that the defense attorney that their role in the defense is done at the time of change of plea to go she'd a favorable plea agreement and wipe her hands of the case and walk away this case present see a red vehicle here that the state was free to argue and by the way they have a negative implications so was the defendant a change of plea we don't see any alteration of that agreement the agreement is put in as entered what happens at something that was curious the agreement that would be our contention every i think everybody understands that but the greenman itself it was before the judge and the correct terms of the agreement were in the pre sentence report that's right so ok so what's the what's the harm well the harm here is your honor is well what i think the court is saying essentially is that we have deficient performance which is part of that one part one of the strickland prong and off of what the magistrate court found here in its report recommendation so we can focus our attention on prejudice to show prejudice i have to show a reasonable probability of or counsel's deficiencies the result may have been different in this case the result being that my client have received a more favorable sentence not a reasonable probability is not a high standard if you look directly to the summit case you're strickland the court grapples with the question of what kind of standard ever going to be going to mandate for showing a prejudice and if the courts the simply rejects a more likely than not standard so i don't even have to show by fifty fifty that also in the pre sentence report no your honor it wasn't some of it was to some degree but it's presented in kind of a sense there are some mitigating facts floating around out there that could be gleaned by the judge if you will with the look behind the scenes that was done for a coffee purposes in the court which is contained on pages thirty five and thirty seven and you have an end of egil who was suffering from mental health problems and if a good mental health problem for quite a long period of time he suffered arguably suffered from organic brain that he has not had more than three or four hours of sleep for many years before the commission of this event and the author opined that that would could exacerbate the mental health problems and we're not talking here about one of them ill depression not that i don't want to mitigate  very depression serious element but we're talking here about full blown schizophrenia experiencing command auditory hallucinations telling my client to go out and harm and kill people and that's here in this record and then the reports from the jail that i was able to acquire during this litigation show that he was not on one two three but four different kinds of anti psychiatry of medications afterwards and taken to jail and i can tell the court that our local jails are very overcrowded partly because of the growth of las vegas that it's very difficult to receive medical attention in jail but year after my client put in these desperately worded kuyt he actually was seen by experts in prescribe a pretty healthy those of psychiatric medication there's also in the original report on thirty five people thirty five and thirty seven of the record talk about it from my traumatic childhood now that has never been flushed out of all this case we don't know exactly what the traumatic childhood was whether he was referring to the trauma of trying to grow up while suffering from the organic brain damage or abuse from his parents or just mainly growing up in an extremely poor the hardship that could come from growing up in poverty it's not entirely clear and one common theme throughout this record still lack of any factual development now at the speed court level there was no evidentiary hearing granted mr davis so he was not a to substantiate or flush out or supplement his factual allegations for the nevada supreme court not have an image you're hearing on the other hand we're going to deny your position because you didn't flush out the facts fully enough and the other thing that has supreme court get in this is important for the standards is that as supreme court part of the basis for their decision more compelling mitigating evidence than evidence of a serious psychiatric element on the part of a defendant and pretty good reason if you are suffering from such a severe chemical imbalance that you're having auditory hallucinations telling you to go out and kill people and to do things antisense you gauge antisocial behavior like that cuts right to the heart of free will and i would concede here that we have a case that is heinous in its implementation that caused great harm to a citizen the mother of means but one of the defense the primary defense functions at least in my estimation is to come forward to the court and tell your client story tell us had a string characteristics explain this motivate and humanized him and present to the sentencing judge which that attorney general in the warden in this case i think probably the most appropriate starting point here is the report and recommendation by the magistrate that was adopted by the judge below the district court judge below and the most important finding in that report and recommendation was that mr davis had not shown that the result of the sensing hearing would have been different had this mental health evidence been presented to the court one important i would too particularly where here it was more of a not saying anything it was actually saying something affirmatively harmful to his client that is well yeah we've agreed to fifteen years i mean what  difference i think to some extent and i'm speculating to some degree but i think to some extent a lot of that information would have command in the form of reports and i think it may have been as dry as it is in r to the extent that counsel could have presented that i don't know i did i don't know some of that might have been delivery some of that might have been the personal presentation that counsel made and did i can't speculate as to the nature of that presentation i would point out one very interesting fact and that is that prior to the plea agreement being entered into judge gates had ordered a psychiatric evaluation to the extent of mr davis to the extent of competency from the first to consider that a competency evaluation at least in clark county is not a full blown psychiatric evaluation i think they tend to be the mental health information that was placed in front of judge gates i think judge gates the record shows judge gates had a pretty good view of what mr davis mental health condition was but counsel i guess i keep coming back to the same question to re getting them back out sooner and into the care or well you know you know the drill bit why why wouldn't that unlikely to make some difference because i think it's a couple of things  one reason the magistrate in this case found that it would not have two things i think that are very salient to this case number one the prior record of mr davis had a lengthy history of domestic violence against his  common law wife for a better term he had prior felony convictions for carrying an incendiary device this was a preplanned attack this was a horribly violent attack he lowered his common law wife out into a desert area outside of las vegas he on a pretext of paying her some money that he owed her shot her point blank range six times left her for dead and left the area  with judge gates the sentencing judge in las vegas focused on in that hearing knowing all this other information knowing this this defendant well because of both the this these psych evaluation that they've done for competency and all the information he had in the p s i report what he focused on in that sentencing hearing was what he called the horrible horrible crime the davis had committed and what he was focused on in my reading of the sentencing hearing that's in the e o or is the very violent nature of the pre planned nature the work that davis had to go to to gather the tools the gun set up this plan and to get his common law wife out in this remote location outside of town and then shooter six times point blank this is a very very violent crime and i think that's what judge gates was focused on it's essential i think in this case that this was a cap this is not a standard kind of play where the third count the exponent possession of a firearm for example was dismissed and all parties are free to argue in that kind of case i think you would have had a lot more argument caps are pretty rare in the eighth  just the district court because the district judges don't like to have their hands tied with a cap and it was pretty miraculous i would argue that judge case accepted the cap and i think what counsel was was doing at that sentencing hearing she was focused on one thing she was successful in reducing davis exposure on the outside from forty six years down to thirty keep in mind he's going to be eligible for parole in about two and a half maybe three years from now so he's he's he's looking right now to his parole board hearing obviously i don't know if he's going to be granted because of the violence of this crime but he certainly can appear in front of parole board i believe it's in two thousand and nine judge gates did not have to accept this play the way the cap was set the way these things worked in this case and in other cases needs to be in the it's traditional district and the vatican is that if he didn't he could if the judge had not accepted this cap and said no it's way too lenient because it's only for thirty years and this is a very violent crime by somebody with a pretty bad past it would've gone to trial and so i think what happened although i don't disagree there may be a possibility council could have done more at that sensing hearing but we have to under we have to presume under strict in the council knew what she was doing she was on the track in judge gates courtroom but we know that she was incorrect in what she told the judge the stipulation was supreme court reiterating that is if there were verity what we do about that i think the stipulation that they're referring to specifically is the capital although i agree with the court i agree with you your honor that that was not the complete agreement i don't see that as an error as much as an incomplete analysis of what the agreement was i would point out that it is our position that counsel was very successful and had done the vast majority of her work at the point that plea was entered because she had reduced that exposure and i think we have to presume under strict on that she knew she knew because the victim survived in this case this was not a defens analysis it sounds i think the key issue here is that this was one of the one of the pretty rare capped cases and i think that counsel had done the vast majority of her work prior to the sentencing hearing when she got that agreement by reducing from forty's again from forty six years to thirty years the exposure that mr davis was going to get had they done the regular agreement they would have gone in maybe they would have dropped that one six he'd be facing forty they'd be free to argue davis had it guaranteed that he was only going to be facing that the writer that wasn't he entitled to counsel who would argue for ten dollars or fourteen and a half instead of fifteen i think although counsel could have argued that i think the reality here and i think this was reflected in the report recommendation the reality is because this was a capped play as the report recommendation found and as counsel impossible to know if any difference would have been made because there was such a dramatic drop in that outward exposure because of this deal the only thing i should say the only thing the focus of coun level for an evidentiary hearing on that on page one sixty one i mean my final pitch to the judge because once again i was being told that i have not yet proven that i could establish president i'm just asking for a chance for a hearing to be able to prove it let's have an evidentiary hearing in this matter find out what the defense counsel is thinking allow me to have a provide to supplement the factual record with the full extent of mitigation evidence here send it back let the district court make a reasoned decision based on all the facts and we won't be up here specially really if you're requesting