maple's should be sentenced to death for those shootings as opposed to spend the rest of his life in jail has always been exceedingly close the state itself rest of the case its case for capital punishment on the basis of a single aggravating factor the state itself conceded that mr maples unlike many if not most capital defendants had no prior history of violence and even with the appallingly deficient representation that mr maples received at penalty phase of his trial the jury still only recommended a death sentence by the slimmest margin allowed under alabama law a ten to the this underscores that it constitutionally adequate defense could have made the difference between life and death in this the superficial case that mr maples counsel slapped together literally at the last minute before his penalty phase not only lacked the description death and details that this court has repeatedly recognized are necessary to present a compelling case to the jury but was affirmatively misleading in critical respects and omitted key parts of mr maples life history all together the district court conclusion and the sit in the state court conclusion that mr maples nevertheless received effective assistance of counsel and was not prejudiced by that deficient performance is contrary to clearly established precedent the supreme court and this court and maybe the most basic way in which to see that is the district courts and the state courts utter failure to reweigh the totality of the mitigation evidence that could have been presented at the p of mr mabel's trial against the sole aggravating factor that the state relied upon in seeking death and i think you can see this in particular pages one eighteen one forty one and one forty seven of the district court's opinion w a cause and prejudice for a procedural default are one and the same now the state has argued that there's an additional bar that mr maples has to meet that's inconsistent with this court's precedents and in any event they've said so were pretty much limited to the allegations in the petition since there hasn't been an evidentiary hearing at any stage or are that's correct your honor list so when we go to the petition point out to me  to the the sum and total of the evidence of abuse that the jury heard was about two and a half at most three pages of conclusory allegations presented by philip maples the defendant's father and the court can find that at pages thirty one ninety four to two thirty one ninety six of the record from the sentencing proceeding and that's in column seven of the appendix before this court now let me tell you the evidence that the jury never heard ever and this comes straight from the amended petition in this case the jury never heard about the time corey's mother picked him up by the neck and nearly strangled him that's it paragraph one eighteen of our amended petition the jury never heard about the time his mother tried to sell corey when he was thirty three years old that was a paragraph one thousand of the minute petition they never heard about the fact that is a grandparents were so afraid that his mom would kill him that they suggested he be taken o his mom's custody that's it page paragraph one eighteen they never heard about that the fact that his mom was so unpredictable and violent that once she attacked mr maples with a butcher knife paragraph one eighteen they never heard that corey maples cried for his mother and had nightmares and his teenage years that's apparent paragraph one twenty two they never heard that cory maples mom abandoned cory a second time at the age of when he was seventeen years old leaving all of his blog means on her front steps as some pick paragraphs one ten and one twenty two and they never heard the testimony of the family members and friends who could have spoken in detail about the abuse that mr mr maple suffered and the your honor they did not and that's critical because that the jury didn't hear that mr maples committed tried to commit suicide not just once but three times he tried to slit his wrists with a butcher knife he tried to take thirty sleeping pills pills he tried  russian roulette and that is critical evidence as this court recognized in the winds were soundscape allen case your honor and what's most important about that evidence here is it links together with the evidence of his troubled childhood and abuse showing that he was affected by that well into his teenage years and up to the point of time the shootings because what i'm trying to figure out is whether or not that evidence is sufficient stablish it reasonable probability that the results of the think the suicide the fact that the jury never heard that he tried to commit suicide at the butcher knife and other means is itself a sufficient basis that's because that type of evidence as the supreme court in this court has recognized is itself generally compelling but here it's critical because it links together with the abuse that he suffers and shows that this was something that impacted him throughout his life and correct to sit here ever tell his lawyer about that he did no evidence that he told his lawyer  your honor this is the basis of a complete failure of investigation the counsel's investigation consisted of one meeting with the parents where they gave them i'm talking about what the defendant himself knew i think he ever tell the  before this court i believe it's in the record we could try to find an instrument in the state court i believe so your honor i'm not certain about that right but what i would say is even in instances where the counsel has misled his lawyer where the defendant has misled his lawyer sent them down the wrong track there's still a duty to investigate we're here would we be able to find the answers to these questions if there was an evidentiary hearing absolutely and for purposes of this case today the court has to accept the allegations petition is true as this court recognized in the daniel case and the allegations about the suicide are from paragraphs one thirty one thirty one a the amended complaint and again getting back to why this is so critical the jury was was led to believe falsely that the abuse that mr maple suffered lasted until he was three and didn't affect him throughout his life that counsel efforts to prepare the few family witnesses that they put on consisted of telling them that the lunch break between the guilt  his life was pretty much ok that's on page thirty one ninety of the sentencing phase record which is involved in seven of the appendix before this court which was absolutely false and is contradicted by evidence in the record  set forth in the allegations and particularly the evidence of the suicide attempts the allegations that he had he had maintain long term friendships to the jury here that long term long term friendships are people who had known him for a long period of time over his life you know as i understand it no your honor i mean the investigation here again consisted of a meeting with his parents who gave him the names of several people to go after it lacked the complete indicia of a constitutionally adequate investigation they didn't  quest any records from the police department where mr may present engaged in assisting the police to to apprehend address a drug dealer they didn't request mental health records they didn't request education records all of the things that are standard practice under the a procedures for capital cases they didn't interview a single witness about the penalty for them so let me ask you about the allegations about head trauma i didn't see any allegations about the significance of that or how that might have affected mr maples later in his life where there are such allegations your honor that the allegations on that are paragraphs one twenty three to one fifty and i think you're right that they are not explored beyond the impact of those head traumas and the fact that counsel never requested any hospital records as to those head injuries never engaged an expert who could actually valuate head trauma like that now he was examined by a psychologist but when you hit your head from a twenty foot fall from the cliff you don't go to see a psychologist you go to see a medical the two falls with i would disagree with that you and i think the fair reading and i think we'd be entitle to the favorable inferences at this stage on the pleadings themselves that have to be accepted as true paragraphs one twenty three and one fifty is that he did suffer injury and had trauma and the state makes a lot of the fact that you didn't then have any allegations in the amended petition are even in the federal petition tying up the so called head trauma that's what i know our site or you agree with me  absolutely right is post conviction but you have to show on post conviction what the jury would have heard that they never her art or at least a legit and there's no allegation about it a head injuries the twenty foot fall on the baseball bat and says although documentary and other evidence in the form of hospital records and oral testimonies from mr maples and friends who were with him during these incidents was available counsel do not use this information in any way that says his trial that allegation has to be accepted as true along with everything else and petition and if the state wants to push back on that that's the kind of thing they can do an evidentiary hearing me one of the most remarkable things about this case with these allegations is that mr may proceed was never two are very detailed and very specific yes and in fact we have to take as trying to whether they have right or not i don't know where they had head trauma or not know that that's that's absolutely true your honor in the  compared to the head injuries and serious these injuries are actually you know very significant and this is only one piece of the puzzle now the district court that and the state court the central air that they committed and this court has recognized that daniel case supreme court has recognized it in williams service versus smith and there until a case is it just took each piece of mitigating evidence and said well these additional allegations of abuse there are not enough to undermine confidence in the outcome so we're going to dismiss those it said then on page one eighteen the just a court of her opinion and then it took the head injuries well these aren't enough either we're going to dismiss that and then it took the suicide's this isn't enough either page one forty seven and one forty one this is enough either we're going to miss that it never court's precedents regard how would you get an evidentiary hearing in the absence of a certificate of appeal ability to shoot well i think your honor this court's decision and daniel versus commission it would be the guide where this court  recognized that on the allegations that have been presented and accepted as true they must be under this court's precedent the petitioner would be entitled to relief and therefore would be entitled to an evidence or hearing now in this case we think we are at least in this court agrees that that we've established prejudiced on the basis of the allegations as accepted as true then i were at least entitle to an evidentiary has hearing under it and all but if this but but actually we think that we would be entitled to relief because the state and we can hear from the state has never really disputed factually each of the allegations it's really just argued that there are not enough there cumulative as they say as to some things or that there's other evidence that the jury agreed so i'm not even sure if we need to have an evidentiary hearing t district court rejected some of the allegations of mitigating evidence by saying that the evidence if introduced would have prompted the state to respond with additional evidence and aggravation at the pleading stage can the court consider what the state might offer in response would you can you help me with that i don't think so i mean i think that that's an argument as to strategy and it goes to one piece of mitigating evidence which was that the efforts of cooperation with law enforcement and on that the sentencing court itself faulted mr maples for not coming forward the testimony of a police officer or the police report describing mr maples assistance and that itself is prejudicial that councils failure to put on the police officer lieutenant green as alleged in the petition and and that itself is prejudicial but they are one of the arguments that the state has is that there were actually strategic reasons for not putting them on but but this court and the supreme court has recognized that counsel can't make a strategic decision without basing that on an adequate investigation and here the record is comes before the court the mr maple's attorneys never reached out to anyone at the police department including and i'm asking a slightly different question which is about the procedure is it proper for the district court to consider something outside the pleadings like now that you know your honor if there's anything authority that supports well what  decision in the daniel case where you recognize in considering a prejudiced argument the same context you would accept the allegations are true as true now i think the state can argue as a general matter that there were strategic decisions here and we can debate about that but i think the court has to accept the allegations as true and i don't think the record in this case can be defended based on a strategic decision because you can't make a strategic decision without conducting any adequate investigation the supreme court has made that firmly established said she got a contender all the new evidence with the old evidence and put everything together both mitigating and aggravating and rebalance everything that's ok but it says there in that i'm looking how the district court and the district court actually decided that the question is whether the senator would have concluded that the balance of aggravating and mitigating did not warrant death cumulative error section at the very end she does take it step by step i agree with you but then she says even if you consider all of this came to play you have an established president and that's that part of her decision is not the won't say as you also can said are all of the evidence the prosecution surely would have presented in response to the mitigation evidence that doesn't sound like me the prosecution has to come forward with the evidence it sounds like to me that they cannot allege we would show this and you have to consider all the evidence the prosecution surely would have presented is that correct if live if you had opened the door say to the drug help on the drug case your honor if that's correct as a general matter doesn't help the prosecution here i mean first of all you have to look at the arguments they made in their brief and i'm not sure they've made this full some type of argument the second i think more more basic problem with them is if you go back to the sentencing phase of this case as the trial to the state crawl to trial court recognized on page five of it sentencing order which i believe is and  volume seven the appendix before this court the state relied upon only a single aggravating factor the notion that the crime was committed in connection with a robbery instead of a theft and then here's the quote the state did not rely on any other aggravating circumstances as those circumstances are defined in construed and they're not i don't think it would be as to aggravating i think it would be you say my medication evidence is so strong he helps law enforcement this is strong new mitigation evidence and then the states can come back and say well let's look at what the details of that were he did it as out of a branch against mr carroll who had dated his girlfriend who had been as long term fran and how did the show that it's not mitigating warrenton i very are very weak that's the argument they met and i don't think that argument was stand scrutineer on first thought with respect to the evidence of abuse i've already given you many examples of abuse that the jury never heard and they claim it's committed if it's not true and i think the jury heard he was beat all the time by the mother she even bound him to the chair and hit him with a broom they had multiple examples of abuse by the mother i think that's incorrect with respect your honor psychological horrible abuse these are very vague and concludes your allegations and again a urge you to look at the specific pages of the transcript not to take long it's only three pages and in all of these cases when she had got to she had testify about it you also had the father testify about a doctor she really didn't have firsthand knowledge of it he makes only thing you can sort of a life history since the only witness that really it was not a doctor she said the mother bade him all the time you judge hill and your brush from the state of alabama ma'am please the court so as judge wilson said i think the central issue in this case is the fact that the story that maples told in his state post conviction petition is not meaningfully different than the story that his lawyers told through witnesses at trial and in the same judge that sentenced mr maples to death denied his stay post conviction petition after reading these allegations i do want to make a couple of parents order the state judge couple of reasons the first is that there were no facts findings in the order this is not a fact finding issue because there were as there was no hearing held the second is the way that this court has addressed similar orders in the past to say look we defer to summary the terminations of the order was based on the original petition which was later amend it well the judge and the judge did adopt the order that the state submitted but the state could well have submitted simply an order that said deny the point being is summary denial i do want to make some points about the psychologist because his testimony i think is the most important before we leave that topic now so you're saying even though the state habeas court had material in accuracies about what mr maples allege that we just can't review that we just have to defer to the i think that you're that what you're deferring to is not any specific phrase in the court's order what you're differing to is the judgment of the court that it cannot hide the petitions so the right way i think to look at this is this as if it were a summary denial of the petition which this court has said time and again that it defers to you to far into the judgment of the state court and not to any specific thing it's different when there is an evidentiary hearing and a judge weighs the evidence and make specific fact findings in your deferring to this specific fact finding which are treated differently under at what we have here basically a summary denial and that's when you have to defer to three points about the psychiatrist the first the psychologist the first is that the psychologist was incredibly well qualified he was the the lead witness for the defendants he was a professor at a major research institution he was the president of the state association a psychologist he was on the board of examiners for the state deciding whether or psychologist actually got able to practice psychology the second point where i disagree with my friend on the other side is that he expressly of valuated mr maples for mitigating circumstances for the penalty phase of this case and i don't see anybody with our record excerpts in front of you but we have the penalty phase in the record excerpts i would strongly encourage you to look at that as tabby of the record excerpts and on page thirty one fifty eight let me just read you what he said in response to a question quote when i did an evaluation i didn't evaluation focused on trial competency mostly at the time of the alleged offense and with the understanding that i also needed to do a psychological evaluation to shed light on the possibility that this hearing would take place that is whether there were psychological factors that would have a mitigating effect and then he's talking he's criticizing the state's expert he says and dr  mayer didn't really address that issue in his report so when i say there is no difference between his record in the states record the only difference is that he essentially didn't evaluate mr maples for the purpose he wasn't asked to evaluate mr maples for the purpose of whether or not there are mitigating facts so he was this psychologist did expressly evaluating him for money getting a factors and the third point is that this psychologist did present a fulsome picture of mr maples wife that he was abused by his birth mother before the age of three that he was abandoned by her that he was alternately taken and then transferred custody to his father and to his stepmother that he lived with then and then he fell into drugs and alcohol in his teenage years he presented that to the jury over the course of about two hours of testimony and from the jury the psychologist talked about that he went into detail about the drug abuse talking about times when mr maples had spent years on the street because of his drug abuse i don't recall him saying anything about  members cars there's a lot of stuff that he did factor into this evaluation but those specifics were not something that apparently mr maples told him about i think they would have come out had missed my point told them but those specifics when they raised those claims in their state about those things or might be it's a long petition but i don't think there's an allegation that he specifically told the psychologist about those things and that would be the only way obviously that anyone could know i think we have to take it that he didn't tell him about it because they  trowe council did not discover our the three suicide attempts right english take it that trial counsel didn't discover that information that they didn't know about it she he didn't know believe the defense counsel submitted his report for the record so now just to be so the state's position is we can assume that since he didn't discuss it we can assume that may pose than to a little this is the position of the state just to be clear the question here is whether his counsel were deficient his counsel hired an incredibly well credentialed psychologist to do a full psychological exam on mr maples his counsel had that psychologist on the stand for an hour and a half two hours and to give a full psychological profile of him this didn't come up and i don't think you can criticize his counsel for hiring an incredibly well credentialed psychologist who then does a full evaluation of mr maples for presenting mitigating evidence at the sensing phase and to be clear to the district court a discounted to this evidence because there are allegations about this evidence come under the rubric of drug abuse about the difficulty of his mother and all of that all of that was well presented his attempt at rehab his difficulties living on the street because of drug abuse confession and we've said these types of cases before that you know if the penalty phase is the most important variance you should start preparing for that before the trial i mean their state post conviction petition they don't actually make that allegation they make a lot of that trying to make a lot of that in their brief but there's a post conviction petition and you can see what they cite to try to support that allegation on page ten of their reply brief that actually they just prepared their witnesses after trial began and this was a two week trial so as a substantially different allegation to say that you prepared two witnesses to testify after trial began then suggest that you waited until the guilt phase was over if i could address the head injuries issue which also came out when opposing counsel let me just ask you one question before you get to that he alleged in paragraph one thirty one and a that counsel had in their possession mr maples his application to quest that was the rehabilitation facility he was in that chronicled his past drug use his suicide attempts and his desire to improve his life but counsel in explicitly failed to submit the application into evidence nor did they contact any of the counselors at qwest seems to me that is an allegation that counsel was aware of information had they properly investigated that would have led to his suicide attempts and indeed even a particular document that would have some of that well of course honor the the issue about him seeking rehab with qwest was in fact presented to the jury and i'm talking about the evidence about a civil suit so that and the point that i think the district courts point with respect to that is well taken is that all of these allegations about suicide attempts are really under the rubric of drug use that's really the issue is drug use and the psychologist went on for about an hour talking about the extensive drug use that mr maples had here but he didn't relate it to suicide or depressed right there were i mean there was no specific allen issue with respect to suicide now the psychologist did diagnose him as depressed so the psychologist in fact diagnosed him as depressed with respect to the to the brain trauma or the injuries for just four points with that the district court said that there was no deficient performance there because there were no red flags in this case that one would look for brain trauma arising out of these head injuries and that's an entirely correct mr maples excelled academically the psychologist gave him intellectual test he performed well on those tests the second point is that the psychologist actually in his testimony and this is at page thirty one forty eight of the record expressly ruled out that he was brain damaged because he did so well in the test that the psychologist had given him the third point is that in their will thirty two you should look at paragraph one fifty which goes in counsel read from when he was out there that's the only time when there's allegation is made the caption of that paragraph is counsel failed decision is your deferring to the judgment of the court you're not deferring to the language the court used or the way i described the decision the supreme court's decision in johnson was very similar there the court said actually it's kind of directly on point to judge wilson's question the court said that just because a court doesn't address a specific claim in that case it was the california supreme here here it's worse than the state court doesn't address the claim the state court affirmatively said he did not allege he did not name witnesses and in fact he did i  at least nine instances where the supreme court just i mean signed the state habeas court was just wrong about what he alleged just to be clear out once again i think that the right way to read it is as a summer denial we're not looking to rahm didn't acknowledge his suicide allegations and then it found that he offered most specific details in paragraph one thirty that's wrong in fact but it found that he offered no specific details about the suicide allegation well just to be one of again that's a that's an incorrect fact and well that's not a fact finding i mean the district court i mean the state court was not involved in a fact finding process he's an decision the state court didn't engage in a fact finding process here but the state court has to assume the allegations are true that's been that tantamount to evidence or facts i think under the rubric of that it's not i mean i think thought was interesting about this case because of the procedural posture is that actually you don't have a final decision because it never got appeal timely to abandoned them so we're in a very unusual posture here where we actually don't have a state court review of anything to have a found decision of the highest court because there was a failure to appeal it but the supreme court said there was cause to failure to appeal it so what are we reviewing here even i don't know whether we give deference or not i don't even know whether  state court circuit court finding opinion at all because it was never appealed and there was a cause for not appealing at that so what are we have a baby here but i mean ultimately i think you're reviewing the judgment of the wright and judge wilson were both on that panel i think it's actually a good to talk about that case to compare the strong ineffective assistance of counsel claim in that case the one in this case you could always make three points about daniel the first is that in daniel this court said that the lawyer there was alleged to have never even met with the family to have never met with his counsel to his client to talk about issues of his family history or his mental health and that was the deficient performance they are here their allegations in the sta conviction petition that that counsel met with his client's family at length to discuss these issues and of course they put family members and a psychologist on to talk about those issues the second point in that in daniel the only witness that counsel put on at all was a mother who testified just for a few pages of the transcript here once again you should read the penalty phase proceeding it's in tab the state's supplemental appendix you had a psychologist who testified for an hour and a half but you had three family members and you also had two you had an employer and another family member who testified as character witnesses in the guilt phase and this is a much more robust presentation in the third and i think the most important  difference between this case in the daniel case and the one that really highlights why these claims are so much weaker here is that in daniel there were allegations of sexual abuse that council never discovered for them before the jury that's not the case here there were allegations  daniel that daniel was removed from his family and put in foster care that's not the case here the jury knew that he left abusive birthmother and went to live with his father and stepmother you would agree though that the fact that counsel put on some mitigation evidence doesn't mean there can't be prejudice here absolutely but i ordered tension performance right at the point that when the point that we're making is that the question this court has to look at under this court's precedent is to say what counsel did and then say what new things they've suggested counsel should have done and see whether there was a substantial difference and this is what the supreme court said in sears the case that they cite extensively in their briefs the supreme court said quote there is no prejudice when the new mitigating evidence would barely have altered the sentencing profile presented to the decision maker in it and that's what we suggest happened here the supreme court reversed the ninth circuit in colon versus pinholes ripper doing effectively the same thing that i think my friend on the other side this case is suggesting that you should do they reverse them for saying that even though are there was the testimony of a mother who testified about some mitigating circumstances and that if the defendant came in and said you should have put on the psychologist you should have put on some records you should have done all these things to substantiate the mother's testimony just a very narrow point which is that in there were brief it page ten they tried to cite some parts of the post conviction petitioned to say that they had made these allegations about the family members not being opposed to being waiting until the individual phase that's very different the daniels case also i think it's incredibly different here because there this court said in the opinion itself as one of the important things about this case is that there were allegations of intellectual disability so you had sexual abuse foster care intellectual disability and that's another issue a very different from this case and i do want to address of one point that opposing counsel made about there being a lack of detail in the father's testimony about the abuse psychologist testified generally about an abusive relationship recounted some examples but these are some examples the father testified to that the birth mother beat him on several occasions that she choked him that she left him in the car with the windows rolled up that she slapped him and then the father went on and said look there was this one incident where she tied him to a chair with ropes i came home from from work one day and my little toddler had wrote on his arms the father also testified about the birth mother and said she tried to kill me that or in our brief the psychologist talks about that when he's recounting his family history what specifically did the jury hear about that well without quoting you specifically what they heard i mean they heard that that against his father and stepmother's wishes he went to live with his birth mother at about the age of seventeen for a short period of time that he came back from that expert that isn't his stepmother testimony testified that during that time period he wasn't even really with her that he was really on the street and then he came back from that experience that's when the hard drug use started and that's really when things bottle down you know so that the jury did in fact hear about that incident and look what this court has sa whether there is something substantial that counsel failed to introduce in front of the jury and whether that would have ultimately changed the result and what happened here is the jury and the trial judge they knew about these mitigating circumstances the trial judge specifically found that these mitigating but the way the system works is that first yesterday show that the state courts were exactly unreasonable with the merits of germination that they made and just to go to the to the aggravating and mitigating circumstances here the issue was not that his counsel did not put forth evidence of mitigating circumstances at the penalty phase the issue was not for the trial judge who sentenced him or the jury that there were no mitigating evidence the issue is that they weighed the aggravating circumstance to outweigh the mitigating circumstance and at the end of the day mr maples committed a double murder cold blooded one of one of the victims was his friend another was someone that he barely knew and he stole their car and other items he traded the items for drugs and he drove around sort of showing the car off he left from the murder scene to go to his old girlfriend's house still bloody from his victim's blood and tr get her to do drugs with this is this is a case where the trial judge and the jury was well within reason to say that this aggravating circumstance outweighs the mitigating circumstances and at the end of the day all my friends of the other side of this case is put before the court are just  you your honor sir first of all the state court order was absolutely prepared before the amended petition and so it doesn't address many of the additional allegations that in itself a sufficient basis to provide it's an unreasonable application  for the state court order what's your response well it has to be accepted as true that there is no evidence or hearing the allegations in the petition as this court recognizes that alabama law in the daniel case have to be accepted as true so it's even better amended petition help me with this i know you say there's more abuse about the mother let's put that aside more instances that would have been more gripping compelling i want to make sure i understand what's really totally new hit ok and the cliff was as a teenager and the baseball bat was about a year before the murders troops are right they didn't hear anything about suicides i've got to check that but i think that's what you're telling me  side of mr frost and this additional point that i would make which is critical is they never heard about how that abuse that happened when he was three year old three years old impacted him into his teens for example they never heard about the fact that he was having nightmares as a teen and wake up crying for woke up crying for his mother that's a paragraph one twenty two and that's critical it ties into the evidence of the suicide that they never heard about they were they were given the false impression that he basically was abused as a three year old and then had an ok life which is exactly what kenneth maples said in his testimony at page one thirty one ninety one ok life growing up which couldn't have been further from the truth so it's not it's worse than just not having been told the entire mild depression doesn't describe someone who tried to slashes wrist with a butcher knife took thirty pills or try to kill himself by playing russian roulette they never heard about that now dr sheley just to respond a few my friends comments wasn't prepared this is set forth in page one fifteen paragraph one fifteen of the amended petition where says counsel did not prepare any of these witnesses including dr sheely they didn't prepare they didn't even tell the witnesses they were going to testify and told break in the before the penalty phase that's in paragraph one fifteen to now the fact that they presented a psychologist certainly was better than not presenting one but that was true in windsor says alan to where the case did present a psychologist but yet this court recognized it was a woefully deficient representation now trying to equate drug use with suicide really doesn't withstand a straight face test suicide is completely different in kind in degree and tells a completely different story about mr maples life history th jury never heard at all and now the fact that there is a single aggravating factor in this case is significant the core pointed to that in the williams vs allen case and it wasn't just that the fact that there was only one aggravating factor you had the additional fact that the state wouldn't in itself have been sufficient under alabama law to put mr maples to the death penalty at the time that he was sentenced now of course any capital any case in which he was convicted of the capital murder is unpleasant and has terrible allegations but the fact that you have only a single aggravating yes your honor and so he only needed to convince one of the drawer and one other juror and they could not have recommended death they would have had to go back to read to deliberate but as this court recognized dad he would have had to have had to have five more walked out alive but the jury could not have recommended death if just one other jury had come forward and that's what this court said and daniel case and that's the right way to look at it but and i think and i thought you said they would have to go back and be they would have been told they would they could you could if three jurors had recommended life your honor the jury could not have recommended death that's as this court recognized in the daniel case the representation that mr maples received at the sentencing phase of his trial was appalling by any measure of justice at the time of these events or thereafter mr maples has put forth specific