mccutcheon for your accommodation and rescheduling it under the circumstances that we need we appreciate it very much in this case your honor that the jurors were given the solemn task of deciding only the question of penalty whether it be life without possibility of parole or death for the crimes that steven levitt ict is admitted he committed as a twenty two year old but unfortunately counsel did not provide the jury with the most important information that they needed to do their task in a way that would inspire confidence in the outcome in particular the jurors had no knowledge at all the mr libby died as suffered civic significant brain  damage at the time of the crime that he also suffered from multiple serious axis one mental disorders that the particular areas of his brain that were damaged and the type of the mental disorder were such that it impaired his ability to accurately perceive reality to make informed judgments or good judgments and particularly to control his impulses when under stress they also didn't at the hands of his parents including his father they did not know for instance in that regard that his potential his risk for developing serious mental impairment was exponentially increased after birth by having to witness his father beat his mother to the ground and attack her with a knife this hour we're pretty familiar with the record in this case  light of verified allegations in the state court petition setting forth a prima facia case for violation of constitutional rights specifically the right to effective assist counsel penalty phase and the summary denial of that of those claims without an evidentiary hearing under circumstances in which the state court record did not you knew the facts would be acting reasonably by not investigating and developing a mental illness defense and mitigation would not be sufficient to term the california supreme court ruling and i think i understand the thrust of the court's question and yes it would but that's that's respectfully not our case our case is one in which there were many facts which council simply was not aware of because of his deficient failure to investigate him but he was aware of one fact sure and sure so now don't know if if we're dealing with twenty to fifty four d two and i think you're correct we might not agree with the california supreme court we may think they're dead wrong  under reasonable a finding of fact yes as i read unreasonable if there's a reason to do with it it's not unreasonable why isn't that statement reason the reason that statement is not a reason is because st of all it's not the only statement mr livid eidos made and i believe the the court is referring to the counsel's notes that appear in the respondents excerpts of record beginning on page eighteen of those i am going to look at those notes and what he said was in addition to saying that he's not crazy he says i may be a little unstable but i'm not crazy he says many other things in those notes that were before the california supreme court to indicate that in fact he was not but he was certainly not telling trial counsel that he didn't want him to investigate a mental state or that there would be no utility in doing so he also told him that quote if he had been acting like a normal person he had would not have gone into the store and acted the way he did he said i must have been screwed up in the head to do what i did he later told  trial counsel and this is at page eight and nine of the same excerpt record your honor was referencing that after he had time to settled down in the in the county jail and was being interviewed by mr demby he said actually he was glad he was caught because if he had gotten away with it after killing the guard he would have never realized how wrong it was now now he realizes that is wrong there were many other instances in which he made comments indicating that he was in an altered in a disordered state when he had no question that he ma statements and we might think the based on a balance of the of the evidence those statements carry the day as opposed to the one statement that i just quote or paraphrase but that's not the test the test is then be i wasn't put on notice that there was a mental problem here and what i'm saying your honor and perhaps i didn't say it correctly is that in the end the collection of statements that we can choose from  because in fact the nature of a psychotic illness is what we call psychotic ambivalence the client in those it situations is the least reliable person to be relied on for a clinical insight into whether he's crazy or not or no and so the record clear everything that we have cited to this court in terms of expert reports everything we have cited was in the california state court record there's nothing that we're talking about there was introduced for the st time in the aborted  expert testimony introduced by the state the state was given six extensions of time to file an informal response under state practice invites them to present any legal or factual material refuting the claims and they presented absolutely zero so under this court's holding in kero that is supposed to be significant in terms of the end of saleability of the expert's opinion now and i don't in in the least a disparag criticize the california supreme court and i don't say this facetiously but the point is that they are a steamed legal scholars but they are not mental health experts that's why a person is oklahoma says that when we're litigating this sort of a case certainly the trial level and issues of this sort are the issue we need to have the assistance of an expert to make sense of all of this information that's all i have a couple of questions i'd like you to address somewhere in the course of your argument the st question is is there an important distinction between developing mental health habits for purposes of presenting  defense to the crime on the one hand or developing mental health evidence for purposes of showing mitigation evidence they could bear on the is responsive in fact to the statutory factors in mitigation under california law which specifically recognize evidence that would not carry the day on guilt phase may carry the day on penalty  one is the commission of the crime under the influence of an extreme mental or emotional disturbance i'm sorry well i thought i thought you were making the claim and some as as in the situation that confronted the united states supreme court in rumpy a versus beard and that this court recently addressed in washington versus ryan the the the the initial deficiency of counsel's performance began with the failure to obtain minimally a logically available records mental health records of his client in this case he didn't go to the county jail medical hospital ward that left psychosis and certainly in light of the history that could have been documented had council investigated this case there would have been a further showing that these crimes in fact occurred both both this crime in the one in las vegas occurred close in time to when mr leavitt itis at the age of twenty two was having the sort of schedule prodromal breakdown that is if you assume for a minute and of course it's an assumption i have ever the better i haven't made a decision but if you assume that we agree with you that the california supreme court was a tepidly unreasonable and the nine that this is an effective assistance of counsel claim as it related to development of mental health many geisha evan assumed from a model we agree with you then my question is what's the remedy and that's like a simple question but it may have a very give give relief unless the state gives them another guilt phase hearing or changes the sentence to be not the  another possibility is that we could remand to the district court to hold some type of hearing on this but of which i don't know if that's permissible under c so my question to you as if we agree with you then eighty d p a was offended in that respect what is the remedy yes honor and and the and actually the very we simply be allowed to go back to the district court and complete the briefing that we were in the middle of following the evidence rehearing that has already been conducted and allow the district court with the benefit of complete briefing to see whether we in fact have established our claim based on the evidence we've already been present we already present it to the district court what happened in this case is that initially the district court under the asked us to address this question about whether basically they should have had a hearing in the st place and so our really of our narrow modest proposal to the court is that we believe the district court got it right the st time indemnified one of the questions i was going to read it given the powerful aggravating circumstances in this case would it be unreasonable for a state court conclude there's no reasonable possibility of a different sentence even if counsel have presented evidence  petitioner suffered from mental health problems and his mother was unstable and abusive the california supreme court may have just said look this is going to be the end result anyway what would have made that in reasonable germination a fact here  and i think the what would have made that an unreasonable determination of fact and application of clearly established stricklin law were the same considerations that made it on reasonable and williams retailer and made it unreasonable in the quarter versus mccullough and that is that the primary mitigating evidence that is brain damage and major mental illnesses tied to a horrific childhood none of that none of that i heard a whisper in the court and the only thing that was presented to the court i'm sorry to the jurors for their penalty consideration  the fact that mr leavitt eidos and pled guilty so sensually assumed accepted responsibility for his acts that he was remorseful that has it's that different periods during his childhood he was apparently not a well socially adjusted child and then finally that he was that his family would be very very the concern very devastating really if he were to be were to be executed when we look at that in light of what the united states supreme court has said in those instances where that has been presented without the steps taken to introduce all of the mental state evidence of the brain damage of it it's what they repeatedly say is going with due respect was not and there was not an evidentiary court made the point that an evidentiary hearing wasn't required because the state court could look at what had previously been developed in the circuit exactly right around it but what was developed apparently as as as a further stage that we were entitled or we weren't afforded in state court is that trial counsel in that case actually investigated the brain damage and it was ruled out by dr stolberg the same doctor who  counseled then tried to use it to sort of retool the claim and say well while i may have discounted brain damage i think that maybe some of the school records could indicate some evidence of brain damage health disorder that could be diagnosed was what they called an axis two personality disorder not the axis one serious psychiatric illness we have in our case but a personality disorder that was characterized as a psychopathic personality so basically you know what is cloak will lead called the criminal mind so great he had to get a clinical evaluation that his client had a brain that was made him a criminal  and he had no brain damage so left with those those rule outs which are counsel didn't even look at he then proceeded to decide it would be best to ask for some to present mother seek sympathy for her in post conviction what the what the california supreme court was aware of as well is that there was what the supreme court in penpals recalled sparse additional information virtually nothing else or a few odds  st steps were not taken to uncover significant mental illness and what is all the more tragic as it were in this case is this family was very cooperative with michael danby the you know the the idea that you're a child watching your father try to stab your mother being saved only by the by the neighbors that's something that even if you didn't connect to the to the horrific and catastrophic mental health out a jury going to should be aware of especially if you're trying to create sympathy for the mom what the jury didn't know was that two decades after those assaults she still bore visible scars on her head and other parts of her body and the jury didn't know that because when she asked mr denby if he wanted to look at them to confirm that what she was talking about he chuckled he chuckled he laughed at her and said i'll take your word for it and then did nothing didn't ask any medical expert already want to look at those scars and proceed with an evaluation of what that would do to a young child brought up in that sense in that environment so the and the the  that compare that with the evidence that was presented mitigation the minor pleas for mercy and then all of this other and say would it have made a difference and in this case what we have is a record of a jury deliberating just on the evidence they had for three full days and in the course of which they on their own initiative because it was never argued to them indeed mr denby didn't even mention the father or anything or any of that in closing argument they asked about  statutory factor af which is that the defendant committed the crime under circumstances which reasonably gave him to believe he had a moral justification arcsin you ation extenuating circumstances we stipulate that that was completely it applicable here don't worry about it but i share your your perplexity right to the point though is this was a jury that was carefully going through these factors with no guidance from counsel and saying could this apply could supply i magine if they had hit upon said well at the time of the crime he was suffering from a severe emotional or mental disturbance or as dr foster explains he had an impairment case that there is at least a substantial probability this conscientious jury if assisted in their task would have come to a more favorable result and with the court's permission i would assume with that this is would be made on rem before the nice california supreme court yes there was this statement which i paraphrased a moment ago but it would be unreasonable for the california supreme court to consider that as a reason why mental illness was not developed because there was expert testimony also before the california supreme court under a budget that the last thing you want to rely upon as far as i'm just mental illness of if in a criminal case is what the criminal defendant says about it because of the psychotic condition and that should be disregarded and it would be a reader would be unreadable as a matter of law to rely on that kind of statement do you agree with that well i think foremost it should be noted that this is not a d two issue this is a d one issue this is a summary denial and there were no factual determinations made by the california supreme there but i think the point is the because if i understood the soured correctly what he's saying is they should have been er and they generally assume them to be true however petitioner does have pleading requirements fisher cannot simply say i was innocent or defense counsel is deficient without backing them up he has to provide more than just conclus statements hearsay statements or statements that are unsupported by right of readily available documentary evidence and petitioner does did not provide the court with how how defense counsel mr  the expert reports that at least would suggest a question about the defendant or the petitioners mental state and the state does not appear to have submitted anything to the california supreme court so what was there in the record that the court could have relied upon to decide the factual questions could be dismissed out of hand there was a vaunted evidence and i think st and foremost there was the fact that mr denby retained and consulted with a psychiatrist well there's a reference to a mental health expert but do we know anything at all other than that fact we do know there's more than is before the state court there were filings nine hundred and seven nine documents expense reports that were part of the superior court file that identified dr michael colburn as the psychiatry that was retained and did in fact evaluate petitioner and it's presumed that mr demby determined the petitioner did not have a viable self defense based on dr colburn's evaluation of what what can the california supreme court of relied upon to reach such an inference mean we don't know what dr co burn said and so i guess that's an inference that can be drawn but it's one that kind of screams out for looking to see what's under the covers instead of just assuming well there's no i don't see the lawyer must not have seen a lump there so there's nothing there and that is that what you're offering up is the record that would support the california supreme court's decision absolutely there is an inference there's a presumption of competence and we don't know what the psychiatrist told mr deputy because petition it up provide that to the california supreme court these gaps in petitioners pleadings were fatal to his claim it was not the california supreme court's obligation to fill those gaps with information beneficial to the petitioner these were pleading requirements a petitioner failed to meet that's why this was not a factual determination this was a legal conclusion the petitioner had not me to plead adequately his claims that mr denby complained in his declaration and it's not trying to get to the argument about the continuance but he said he had expect to do a lot more with these records only the trial court wouldn't postpone the trial because of i guess the prosecutor's pregnancy and so forth and so that by itself suggests mr denby saying there was more to be done even without knowing what was in dr coburn your port how is that a reliable basis to conclude there's nothing there  don't think you would ever find a defense attorney that wouldn't say there was more to be done but this record that mr demby did what do we know that he did other than consult dr coburn who paid was paid something for his services do we know anything else we do we know he spent a year preparing for this case you know we met with petitions dozens of times in jail he took copious notes you know you petitions friends to friends family family friends colleagues co case for ineffective counsel let me ask you this what essential allegation was not plead petitions and not explained to the california so was deficient they did not tell the supreme court what steps defense counsel took an investigation and how those steps were deficient moreover position did not tell the supreme court what the psychiatry just informed defense further provide the california supreme court with this information well if he did allege that the then he was deficient by not investigating and developing mental illness information right he certainly did allege that but cation he did allege that thembi was rendered ineffective assistance of counsel by not investigating and developing mental illness evidence correct that was the allegation but what's wrong with that was it wasn't sufficient in the same way that it would have been sufficient to allege that petitioner is innocent of the crowds the california welfare if it's not just in some of the crimes of he says i wasn't jewelry store that day that's a factual issue so the record would have been filled with evidence with regard to guilt or innocence i don't know where the record here is filled with the evidence that that would permit the court to fa supreme court u s supreme court has said look the california supreme court has a record to look at but the record here doesn't speak very much about mental health in particular the state did not make a submission and so was it the california guilt i'm troubled here with the mountain of evidence which turns out to be well there was a psychologist who charged the state's a money for his services even if we don't know what he said and what the counsel who acknowledges he knew about head injuries and said he wished he had more time to get the records which he did not get what factually they're permitted the california supreme court to say we've heard enough there's no need for further investigation end of story well it's the absence in what they provide say that's what that's where i pause because what they provided included reports from three experts that at least raise questions now everybody here is experienced and understands you can probably get an expert or to say anything and so there's some room to discount but this these are qualified professionals it wasn't simply a bold conclusion with no back up they spent hours with the individual and so to say there must have been something on the other side the defense counsel looked at because he did hire a mental health expert even if we don't know what he said so we're going to discount everything that petitioner did submit it's hard for me to understand how that's a factual determination that can be supported well again it's not a factual film but it is  because there they didn't reject him as a pleading deficiency what with the court with the us supreme court said in pin holster and saying it was ok to go without an evidentiary hearing that the state supreme court wasn't required to send it out because they had a record to examine and i take that to be the process of the california supreme court presumably followed here but there isn't much record they could have examined that would support their conclusion that this claim defense counsel was deficient in his investigation doesn't rebut that presumption he has to talk about the steps that defense counsel took and why those steps were deficient he has to talk about what the psychiatry has told defense counsel and why defense counsel is deficient so how does how does his he views counsel find out about all of that he goes and consults with dr coburn and asks what what happened in your evaluation he talks to denby he got a declaration from the from mr denny but nowhere in the declaration does it doesn't touch on the investigative steps he took or the psychiatrist that he retained so these absences were not only his burden to provide but they were fatal to his claim before the california supreme so even though he offers up the other expert reports to establish there was a case to be made that's not enough no because what his argument apparently is is that despite what the defense counsel learn from his psychiatry just let's let's hypothesize that it was he has a clean bill of health there's no mental defect defects the defense counsel was deficient for not then  pursuing another psychiatrist to get what they've provided to dr fauci and suppose we hypothesize that it wasn't a clean bill of health or suppose we hypothesize that the mental health expert gave no to support a conclusion that there was not a suspect in effect of this is of counsel has to rely on something more than the pure presumption that he performed properly well let me step back and put it aside this psychiatry's existence and the evaluations existence and the presumption that defense counsel relied on it there was also abundant evidence that demonstrated petitioners mental fitness defense counsel as declaration states have petitioned or assisted in the defense it's clear through interactions with the with the trial court that petitioner was engaged understood the nature of the proceedings he understood the charges petitioners post arrest statements to the police were clear and coherent one year prior to these crimes he underwent a four month long diagnostic at the fattest state prison and they did not diagnose him with any mental defects on top of all of that when you look at the crimes these were committed with problems that he ran into in the st the st robberies so all of this and on top of what we already discussed was but issuers own comments saying that he wasn't crazy and that he knew they couldn't execute a crazy person he could do a good job if you do all of these all of these factors were also in the state court record and the court would have considered when looking at the allegation of petitioners that defense counsel was deficient and again based on them that the supreme court's summary denial ran afoul of strickland so this is a de one case under rector we looked at we look at all the possible reasons why the supreme court could one versus two this isn't the st time i've been trapped in this morass and i don't want to go too far with it but it seems to me pen holsters point is that there is a record the court could have examined and the court's conclusion is not necessarily limited to a pleading deficiency examination but they are there facts in the record that bolster this claim anough to keep it going the latter's strikes me more as a factually a deed to do and i think that's where judge perry and i are lost but as you say it's not for the st time and probably not for the last that there is at least some factual element here can you cite to me a california supreme court case that would articulate a standard that could have caused this petition to be rejected for again the record before the state court shows that mr demby did investigate petitioner's mental health the presumption is that mr demby did determine the petitioner did not have a viable mental health defense again declaration references mental health it certainly could have been relevant we the state the state court was not provided with what dr coburn's evaluation contained we subsequently learned that at the evidence or hearing but in front of the state court they were not presented with dr coburn's evaluation so the presumption is that mr demby made appropriate use of dr coburn's evaluation  and based on also the abundant evidence that demonstrated his mental fitness defense counsel mr denby made a reasonable decision to present a mental health evidence defense counsel has a duty to make reasonable tactical decisions or make a read or excuse to make reasonable investigation or make reasonable decisions that render particular investigations unnecessary and so based on this this presumption lifelong this alleged lifelong history of abuse at the hands of the father the mother and the uncle so by presenting this mental health evidence he would have run into the same problems that he avoided with it could  to why mr demby was deficient in relying on what dr coburn told him and what dr coburn learned from his evaluation of petitioner and that deficiency again it's regard to development of mental health evidence or failure to develop assuming that is the case what's the remedy well considering that there has already court decides that there was a violation of law on i guess one solution would be to remain for further briefing regarding what was unveiled at the evidence you're hearing which is as a  just a court recognize petitions allegation suffered after the evidentiary hearing after there was a battle of experts and after dr coburn testified mr mr denby testified petitioners allegations were in worse shape than they were when they were presented to the california supreme court which again generally assume them to be true in their face but i would like to touch on one thing that  i believe your honor brought up which was you know regardless of how we look at it we have to eventually talk about prejudice and when we talk about prejudice we're going to look at the aggravating factors that were presented at this case and based on the aggravating and powerful evidence that was presented there's no reasonable probability that petitioner would have received a different sentence they heard the jury heard  leme emotionally charged testimony from the survivors of this thirteen hour siege they heard about how these five individuals who had known each other for years were forced to tie themselves up and lie on the ground  threatened at gunpoint consistently throughout the thirteen hours that heard about petitioner plunging a knife and into the back of mr smith because he talks too colleagues and had to lay there and listen for two hours while mr smith struggle for life they also heard about at the very end of this thirteen hour ordeal moments before  escaping skinner was ultimately shot and killed in on top of all of this they heard testimony from the the victims of the sales robbery who were forced to crawl on the ground and kicked at gunpoint during  that robbery so in light of those aggravating factors and in light of the pitfalls that necessarily came with presenting the theories that petitioner now advances there is simply no reasonable probability the petitioner would have received a different sentence mean just this is the court with the questions you asked counsel regarding california pleading requirements that i think may help clarify some of this council mentioned duvall and that is in fact a case that says the california supreme court looks at the allegations the allegations in the petition to see whether they state a cause for relief and in so doing they assume that they're all true and if on their face and assuming there isn't something obviously facial incredible they state a cause of action then the court will issue an order to show cause as it did and holster and potentially have an evidentiary hearing contrary to what counsel saying part of that pleading requirement does made and there are some argument about what counsel could do to explain or justify his or her conduct the appropriate method is to have an avid edger here and i would direct or invite the court's attention to a case in our suppress statements made to police agents filed no declaration because as often happens in these cases sometimes you you know counsel doesn't want to talk about it at that point  but could you respond to your friend's argument on the other side of the case that even if there was and i see prop men terms of deficient lawyer conduct there's no prejudice under strict one because of all these other factors yes and i think my colleague overlooks the fact that this is exactly it precisely the issues that was addressed in the court by the court and williams when it underscores the prejudice of the absence of evidence mental health evidence to explain the conduct of the conduct he described the events that he described do cause anyone who hears them to  but it's not going to mitigate the case officially to say his peers family's going to be sad if you execute him what the what the jurors wanted to know and what they were trying to know and what mr dombey said he would tell them and never did is what was going on with steven levitt itas why would he do this what would explain and the cases of this court in the supreme court have consistently held where the explanation is a mental impairment that overcomes the inherent or