counsel claim mr rodriguez is penalty phase but i want to concentrate on the prejudice prong the district court found deficient performance and i think we will rely on our briefing to why that deficient supported by the record they don't it would be in fact improper if they followed across in a case where they prevailed found that there was no prejudice because the quote from that it would alter the sense of sentencing profile i would like to take issue with that finding for several reasons and i can break it down into why the force of the aggravating circumstances and in this case we have mr rodriguez who presented evidence of a low intelligence of brain damage which in the brain damage in turn increases his impulsivity his lack of judgment well the x doctors haber's said that he needed to be seen by a neuro psychologist in addition and the reason for that is neuro psychology is much more subtle than geez i mean the science at that time which is twenty something years ago was not conviction they would have found the brain damage the resulting behavioral problems that the brain damage indicates as well as the very low i q which has been held in many many cases i'm thinking of williams versus taylor amongst many low used a definition of mental retardation that only used the one prong and that's why he found the credibility but how low i q finding was not to discredited it was not discredited church so you saying that they credit to the state court psychologist for the other side testifying his i q was done a few did at that point but don't judge carney the state court judge said low i q doesn't mean mental retardation you lose nobody really looked at the fact that low i q is a where he just a vibe that when dr david found no evidence of normality or disease after the referral because of his concern about brain damage it was pretty clear paper thought that that was he didn't object or request that the hearing be expanded to include other evidence of litigation we did that he objected i think we we wanted to get people from cuba  concerned that we did have a hearing on that now as far as the nexus between the mitigation and the criminal conduct is concerned about all the other evidence none mental was very very poor he did really badly in school he they everybody thought he was crazy that's the word they said he would do dangerous things like writing his horse backwards and he would fall he he exhibited a lot of very weird behaviors from what ten pages it's very very cursory she basically said he was a good husband and provide that's it so i mean he has he had a lot of people the course the it but the and the worst part it seemed to me was that a lot of the difficulties with is upbringing ended when he came to the united states and he had lived haber's report and in the closing argument the prosecutor made some comments that there was no evidence of mental disability that this was a reasonably intelligent person that the defense had not put on any evidence that he had a difficult childhood or anything like that how does that factor into our prejudiced analysis if it does hurt any of that they never heard any mental health they never heard any social history evidence the jury after all rather than the disinterested in the proceeding so i think if the jury had had some context to put that in they might have been a little bit more sympathetic to him not just a part of it that this court and the united states supreme court have found prejudice in fact similar or less egregious than this one again i would draw the court's attention to williams versus taylor whe as far as the twenty two fifty five fifty one claim is concerned i want to make it very clear that the controlling federal law clearly established federal law that mr rodriguez is relying on scheme for looking at mental retardation or intellectual disability and death penalty cases which run against the science that's put out by the i d d and the american psychological association  much a question of law it's just a failure of proof the florida supreme court said rodriguez failed to offer valid evidence of his mental retardation well let's  opinion and could not the state court have credited his opinion and if so we stuck with it no because he came out you have to remember he came out with aren't please the court i'm susanna shard i represent the secretary of the florida department of corrections i will probably throughout this argument refer to the responded as the state i apologize for that little misnomer but that's a habit but you know who i'm talking about i will address the issues in the order that that count soledad and just briefly i will largely rely on my briefing to the extent that the that the court has no questions there is one other the others were prior violent felony and the and then there was the commission of a robbery and for bikini or a direct gain but those two were merged so you actually had three aggravating circumstance s i what what does the record tell us about what rodriguez's lawyer did in preparation for the penalty phase of this case what the record tells us was that after mr rodriguez was convicted he requested counsel requested the appointment of a mental health expert and the court appointed dr haber dr haber examined mr rodriguez  did not find a reason to do any i q testing because he didn't he just didn't find any reason to go further than that he did recommend neuro psychology testing based on the fact that mr judge judge i'm not prepared for proliferates he admitted that he had not at that point now what we have to what this court why then there was a delay in the penalty phase there was and the penalty phase took place in march and the conviction was in january so you had was no evidence of brain damage and e g was done and it was normal so what he did was he he asked for you know those two experts to be appointed they were appointed he had their information to review he also had access to this defendant and the defendant he testified on post conviction the defendant was not very helpful the defendant didn't want  family involved and he felt hampered by that and felt like he has his defendant was not cooperative and he also irania sleep believes that he couldn't go to cuba ok there's that but he did have he did have his the report he also had the he made a motion in limine e in the trial quoting i mean when you say he had the report when he had the reports of dr  the report of the drug david david so he had those that prior to the penalty phase he had those that he could consider in deciding what strategy to pursue here and in dr haber's report what did he say about the need for examination by a neuro psychologist was there anything more than just a line i actually thought that there was anything more than i recommend that he be examined further because he had reported these incidents from the past in which he had lost consciousness was there any indication that there was no need for an examination by  recommended this because of what i was told by this defendant so so he had you know that to go on and he said you know in advance of caution let's go ahead and get a neurologist in here to to examine him and i go by the answer your question i mean there's a lot of stuff in the past a lot of information came out but that information would not have moved to the dial in this case and the state court was correct in finding that and when let's break it down a little bit so there was mental health medication presented point state collateral review where it was but there was not any competent evidence of other medication about his childhood  review isn't that right there that's correct the court investigative summaries work and were admitted for a limited purpose to show what his mental expert had considered but she said she had that available to her and did not consider it but there was no independent as i understand it other nine mental health mitigation presented and state collateral review that's correct  there were only the summaries they were not deemed admissible he failed to prove what else is lawyer could have found other than mental health medication contact in the florida supreme court though treat that as evidence no your honor the district court the district court considered by the supreme court refers to that as evidence well i suppose you could say that they did i know that the district court was very clear about saying i'm going to go ahead and and i would just like to i know that the court had a couple of questions for the the petitioner what we had here was a situation where you essentially the battle of experts and you had you had mental health experts coming in for the defense and mental health experts come in for the state and the court the state court considered all of that and made its determination and the petitioner claims that this was you know not in accordance with the the medical standards but the state disagrees with that the state court found you know that the state had presented evidence in post conviction that mr rodriguez didn't have any reliable they consider the three prongs basically that the there was no reliable indication or in testing that showed he had below you know a seventy or below i q and the reason for the test that was given to him by dr weinstein was not an appropriate test and so the state court credited that what was the evidence about that but so to the extent that the state the state court discredited the evidence is mexican language to norm to the united states that's problematic what's the evidence that it would have told the state court that that was in spain because the cultural similarities between spain and cuba cuba and mexico are not culturally similar and also the problems with the mexican test and so that that is what he tested what's the problem with the mexican to the problem with the mexican test as i recall was that the mexican test had been found to favor people with a higher education level  and so that skewed the results for everybody and made the test as i understand it was there a problem in that given the educational levels and other socio economic kind of conditions in mexico to take a mexican test and then norman to the united states where there are different kinds of educational socio economic conditions that that's because it was geared or favored i'm not probably not using the correct psychological terms but it favored people of a higher educational level that it skewed the results such that a person taking that test if they had a lower level of education would have a a lower score than a person with a higher level of education that is as i understand it but but that was you know part of the testimony  record as i could get ok so so the bottom line is there was evidence of all this so he thought he had a full hearing in you know the state court the state court made a reasonable determination that the benchmark that it was reasonable based on the facts and it was a reasonable application of actions actions as the clearly established federal law that matters here if there are no further questions the respondent would ask  it said that there was no c p but i do apologize i was not intending to mislead the court but i do believe that the mental health evidence would have reduced the impact of the aggravation circumstances that the district court was concerned about  it was presented to something for an expert to look at but the flirty end she does too and she decided not to consider it and reaching her opinion she hears the expert right but it was but it  only considered it seemed to me and evaluating the mental health medication issue can you point me in anywhere in the opinion where it was considering it is evidence of anything else i've read their opinion i don't see  dle of things all designed to humanize the the defendant and every there was nothing really presented that humanized mr rodriguez and you have to look at the fact that the trial counsel did not begin to look at this until after the guilt phase was over even he though he knew that there was overwhelming evidence of it he did nothing to investigate  offered him no mitigating evidence and in fact potentially aggravating evidence and after getting your own a j report that suggested to him and to is expert no brain no i during the penalty phase not during post conviction no that's right in the penalty phase it was not until but it was that was something that counsel considered i think the jury sentencing him before the actual sentencing the other thing i want to bring it to the attention of the court trial counsel requested a continuance of the penalty phase and got one the real reason he did it was not only for to prepare for this penalty phase it was to i'd like to touch on the assertion that mr rodriguez was not cooperative trial counsel said during his post conviction testimony that mr rodriguez was passive and not interested but this is not one of those cases in which