that so just so that we proceed to really get what your focus is and you make your strongest argument on this that because for them to get through that they have to get through the martinez shoot right they have to excuse their default under martinez martinez offers the only viable i idea of excuse them defaults but unfortunately for them martinez does not excuse the defaults so but in terms of the record as it was developed there was a quick p c r right after that was going along at the same time as the direct appeal that had to do with the right hand left hand is that correct that's not the i a c that is of the procedural posture of the case when it came to hey b s is that during the direct appeal proceedings p c r counsel in initial p c r partition while the appeal was still proceeding in raising the single claim of new evidence the arizona supreme court considered that p c r claim in addition with its appellate review and denied relief on it and then it went back to the trial court any pelle had a second p c r proceeding in wh raised new claims of our ineffective assistance of trial and that was with a new lawyer not villareal that was with a new lawyer not below rio and the court the state court found that all of those claims were precluded because they had not been raised in the initial p c r proceeding and alternatively found the claims all lacked merit and dismissed on what basis was a superior court right that was the trial court yes so what specifically did the order say there the order said that it went over the claims that a poll had raised it said that it counted the claims were precluded because they had not been a raised in the initial p c r proceeding and then said alternatively and then cited strickland's deficient performance and prejudice progs and found that the claims not to m so it's your position that the superior court not only said it was procedurally defaulted but then went to heaven but did a merits to terminations yes your honor and the court's order says that they did it merits determination that i said alternatively i consider these claims under the strickland prejudiced and deficient performance wrong and found that they lack merit and dismiss him on that basis as well then it goes to the arizona supreme court right at some point it makes it there and then the p c r petition was reviewed by the was they appeal the denial of the peace or petition to the supreme court which some are summarily denied review so the trial court's decision is the last reasoned decision on these issues ok so your position then at this point so that's the record that we're basically reviewing and that's what was before judge silver that is correct your honor and judge silver initially found that the claims were procedurally defaulted correctly then after the supreme court's decision in martinez she revisited her findings of procedural default however she did not find that the claims were excused or martinez relying on th only hope is to excuse these claims are new martina's but he cannot excuse the claims in a machine as for two reasons well if did judge silver really make that finding or did should solve or just the court denied the motion for reconsideration explaining that she had not excused the default on her martina's she had simply found that the claims were not perceive fully defaulted at all and in her response to a motion for reconsideration she makes that  ok so then from your perspective as we're reviewing this tell me the standard of reviews and it's still your position that there procedurally defaulted and if you could give me your a summary of your best argument on that and then go from there and say if i'm just going hypothetically if say for it because we haven't discussed the case so i'm not representing i'm asking you hypothetically if we were to find that that it makes it through for that we can review it on the merits what but the standard of review well and then and then if we got to the merits then to discuss the prejudice prong well there's there's three steps that are has to get through before he can get relief on this plane first yes to show that the  no review he would be entitled to really he fails on all three but my best argument i've already made my argument for why there procedurally defaulted why the procedural default is not excused on martino's there are two reasons one is that martinez excuse they narrow and limited circumstances that just or described in martina's do not apply here as recently the supreme court in dollar d v d this explained that the  because that concern was not present with those claims the concerned that the claims would never be heard by any court was not present in martinez did not apply here a poet has had his claims heard by one court the state trial court heard his claims he has had his her claims heard by one court and what he does not require them to be heard again martinez does not apply to excuses d faults what if this is hypothetical again but what if the panel were to look at that on the i c and it's essentially the failure to investigate that part of it if that if if if the panel were to conclude  no reasonable jurist could conclude that that was not the first prong of strict on that that you know i'm not going to germany not looking you know all of it if no one if if if there be no reasonable juror assert no fair minded jurors could conclude that then what happens does that get through if it does i get through the enemies tend to get to the merits no we still established federal law which is the clearly established federal law that existed at the time of the state court's decisions so when considering what a reasonable jurors would have done that's not the standard the standard is whether or not it was an unreasonable application of clearly established federal law that existed at the time of the state court's decision and at the time of the state court's decision the supreme court had decided strickland darden and berger and in each of those cases the claim had been raised that council had failed to adequately investigate mitigation and the supreme court denied those claims in each of those cases and those cases provide the clearly established law that then that the state court was obligated to reasonably apply and looking at those cases it's unquestionable that the senate court did in strickland the supreme court stressed that in considering a reasonable of the a reasonableness investigation claim it does not hinge on what evidence may have been found during the investigation it's what the council knew at the time he decided not to investigate further and whether or not that provided a reasonable basis for him not to investigate further well sh capital cases you know going back a long time even you know that's a bad childhood mental illness you know it all of those type of things have always i mean it pretty much been around to that that's one thing that you may not percentage but you investigate it and look at it as possible mitigation and the way that a pelt was presented in the penalty phase w basically well you know his childhood was somewhat normal that he was in the military but as it turns out i guess he he they got him out of the major military because of you know mental illness and it's just skiver that he had a very poor growing up with an abusive father that he was sexually abused and there's those type of things wouldn't those be the type of things that are pretty standard investing you know investigation well in the military here the defense council did present evidence of the military discharge and just not that really the mitigation but the the mental illness for which it was discharged the evidence that was presented the atkins hearing that that indicates that the code used on those mental discharge papers was that the mental illness for which he was discharged was homosexuality so i don't know if that homosexuality is a mitigating factor i don't i don't think it is but if you look at berger and considering those facts and that fact in that case the defense counsel present in absolutely no mitigation evidence whatsoever and he did so in two different sensing hearings because the court list all of the horrible her friend is childhood the berger had he his childhood the baseball child pairs in comparison to what berger experienced as a poor child hood and the defense counsel talked to his mother and knew he had a bad childhood but did nothing further do not investigate anything further at all and the court found that that was not deficient performance it said granted defense counsel could have done more but in ineffectiveness assistance claims it's not what is good or what is prudent but only what is constitutionally compelled and that is the guidance that the supreme court was providing to state courts at that time and the state the supreme court in strictly in dargon in berger repeated they stressed that digital deference to counsel's decisions was paramount and with that kind of guy does not clearly establish federal law at the time  the state court's decision the state court did not apply any of those cases i know i'm monopolizing your time and to an extent but i just want to have these questions answered and then so that's what i'm here  about other side so if you would humor me here let's let's assume that everything that is this now discovered in a part of the record that would be part of this record explain to me how if he went back if now putting all of that and front of a judge would there be a different answer with the facts of this case and expects playing to meet that if this court that i know that basically that the facts that you probably put that were argued were that he and his brother and the girlfriend decided that they were going to get they were going to try to get money from women and that they were going to try to marry someone and then he actually went forward and spent two months trying to get bought life insurance policies and some didn't work and then finally in the right after he finally got one that worked then they took part in the murder which had was had fairly a planned for months the crime that he committed he met cindy he courted her he married her he convinced her to care about him all the while knowing that he planned to murder her and then as soon as her life insurance policy took effect he turned from the loving husband that she thought he was into a kidnapper and shoved her in the trunk of her car drove her out to the desert beat and stabbed her cutting her in the neck so bad he almost decap under those circumstances and then also the fact that even if the psychological evidence that april had presented says that he had wanted to present the state would have been able to rebut that would at with evidence that  antisocial personality disorder and numerous courts have found that that is that is literally double edged evidence that that kind of evidence is is overwhelming in in claim was an unreasonable application of clearly established federal law the court has tics find a way to excuse those default and there is no legally viable way to excuse those defaults martinez does not excuse the default because the equable could turn that in martina's does not apply and secondly under martnez a pope has to show that his first p c r counsel where the claim should have been raised was ineffective under strickland that requires a showing of deficient performance and prejudice but the state courts alternative merits ruling in the second p c r negates any rational argument that there was a result realty that if a pilot had raised his claims in the first p that the court would have granted really the only difference between the claims being raised in the first p c r and in the second p c r was timing and timing did not affect the merits of the claims at all he cannot show prejudice father beat him daily with sticks and his fists that he killed the family dog that he locked michael and his brother in the basement and torture them beat them on their genitals or that this abuse drove michael to his first suicide attempt at age seven judge he never heard that michael was educated in a school for intellectually disabled children where he struggled to keep up with his peers and that at age sixteen michael preferred the company of his ten and eleven year old cousins because they played games he could understand due to trial counsel's ineffectiveness and the court's refusal to fund the tools of a defense judge being was deprived of hearing lifesaving mitigation and he sentenced michael to die what would they have looked full to to mitigate this case i realize you're not required to to know what the mitigation evidence would be but what kind of evidence would mitigated considering the facts of this case what kind of evidence would you have tried to find well there's no doubt that the facts of this crime are tragic but as judged over recognized in the district court in order to succeed on his claim of ineffective assistance of counsel mr apell does not need to prove that the mitigation would have outweighed the aggravation he merely needs to prove that and sufficient mitigation to undermine confidence in the outcome and the second post conviction proceedings the one thousand nine hundred five post conviction proceedings there was substantial evidence of mitigation presented and far more since then including this incredibly abusive upbringing there was evidence from michael's brother that their father rudi senior was actually a nazi he was clearly sadistic he regularly beat the family sexually assaulted michael's mother and his sisters but i think that those are all really bad obviously i don't disagree with you on that point at all but i'm trying to from the standpoint going back to my days as a trial lawyer and as a trial judge and seeing what what jurors and what what they do is sometimes you have these things and the person is charged with say a sexual assault crime on someone and being sexually abused kind of it it resonates more with that type of the  founts this offense here being really plotting for money which is tends to be looked upon in many ways by jurors and judges as being  most cold blooded in terms of and then that he had offered it's this is not an impulsive crime it goes on over it it's a plotting crime that took a lot of planning and then every time and he lives with this woman for two months you know allegedly sleeps in her bed all of those things and then every time and they don't get the life insurance policy right away he has so many opportunities to jump off and reconsider what he's doing and he never and they do this and he still has this great friend and he gets his brother and solved and then even after and then immediately the second that they've got the life insurance policy in place they take her out and commit a really hannah's crime on her and then they even go to bringing in this homeless guy to make a call and a subterfuge it's i mean it's very plodding it's very over a long period of time so you don't have the impulsiveness that say or you don't have the compulsion that you might have with a sexual predator that so that's where connect the dots for me on that well i mean if those are hard facts to overcome they're certainly did and it's like ok so you had a bad life you still you know you still you're a bad person well michael not only had a bad life he had it just an incredibly abusive upbringing and credibly what abusive upbringing but the facts about his father tying up michael and his brother rudy in the basement and torturing them these are facts that have an impact on the sentence or and the six and then this overlapping f or an f five aggravators so in order to undermine confidence in the outcome mr april doesn't need to show that the crime was impulsive or that his mitigating background caused impulsiveness or caused him to commit this crime these are the sorts of mitigators that have been found by this circuit and the u s supreme court to be classic mitigation and it started from and started from before michael was was born his mother thought that she had been sterilized and did not want any more children with her abusive husband he sexually assaults her and she becomes pregnant with michael and then his entire life was being beaten living in extreme poverty he has struggled incredibly even in his school for intellectually disabled children there was a there was evidence in the atkins hearing that a teacher's aide found his behavior so noteworthy that she wrote her thesis about him he was in the military he was discharged from and torn adequacy whether that was homosexuality or something else the fact is he he never really had a successful life and i do think that it undermines confidence i guess the question i have for you is this to court this case recognized that mitigation evidence was not presented i think we can all agree it wasn't presented and was assume for a moment that villareal blew it and to his performance i did not see the district court explain why the mitigation evidence here the question the judge ferrous asked i don't i don't see this would explain why that mitigation of events would have made a difference i see the vista court clearly said mitigation evidence is classic mitigation evidence it should've been presented but i think at this stage in the game we have to go a little bit further than that we have to say under ed why would that have made why would that have been a reasonable probability of a different outcome the district court ever engage in that analysis while the district court definitely pointing to this circuit's history of finding ineffective assistance of counsel in other highly aggravated cases with very tragic facts that you know i don't know what to say other than this is the sort of mitigation that that does have an impact on sentence earners it's humanizes the shows all true and i again this is this is a very gross analogy simply i'm not equating your person with this person but you know if adolf hitler came in and said i had a really bad childhood and that my sensing here in the north at the nerve burn trials my didn't present any of the mitigating evidence for me i could see that you know the warrant the nuremberg court saying well ok even if we had known about the fact that you had a rough childhood we're still giving you the death penalty now i'm not saying your client is the same  of hitler but there has to be some analysis as to why it in fact would have mattered why it would have changed things and i didn't i didn't see the just according gauging that analysis at all i want to make sure i have missed something in the sentence or hears this sort of lifesaving evidence they're inspired to sentence the defendant and we don't have to prove it in every case the oh i agree but i guess i guess i'm going back to what is the court wrote sir can you point to me in the actual record where that is to court said that this mitigation evidence was so powerful that despite the very ugly nature of this crime the trial judge would have done something differently i'm not able to pull that up immediately but i would be happy to maybe i don't recall should i be great thank you well i guess to if you know on that point on things that are inherently mitigating if you use that i'm using your word here or it some facing some can have a double edged sword as that can be a double edged sword too because if you've had this really difficult life you know i guess that's what i'm saying and what judge owen to saying is where did the district court sort of wrestle with this sure well like i said in my rebuttal i will provide this court ok i could cite but i'm just saying when you look at things like that and i know you're an experienced defense counsel that just because someone had a bad childhood or go it it doesn't always follow that that helps out explaining that it equates to mitigation of that you know i mean you describe this is tragic i mean i think another way you could you could you could also say that you know the facts as they go against your client are pretty cold blooded and plotting so certainly i guess tragic to the deceased in this but there are there are not really i don't know that tragic is the right description of those facts and analyzing the prejudice prong what is it what is it what's the standard there it's whether there's a reasonable likelihood that the outcome would have been different and that means showing that the mitigation is sufficient to undermine confidence in the outcome but at this stage it would be that no fair minded jurist conclude could conclude otherwise well right we do have to show that the state court was objectively unreasonable in applying the strickland standard as it gets that would be under at their right right ok moving on i wanted to address an issue that came up in the state's brief the third brief on cross appeal that i didn't get to reply to and the state argued that the aspect of the ineffective assistance of counsel claim related to the trial court's denial of funds was precluded and that this court didn't have jurisdiction  so i just want to address that briefly that's that's not true the facts related to the trial court's denial of funds were raised in two ways they were raised on direct appeal as an eighth amendment and fourteenth amendment denial of resources claim and then it was raised as part of the c claim in post conviction so in haiti as both claims were raised the district court and then hey vs the sixth amendment was cited in the denial of resources claim the district court said that sixth amendment was precluded in the denial of resources claim but the fact is the the facts regarding the trial court's been elephants have been argued as the ice you claim all along so that is probably half what this court what what the trial judge back then was presented ryall really didn't follow through on giving good raisins i mean it's hard to fault the trial judge in for not giving them the money when he didn't do what the trial judge said the trial judge needed to look at to give the money right well i think they're both at fault clearly via reality should have filed this written notice that the trial court requested it was a simple request it was completely in line with the client's best interests and it would have given the opportunity for defense counsel to make a written record before the trial court of what he needed to do in germany there's no excuse for him not filing that however he did make this verbal  record stating that defense standards required him to conduct a mitigation investigation identifying certain areas that he was the chicken really interested including mr apelles history of psychiatric hospitalization and a difficult childbirth and nevertheless the trial court said well this is been a very expensive case and so it's denied pending the filing of this written  court has found and other circuit courts have found that the ake the oklahoma is not limited to the appointment of a psychiatrist to conduct a psychiatric evaluation in u s we chase  state's position homa is a very very narrow case i think is is too narrow it clearly stands for the proposition that the defendant when the defendant is an indigent he's entitled to have the trial court thing to argue about in this case is deficiency him that is that i'm not sure i understand your honour's question well i think it i  i think what i am hearing here is that when the facts are really bad against you as defense counsel clever defense counsel would know that i see later might be the best arrow in the quiver so that why isn't this clever counsel as opposed to i seek counsel well i don't think there's anything in the record to suggest that mr the defense well there might be because he said didn't he in this case did the indicate a reason i was not do you do recall that part of the statement he said i didn't think this i he was intending to preserve some kind of ineffectiveness yes claim then i don't think he would have filed a state post conviction immediately after trial where he raised a single claim and it wasn't his own place trying to get some he was trying to get a not guilty i mean a pelt didn't admit the crime but say it was lesser right i mean a pelt was and the right handed left handed after was to try to show that he couldn't have been and that he could not have been the killer because i'm forgetting that your client is left handed yes and the killer was raised right yes and   i think she was impeached on various things but in terms of she somehow she puts them at the scene talk you know there's there's things that go on that way so he but he never says ok i was there at all right right because he's trying and he was trying to say he has a different size than the footprint this that and the other that i mean he wasn't there and they've got the defense they want that there's that that recording supposedly someone else admitted to killing her and leaving her body out there so villareal thrust of his was that he was not guilty of the crime early on right and the first p c r was to hopefully bolster that and get a new trial on that right that's correct not so much that the penalty phase on the guilt phase well right but the very out provided a declaration in the second post conviction proceedings stating that he did not have a strategic reason for failing to file the verification that the trial court asked for he did not have a strategic reason for failing to investigate the and if you right to the only thing here was ineffective assistance i mean it would be it would be a pretty big risk for defense counsel to not conduct any mitigation investigation then and then hope thirty years down the road if you knew there was nothing to find i'm sorry i just don't i just don't see that supported in the record and i do want to address possibly i think counsel for arizona talked about what the law was at the time in terms of the duty to investigate and cases that she felt supported her position if you want to address yes we have to go back to what the standard was at that time hundred eighty nine the a b a guidelines were first released the guidelines for the appointment and performance of counsel in death penalty cases mr via reale cited a set of guidelines it wasn't clear whether it was the a b a guidelines or something else recognising that it's his duty to investigate the client's background he listed a host of witnesses that he would need to interview including family members friends school teachers doctors et the washington of course was the clearly established federal law and that requires capital defense counsel to conduct a thorough investigation and says that strategic decisions about the presentation of mitigation have to be made in light of investigation well there was no investigation done the the case the other cases cited by the state guard in view when right there showed that counsel was engaged in extensive preparation prior to trial including preparation for the sentencing whereas mr v aroud not even request funds until after his client had already been convicted and approximately six weeks before the sentencing hearing was held berger v camp there was a psychologist i psychologists that evaluated the defendant the defense counsel had uncovered some mitigation and determined that that might that medication might look badly on the defendant and so chose not to present it these are not strategic decisions that mr via real made with regard to michael apell sentencing he just he didn't conduct any investigation he presented some minor records that were faxed to him a few days before sentencing hearing and that is what he used to argue that mr apell was sentenced to life i throwed should be sentenced to life i also think it's important to note that the only the only witness who testified at mr apell its capital sent sentencing hearing was a police officer that the state had sent to germany to investigate and collect evidence that would be supportive of a death sentence so by nine hundred ninety the right to have a mitigation investigation the right to have an individual licensing and have the sentence or consider important background facts about the defendant was well established and nevertheless michael help did not receive that the judge what you put in letters which i guess arguably i think there was a whole hearsay kerfuffle at that point but let you put in letters from defendants relatives saying he couldn't have committed that crime or you know he wasn't a perfect guy that he wasn't that bad and a number of things along those lines and then i think there was an objection but the state put in evidence of the officer going and supposedly  the defendant's ex wife said oh yeah he is that type of guy he wanted me to sell my kidney for money and so there was all of that that went on i guess he couldn't have done it oh yeah he could have done it but right there were some letters put on by family there was a letter from a former employer saying that mystery pelts treatment of his coworkers was not objectionable and there was a record from the german military showing that he had been discharged let me ask you this this is taking a little bit back and i'm going to give you some a little extra time so i would like you to answer because i think counsel for arizona mention and relief under it is relief under martnez fart in this case under the supreme court's recent decision in devil lobby davis which they argue because one state court considered a pelts i a c claim on its merits i don't think the dobie lead does preclude the martina's the ryan application in this case because first of all was about whether or not martinez should expanded to claims of ineffective assistance of appellate counsel whether you know where where state post conviction counsel failed to raise a claim of ineffective assistance of appellate counsel and that's not an issue in this case we're dealing with state post conviction counsel's failure to raise claims of ineffective assistance of trial and sentencing counsel which clearly fall within martinez and martinez was about the defendant's equitable right to have his claims presented it in this case mr apell did end up presenting his claims to in a second post conviction proceeding but i says that martinez doesn't apply anymore then once again we're in a situation where defendants who have ineffective post conviction counsel are going to be precluded from ever having their claims truly considered and is proceedings and it's important to know that in this case the state court decision was was absolutely objective leon reasonable the second stay post conviction counsel presented substantial new evidence of the abuse of the poverty and that was just disregarded as not even presenting a colorable claim in the state by the state post conviction court anyone have any questions at this point and the request was for money for the defense to go to germany and when we look at the records and we see that money was made available for the prosecution to go to germany except as it might have to do with the penalty phase the only purpose for sending somebody to germany would have to be to do with a penalty phase but the because back to that heavy rock pushing up a sam hill yes and it would have to do to the penalty phase and that's what the defense said we want to send somebody to germany and they said no we don't have enough money we've already spent two hundred thousand dollars but they did not say we don't have enough money they say enough how much are we going to spend they say there is the state law that we quote that we that you can have this money under state law if it is necessary for an adequate defense that's what the arizona state statute says you get this money if you can meet the standard didn't meet that standard he didn't satisfy state law and so the trial court denied his request i don't know because we don't know what he might have found because it didn't go we don't know what he might have found but under arizona law he had to meet that standard and he didn't and this is a hideous case i understand ok to the case and that's what i'm asking you to focus on  one point the prosecution with all of the evidence and it certainly had all the evidence everything that happened in the united states so the only reason the prosecution could have wanted to send some  had to do with penalty do you think that's that's a fair conclusion from this record i think because the state was able to satisfy state law to travel to germany that it was ok for them to go but april were not able to satisfy that very large rock up a very steep hill if it has to show that there was clearly established federal law that established his constitutional right to that bundy the only right he had to that but he was under state law there is no clearly established federal law that establishes a constitutional right to a medication funded medication investigation funded by the state and realize the i didn't argue it but it seems a little peculiar at least until you explain  t the prosecution with everything it needed to know here in the united states was able to send somebody to germany which they would and they did and they were and yet at the state expense us at the state expense why don't i have to everything you needed to know for the penalty phase here in the united states because as a prosecutor that you know i'm not sure that the prosecutor did everything that i would have done had i been in that situation because the prosecutor went to some german it was a police officer that went to say it was sergeant someone i can't remember same but he went to the german police and said he didn't get like he didn't get a certified copy of what we would have our criminal records but he had them report to him what had been his crimes and then he you know so i guess talk to the ex wife and did all of those type of things did you have to do an affidavit did the state have to do and you know provide some kind of requests like what the court was asking the defense to do i do not know the answer to that i don't know what they i know that obviously the state funds would have been spent less or it was in accordance with state law but what the state law was that the prosecution had to satisfy in order to get that and i do not know but what i do know is that here in this a b s court if it has to establish that he had a constitutional right to that funding in order evidence all of the facts no doubt about it everything that happened happened within the state and yet the prosecution felt something to send somebody to germany i assume it had to do with the penalty it has to do with the penalty phase and we've already spent i think two hundred thousand dollars how much are we going to spend on this the amount of money you're going to spin can't determine what the state law and there is a can either take does not establish a right to state funding to conduct a medication investigation and then if health cited circuit court cases and state courses take courses that have extended but under why to me what hall if and principle of law has to be extended instinct extended before it can hide the facts of the case and by definition it was not clearly established but let me ask you guess then while i'm not sure that i'm not trying to make arguments for you that while it may not it may not save mr a pelt on that claim it's still really they did to the is it not the failure to investigate it's not it would not be inconsistent for this court to say ok mr a pelt does not prevail on thayer to fund apell could still prevail and i know you don't agree with this but he could on i see and failure to investigate from the attorney's standpoint i don't think that would be inconsistent i mean it because the one thing on the failure to get the money that sort of targets the judge because the judge had the judge what you're saying is there was a statute that said you have to say what you need it for and at that particular time he didn't do it and so the judge can't be wrong in applying the law based on that but then we separately are looking at what mr riviere we all did or did not do in terms of his investigation and that his not filling out the form his not doing anything to get information from germany that can all go into that pile correct it can't but in order for the court to consider that pile he presented a claim at the state court that counsel was ineffective for failing to present that additional information that would have said that would have satisfied the court but in the state court april admitted that the defense counsel presented all the information that he had and that he couldn't argue fact  he didn't know so he conceded that the defense counsel did not render to fish informants because he provided all of the information that he had and with that concession it could not have been an unreasonable observation of clearly established by july for the state represented three claims of ineffective assistance and ineffective assistance of sentencing counsel one was the failure to present additional information to the court to justify the trip to germany the second was the council's failure to use alternative means to co mitigation and the third was the failure to adequately investigate medication the court rejected all of those claims and it wasn't any reason why applications clearly establish such a law for the court to have rejected those claims because again the first claim it held admitted there department and or what he used amnesty international not collect medication investigation also co counsel travel to germany and conducted a medication investigation in germany so he did use alternative m funds for the for the investigation business record absolutely shows that the state paid for co counsels time in germany conducting a mitigation investigation the record did make some inquiries and she did bill for the time she spent on those inquiries but the state never paid for her to go to germany and that's what i think the record shows tell me that i'm wrong and  was not ever again interpreter and that it did come up in that part of the discussion again right yes there was some discussion of that there was a language barrier that got in the way of her and i think most attention at the state said well why don't you hire interpreter when you get there or there was all that but why not i believe that's right here and i believe there was a discussion and then i think the state alternately when counsel didn't file the declaration as to why he needed didn't comply with what the asked him to do the state i think he asked for another continuance in the state objected because they said this is we're just going along too long that's correct the state had took no position on the defense's request for the court has no further questions asked yes thank you thirty five seconds to i guess make my final stand as to reverse on your appeal and to affirm so addressing judge owens question about the district court's analysis of the prejudice i would point the court to eleven which is the december first twenty fifteen district court order granting the  there's a few pages of the court discussing the the mitigation that had been developed in post conviction and the court cites penn revealing and says it's a stablish that evidence about the defendant's background and character is relevant because of the belief long held by the society that defendants who commit criminal acts that are attributable to a disadvantaged background or to emotional and mental problems may be less culpable that then defendants who have no such excuse the evidence of pulse allegedly horrific childhood is the kind of troubled history we have declared relevant to assessing a defendant's moral culpability so the district court recognizes that it's relevant but where the district court do the prejudice analysis could be relevant that i had a bad childhood but then you still have to match it up to what the crime the facts of the crime everything else that was there but for a minor jurist would otherwise conclude right sure and all i that in light they just are quite definitely recognizes the terrible facts of the crime the fact that there are multiple aggravators and says essentially nevertheless this is the kind of mitigation the kind of mitigation that is so severe that this circuit court in the u s supreme court has found repeatedly that we're counsel fails to uncover and present that mitigation that the that the defendant has been deprived the effective assistance of counsel and acknowledgement that there are these aggravating factors in the case and why this evidence would somehow undermine it but i didn't see anything more than that so it's but again at least we're talking of the same order i want to make sure there wasn't some other order or some other document i have not seen now so this it would be the december order is the one that you would hang your hat on for this argument that's right there was the earlier order that i think was from september and the court does find l's law partner and his wife going to germany as as judge ferris recognized that was on her vacation she was eventually appointed co counsel but that seemed to be an appointment made so that she could get reimbursed for her time that she spent trying to interview mr apelles family the record shows that she did not speak german and she assumed that some family members or maybe some neighbors would be able to sufficient to undermine our confidence in the outcome yes i would agree but i also would argue that the then again in facts in this case are exceptionally strong it's pretty unique to have a person whose father is actually a nazi and used to tie him in the basement and beat him and sexually abuse him these are these are unusual facts killing the family dog in front of the children for no reason other than to exert control over them this is a this is a unique case in that regard and i would like to address my family dog would help with jurors or a judge that to me the father killed the family dog well i guess i don't know i mean it's some of this i'm just i'm wondering how much it would fudged the needle and just say this now we know why he's so hardened and why he really did what he did well i think it would give well i would respect that's a question i'm not concluding isn't that the is those two different questions i don't think that what you're on a reef repeat the question edge it might have caused the monster but it would not explain it wouldn't excuse what the months to did in this case well this type of abuse i mean i can't help it if a sentence might misinterpret it but this is the sort of abuse that the courts time and time again have recognized does undermine confidence in the outcome it does this this case we have to look to see the  right ultimate prejudice analysis if you get past the procedural bar has to be it's under at peer review yes i would agree with that ok and i would like to turn with my last few minutes to the atkins v virginia claim the state of arizona seeks to execute a man who is intellectually disabled multiple experts testified that intellectual disability and nevertheless the trial court in the actions hearing found that he did not meet any of the problems of the intellectual disability it was kind of it was sort of mixed because there was the maleng green factor that was mentioned and my understanding is his brother who also got the death penalty  escaped the death penalty under atkins correct he did and so that was a little bit of part of the whole calculus and that your client was considered i think what did he have a test when he was young at eighty  eight he did there was this record that came in that showed in childhood there was eighty eight i q score and one of the objective leon reasonable findings of fact that the trial court made was giving this eighty eight i q score the same did that was it a group test that it tends to overestimate intelligence that it's administered by a teacher not a psychologist it didn't meet any of the requirements of the a m r or the i d d in terms of administering  reliable test that you had is that you have to look at that and compare it with the planning that went into this commission of this crime well i think when you look at executing them the plans that he did make and execute well even being able to plan and execute a crime does not that's not part of the inquiry in determining whether a person is intellectually disabled ok but all of the evidence what i saw here is they're all it was all considered and it's all tamale up to the court to decide right yes and so and there is evidence of the eighty eight there is also evidence of how the crime was committed there is also i think there's evidence of that even the people and there's also evidence from doctors that think he does meet that can standard so is the court doesn't the court get to look at all of that and and there were you know and so there is some evidence that he doesn't qualify under atkins well the provided exams to detect milling grain and they said if there was any milling they said it's possible i detected some exaggeration but it's not significant it doesn't it does not affect my opinion and nevertheless the trial court said well these doctors found that mystery pill was milling going in terms of the crime i would point this court to the recent supreme court decision in more of the texas which reaffirms atkins requirement that in determining whether a person is intellectually disabled the court is required to look to the medical literature the medical definition and they i d d the a m r these tell us that has the burden burden you have the burden so and the court basically said he didn't meet the burden right right but i am arguing that that was based on an unreasonable determination of the facts and an in an unreasonable application of because of this disregard for the medical standards and i would encourage this court to look at the the order that was issued by the trial court in mr a pulse at his decision and his brother decision where the court looks at some of the same evidence and treats it very differently for example in in mr for for michael apell the superior court said he what he was married and he served in the military and this shows some kind of strength and undermines his argument that he has adaptive behavior deficit's with regard to rudy a pal to the superior court said well he was discharged from the military early and then never mentions his marriage and doesn't hold it against rudy as the court did with michael and so i think the court was doing a bit of comparing michael to rudy and really pretty clearly does have a lower i q score and a more severe that does not mean that he just you close with our standard or preview of that because we're not hearing the evidence all over again here of course ok so what's our standard of this court has to look to whether the state court decision was based on an unreasonable determination of the facts or whether it was contrary to you or an unreasonable application of the virginia and based on the fact that you have the burden here right we have the burden of proving under arizona law by clear and convincing evidence that mr a pole was intellectually disabled and i would argue that in light of the record made before the superior court we met that burden and the superior court's decision otherwise was unreasonable