and say tell us what to present i think winston to stand for the proposition that that would be ineffective because trial counsel owes their client a duty of affective representation and the is it seems is very unlikely that having an expert interview all those people that can also simply and and there was no lack of diligence on the part of the expert because there were extensive extensive interviews but at the end of the day  case for a winning strategy were child abuse didn't add up and you know reminding you might disagree with that but we're told not to  guessing attorney after an adverse verdict and and in a case where the it wasn't as if the child abuse evidence wasn't examined which was which is the case with a lot of these situation is it you you say will how could you make a judgment if you didn't go down that road and some are and some of the cases that have been overturned have been situations where particulary wasn't even examined here it was examined extensively and the lawyers made a decision not to lubricate it i mean there was some evidence of child abuse but they made a decision after extensive examination by the expert not to lead it just i'm concerned that we are  record reflects him is full it was obviously aware of abuse because she presented evidence of abuse however again to focus at the time or trials and how did that abuse impact expert knew about that never made its way into the record and so i'm sort of puddle that to why having every taken a glancing blow it at the abuse evidence why why or why a lawyer would not have simply and there wasn't a lot of it or mention his parents also had two of his brothers arrested for been you know as a as a teenager as father broke to serious collarbone when the father and beat in a fight between jerry one of his question please i'm having difficulty here in a case involving a death sentence why the state would be opposing in evidence or hearing under martinez the there  exactly and so why wouldn't we want to have before allowing this execution to go forward why would we want to have an evidentiary hearing were counsel could explain these things it seems to me that martinez here has to be the guiding principle and if the defendant makes a or the petitioner makes a strong showing he doesn't have to carry the day under strickland in order to get t it to a certificate of appeal ability to showing that needs to be made under martinez hearing so what is the downside to you allowing an evidentiary hearing for the st time on this issue and have a the claims of prejudice as well as efficiency and that's right this is so true but under owen and under sigman you don't have to make the case in other words you don't have to prove the prejudiced wrong you just  outside the record on that kind of things but the things i was mentioning about the absence of remorse in the misbehavior and in jail an extensive criminal history and the don't want to go through the whole thing because we could be there all day i mean it's just some terrific stuff that the family now alleges occurred that the cherry and others in that in that family and getting back to sixteen  question i mean we have to assume in order to avoid an evidentiary hearing i guess we have to assume that all of that is correct that all that evidence is it is in fact accurate and  least the reason probability that one juror one juror because it's all of it would take would have opted for life instead of death and then you've got the testimony of the affidavit of of the psychiatric expert who suggests that had she known about that evidence it would have certainly made for a stronger case with respect to the origins of the brain damage and would have presented a much more compelling case  here as i understood it the jury did hear evidence that mr terry had had a difficult childhood and that is father viciously bade him that evidence w including the most poignant evidence or child abuse which was it is his father of viciously beat him so child abuse was investigated chop and abuse was presented to the council presented some really good points but you know since sometimes the greatest wizard in the world can spin a successful case out of the dismal facts that's the problem here it's not the problem is not kelso loop the problem of the facts of the crime in the behavior they're after that's the problem on this issue andrus vs texas a fact evacuees involve two murders and a number of the supreme court's recent decisions on prejudice have been fall highly aggravated fact and the supreme court has reiterated that even when there is a lot of evidence and aggravation the courts responsibility when it comes to assessing prejudice is to look at the full scope of the mitigation evidence that was an prevented together with the evidence that was presented and then details a substantial amount of evidence and aggravation but the conclusion on prejudice is one sided and so long and so it doesn't appear that the district court really fully grappled with this issue but beyond conclusion that it didn't matter whether the sevens would come in the result would be any different so how my question to you is how are we supposed to set the conclusion fine whatever you want to call it on appeal again strickland itself emphasized that prejudice is still a mixed question of fact and law and the underlying factual premise of terry assertion that he was prejudice hinges on not just the specific instances that the magistrate sort of broke apart and analyzed one by one on the full story that the jury didn't hear so what terry's jury heard was that his family was poor and they were hardworking and they did what they could he came home tired but they still love him what the jury didn't hear was an accurate portrayal of what harry's home life was actually what harry grew up in an environment where his father beat the children daily using his fists using about and that was before the jury was  t come down and shake your hands and thank you for the services to arms to our court but the fact that we are operating remotely doesn't