good afternoon may i please the court my name is mary margaret penrose and i've been appointed by this court to represent the petitioner each of us can mia this is actually very simple case in fact this case be summed up by a single number the number eleven eleven is the total number of combined investigative hours the state court attributed to two attorneys and one investigator and an administrative trial counsel's affidavit suggests yet even where this court to accept the controverted testimony of trial counsel eleven hours may be the most embarrassing display of representation i have found in any capital case to date i personally have worked on eight death penalty cases i've lost three clients to execution and i have never we just need you to stick to the record in this case absolutely in this case your honor there's no investigative file haas not for miss busby not with the investigator there's no affidavit from the investigator in this case presumably because there is no true investigation that was ever undertaken eleven also becomes relevant because trial counsel involvement of an expert was done at the eleventh hour after jury selection had already be investigators i think that's accurate your honor provided that that investigator is given accurate family history in this case the expert dr pearson was not told that the asking me a family had nearly every male member of the family with a violent criminal past and the letter that was given to counsel in this particular case stronger arrived nearly one month after my client was sentenced to death i'm not aware of any case your honor where the court has found that getting an expert opinion after the sentence of death constitutes adequate constitutionally effective assistance of counsel while the state habeas corpus court found the trial counsel had an awareness of the fact that both of leach o's brothers were in state custody at the time of his capital murder murder trial this was not conveyed to the investigator this was not conveyed to the expert that was obtained during jury selection and once that information was passed on it does not appear in the record that it was ever corrected by either attorney which suggests either that the attorney didn't read the report which came in late or the attorney did nothing after the actual evaluation was conducted but before the report was issued what specifically what is the investigation that you claim should have been done that was not done actually there are a myriad of items that should been completed your honor foremost among them is receiving and unredacted version of the t y c records that the prosecution asked for and the state did not in that instance it appears that the  defense counsel both mr hoffa miss busby would have been aware that that was a file in information that the prosecution was intending to rely upon in this case and even with that information knowing that the state was seeking the on redacted records these two attorneys never ever sought or received that information the most vital part of what's contained in those records your honor in this particular case is that while mr hough argued during closing argument that prior to age eleven mr asked me i had it was pretty much a normal kid in fact the under dr of records demonstrate that this was a child that at age nine was already consuming regular amounts of alcohol the same unredacted record jarana demonstrated age nine mr escott mia was already dealing with intoxication there was no one in the household other than the two parents who had been capable of providing mr escott mia that alcohol had trial counsel seeing that the date that mr asking me a first began dealing with substances particular in this case alcohol was age nine certainly they could not have portrayed the father as they did during the punishment phase as a sympathetic figure because in the state of texas giving alcohol to a child particularly the point of intoxication is in and of itself a felony offense so this is a family that is not normal this is a family that is a very disturbing to learn about the facts and have the council looked at the un redacted records they also would have realized that mr escott mia started using marijuana at age twelve claimed to be a member of a gang well before age eleven so we're talking about the younger adaptive records vital pieces of information that were clear and obvious on the surface were never obtained certainly were not considered and were paid honestly unknown to trial counsel another thing that should have occurred your honor is the investigator should have tried to determine some of the individuals outside of the family in this case there are only two family members that were actually relied upon by trial counsel the father who as i indicated was one of two parents in the household when my client was becoming intoxicated at age nine the other was a hosa who testifies on the record that she didn't think that lito was much of a drinker any trial attorney that would have had the unredacted records would have known that that was false information they were getting from the family were the only two witnesses contacted by the attorneys then you look at the other as far as family members there were two other male family members that should have been interviewed there was difficulty reaching both of them because at the time of mr escott mia's trial they were both in as brother was arrested shortly before the murder for having two hundred grams of cocaine in the family house which of course is a felony he ultimately locating them that's somewhat difficult to accept because they were in state custody and would have been quite easy to find the very fact that both brothers were in state custody would have encouraged a reasonably competent lawyer at the time not calling upon hindsight but looking trials counsel's activity at that moment that this was a family that had a horrible issue with crime they then had they looked at those records your honor i think the next record they should have done is running a family crime history as was done by state habeas counsel and then you would have realized that the father the person who was portrayed by counsel and to this day the trial counsel says they would still give this saying strategy or approach had to offenses himself for guns and alcohol why is that legally relevant in this case because mr haas stood before the jury and falsely argued that until age eleven mr  mia had never had two instances in his life or two tools in his lie that first came about at age eleven and that was guns and alcohol even a cursory evaluation of the unredact records would have indicated a very serious substance abuse problem not only with mr asked me a but in the family gang affiliation with the family and that argument was false when it was made because mr hoffa earlier argued to the jury that mr escott mia's older brother three years older had actually shot a man who had beaten up my client mr escott mia it's absolutely tragic in this case that mr escott mia was raised in a family that was filled with alcohol and gun violence and a reasonable attorney knowing both of the other brothers in the family were in custody at that exact time would have certainly done more than ask the father how did you raise them well did you try to teach them right from wrong so those are other issues i think another thing that could have happened is they might have spoken with some of the probation officers that actually dealt with mr escott mia stadiums counsel in this case had no difficulty locating the records that i'm speaking about or other witnesses other witnesses who provided affidavit testimony to the state heaviest court that demonstrates that mr escott mia was physically violent towards us why they both were count under sworn testimony in an affidavit that she had bruises they remember seeing black eyes they knew the father was violent and angry and abusive that alcohol was a common occurrence in this family one of the two a rest for mr escott mia is he was found behind the steering wheel of his to truck passed out drunk with a gun on his laptop there weren't any conviction that may be correct i apologize for on two arrests i don't exactly know ultimately how the case was resolved but he was arrested and those records came up very easily for both state papers what can one infer from an arrest that doesn't lead to conviction i certainly think that under the case law we have whether you're looking at strickland whether you're looking at the terry williams case whether you're looking at williams whether you're looking at whether you're looking at seniors that what a reasonable attorney would take from those to a rest in combination with the fact that the two other brothers were in custody at that exact same time is i this young man is a product of his environment that this young man require further investigation when we look at the investigation that took place as i it was eleven hours there's a meagre time when you talk about a cattle case with the information had they had that information that the father had been arrested they might have inquired further about that i think a reasonable attorney would ask follow up questions why were you arrested are there any other arrests in the family and they would have found out that mr escott millions stop son not so his son in another marriage has a murder convictions when you look at all of the crimes presented to the state court by state counsel paints a very troubling picture and a very very different picture than was presented to the jury the a b a governing standards at the time of this trial entities in determining the sentence to be imposed that guideline was surely violated mr hoppe himself argued that prior to age eleven mr escott mia my client was a normal kid w anything but normal he had a substance abuse addiction problem by age eleven when he also said up until age eleven he had been faced with guns and alcohol as a patently false statement another violation of that particular guide like he said he had been facing that he said that wasn't a part of of his in other words he himself wasn't using that and i don't see any evidence that he was using guns the fact that your father owns a gun doesn't mean that you are using a gun w is full of people who have guns it is i mean their kids at eight years old are using the gun i agree with you your honor but there is no doubt that the unredacted records demonstrated age nine mr asked me was addicted to alcohol so at least half of that statement was patently false and using the number eleven as a guideline that's off by a minimum of two years so mr haas was complicit in providing a false narrative that the state seized upon in closing argument the state argued essentially that mr escott mia had a privileged upbringing but you can't look at his life and say he's like other individuals that's before the court facing this crime because of any disadvantages and his lawyer had a loving father who taught him right from wrong again had counsel actually learned of those two arrests the alcohol problems in the in the family had found out from those other witnesses that this is a man who struck his wife leaving bruises i think counsel would have been certainly more circumspect and less likely to use the father's a sympathetic figure he wasn't at that sympathetic figure he is likely the very reason mr asked me and his other brothers have had problem with the law his entire life this is a case i have struggled quite honestly your honour's to look at any other case to find facts similar to this at the appellate court level the supreme court level where you have a false narrative being presented by your own attorneys i understand the state's going to use what i have argument they can but i've not seen a case certainly before the united states supreme court any case where two attorneys in an investigator combined give in ours no investigative file no clarity in the state affidavits demonstrating what they did during those eleven hours and then standing for the jury and falsely arguing he's a normal kid before the time he was age eleven he absolutely  we have cases before the united states supreme court that demonstrate when you know that the state's going to rely on particular records you have a duty as recently competent attorney to make sure you look at those records yourself to make sure that any quoted material that's being used is not being falsely stated if your honour's would like i would like to move on to the prejudiced part of my argument because i think in this case unless there are further questions i think this is a case where deficiency is quite easily demonstrated looking a read the last case i have from around here the last quote with every effort to view the facts as a defense lawyer would have done at the time is difficult to see how counsel could have failed to realize that without examining the readily available file they were seriously compromising their opportunity to respond to a case for aggravation without making reasonable efforts to review the file the fence counsel could have had no hope of knowing whether the prosecution was quoting selectively from the record no reasonable attorney would forego examination the file thinking he or she could do as well simply by asking the defendant or family relations whether they were called anything helpful or damaging i thought in  situation was that this was this was evidence that the state has indicated it was going to use of the unwillingness to look at that information was was much more serious i agree that there is a slight distinction in that and a nuanced fact your honor but i'm not sure i would say it is more serious when an attorney knows that items are redacted and you have a client that you're representing in a capital case and the is that is that to me is that your challenge you're absolutely correct on and i think that's a hypothetical challenge in the sense of we hear individuals always say well the crime itself changes the crime is so great if someone gave you two instance or two reasons why i disagree that that argument suffices in this case one terry nichols this court certainly knows terry nichols he was part of the oklahoma city bombing the worst american terrorist we have that still alive he was given a life sentence not once but twice he faced over one hundred sixty one counts of murder including children i don't think you can get facts that are nearly that egregious except for the second case i'd like to draw the court's attention to he was part of the nine eleven bombing he's the only one we've been able as a society to capture and try he also received a life sentence so when someone not not the court but certainly when i hear that argument i think to myself you know with competent counsel no crime standing in and of itself if what happened in oklahoma city and what happened at nine eleven standing alone is not sufficient you know but the problem is you have more than just the crime you have his not only lack of remove worst but almost gleeful about it after the children and people dying you raise an absolutely critical point your honor dr pearson is affidavit and he's the investigator that was a i'm sorry that he's the expert that was obtained during trial during jury selection spoke him self about the odd way that mr asking me to talk about the crime as if he was a child they said power taupe how and when you read that letter you realize that there needed to be some investigation as why this individual was not able to appreciate the consequences of his actions we know that you haven't developed that at all i mean your argument about the alcohol use and family and all of that has been well developed but the notion that he didn't know what he was doing when he committed the crime is not before us i agree your honor in this particular case it's not only that this court is going to have to weigh the aggravating versus the mitigating circumstances and one of the things that our evidence takes away from the state of texas is the entire theory of their case the entire closing argument that focused on the responsibility on the free choice of mr escott media completely evaporates when you demonstrate that this is a person that's a tragic product of his environment you would have been able to use the evidence of vicki white who was originally a day care provider and later becomes a probation officer in her affidavit during the state heaviest court proceeding she says and this  september twenty ninth two thousand and five affidavit i don't believe that leach ever had a chance in life because of the influence of the gang members and his brother's involvement with a gang and its influence on leadership it's been my experience that a child growing up in that environment of guns and violence cannot escape without a major intervention she would have been one of the witnesses that would have explained as a child he was dressed in rags he was mistreated she knew at an early age in addition we would have been able to  contextualize this man's behavior in a family where violence was a response is very difficult for those of us in this courtroom dunder stand i mean certainly the facts are quite disturbing but mr asked me  thought that violence was a way of life i don't think to this day he appreciates the gravity when you talk about how would we look at the aggravating versus the mitigating the aggravating is the crime itself but the crime itself standing alone is never sufficient you have also had the interview of mr gillette as you've indicated but what you would have had on the mitigating side was a child that was addicted to alcohol beginning at age nine marijuana beginning at age twelve was a gang member beginning at a very young age influenced by a brother that was a gang member in fact i think this case is incredibly analogous to sears and if the court would indulge me i'd like to read some of what is set forth in sears because i think sears demonstrates that the state k b s court unreasonably applied stricklin and its progeny it talk cow counsels strategy the jury was told that a death sentence would devastate the family council's mitigation theory it seems was calculated to portray the adverse impact of circe execution on him and his family loved one to exactly have in this  but the strategy backfired prosecutor ultimately used the evidence of sears purportedly stable and advantage upbringing against him during the state's closing argument with sears the prosecutor told the jury we don't have a deprived child from an inner city society has turned its back on early age but yet we have a person privilege in every way who has rejected every opportunity that was afforded him the court also looked in sears at the fact that sears brother was a convicted drug dealer in user introduced sears to a life of crime is exactly what we have in this same case that would have actually been consistent with the mitigation theory portraying sears as an individual with the minish judgment in recent skills who may who may have desired to follow in the footsteps of an older brother who had shot him out of his life the fact that mr asked me and felt horrible killed for the shooting that occurred when he was eleven years old that sent his brother t y c falls exactly within th further in sheers you have this grandiose self conception and evidence of his magical thinking dr pearson speaks nearly identical you have that same issue this evidence might not have made sheers any more likable to the jury but it might well help the jury understand shearers and his horrendous act especially in light of his book or tiddly stable upbringing because the attorneys and sirius failed to conduct an adequate it mitigates in investigation none of this evidence was known to their counsel and it only emerged during state k b s really in this particular case the evidence would have been transformative the state of texas would have had to come up with an entirely new theory and context could have been put in to this case to appreciate mr asking me is a violent act i see my time is up the same time for both of these kind of thank you thank discover a legit horrific childhood in the face of overwhelming evidence to the contrary second at best prohibits any second guessing of counsel's informed decisions not to present or pursue even more evidence of his childhood substance abuse or his family's criminal records finally the state courts no prejudice finding was reasonable in light of the very strong aggravating case the state put on turning to the first issue late two s can be as brief hinges on his argument that his counsel was constitutionally ineffective for failing to discover that his childhood was as they termed a horror crash of violence and abuse there are three points that are undisputed that should bar relief on the table as calling first lito does not dispute that the state court found that there is absolutely no documentary evidence that jose sr ever abuse liko orally goes mother in fact the t y c records obtained from five years between the years hundred six and two thousand and explicitly refute this notion second lieto does not dispute that unlike in rum pia his counsel was in possession of the key evidence that the state said that it would rely upon not only in the guilt phase but also in sentencing that evidence was his videotaped interview that he gave the day after he murdered officer james in cold blood in which he boasted of that murder the murder of michael tourists to a newsman but that's not all he said in that interview when the newsman asked whether there was anything that he would like to say to his family he didn't say dad you ruined my childhood you abused me you gave me alcohol you ruined my life he didn't say that at all instead he said dad i love you i love the way you raised me you tried your best ok how do you respond then i mean is the are you saying the t y c redacted records of the alcohol abuse and nine are wrong i'm not necessarily saying those are wrong and due to the reasons that our brief is sealed i can't comment explicitly on what those records say what i can say about those records or at least in terms of how that they have phrased them is that council was only deprived of a single piece of information as a result of their failure to find or to procure those and redacted records and that is the age at which the drinking began  isn't that kind of important because drinking at twenty is different from drinking it knowing that is important but that's simply not the case here lagos complaint is that council essentially didn't have enough evidence of his substance abuse it is simply not credible to say that his counsel did not know about both history king and his marijuana habits the court credited her statement that counsel didn't know about both of these puff set it in  the state to be a score credited that that was true and this court has to defer to that finding but also to buy the argument that lito is making here today you simply couldn't have been at the trial the entirety of their case focused on his childhood substance abuse beginning at an early age he began to get in trouble with the law for substance abuse shortly after he was beaten by two men at a children's birthday party at age eleven this is the case that his attorneys put on brenda testified extensively to his recurring problems after that incident in his inability to get treatment as he was in and out of two i see between the years of nine hundred ninety six and two thousand and she also testified that that  and expanded exponentially after his mother's death and i would also like to point out one fact that i don't have unfortunately the record citation in front of me but i do believe that what huff argued in his closing argument was not that counsel never used alcohol before his mother's death but that liquor and guns were not involved in his life i believe this court will find that there is ample evidence drink beer when you're not right and anybody would say that's a problem anybody would say that said that that is certainly a problem what i'm pointing out is that the way opposing counsel has framed this is is not exactly correct if you look at what  actually said there's no reason to think ok but i guess the basic bottom line of what count your opponent is saying is that all of this is somewhat academic because you're because his lawyers didn't bother to find all this out to be able to make the sifting that you're supposed to make that you could say wow deemphasize this will emphasize that if you don't know what you've got you can't do that that's hard i have three responses to that your honor the first would be that this court must credit the state courts finding that the copy that they received from the state was replete with reference with references to his drug abuse and alcohol abuse even with there were  state court also found that his counsel was not deprived of significant information about the applicant's absent abuse he was not overcome that by clear and convincing evidence second to forget that this court must entertain the possibility that coun d knew of the missing information from other sources again without confirming or denying the contents of these redactions petitioner argues that counsel did not learn that lee too had admitted to using drugs and alcohol as early as age nine strickland's presumption of you have a kid daily using beer even beer let's just say quote just beer that this is going on more than one amp of good and the parents are not in some way at fault i mean i understand again that a kid can get into something without with the best of parents however this is going on sort of a daily basis is either there is something very wrong with how the parents are keeping their alcohol or they know that he's doing this responses to that first evidence that opposing counsel has presented say that he was abusing substances at other people's houses in fact he was asked to leave other people's houses because of the substance abuse there's absolutely no evidence in this case also i would like to point out that it's very easy to believe that they already knew this evidence from talking to brenda and to jose sr they talked to him for four hours also it is simply not true that counsel only spent eleven hours on the mitigation investigation i actually have the quote from the state courts finding that says although brenda earle the busby personally spent or all together busby personally spent over a leavened hours with members of applicants family this is only about the time spent with them i don't think have a medication or investigation file i'm sorry i'm not sure if i were your opponent keeps saying they don't have a directed the things that are redacted are confidential alcohol and drug patient information they know they're not missing other facets all they're missing is that particular piece of the pie if they're missing that pinhole stor  that we have to presume we have to not only give counsel the benefit of the doubt but we also have to entertain the possible reasons that counsel may have had for proceeding as they did in the most obvious of these reasons while there are two obvious reasons that coun could have had for not obtaining those particular and redacted records the first is that they already knew the information they spent four hours in the first meeting talking to brenda who's a substance abuse counselor the state he was courts credit  description of this conversation she knows a lot about substance abuse they know about his drug and alcohol dependency from these talks it's very possible she knows the age at which he started drinking also it's not reasonable to pursue here that the reason that counsel didn't present this information was because they didn't know about it it's equally plausible and this court has to give the benefit of the doubt to this possibility that the reason that it wasn't presented is because it isn't helpful blame to the child that we ascribe when somebody is twenty eight when somebody is twenty eight in a drunk a lot of people blame them and i don't mean any disrespect to people who have an alcohol problem and work on it whatever but you know the public may blame a twenty eight year old for their problems how can you blame an eight year old for drinking beer i mean they're not old enough to be blameworthy in that circumstance isn't that the whole idea there's no reason to think that his parents had anything to do with that we have no documentary about even saw their whole point is we needed a complete picture this is a kid who had five years old is already being up everybody at the daycare at eighty years old is getting drunk or nine years old is getting drunk this is a kid who has problems from the start so are you saying he's just an evil child that should then grow up to be executed no not at all your honor i would point out that counsels are wrong to the extent that they suggest that  defense counsel portrayed and idyllic childhood that was not protected at all what was portrayed was perhaps a more sympathetic case and arguably more sympathetic case that his substance abuse began at a very early age but also incarcerated in two i c and legal feels great playing from that we know that from brandis testimony it's not clear what benefit he could have possibly gotten from showing the jury that that started at eight or nine when  her his brother wants a letter his mother is coming home at four o'clock every night and cooking for the family this is the same type of double sided evidence that's in the affidavit of vicki white it says at age five he's already a terror he's stomping on other children as they sleep for no reason and this accords perfectly with what dr pearson found when he evaluated him he found that you know he's very violent and dearly loved his family but he was actually really violent to you know to other people  he has an anti social person maybe you're just saying that i guess i'm trying to understand this that he's inherently a bad person from the start they're just some you know i mean i hate to use the phrase evil see but it almost seems that that's your argument it's my argument is that counsels it's there's at least a reasonable argument that counsel was not pro or that alito is camille was not prejudiced by the failure to present this information we know that's true for him hungry because you're saying that had this thing about him at five screaming at everybody come out that there are that could be viewed as the way this kid really needed help that he never got or it could be viewed as this was an unsalvageable child that's what you're arguing the words that it's double edged or whatever yes the words that pinhole stor used in explaining why it wasn't prejudicial for counsel not to put in even more evidence of substance abuse was that the jury might have concluded that pinhole start was simply beyond rehabilitation and that's what the supreme court has acknowledged is a possibility that's out there and that's way he's not prejudiced in this case by that particular error also i would like to point this court to the quote from richter which says while in some instances even an isolated error can support an ineffective assistance claim if it is sufficiently egregious and prejudicial it is difficult to establish ineffective assistance for counsel's overall performance indicates active and capable advocacy that is exactly what happened here and petitioner can't show even a strickland violation much less overcome doubled efforts on that point as difficult childhood outweighing the facts of the murder it becomes even harder to envision such a result when the evidence that belmont just had committed another murder which the court in terms of the most powerful imaginal imaginable aggravating evidence possible is before the jury here that's what we have we know that by a leap go ask me is own admission just a few days before he's murdered michael tourists in cold blood the jury heard that there's just no reason to think that hearing that he was drinking at eight or nine and eleven or thirteen is really going to sway the jury when they've already heard some evidence of his childhood substance abuse and they've still to condemn tim to the death penalty also the circuit is held that when there is evidence of future dangers and that future dangerousness evidence is overwhelming it is virtually impossible to establish prejudice here we have the most powerful says that it's impossible for the petitioner to make the ed push showing i'm prejudice where the jury has already heard him glory in his crimes that's what happened in pain holster and that's what happened here the jury's already heard him on  videotape bragging about killing officer james in cold blood and not only that but bragging about killing michael tarsus well there's simply no reason to think that this extraneous evidence that  not even proven that his counsel didn't know about somehow prejudiced the proceedings and again this court the question isn't whether this court disagrees with the state courts finding it's whether all reasonable jurists would disagree with the there the council failed to follow up on information in the social services records that stared them in the face regarding his abusive neglected childhood the court in that case further explained that counsel uncovered no evidence in their investigation to suggest that further investigation would have been fruitless counsel uncovered a mountain of evidence that further investigation would have been fruitless we have t y c documents extensive to i c documents petitioner was never abused we have not only that but we have a consistent story from every single witness that was contacted saying either he was not abused or if they weren't asked that question giving a positive i love my father i appreciate the way my father raised me i was not abused in fact the two i see records do not even reflect so much as physical punishment  leto also argues that his trial counsel failed to learn of his abusive and violent upbringing due to their cursory mitigation investigation the state court flatly disagreed with that and he has not come overcome any of the fact findings on that point clear and convincing evidence to again even acknowledges on pages twenty four and twenty five of his brief that his trial counsel had his medical records is redacted to i c records and his school records this plainly distinguishes this case from both scorched found that the investigation was deficient on its face because it consisted only of one day of interviews of witnesses supplied by the defendant's mother that's not what happened here  we know from the state courts finding that counsel not only talked to numerous family members and every friend they could find but they also conducted a searching review of the documentary also there's just no merit to the assertion that counsels investigation was only six hours long the state court never found that also a single contradictory affidavit stating that the first meeting lasted one affidavit does not suffice also they hired an investigator who identified family and friends and not only that but they hired a lot of expert to systems they hired dr pierson and dr crowder well in advance of trial far before the t imeline described invented this far exceeds the investigation and sears and it also strips that which occurred in pinhole stor in pinhole star the court found no marit on the haiti it's ineffective assistance claim or the evidence was that there was six hours of talking to the mother there was some presumed preparation of the brother for the punishment phase proceedings and also some indications that council had spent at least some time reviewing the california unreasonable also we have a problem in terms of his allegations of an alcoholic father and an abusive and violent upbringing because there are no documentary evidence that support this theory he has to be able to get it in through witness testimony in order to show prejudice but this is a big problem for alito there's not a single person that he identifies who is available and willing to testify at his trial who would have who would have acknowledged any of this  right now there are a few apogee events from persons such as maria as could be i believe she's the only person who provides an affidavit that attests to any abuse whatsoever but she doesn't say that she would have testified to this abuse in fact she was at petitioners trial and she didn't testify also we know that the state habeas court credited busby's testimony to everyone that they talked with that gave the same story and that story contradicted abuse and neglect moreas one of those people that they talked to and we have absolutely no explanation for why her story has changed in short petitioner on this point simply has not overcome with clear and convincing evidence the state has b s court crucial finding that there was no evidence of the sort that was reasonably available at the time of trial nothing that counsel could have done what about a cover next i would like to turn to the point that it was reasonable for the fort or for the court to conclude that counsel was not ineffective for failing to discover and present enough evidence of his family criminality the  grant reflects incorrect statement that by counsel's admission they neglected to obtain the publicly available arrest records of lee just family members the state habeas court here found the very opposite as to his brothers the court found that busby did find their criminal records and busby said that she found them in fact brenda presented significant testimony on jose jr shooting of one of those childhood assailants in his subsequent incarceration into i c u for that crime we also know that he wasn't prejudiced by any failure to present evidence of the additional arrests and that's because they all occur either right before leto turns eighteen this is the arrest in the house with the drugs  jr that opposing counsel discusses but this really can't be a formative event only chose life because he's already locked up by that time he's already almost not a minor anymore by this point leto's already been stealing cars at age  to perhaps was the instigator of any family criminality in the oh i think the argument is that just you know it's sort of a race if some argument about families that then maybe you have one bad actor even if you have good plural and we have a reason to think that something about the parents is causing this and we know from the evidence that they put on that the beloved matriarch who everyone agrees was an excellent mother loved and adored her children evidence that leto obtained in the state habeas court that her death has a profound impact on the family she dies in october of two thousand this is a great explanation for not only leto's crimes but also the crimes of his brothers in he adored her she was the linchpin that held the family together after she died everything went bad i would also like to return to the point that his father has no criminal convictions absolutely  both he and his mother are working every day apparently to provide for the family this simply does not support the horror crush of violence and abuse at the hands of leto's father that counsel here is  claiming also there's a very good reason why council wouldn't have put on this evidence when your client's life hangs in the balance in the father here is one of the few people willing to go to bat for alito why in the world would you impugn his testimony with such weak evidence he's been arrested twice he's never been convicted these are not violent arrests these do not even indicate alcoholism there's one alcohol arrest not even two it just simply i don't know i'm not actually sure on that point your honor but i don't really want to think you're correct and i would also like to close by addressing prejudice alito has not shown that the state k b s court was not only simply wrong but actually unreasonable in finding that there was not a substantial likelihood of a different senate but for counsel's and professional errors richter tells us that there is very little daylight between strickland's prejudiced standard in a more probable than not standard that different matters only in the rarest of cases and that is not the case here as in walang this is a senseless crime this is a very strong aggravating factor it's not necessarily as gruesome as some other cases the officer james as a gun he's running away and instead of making his getaway he turns around stands over him and pumps three bullets into his head there's no reason whatsoever for this type of a crime also future dangerousness here is overwhelming we have the additional murder which is the strongest possible aggravating evidence but we also have other violent acts we have the beating of the assistant principal this is simply very very strong evidence that would have been you have a very similar are defendant and he's very unsympathetic the jury has heard him boasting about his crimes also there's a psychologist or psychiatrist who's consulted who finds that he's anti social that you know relief and the court says in that case that's a great case for family sympathy here we have not only family sympathy but a very very powerful and moving story explaining why liko became the person that he is today for these thank you your honors the state would have this court believe that it's reasonable for attorneys to have facts in their possession and choose to be complicit with the state in providing the entirely distinct portrayal to the jury the eighty nine matters it's significant in this case and i think it's patently unreasonable for attorneys that have accurate data to decide not to give that accurate data to the jury as i indicated previously that violates the governing a b a standards at the time i'd like to return to the issue of prejudice quite briefly in williams terrie williams versus taylor got an individual that killed one person for a couple of dollars he put a second person in a permanent vegetative state previous to that he was involved in an arm robbery burglary grand larceny hit to auto theft two separate violent assaults on elderly victims and committed arson in jail you know a state supreme court granted him really after ed and found prejudice in his case likewise when we go to where the court also find following at pop prejudice and returns this case as well for a sensing perceiving mr m p repeatedly stabbed his victim and set the body on fire i think that's two additional examples this court can look where the united states supreme court considers not simply the crime that considers the constitutional right of the effective assistance of counsel to have your attorney present an accurate and factually persuasive argument on behalf of your client i would like to correct a couple of things stated by the state first there are three affidavits in the record that were provided for the state to the state hey b s court all three of these individuals testified under oath admissible in the proceeding that mr asking me a senior thirtieth two thousand and five said he hit her i saw bruises luis gonzales october thirtieth two thousand and five maria was beaten and i saw a black guy i consider that very clear testimony that there was did they yes your honor further i'd like to refer turn to the question judge change you raised about the existence of a file there is no independent file in this case the quote unquote file is the state's file i do not know of any other case where attorneys relied simply and it isn't the state's complete file they didn't get the young redacted records i honestly don't know how any court is going to arrive at the fact that it's reasonable to rely on the state's redacted records when you know the state is relying on separate and distinct relying on i mean they didn't introduce those against him that's what happened in rom pia was they introduced the relied upon stuff against from fear that the lawyer didn't go look at  i didn't understand that to be the case here it's not what is the case in this regard your honor the state's the only entity that has the fact that this is a child that digging in age nine is addicted to alcohol so when the attorney of that client stands up and says i was trouble started age eleven the state goes good thing we have the records and they don't have the records that's different from then using it against him i appreciate there is a factual nuance i think the i state supreme court looking at strickland it's progeny is going to say that an attorney's failure to  unredacted records that you know the state request it is constitutionally in affect it well respond to seek to rely on the procedural default rules of harrington versus richter petitioner also encourages this court focus on justice kennedy's opinion in that particular case which reminds the pivotal questions whether the state courts application of the strickland standard was unreasonable blind deference to trial counsel's nearly identical affidavits and you should look at them side by side on attended by any documentation of how the eleven hours were expended while the state said there were more than eleven hours it's not in the record it's not in the affidavit we have no file we have no documentary proof we have no evidence of any independent investigation we have no witness list beyond the two family members we have no explanation of why with awareness that both the petitioners brothers were then in state or federal custody counsel chose to let the state argue that this is the one bad apple in the state this rescue me argues that no fair minded jur would agree to such minimal work and the eleventh hour retention of a psychiatric expert who based his assessment on a false family history with trial counsel investigation consistent with strickland versus washington thank you your honor