indigent and mates testing the death penalty to recently necessary services and services are recently necessary when they would be used to identify or develop possible claims by a reasonable attorney representing a pang client of ordinary means but in the fifth circuit the standard is higher inmates must show necessity that is not just reasonable but it is substantial as a result courts in the fifth circuit and the fifth circuit alone are permitted to probe deeply into the merits and procedural viability of as yet undeveloped claims of the requested services might support why would a reasonable tourney with finite means to spend spend them on the research in the facts as you propose when he won't be able to two it would be because it's a new rule of constitutional law i'm just looking at the statute here or factual pretty predicate that could not have been previously discovered and if it could not have been previous you discovered it seems to me you won't be able to make a opening clause so the court would never even reach the analysis of the two subsections that you're well i would have thought he did fail to develop it you just have that excuse i guess the reason why he shouldn't be faulted in your view and that's because of the  instance of counsel and you plan to make that case by submitting the new evidence that you want the funds to and uncover and this is that you can't do that we he did not fail to develop the evidence and state court and william circuit has you know encountered this on a number of occasions and or has refused to adopt the director's interpretation in fact a number of states have pressed the directors a top rotation in a number of different courts of appeals and not a single jurisdiction anywhere adopts it so the idea of  says in a footnote the director access them to ask us to take a step and we're not going to do that but it sounds to me like that's were not as you suggest we should do here is you're not going to reach it and make a ruling on yes exactly i don't mean to suggest they've heard the issue and funding interferes with the representation i'm so sorry any any time there is that the the attorney is dissatisfied with the amount of funding i soon that would mean that there could be an appeal no justice alit for example if an attorney comes in after the case was concluded and asked for attorney's fees or something like something like that that maybe there's a discussion we had about whether that's appealable but when you're asking for resources in the midst of litigating a case or controversy that's bound up with a case or controversy well that's that was the situation i had in mind so the attorney asks for twenty thousand dollars to investigate and the court grants five thousand dollars to investigate there could be an appeal about that yes if but i mean ginsburg for any granted amounts over seventy five hundred dollars then there has to be a finding that those services are not only recently necessary but that they are for an unusual character or duration and then the chief justice assuming the chief judge of the fifth circuit or his delegate will review the question of whether it's for an unusual character or duration and what does not refer the reasonable necessity determination is not reviewed  get to investigate yes i suppose in a situation where an inmate asks for an amount that exceeds seventy five hundred dollars the question might get presented because the chief judge writes it down to seventy five hundred dollars but that's not this case the basis of the lower court's decision in this case is just that the funds are not recently necessary the services are not reasonably necessary new one of the jurisdictional question is it true that the the director of the administrati capital cases and thirty five ninety nine governs in capital cases and there is no authority in thirty five ninety nine for the a o to do that and you'll notice that all of the cases that overside in the respondents brief are from the one nine hundred seventy s and that's of course because none of those scenarios were cited there have anything to do with thirty five ninety nine looking at the cases my impression was that if the defendant asked for fifteen thousand dollars the court date ten thousand or maybe twenty thousand whatever it is one saw that the other disagrees with they can't appeal i mean they can appeal it's like an administrative law of course they can appeal you can always appeal but you because the statute is read by various courts i think correctly is giving very broad discretion to the trial court to decide how much is just like they want to call a witness or something i mean you see this witness is irrelevant well the judge says i'm first i don't i think it's true that there is that the district courts have enormous discretion to determine the award i don't necessarily mean you know that that means that there wouldn't be a jurisdiction and i'm saying it doesn't mean that right is just like any other situation where a trial court has to run his trial he has broad discretion over many areas and that should be the same here yes i mean and in fact that's these these decisions reviewable for an abuse of discretion and so there's an extraordinary lot of heat in the district court to make these decisions so there's no need to you know worry about whether there's a jurisdictional basis because oftentimes what the district court does is going to carry the day  there are or do you believe that the statute can be read to mean that a district or even if it finds reasonable necessity that it has the authority not to award  fees i think there are certainly extenuating circumstances where the statute just like could happen and what would those be and what if it exercises that discretion improperly ok so  before i answer that i just want to because that's not the case that we have here the case of decided here is a reasonable necessity now so for example if there is some indication of gamesmanship on the part of federal habeas counsel the resources are recently necessary at this point in the because federal habeas counsel has decided not to pursue the matter on some earlier point when he or she should have or as in as is the case in texas sometimes if there is a new claim discovered in federal habeas review and the federal habeas lawyer has to take it back to state court the state court will pay for that litigation and so the federal hadiths sometimes the federal courts will say we're not going to write this check until we know whether the state courts are going to write the che that you just gave to sort of when you are is that why you think the word may is in the statute the effect of that word what is it covering and look discretion does it allow those are example made is that basically an escape hatch that allows the court to decline to award services under extenuating circumstances like the circumstances i just described the other work that may does in the statute is a farm that review is for abuse of discretion because when may is added to the statute it's denominated as a technical amendment which means that it is an amendment designed to conform the statute to what existing practice is and so the idea is just that but the mayor's doing is clarifying what was already happening in the courts of appeal which is to say that they were view for abuse of disks so you believe it's appealable but under an abuse of discretion standard it's appealable an abuse of discretion standard but as long as it's bound up with the case or controversy as long as it's affecting the quality of the representation then it's appealable it's not like an order or refusing license sure it's not like as in mention in response brief a decision by a judge or justice to hire a clerk now maybe the question is when an attorney comes in after the case is over on a separate docket number and asked for compensation and a court doesn't want to award that because that decision the attorney speed decision after the case is finished doesn't actually interfere with the representation so you can make an argument that it's not part of the case or controversy but as long as the decision under thirty five ninety nine about resources affects the representation the formulations for referring to the obligations of federal hate us counsel and mcfarlane v scott it says that the representation is designed to allow counsel to identify and develop possible claims  at the way it's characterized is all relevant claims that the santa mallette mclusky calls all conceivable claims i don't necessarily want to get caught up in you know is it plausible is it conceivable is it relevant the most on point reasonably necessary and i really struggled with that and also with the phrase substantial need but taking reasonably necessary if you just said necessary that would be a pretty tough standard would you accept the interpretation reasonably necessary to mean that this is something that a reasonable attorney would think is necessary that the reasonable attorney standard and a reasonable tourney representing a client of finite means as the standard that we think is appropriate and it's actually the way they interpreted the word necessary necessary is the word that appears in the c j and they interpret necessary to mean reasonably necessary under this you jay and every single court of appeals with the exception of the d c circuit which does basically the same thing interprets reasonably necessary to mean a reasonable attorney representing a client a finite  business is just to make sure that like a reasonable attorney for bill gates would scale or they are earth and not care about it exactly word you know the standard doesn't involve a richie rich client or something but the attorney the reasonable attorney still has to think that it is necessary which is pretty tough well the stance will be necessary doesn't mean necessary we assume like the necessary improper clause doesn't mean it's really right we know what congress with thinking when it used the phrase recently necessary really know what congress pluck that phrase directly from the case law that was it's not a particularly close question in the courts of appeal of about what the word necessary met at the time that congress wrote the statute necessary met recently necessary and recently necessary met the reasonable it's already rule that i described at the top of my ok what is the difference between reasonably necessary and substantial need i have been racking my brain trying to think of something that is reasonably necessary for me to obtain but as to which i do not have a substantial need and i can't think of an example maybe you can give me an example so just so you know i'm going to scrap the formal labels for a minute i'm not going to use natural meter recently necessarily i don't do that because one is the statutory can decide a thirty five ninety nine motion by reference to a merits or procedural issue is just that the referenced issue can be intertwined with the evidence that the inmate is seeking in the motion so take the following example a claim has two elements element a and element b and the record is fully developed with respect to element and the records not going to get any better with respect to element a and inmate comes to court under thirty five ninety nine and asked for resources to develop home and be a court can decide the thirty five ninety nine motion by reference to the merits if what it's doing is saying that your evidence on element a is never going to be good enough and we know that because the record there is fully developed what the court cannot do and what the fifth circuit regularly does under substantial need rules say oh we're going to guess about what the record on be looks like we're going to speculate about what you're going to find when you go out and you look for this mitigation evidence or this evidence of materiality and we're going to we're go when you're talking about facts and this is a point you make in your brief how do you know that the record is fully developed under issues the working community say well if we have another investigator who could look further at this we're going to develop some more facts i  n it i'm not sure that that's a valid distinction in your case we're focuses solely on what facts are ruble there are certainly some cases where an inmate will be worse requesting farms to develop both prejudice and deficiency both prompts you and paul on that is not our case in our case the record for deficiency is fully developed and it will often be the case that the record on deficiency is fully developed in the motion because the deficiency is the thing that should be evident from trial counsel's files and all the information that federal haiti has townsell has available to her now do you think that that includes an attorney that's not the facts of your case i know that in your case the defendant himself to the first investigator who interviewed him said he had had had  traumas and some dependency and by the time the requests for investigative services came about he had already had a schizophrenia at the so but how about a case where there's no evidence whatsoever of dependency and or of any mental illness mental challenges whatever you want to call it going in the tourney come in and say it is common practice to do this so i want to do it anyway even though there is no suggestion in the record that this is a fruitful inquiry the answer unfortunately is that depends so in a case like ours where there's also no social history something that this court has said has to be performed in absolutely every single case then yes the attorney can come into federal court and say without any evidence of red flags and they can say look they just didn't do a social history that's a deficiency and should be able to get funds to look for what the prejudice from that is now there are other cases however where counsel where trial counsel might have performed a social history might have done some mitigation and if trial counsel can't show up and explain what the deficiency is and identify what red flags that trial counsel didn't follow up on and can provide a coherent explanation for why they need resources to go look for those logs then a trial court would be within its dis and you can help me out with it the fifth circuit didn't require a c away because it read harvests and as i say one wasn't required but some circuits including my old one have distinguished harbison in similar circumstances putting   at harvest time just dealt with the appointment i believe of clemency council and the issue wasn't part of the final order in the merits of the heebie as petition here the denial of funding was part of the final order in the denial petition and as i read twenty two fifty three if final order in a b is proceeding you need to see a way now maybe you can say is just independent and totally separate from that but then that might suggest you'd have to be able to appeal as a matter of right any time a funny that i'll takes place even before final judgement and that seems odd too though because funding requests attorney fee denials sanctions usually are wrapped up in an merge with the final judgment so long winded question but it's jurisdictional so i thought you could help me out with that sure so we're appealing the judgment and the determination on thirty five ninety nine is part of the docket we're not appealing underlying disposition of the claims because those claims haven't been developed sure but you're appealing the final order in a b s proceeding and that's the language in twenty two fifty three so help me out with the language and twenty two fifty three while i take the language issued saying we have collateral you know it's a collateral issue and so we can take it up before a final judgment in that he has proceeded i'm saying it's a collateral order i'm not saying it's an exception to the collateral order doctrine in the sense that there's an interlocutory appeal from it i never heard of the central before it's collateral but it still merges to the final order well it's in the same way that if you did i did hearing without deciding the merits of the claim i don't necessarily know that that would be subject to  too if i denied discovery in a case right and i something that just prevents the claim from even being presented that the premise behind twenty two fifty three is that you can take a rough cut a farce look at the claim and see if it is has got some merit and that's why you know we have the substantiality requirement that's why it were for us expressly to the merit of the claim in situations where you're dealing with a procedure that prevents you from even generating that information the c o a requirement doesn't apply and if we don't have to do we have to i mean suppose it is the case that we're technically speaking correctly listening to what you've done and it is an appeal from a final order right we granted the petition for cert in order to decide whether the circuit is correct in using the word substantially necessary instead of reasonably necessary right well there are cases in which we have done just that we decided the issue we granted on and then we've said and if they needed a c e o way this opinion suggests indeed requires that they should have granted one ok while picking up on what justice breyer just said and trying this one last time i thought the issue that we had agreed to decide was whether the fifth circuit's formulation of substantial need is different from reasonably necessary which is the statutory standard and i still don't understand what the difference is between those two formulations it seems possibly like just a matter of words so explain to me what is the difference between those those two formulations the reason one assess a determination starts is a concept that starts with thinking about what a reasonable lawyer would do right what a reasonable lawyer think it's necessary to reason and every evaluation of merit or whether the evidence is helpful for the case starts from the perspective of a reasonable lawyer right the substantial need test has wants nothing to do with dot com i mean if you have if it's a reasonable attorney you know reasonably necessary when a reasonable attorney think there was a substantial need for it a reasonable attorney would win a reasonable tourney thinks there's a substantial need for as the fifth circuit defines it th seems to me like you're not really arguing the question that we granted you're what you're saying is that if we take a look at everything and the circuits doing in this area and lots of cases that are not before us it's not doing the right thing that seems to be your argument not that there really is a difference between these two verbal formulations justice league i'm going to ask your question i'd like to reserve the rest of my time for a little what the fifth circuit did in our case that it is not supposed to be able to deal with speculate about the record on prejudice which is the claim with two elements that i you know that i discussed the ad that the evidence is developed on element a and they're speculating as to what the record is going to look like on b and that's what they can't do because reasonable attorneys don't take a fatalistic view towards evidence they don't understand yet if relief is still available and light of everything else in the case thank you counsel keller thank you mr chief justice and may please the court there is no meaningful difference between reasonably necessary and substantial need but before that a predicate issue there is no jurisdiction here because c j funding is in the ministry of claim for federal money it is not a claim against the state it is not a claim against the state for money it there is not concrete in verse in this year and so where do you go if a circuit is arbitrary and capricious lee say going to give any funds period you want to tell me that won't happen but during the financial crisis not so long ago they had a reason but whether that takes care of your right to counsel and counsel that has the resources to do the work necessary to represent use a different question the constitutional question so what happens in that situation where does the defendant go the statutory system that congress put in place says there's only review one funding has been granted at a level of more than seventy five hundred dollars and if you're asking is there a private right of action here to go get federal money under the where we were asked to review a clean and it then went to the secretary of the treasury who had absolute discretion to grant the claim or not that went outside that you to share but how does this go outside to  hare not everything that a federal district judge is assigned to do is an act of judicial power and we know that from ferreyra well we also know that those things still get records but here this is we fired by to be put to be made a part of the record for potential concessions but i think looking at the single circuit tended to want to put things to be if there are potential concessions made during the ex parte hearing a proceeding that then could be court may authorize the defendant's attorneys to obtain such services it says the court the judge the judge may authorize or right they say the judge should authorize and this is the standard and you say no that's not the standard the standard or it's the same to some other way but in either case it is a judge who is performing a duty that is imposed upon him by a statute well why isn't that the end of it  we view matters of pointing at tourney's fees and paying for them there can be all kinds of things the judges are authorized by statute to do as part of their judicial duties i really don't see and i'm the cases t are all cases saying basically that there is a lot of discretion in the judge to decide how much which i agree with but this is an unusual jurisdictional park and i'm not sure you can separate the amount of funding though from whether an investigator is assigned here we're not arguing that counsel or the investigator catalog oracle lacks power and the c j their investigator has started to perform the investigation that they strikes me that what we're dealing with is a simple question of statutory interpretation when there are thirty five ninety nine after require cathal to show to get funds for investigating the facts in the application of them to rules of law is not enough to have an exercise addition of judicial power here this can be revised outside the us so that it's true you what you say is true the question is is the judge performing a judicial duty and the statute says he is it's in with other statutes that talk about his judicial duties and it would seem that making certain that a defendant has an expert were necessary is part of an ordinary judicial duty i mean can you think of if you're in c is the best you could do at least in my own mind that's quite a different matter was asking judges to award pensions or something like that point is key here what happens is the district judge sends a memo to the circuit judge there's no party involvement in in any event review the in no sense is that an adversarial proceeding and yet that's the proceeding that congress is created in the there would be constitutional cases cases where the district judge says i've given this much do you think it's too much to get the system the congress created they were worried about spending too much money they did not create a mechanism for review when funds were denied the tenth circuit has said that and multiple federal judges have advocated placing these benefits granting duties with officers besides judges that could not be an exercise of judicial power if i can turn though mr cohen if i could just i mean suppose you this is the kind of language which routinely gives rise to circuit splits you know one circuit interprets it one way in a second another way and the third another way and it can go on and on and you are essentially saying that we have no way to decide which standard is the standard that congress meant when it said this so another circuit tomorrow could say you know we're just not giving any funds for any mitigation investigations at all under th standard and we would be like whatever whether administrative agencies there or are using or applying a certain rule of law that was not the test for whether there's judicial power there would be extremely anomalous results here to allow a potential to track appeal the seventh and eighth circuits have said you can't take an appeal from that single circuit judge determination that's correct but that would mean that if the district judge denies funding at the outset you do get to take an appeal of that but if a circuit judges revising that certification track anything if the judge says nothing and that could be the to investigate the only place that that can go to a clip of appeal that's correct but whether a district judge is granting or denying funds article three judicial power can't turn on that that all of a sudden it becomes judicial power when funds are being denied if i can turn to the question presented in the issue of section twenty two fifty four you to it is not going to be reasonably necessary to pursue any evidence outside the state court record of trial counsel's performance because upon section twenty two fifty forty two is going to bar that evidence  we did not forfeit it first of all it answers the question presented the fisher did not air because this goes to whether it's reasonably necessary and that is an issue that both sides have been joined on throughout and we can't waive arguments we can i'm sorry the fifth circuit didn't rely on that and neither have you below so we reach out to totally new question which there is no circuit split answer that question well this court of course could narrow its analysis and not decide that issue petitioners conceded though that this point remains open and it is absolutely necessary to also i'm not sure it's open after fourteen as i'm sure they know given the nature of our language in those decisions but that's a merits issue on the question but having said that why do we reach the reason that you should reach it here is because i'm asking can a circuit do a preliminary merits and also it has to account for the limits of  is the case that the two is going to bar this evidence and it does then there is no reason to continue to fund an investigation to raise evidence that cannot possible maybe but they may have to go to maybe they have to exhaust maybe they haven't exhausted on this point i mean i  don't know in the first sentence where the language you're quoting does is kind of it's an exhaustive requirement and so they'll go and exhaust no that isn't what we took this case to decide is what everybody told you so proceed if you want on this thing a bit at some point i'd love to hear your point in answer to what he said on the issue we did say we would definitely you want you don't have to now now you know that's right the court of course can in answering the question presented though take account of the fact that there are hay vs limitations inherent here is such a petitioner is now conceded that it is permitted to do a preliminary merits analysis in considering thirty five ninety nine at funding whether you call a plausible analysis or would a reasonable attorney with fine i mean spend money on it a reasonable attorney with i means is going to look at is this claim bard is it speculative is the evidence i would propose to attempt to get into the record is a duplicat those are the three elements of the substantial need formulation of the fifth circuit is used and that is hadley i understand their point which is the end result of which is that it seems to me that you can make all of your arguments under the guise of the task that the petitioner proposes which is the course of the reasonable tourney working with finite resources i have something of the same problem and justice alito has i don't see that it be terribly valuable for us to spend a time trying to figure out is reasonable necessary is not the same as substantial need or about not and even if we come out and say one of the other i don't know that it's going to get to the heart of the question is which what is exact exactly as a district court judge supposed to do so why what's wrong with asking when a reasonable attorney working with finite resources would devote resources to that service mr chief justice there's nothing wrong with that provided that the court does clarify that you can do a preliminary merits analysis that you can find in your investigation and it's an reasonable for me to make a judgment about what you're going to find in your investigation because that's the whole point of an investigation but i do know that here no social history was done at all and you've got like a schizo phrenic to defendant somebody who has had a mental health diagnosis of a very serious order well of course that's the kind of thing that a reasonable attorney would investigate in determining how witnesses and what what what cross whether the and i mean this is even putting those people aside i mean go and figure out whether there is a history of mental health issues well in this case not the trial investigator and trial counsel obtain records from the state all of the mental illness records post a trial schizophrenia diagnosis is not years after a trial is about a number you know if you have a person who has since the incident in question been diagnosed as schizo phrenic you know some bell goes off that says i think maybe we should do some investigation and try to figure out whether he was suffering from mental health issues at the time of the it's like the only thing you want to spend your money on is a mitigation investigation there's nothing else really to spend your money on well in sheer funds were approved for the trial investigator to do an investigation contact different witnesses that happened when petitioners counsel and the investigator wanted to contact the family members who would have been in a position to try to give some indication manning of any sources other than asking family members if you're looking into mental health days school records it is criminal justice records you don't stop with the family the family doesn't want to or he doesn't want his family to be caught and counsel did obtain records this is not a case like grumpier or porter where there is just a file of information sitting there a treasure trove of information the council just had to pick up or porter where there was no attempt whatsoever to go contact potential witnesses there was no deficient investigated and none of them where there was a state hey vs investigator report this is not in the state court record but this was presented on federal habeas but even then there was not particular evidence looking back to say zero trial counsel knew this piece of evidence and therefore this investigation of should have done rather this is jay to sixty six one of the stated purposes of that report was to provide quote ammunition unquote to get funding it's comforting to know deficient performance but the circuit court had to amend its its ruling because it had mistakenly said that there had been an investigation the mental health about ninety seven by trial counsel and it had with all that is there is it fair to say there was no deficient performance work holding on that score by the fifth circuit after that after it reissued its opinion or did it relies solely on prejudice least with respect to trial counsel it it first analyzed the fact the answer the question is the fifth circuit opinion can still be read as holding there was not deficient performance in the alternative that there was no prejudice because what the fifth circuit said was it was proper or there was no error from not contacting the honduran family members one and two the evidence of mental illness post dated but that's contacting the family members and all spacek that but i'm talking about the mental health issue how can how can there been no deficient performance holding if it would drew the basis of that holding and its in its revised opinion because justice courses that was not the only basis for that holding the fifth circuit of the disher court also noted that the evidence of mental health issues all post dated trial and when you're asking was there deficient performance under rumpy you're asking about the quantum of evidence known by trial counsel can you justify saying there wasn't sufficient trial performance i mean i understand all your legal arguments there were two and a half pages of mitigation evidence the prosecution get something as this is a perfect guy there's no history of mental health there's no mitigation on substance abuse the prosecutor at trial points to the deficit's of mitigation investigation that trial counsel has done we hear from the investigator that he's hired he's told to investigate and less than a month before trial he starts trying to do things and fails completely as justice ginsberg points out to do even the basics of investigation trying to get school records that had nothing to do with not reaching the parents or not not talking to a witness in california where this man lived and worked her a long period of time nowhere in texas because he had been there for a period of time those things suggests to me deficient performance you have a lot of legal defenses but how can you stand here and say that this kind of investigation beats and constitutional stand because both coun and the trial investigator were doing this is page one in two of our brief the investigator began interviewing petitioner several times in february one thousand nine hundred six subpoenaed psychological and disciplinary records made multiple times to contact the honduran family members contacted several potential witnesses search criminal histories and attempted to attain deportation records and california records in other words this is not a situation where n p r importer where there was simply no attempt at trying to provide a defense rather the key feature here and what this case had been about up until just recently was the failure to contact one hundred family members and that was the gateway through which petition was trying to say that trial counsel could have obtained information that then would have led trial counsel to believe that a mental health or substance abuse investigation should have you know i mean see i have a question about how the two parts of the statute work the first says reasonably necessary and then there's the may question now it would seem to me i mean it can work one of two ways in other words the discretion that is granted to the district court could go to the question about whether something is reasonably necessary the sort of things we've been talking about i mean maybe it's necessary if you haven't done anything but maybe if you're saying well i think if i asked the parents a third time maybe they'd give me a different answer or is it necessarily a two step process where the judge has to make a determination is this reasonably necessary and if it is then the district court judge can still deny it because it says made which of those do you think is how the statute should be read it's the second mr chief justice and we know that i was hoping you were going to say the first because under the first it does seem to me that all the stuff we've been talking about you know did they get the school records or not did they talk to this person or not how much did it strikes me that those are the sorts of things that would be very hard for a court court in the normal course to get into on the other hand it seems to me there are also things that you could say to the district judge they do these discretionary rulings all the time they're much more familiar than we are with how these sorts of mitigation investigations are conducted so that if the maid goes into what's reasonably necessary it seems to me that makes sense if however you say the statute requires an inquiry is this reasonably necessary and then the district court has this unusual power to say even though it meets the statutory standard i'm not going to do it well let me clarify mansur in this way the may language switching from shell to may doesn't do you the district court with more discretion again assuming that there is  be a case sort of like a lot of that we cited page forty five or a brief where there was this court said is a court can analyze is this a serious issue and that's very close to what the fifth circuit did here in asking is this is substantial is there a substantial need or the fourth and sixth circuit say is this was a substantial question and so those would be proper analyses that a district court could do if i could also address justice course which is question much typical of appeal ability because i think this dovetails with our jurisdiction argument our position is that this is an administrative act it is not a judicial act but if we're wrong about that and this is actually an appeal from an exercise of judicial power than a certificate of a pill ability should be required because it is an appeal from the federal maybe we should let the court of appeals deal with that in the first instance given that it's jurisdictional the argument have to be reached and this is not a situation where harbison because  here it is not sincere about it you know and we have to reach it i think i can find pretty good authority where it came up before and they didn't issue a core a c e o a but we decided the issue and said now you should have issued a c e o a two i may be wrong but you don't have it in your briefs they don't have it in their briefs i don't have it in anything i've looked at yet but i have it somewhere in the back of my mind which is sometimes wrong so i'll look it up ok it's usually have a you know liable to know not to bring the the question this is reminding me of something if i'm perhaps overly simple minded on this but what it reminds me of was the great argument that used to take place in ad law you see if in fact you reverse a fact finding of a district judge you're supposed to do it if it's clearly erroneous universe of fact finding of a administrative a l j you're supposed to do it if there isn't substantial evidence in the record that's what the statute that's so jerome p frank who was a great judge one day said my god i've found it i found a case that the judge wouldn't reverse under the first standard but would rather would would reverse under the first standard but wouldn't under the second but then when i looked at it more closely i discovered i didn't have that unusual case anyway see he thought there was no difference that spanned a bunch of law reviews that said yes there is a difference some said yes some said no so why don't we just say look that's what the statute says pick up his standard all these arguments you've been making may be good may be bad make them to the district court ok and of case this circuit you are to follow the statute and that's it good bye and  all these other arguments are for the lower court and if you want you say that the lower court should take into account all the arguments good it deems relevant and significant it and in that narrow ruling though it be very important for the court to clarify a few things and that is first of all a preliminary merits analysis is acceptable as petitioners conceded well i don't know just what would a reasonable  do and if the reasonable royal would make the preliminary analysis fine but the standard i thought you agreed was that this case this is a horrendous murder the only chance in the second part of that would also be what are the inherent limitations on federal habeas for instance if a claim is categorically barred or if the evidence cannot be introduced because twenty three fifty forty two bars and those are all things that should have done and we've now found they weren't no record has been created and the team is trevino we said that that was the failing that we were remedying the fact that a defendant has not been given one clear chance to fully develop a record and make his claim is that your suggestion no martinez will still have force under are going to feel a failure to challenge evidence that was martina's correcting a truly interruption ineffective assistance of counsel claim and a terrible strategic decision like box versus davis from last term all of those are on the state court record and this court is already held in holland versus jackson and williams that attorney negligence is chargeable to the client for purposes of twenty two fifty forty two that was an interpretation martina survey you know suggesting the very essence of the exception to the rule which is if you have not been given a chance a clear chance to have some court exception it was only over it was it was clarifying coleman in a very narrow instance in a district this is the language that martinez used martina's said that these sorts of claims often require investigative work it said i'm quoting again they depend on evidence outside the trial record so the whole exception that martinez set out you know seems to be premised on the idea that there's an opportunity to develop the factual basis for the i nothing in martinez or trevino cited to twenty to fifty forty two in the course only considering the narrow procedural default rules created by the court that went along until those had often requires investigative work and it depends on evidence outside the trial record and now you're saying we'll just take a look at this statute and say that of course it doesn't allow investigative work or evidence outside the trial record i mean this is precisely what we said it but when congress has a statute that directs what the rule is for new evidence  congress is raising the bar after the kenya decision which was the cause and prejudice standard that what martinez said was this ought not put a significant strain on state resources but this would in fact provide huge systemic cost on the system if you're going to open up a trial again and take in any new evidence and a claim of trial i see which could bring anything into the record but that's a twenty to fifty forty two issue the point though on the question presented is that those type of considerations  absolutely proper for not only the circuit or the district courts to be analyzing but what a reasonable attorney would be reasonable attorney with finite means might devote those finite means to an avenue of investigation that has very very little chance of success because there is so much at stake so i don't understand how that can be the test here we are both statutory language is reasonably necessary that seems clearly whatever necessary means it him it means some degree of importance that has the evidence has to be has to meet some level of importance in order for the standard to be met i don't see how you can get around it than to say the test is whether what would a reasonable attorney with finding means to do it seems to me quite meaningless well and that's right justice alito because we're nowhere close to agreed with that standard because we're in a hey vs contacts the reasonable necessity the analysis has to account for the limits on hey vs review petitioners relied on many non habeas cases and what it counsel does at the beginning of the case when there is no record there has been no trial that analysis may look very different but when we're talking about what is reasonably justin's where we are still arguing that there was no prejudice and it's not only the brutality of the crime there was a robbery at gunpoint three days later with a threat to kill the victim's family there was an admission to wanting to kill accomplices there's a threat to kill another witness to his confession and the criminal counsel got this case they looked at the record and they saw that when invested with the momentous responsibility of explaining to a court why the defendant's moral feedback loop was not such that it should impose the death penalty to something phase mitigation presentation lasted two minutes they also saw that there had been no social history performed they saw that there had been no mental health expert that would examine the defendant and that the trial counsel had failed to follow up on red flags they saw in the state habeas file that state habeas counsel was told by his investigator nine days after he hired her that the first thing he had to do was a mitigation investigation in the social history and he didn't do that and we know that there is a there there because there is a diagnosis of schizophrenia in the record it is inconceivable that a reasonable attorney having received this file getting this case would do anything other than precisely what federal counsel did in this case and the reasonable attorney standard is the right standard because it is the standard that congress picked at the time congress and acted section thirty five ninety nine it knew that courts had spent twenty years defining reasonable necessity use a reasonable attorney rule and it's also the desirable rule because it gives effect to the dominant purpose of the statute which is to promote parity and representation between those capable of paying for it it and finally it's a really good standard because it's workable it's flexible enough to apply across phases of a capital representation courts have fifty years of experience in dealing with that and it's got meaningful limits thank you counsel the case is submitted