claim then i'll address the state court's decision on counsel's deficient performance and then what i'd really like to focus on is the heart of king's ineffective assistance of counsel claim which is prejudice trial counsel testified at the post conviction hearing that from the very beginning of this case he knew for important things first counsel knew that guilt was not an issue terry king had confessed to the crime counsel determined that the sole avenue of defense was not guilt but the degree of guilt that being that this was not a first degree murder case and this is to this determination is based on the second fact th counsel knew and proceeded under which is that at the time of the crime terry king had ingested an extraordinary amount of alcohol and drugs the third thing the council knew was the terry king had a history of emotional trauma of the substance abuse and of head trauma and counsel knew that those things were red flags for brain damage and finally the fourth thing that counsel knew was that he needed an expert to provide evidence of terri king's mental state at the time of the crime both for the guilt phase of the case and also for the penalty phase of the case but for the six months from the time counsel's appointed to this case two in july two january when the trial began counsel did not have an expert counsel did not obtain an expert in order to  conduct an adequate mental health investigation it wasn't until that was because he thought that the failing where the defendant had to pay for the expert and didn't know that there could be the century court appointed experts are right that's correct your honor counsel was proceeding under an ignorance of the law he did not know that state provided funding for an expert so instead he required his indigent counsel to come up with the money to pay for an expert in his defense and it wasn't until right before trial until january when terry king family was able to come up with that money and so it was after the very first day of jury selection that an expert actually interviewed mr king and again counsel in his post conviction testimony he testified that that's due to the fact that he did not know about the law that testimony is at the  ninety one and the state actually concedes counsel's ignorance of the law and its brief at footnote three so every action by counsel has to be viewed with this in mind because these were the circumstances that were facing counsel at the time of this trial and ultimately counsel presented no expert evidence on king's mental state at either the guilt or the penalty phase at trial now the state court denied king ineffective assistance of counsel claim by unreasonably determining that counsel's actions were based on strategy this determination it is both legally and factually unreasonable the state court on reasonably applied strickland because as stated in hinton vs alabama this we know that councils ignorance of law and a critical aspect of the case is the quintessential example of deficient performance and in this case because councils ignorance of the law he did not know that finding this available for his expert he failed to timely obtain expert assistance and he failed to conduct an adequate mental health investigation in addition that failure to conduct the adequate investigation means that counsel could not have strategic decisions cannot make strategic decisions with respect to the defense that was presented and the state court decision unreasonably apply stricklin in this respect because it doesn't not examine the adequacy of counsel's investigation so without that adequate investigation there can be no strategic decision decisions regarding the defense so there should be no question based on hinton versus alabama and the undisputed fact of counsel's ignorance of the law in this case with respect to expert finding there should be no dispute that we've satisfied twenty two fifty four do you want with respect to deficient performance because the state court and reasonably applied the law  did the trial counsel did get this expert a i think this was good bro or do you pronounce its name i believe that's cool bro who did say that he thought it might be helpful to have and testing to see if there was organic brain damage right that's correct dr dr gapper believed there was an excellent chance based on terry king's history of inhaling toxic substances from the beginning at age eight for several years up until age sixteen when he then began to use alcohol and we ran two drugs and based on that history dr could broke leave there was a significant chance that terry king did have brain damage and counseling knew just based on that social history that those are red flags for brain damage but because dr  not interview terry king and till the day of jury the day of of jury selection there simply was no time for dr ro to complete a full and adequate investigation of terry king's mental health and dr cooper sat so he said he only had a preliminary report he was unable to render a final opinion for counsel with respect to terry king state of mind no there was  actually retained by counsel after the jury returned its guilty verdict and he testified in the penalty phase only to the general effects of the drugs and the alcohol upon an ordinary person and he testified to the lengths that that those effects would last dr brewer testified in no way specifically regarding mr king because he hadn't even met terry king he was simply obtained too late in the process to meet with terri king and be able to make a connection between those facts of the extreme amounts of intoxicants the terry king had consumed and the effects on terry king state of mind at the time of the crime is so dr all bull run for i was thinking about her but i was not focused on the fact that she was that post conviction  i believe that dr obl had dr kaminski reports but i don't believe that there ever was and that was performed on terry king and that was a matter that was contested at the post conviction hearing th prosecutor indicated that in each he had been conducted but defense counsel indicated they were not aware that that had been done because i thought i thought that there was something in maybe it's in the apple his appendix at two fifty five to fifty six testimony at one sixty seven to sixty eight that testified and i want to be corrected where i'm wrong that there was an e showed negative results and that it had not been determined whether there was brain organic brain damage i'm just trying to figure out is that a correct statement or in my mis understanding the record here your honor if that's what the transcript says and i'm going to go with that but importantly the igi is not the and all of the encourage into brain damage and i believe dr obl indicated that there was other testing that could be done that could establish brain damage and even dr gambro at the saturday before opening statements he testified in the jury out hearing before the court because trial counsel wanted a transportation order so that terry king could be subjected to further testing and dr drew his testimony during that hearing he indicated that the if those results came back negative that still didn't preclude brain damage he indicated that he needed results of neuropsychological testing and he also importantly he needed information that defense counsel had not provided him and in our in our pref we we've missed that information that defense counsel had not provided dr gapper out and back to prosecute the prosecutor at that hearing impeach dr dr gaboriau and that was money because he didn't have full information and that's one of the reasons why the district by the trial court didn't allow for that order to transport king for further testing so what i'm trying to get at probably is the question about prejudice if we assume for the moment that there was deficient performance because of the fact that the trial counsel clearly was wrong in his understanding of the law financing an expert here don't we need to see whether there's prejudice and if we need to look if we need to look at these three doctors who needs testimony arises at the  federal haiti is still do we have a problem if that's all we can look at to say that there is prejudice we did not have a problem and that's because d provided testimony and evidence a unique quality of a different category of evidence than what was provided to the trial in this particular case so based on dr testimony alone based on the state court record we can establish prejudice i'm a little bit confused about what what you mean what did dr all bull say that shows prejudice in your view but your honor to explain doctor testimony and what was prejudicial i'd like to address the state court's opinion with respect to prejudice that begins at page three thirty three where the state court indicated that dr testimony  provided very little information that was previously discovered by dr gaboriau and i'd like to explain by comparing and contrasting the two why that's an unreasonable determination by the state court  overwhelmed he was unable to accurately interpret the situation and he sought out advice from his codefendant joe sexton she testified that terri king's level of intoxication exacerbated his preexisting impaired judgment and that led to his poorly considered behavior at the time of the crime she spoke to dr to terry king's emotional disturbance that resulted from him losing his father at the age of eight years old abuse due to his ready poor impulse control and his impaired judgment and all of this is important because we're not talking about just a person going to a bar and becoming intoxicated we're talking about terry king and his underlying conditions and and the effect of this extreme amount of intoxication terry king drank a case and a half of beer he had not mine not two but three clay lids throughout the day he had not one but two and possibly three tablets of l s d that evening before the crime occurred and intoxicate intoxication to that extreme amount and mr keene's already damaged brain and his eyes are already preexisting per judgment meant that it had a greater effect on him than just an ordinary person and that's something that an ordinary juror simply would not be able to glean from the information that trial counsel presented to the jury because trial counsel did not present any expert evidence of this type it's important that so you know i apologize to you for this question if it doesn't fit right but my understanding were there were two areas of our you see one was intoxication and one was not getting an expert to examine him for organic brain damage yes it seems like from your answer now that you're learning the two together and it seemed to me that there were two separate i and i missing something here or there are two separate claims with respect to untax occasion and then with respect to brain damage and that's focused just on the attacks occasion right now but when i speak to king's underlying personality characteristics the fact that that but the intoxication i thought we had started out saying that there was deficient performance because he didn't know he could get an expert but i thought that was the expert for organic brain damage it's the expert for both your honor because counsel strategy here was to show the effects of intoxication and brain damage on terry king because counsel had these red flags he knew that that these factors were out there but he and he knew he needed an expert to link those facts to king state of mind did he present an intoxication defense i thought he did not because the it was this other witness who said that he terry king had done much the same thing to a woman who was not killed and who lived to testify that he was sober when he had attacked her in a very similar way but not killed her and returning to the deficient performance pronk of the claim because that's where the state court discussed the lori carter testimony who is terry king ex girlfriend if we look at page three thirty one of the state court opinion i'd like to go over it with you and explain why this is an unreasonable factual finding the state court opinion relies on trial counsel's post conviction testimony that laurie carter testified that king was sober during an alleged attack that happened about a year before this crime now that is not a valid fact because it's flatly contradicted by the transcript of carter's testimony and the state concedes in its brief at footnote one that dory carter did not testify that king was sober during that obliged attack so the state court decision that rests on that unreasonable factual finding is also unreasonable and we would pass through twenty two fifty four d to the deficient performance  to finish up deficient performance so that we can then focus on prejudice which is really the but the heart of the case that the state court decision with respect to deficient repeat performance also relied on reasonable factual findings that are contradicted by the state court record and if we look at the court opinion on page three thirty two the court again found that there was a strategic decision not to present  one of those reasons was because counsel testified that terry king allied to dr gambro during that interview after the first day of jury selection that terry king said that the codefendant was responsible for the killing this is contradicted by the state court record because if we look at dr preliminary report which is in the district court docket at two fifty four dash three if we look at his report it says that terry king admitted to the killing and if we look at the other information from from dr gapper from his affidavit that was presented in support of that motion for further testing that's at appendix twenty six if we look at that testimony of dr gaboriau during the hearing and that saturday before opening arguments on monday and at that hearing where he was vigorously cross examined dr carroll indicated no indicated nothing with respect to  taking responsibility and further to go to the second reason proposed for a strategic decision none of that evidence supports the idea that dr told trial  we know this but as is his trial king's trial counsel yet is saying these things which are against the interest of king again are supporting and the trial counsel is saying this in post conviction is that where it justification and we know that that's not the reason that tactic ever was not presented because at the time because trial counsel would have known about those supposed facts at the time that he stood up an opening argument and he promised the jury that he would present evidence about the effects of extreme intoxication and king's mental state and that king could not be held responsible for first degree murder so so but what do we do with the with what now appears to be the situation with the trial council of king saying in the post conviction process l there's some evidence that laurie didn't say in other words looking at the testimony so do we have like a fact controversy here there's absolutely no controversy here that  reasonable factual determination of the state court record shows that these facts revive upon by the state court to the those facts that their decision ultimately decision rests upon her on reasonable factual findings under twenty two fifty forty two now correct me if i'm just missing something here because i sure could be but when you say that the record doesn't support dr saying that harry king like to hurt people the council testified as i remember that it wasn't in dr give rose report but that dr  indicated that so what is remind me again what is the basis for saying that it simply is contrary to the record your honor i see my title please answer thank you  the basis for that is that even assuming that that fact occurred that fact did not come out in the cross examination of dr  jury out hearing and therefore to not or wouldn't not of hurt terry king but also to trial counsel knew those things supposedly he knew those things at the time that he stood up in opening argument and he promised that he was going to present this evidence of the effects of intoxication i'm terry king at the time of the crime and that's why terry king would not be guilty of first degree murder but guilty of second degree murder so dr supposedly knew the record well how come i was just going to say but did trial counsel know that lori king was going to testify as she did when he made his opening statement or did that come as a surprise laurie carter's testimony he knew she was going to testify but he didn't know what she was going to testify about and you're also saying to us that a trial with more occurred or testified lori carter did not she said he was sober it what you would have to do is say that you can draw an inference from of sobriety for a failure to mention  problematic but that's a more accurate that's an accurate description of the record right your honor the accurate description of the state court opinion which is what we're reviewing here is that trial counsel soley in response to laurie carter's testimony abandon the attacks occasion to facts and we know that that's an unreasonable factual determination because laurie carter did not testify that king was sober so kerner does or doesn't say the king was sober when lori kercher was attacked in other words the essence of the intoxication defense would be hey king didn't understand what he was doing here he could play in this out he was out of control etc but if he had done the same type of thing to lure occurred or whether or not he was time after laurie carter testified defense counsel presented two witnesses that completely impeached laurie carter's testimony and impeaching laurie carter which is a very what the state court said you know became the defense and he turned an intoxication defense into an impeachment defense but impeaching laurie carter's testimony is in no way inconsistent with this intoxication defen he did not conduct an adequate investigation and the fact that there is no adequate investigation means there is no strategic decision here and there's there simply can't be my time's expired court i'm jennifer smith with the tennessee attorney general's office representing the warden just just to go to church more question there are two distinct issues on which the court granted a certificate of appeal ability and  each of them is as you will have been discussing have is each each complicating factor so i'm going to address each one starting with the the lori carter testimony intoxication at the guilt phase after promising the jury in opening statement that he would present testimony about the guilt about his intoxication specifically by a witness named don king who was terr king's cousin the tennessee supreme court disposed of that claim on the merits and determined that council's decision to forgo additional intoxication evidence at the guilt phase was regarding a a a prior assault by terry king in the course specifically instruct the jury that they consider the testimony only issues of premeditation intent malice and motive that was specifically what the jury was told that carter's testimony was relevant to him and that they would consider it for that that reason or did curd or these would be sober or intoxicated when she says king attacked her part of did not testify about terri carter terri king's mental state her testimony didn't have anything to do with intoxication i didn't say he was she didn't say he was sober not sober she didn't talk about drugs or the use of drugs her testimony actually began with a description of him approaching her in a parking lot and knocking her out cold with a lead rod wrapped in leather that she called a slapstick she was not unconscious she then described how he her hair up in a car and in the car window to restrain her and he continued to beat her throughout the course of the day and she was lapsing in and out of consciousness while he asked her what it felt like for him to die and she didn't testify to that he did so she didn't say anything she did not and yet the state quare said that the reason why king lawyer did not present evidence of intoxication was because henri carter had said that he was sober and correct in making that i would i would disagree with that characterization of the state's opinion yes we agreed that we agreed that there is a there is a factual misstatement in the tennessee supreme court's opinion and post with respect to council's decision counsel test why would why would counsel make a decision about introducing evidence of intoxication if laurie carter had not said th king was sober when king attacked her well because the laurie carter testimony changed everything lori garver testimony was the turning point in the trial now it is a change in tactic the intoxication defense at this for this particular crime it changes the intoxication defense because laurie carter the lori garver testimony put into perspective king's actions in the diana smith murder so is that diana smith murder is no longer just a one off impulse in response to a convergence of a right allegation what if he had been intoxication both of it would have been fine i mean that i don't think that would have mattered shouldn't his counsel have presented evidence that he was intoxicated especially at this murder that we're dealing with today i had no your honor and did what and this and let me explain is this because counsel explained this at the post conviction and i would just just correct there's been some allegations i think and i don't think they were deliberate allegations but counsel did not testify that laurie carter testified that she was sober counseled counsel specifically said on page two ninety one of the appendix that when that he was that the lori carter testimony was devastating nearly beating her to death the way she described it with her hair rolled up asking her if she was dying he said in the course of that description that this attack occurred apparently while he was sober he didn't testify that she he obviously took the testimony as meaning that she was so but he did not report that she testified that that she testified to that effect but he certainly took it to be so but it seems to me and i think it seemed to the to the state courts and to trial counsel it wasn't the the sobriety or lack of sobriety that was the turning point it was the fact that that all of a sudden when terry carter says  sexton i know what i had to do i knew what i had to do when she when she said that i raped her that all makes sense now because now we've got to worry carter saying that he said to her tell me what it feels like for you to die i need to know what that mix feels for the next woman that i kill and so this is putting this person not as someone who just gets intoxicated and had the simples this is someone who's dangerous this is someone who deliberately harms women it established a motive even in the completely intoxicated so they truly did not know what they were doing would be irrelevant defense to the crime here whatever you call it in tennessee voluntary intoxication would that not be a defense if there were if there were proof that terry king was intoxicated to the extent that he lacked the capacity to premeditate and i think what counsel was thinking from my reading of the testimony is that he admitted it was a long shot going in was that if they could just let the jury know how much he had consumed it might plant the seed of doubt in their mind about his mental state but he never had the level of proof necessary to establish a voluntary and toxin intoxication defense he would have gotten that instruction even if he had presented the proof that he had at the guilt phase but it really doesn't in terms of his decision making in response to the carter testimony is for strickland is concerned i mean strickland recognizes that counsel make decisions and in respond to things in the heat of trial in various ways and the state court found that that was a reasonable decision made in response to unexpected testimony and it wasn't because of lack of investigation he tried to find miss carter he knew that carter was listed as an expert on the state's indictment and knew that carter had an assault warrant out against terry king he tried to locate her couldn't find her so it was a surprise for her testified to the substance of her testimony yes it was because because there was no way that the defense counsel could find out herders testimony given the circumstances that were going that that's incorrect she was avoiding him her address was listed as care of a detective he and he contacted the detective and asked the detective to let her know that he wanted to speak with her she never contacted contacted him there's no responsibility of anybody the producer no there was not your honor and there was not and she and so so the substance of her testimony and in the warrant and this is one of the ways that counsel when he was faced tendency to undermine the notion that his intent was somehow under on the occasion which was murder not that i would agree with that you are not think that's that i think that was what was so devastating about it it's one thing to deal with one incident where you're in a drunken rage and you do something that's out of character but when the state presents another very similar attack and not only that not only the attack of the viciousness in the statement that he made about you how do you know i need to know how you feel so i know the next time i kill that the next woman he also took her to his cousin and and work her testify she overheard him say i need to do i need to get rid of her body in the quarry will you help me so separate occasions he could have had a mental disturbance to the same level but at that point in the in the trial counsel knowing all the evidence and the evidence was overwhelming you know he not only were there  statements that he made about you know i knew what i had to do when she accused me of ray she put her in in his car he drove around he drove to his cousin's house he procured a weapon took her out executed her and then  other substances there was testimony presented at the guilt phase of trial about the ingestion of substances that came in through the statement of terry king that came into the statement of jerry childers so yes at the at the guilt phase there was testimony about ingestion of large amounts of drugs the only thing that didn't come in was the test a separate testimony from don king who was it was one of the individuals that that they visited in the course of the day when he was with miss smith before his brother he is a cousin and he testified at the sentencing phase and that was at the point that counsel decided he's not going to you know we're not going to prevail on this on this intoxication defense we're not going to avoid a conviction here so long going to focus on corroborate the jerry childress testimony and he did not present the testimony of dr who was indiction ologist addiction specialist but he did present him in the guilt phase but again doctor who are in the penalty i'm sorry in the penalty so it in case is more recent than this you know there were there are many cases in which that type of expert testimony is actually excluded at the guilt phase because he can't opine on the ultimate question of the mental state all the only thing that  testified to in the in the syncing phase was to was to the effect of the large quantities of drugs on the body how long it lasts and the fact that such quantities would result in an impairment of judgment so that really it does not even ross the level again of voluntary intoxication fan so counsel already knowing that he had a slim case to begin with made the decision to push that to the penalty phase is a go as a real problem in terms of at least an arguable separate testimony and that the that that decision was a direct response to that but that does raise the question that's been raised before of what specifically is the linkage between the intoxication and the lori carter i mean why would the laurie corridor testimony in the absence of anything having to do with intoxication cause counsel to say intoxication is not something that i want to press with the jury i think counsel at that point realized that it was not going to be successful he couldn't prevail the proof was just too strong they didn't have the proof for intoxication they had evidence of intoxication but they didn't have sufficient proof to make an intoxication of a true intoxication defense require much more than what they had in with this evidence there's no way that that was going to be successful that was the judgment that he and the only reason to present it at all those if you're pretty sure you're going to win with it well if there's some reasonable chance that you can plant some seed of doubt in the jury's mind and i think that's what he was thinking if i can show that and i don't recall anything in the way  defense counsel articulated his reasoning that had anything to do with the fact that after hearing terry carter's testimony the jury might not have the patience to  it wasn't going to help him at the penalty phase for the jury to have heard anything more about how dr he was he didn't say that was the reason he's didn't say what he said specifically w testimony of lori carter was devastating and then he went on to describe those things the way she described it the graphic nature of it especially how the next woman he killed would fail would feel he said pretty devastating stuff it had no business in your case in chief talking to the d a but we had already addressed it with the court but that really skewed our defense and we wanted out of that phase as quick as we could and focused the jury on our side of the case at penalty yeah so i guess wasn't exactly what i said pretty it was it was very close yes i mean i think that's you know this kind of those kinds of of judgment calls happen in the course of every trial especially when you're dealing with something that you don't expect and and you're i wouldn't you continue with the intoxication defense if you think you've already lost on the guilt why wouldn't you at least try something that might make you more sympathetic arguably because the toxic well i mean to answer your question you could have i mean that's one choice and that's one choice among two options you can go forward with the way your plan or you can change your plan and shift that's certainly an option and a reasonable one but but deferring is also reasonable because the intoxication evidence goes hand in glove with the social history in the background and this story that council ultimately told in the in the penalty phase about th mr king had after the death of this father and his use of drugs and and that's one thing and how this this sort of culminated in a series of criminal advance this wasn't the only crime he committed already committed a murder was one of his aggravating circumstances and even after he killed mi a wal mart parking lot and was planning to pick up and rape another woman so this is not a person who just has had one or two events but in order to deal with that he has to paint a story and explain how all the intoxication  with the with the mitigation proof if we could shift as i understand it there's a second issue that's the c e o it was granted on which has to do with the failure to get an expert on organic brain damage and everybody exceptions i understand that the trial counsel misunderstood the law did not know that there would be a state funded expert though that would seem to be a fundamental flaw did there was that there was a change in the long two months before counsel was appointed in this case in may of of eighty four the statute changing allow for the ex parte counsel came on and had six months to prepare was unaware of the change in the law so that was an error if we assume deficient performance and get to the heart of the case from the other side's perspective of their needing to show prejudice what why isn't this a fundamentally prejudicial situation where the defense counsel does not hire an expert in time for the trial to show that there is organic brain damage when the fellow about that many but i i you know on the on the prejudice the reason there is no prejudice and it's the state court found that the testimony that counsels counsels complaint about that and the petitioners complaint about it all along had been he waited he wasn't aware of the law so he had he waited until he got sufficient funds from the family in order to hire the experts so so instead of getting the expert you know five months out he got the expert the month of the trial this is this is good bro so that so that the whole complaint about counsel's performance has been the delay and what was the effect of the delay so the reason that it's not deficient is because counsel actually got got an evaluation again the key is prejudice that we're trying to analyze as i think we need to have been the genie because we need to see if there is organic  and there wasn't any time for the trial that's true and and petitioner had all the time he needed to to provide evidence of organic brain damage through in his post trial that was during trial he withdrew that the request for the jury said that the way the the sequence of events as i understand it is that the the evaluation took place expert which retained on january fifteenth evaluation took place on the first day that jury selection began on i believe the twenty third there was a report produced on the twenty seventh and i don't know where all this falls in but after the report which recommended the council requested to have mr king transported for e g in c consistent with the recommendation in the report there was a hearing on that and d brow testified about why he wanted the g and essentially what he said was i think there's there's testimony of this huffing and that could be an indication of organic brain damage and so i'd like to just do the test because this test could show indications of damage and bear in mind too that the question at this point in the question on which the mental help was noticed was insanity council had filed a notice of insanity to preserve the issue and so the testimony in the hearing was focused on whether or not that proof that test was necessary for doc to give brough to to make to render a decision about whether terr king met the legal definition of sanity under tennessee law and that was a sentence of the hearing the trial court found and the testimony was it was equivocal he said well it could show something and he was question what would that establish insanity if it showed evidence of organic brain damage in kansas and that if you're saying well you know it it might so it was very you know it could show this it might show this at my end but i really need this to just to to to complete my report so because his testimony he did not testify that the testing could demonstrate insanity the trial court denied the request at that time but allow the psychologist to go and do the evaluation at the jail which occurred at the car distance who is mendez at the at the close of the state's case court and this and the state post conviction court i do want to get to that because because there's been there were some comments in the reply brief about the fact that this court is absolutely confined to the four corners of the state supreme court decision the state supreme court is reviewing findings and a record made below and so what the court said was that the record did not propose against the trial courts found findings that petitioner could not have gotten a better result from or better outcome from a psychological evaluation or mental health evaluation even if he had not delayed in getting the evaluation that he did and that was based on the testimony of dr all at the at the post conviction basically said that you know that and what we've described is some and this is in the record but basically basically that terry king is anti social personality disorder he's got a variety of other ills depression and things of that nature and impulse control didn't he that's right and it showed negative results didn't it and she said that's correct now in her report her report she says i do not have dr kaminski report so i don't know if i don't know this succession of events and how she would have known that or know if she had seen or not it did it if it's explained in the record i didn't find it ok so so on the basis and i was apologizing these are elementary questions on the basis is there any evidence at the post conviction phase or earlier in other words we're still in the state court phase is there any evidence of organic brain damage if there is i'm  aware of it and i'd was not aware that that came up until after after the fact because there are three experts that are at the federal habeas inch that are talking about the existence or the possibility of organic brain damage but if we're just looking at post conviction and the state court proceeding you're saying there is nothing and so the but the question and i think that's correct  short answer is that the post conviction court both at the trial court level and the tennessee supreme court examined the at the evaluations in the in the results the doctor brough came came up with as opposed to in comparison doctor all and found that they were there were they were not terribly dissimilar that there were many similarities in that doctor almost testimony was did not rush to the level to show that there was any prejudice mind from not going forward with dr dr browse testimony so is there again in terms of this trick wind analysis there's the question of deficient performance  prejudice are you saying that there is a state court opinion that on the issue of organic brain damage and the failure to get an expert in an earlier for the is there an actual finding of the state courts that there was no prejudice so that we would review under errors and there is a finding by the state court that there is no prejudice which stick in words in the tennessee supreme court on page three thirty three the tennessee supreme court said the trial court meaning the post conviction court review doctor almost testimony determine that her evaluation provided little information in addition to that previously discovered by dr browne the trial court concluded therefore presented evidence through a witness is that that was remarkably similar to the information provided by dr although in terms of the the the social history and background and druggies there was that a finding of no deficient performance or is that a finding of no prejudice that's a that's a good question i would i i think it could be read as sort of a sort of an amalgam but i think i think certainly it could be read as a finding of no prejudice based upon a factual determination about the strength of all bills testimony i mean there's a there and there's a you know because it's a mixed question obviously if it affects the way that the state court can look at it so the so the tennessee supreme court is reviewing what the stake or did to determine whether there was support that in the state the postcondition court found that they were very similar there are very few material discrepancies and and the court except that  fact that the evidence supported it but i mean i think i think definitely in terms of prejudice the state court clearly clearly found that and the record supports it so and that's what we've said in our brief there are several references to materials that are i could have gotten a second opinion and gotten a better report they had more time they got a second pay from doctor and the report was the same an infected from the court reduced the testimony in the cross examination of dr dr all by the district attorney it was really devastating different testing that resulted in their very different opinion i think they i think there were some additional testing it is they did an m r i and they did they they did some some other things that are outside but but you know that the chance to do that indicated that there was a a factual misstatement by counsel about his reasoning for rejecting the good brown report and this gets and just and i was going to back just really quickly to this deficient performance prong on the on the error there were counsel made an error with respect to the to the change in the statute but in our view the error is only significant to the extent that it impacted whether or not his investigation was was deficient in terms of the mental health he recognized early on and early on i mean we're talking about a six month space of time so we don't have a lot of time to begin with so we recognized early on that there was a possible benefit to mental health investigative the background talk to family members father knows an intent to allow the insanity defense to preserve that issue obtained private funds from king's family retained a competent expert obtain an evaluation that he found not helpful he rejected that he testified because number one terry king had a lie to dr brout and that was going to be brought out in number two dr brad made a statement to him about terri king like into her wanting to hurt people just a kind of personal loss to her people he is he was perpetuating this sham that he and his codefendant cooked up before trial where the codefendant did this sham suicide note and said i told you that you did it told you that you were knocked out and you did it but you really didn't do it all along it was me so in this statement this goes right along with that so he wasn't truthful about what he said he couldn't remember anything everything he talked about in the crime was what he said that joe sexton told him he had done so he was not truthful to dr brough and there's nothing in those no testimony in the state beyond that you know none of the testimony that that that came out through dr all would have done anything to materially enhance what dr brough already found and that's the reason that this is is different from the hidden case that petitioners a lot was wrong on in hinton there was an error a similar error of law but in that case counsel retained an expert who was incompetent counsel knew he was incompetent and presented him nevertheless knowing that he was incompetent because he didn't know that he had any other alternative in this situation counsel retained a competent expert and got an opinion and get the opinion in january instead of in september or october but he still got the opinion lots of preparation for trials happen at the last moment so that he actually did exactly what he did and the fact that he got it here instead of a little bit earlier there really is nothing in the record to indicate that it would have been any different and that's what the and that's what the court ultimately found is that is that he didn't show that the additional time would have benefited him if there are no further questions we ask that the court affirmed the judgment of the district court thank you  very quickly i am going to go back to deficient performance but then i want to focus on prejudice because that's extremely important but with respect to the glory carter testimony we need to remember that the tennessee supreme court on direct appeal said that that testimony the relevance of that testimony to the issues was tenuous at best it should not have been admitted but the court found that to be harmless error even given the fact the council thought that  carter said that terry king was sober and the supreme court relies on that statement of support and its opinion on page three thirty three that is the key is the surprise but even even given that there was reason to present the intoxication defense because problem number one counsel promised it and number two the jury just had to credit an expert's testimony to the extent that it raised a reasonable that the terry king was unable to form a specific intent in order to form first in order to be guilty of first degree murder and we know again this is important this failure of counsel to obtain this and present this evidence is important because the fact that he didn't present any evidence of intoxication is a reason that defense counsel did not present any evidence the evidence was in terry king's confession and statements that was brought in by the prosecution yes your honor but what's important is that trial counsel was denied a lesser included offense instruction in this case and the trial court said if you had just presented some evidence of intoxication we would have given it and counsel said that that instruction would not have been given but in fact the tennessee supreme court said that it was error that the court did not give that instruction the court should have given that instruction because what happened in this case is that the jury was presented with a defendant whose counsel admitting to the crime who did not contest terry king's actions but mental state was the issue so the jury had a choice between acquitting a defendant who the jury knew you know engaged in criminal conduct and the choice of convicting him of capital murder and here we know that the jury credited even that slim evidence of intoxication that was in king states it's because the jury did not  convict king of premeditated murder instead they convicted on felony murder and it's also important that the trial court and its trials the report that the court issues at the end of the trial and this is in the supplemental appendix  the court indicated that at the pending three forty one in three forty two and this is because the judge new information that the jury did the court said that drug and alcohol consumption actually contributed to the to the offense and the court also said that the trial judge found at appendix three thirty six and three forty that there was possible organic brain syndrome and the court noted the trial counsel failed to present that pro to the jury so this is extremely important with respect to the prejudice in the guilt phase but then even if the jury convicted terry king of first degree murder all of this evidence goes to mitigating circumstances the statutory mitigating circumstances in tennessee is code contain mental components and without the expert evidence that dr obl provided the jury simply could not make a nexus the facts of terry king syntax occasion to his mental state and then give weight to statutory mitigating circumstances another thing that dr oz testimony did was that it decreased the weight of the aggravating circumstances the aggravating circumstances also contain mental state components in particular the heinous atrocious and cruel aggravator because that requires  testimony went to king's mental state and she also testified about king's deeply held remorse with respect to the prior violent felony aggravated dr obvious testimony would have mitigated that aggravat r because she describes these same circumstances for terry king again is accompanied by joe sexton he's extremely intoxicated for in that the prior killing and in the current killing and it's important configuration that was presented every member in looking at the totality of the circumstances we're dealing with three aggravators not the four not for a decade trial because the tennessee supreme court struck the felony murder aggravator as being in violation of the state constitution here honor to get to be issue of brain damage this stake we get there because the issue of prejudice did know and it reviews the issue based on all of the evidence in the expanded record that's before the district court and we know that the state court decision is on reason involved with respect to prejudice because aapl and we know legally that's not true and then looking at what each had to say it's not true they witnesses are simply incompetent to present that evidence with respect to mental state and how that we know that the supreme court has told us time and again that with respect to excuse me with respect to whether or not a person is able to make correct decisions whether a person has  whether a person is unable to enter where their person is able to suppress their impulses to conform their behavior to the law to make deliberate choices that's highly relevant in capital sentencing proceeding the supreme court tells us that in sears and in porter and in williams and only expert testimony can provide that evidence that's where the prejudice is in this case and income versus bell the supreme court talks about impairment due to mental disease defect and intoxication and how that substantially affects judgment only expert evidence can provide that information for the jury so that they can then way it determine king's culpability so yes we think that we've passed the twenty to fifty forty with respect deficient performance and with respect to prejudice and once we get past that then this court looks to all of the the evidence in the record and we know dr brewer had been contacted earlier would have found that voluntary intoxication negated specific intent we know that because dr bruce report tells us that that's that's in front of the court we know that dr brewer would have discussed the effects of brain damage on terry king at the time of the crime so we would ask the court to find that yes we've passed through twenty two fifty four d we've shown the state court decision is unreasonable and that even based on the post conviction evidence dr office testimony that we have established prejudice now i know that in this case comes to the court in the summary judgment posture and if there's any question when this court is considering prejudice to know based on you know the entire correctly expanded record if there's any question of that it would be entirely appropriate to remain and the case so that the district judge that the trial judge could then review that expanded record and make a determination at that point thank you counsel thank you your  this will be submitted