issue we're here today to decide is whether trial counsel failed to provide effective systems of counsel at the punishment phase of mr haynes trial a claim under strickland vs washington and wiggins recent smith the district court's holding in the state's briefing are both based based on fundamental and numerous misperceptions and errors which i'd like to discuss the district court denied mr hayne sixty six motion in two thousand and fifteen on three of the same fo grounds that he gave in its first opinion what we called haynes won in two thousand and seven the district court conceded a previous ground this court's precedent of a bird versus taylor was no longer valid in light of martinez first of all i'd like to looks at discuss the extraordinary circumstances under sixty six and the first ground on which the district court denied relief was the lack of rule sixty six extraordinary circumstances but the problem here is that the district court virtually completely ignored an extensive analysis of why hans case presented better equities and better extraordinary circumstances than the cases cited by the court as distinguished in his briefing has distinguished his case and adams in ten pages of briefing before the district court yet this was a completely ignored by the district court when it held that quote haynes does not clearly establish what distinguished what dis judgement case from those in which the fifth circuit found no extraordinary circumstance other than to argue the merits of his underlying strickland claim and quote additionally the district court twice cited the now overall two thousand and fifteen buck holding of this court which is prior to the supreme court's holding in book versus davis overturning that now hans's extraordinary circumstances are in addition to the change of the law in martina's trevino they are not likely to occur in other cases and they have not occurred in other cases that have been before this court post martina's trevanion first of all the first extraordinary circumstance is that this stricken claim was first raised in two thousand and five is not extraordinary circumstance you are saying it becomes at least a factor in extraordinary circumstance if you choose been raised before the law was in fact changed or clarified whatever the situation may be w extraordinary about that it seems to me whether it's been preserved or not preserved the wrong word in this context probably where it's been presented or not early on you still have the issue that a change in law that's not a constitutional mention doesn't create a right to have extraordinary circumstance and and it is one of the extraordinary circumstances in the other cases of come before this court adams francis diaz it's been either the major or the only extraordinary circumstance and that's why i'd like to discuss the extraordinary circumstances first  to cut you off i'm just trying to spend why when something is or is not it's clearly not a basis on which to find extraordinary circumstances why it's been presented for a good while before the law or train you are that becomes extraordinary but what you keep going with your list and maybe you can convince me well what we're saying basically your honor is that it is it opened the door to the success of cigs into the sixty six petition we're not seeing we're not ar clear here and i think the state as mr presented this that we're not arguing that is the only extraordinary circumstance we have others one of them which is what the one that i just said basically that it was first raised in two thousand and five well before the court case and in the adams case before this court third unlike most capital defendants haynes had absolutely no prior arrests or convictions and was only nineteen at the time of the shooting which is one year pasti cut off for capital crimes in the is a good person rather than saying you morning to say he was he was a drug addict sought a duchess a different approach a set of facts but the facts that he presented were more consistent with what after his arrest they presented a minister from the blues program who only knew haynes for a few months they presented another witness who only knew him for a very short time they presented some timely members very superficially so we're not we're not saying that no they should have presented him as drug abuser which he clearly wasn't the state presented him as a drug abuser and someone who's going to be very violent what our witnesses would have presented to him as this is dr rosen dr cunningham and dr silberman the just  witnesses or any witness similar that would have presented similar testimony to this would have countered that argument that he was simply a drug abuser de could have shown that the drug abuse came on was in a very few weeks after he was he failed out of the blues program in rhode island he was sent back to houston only a few weeks to get involve with these drugs and they could of there was no expert testimony presented that could have put this in some sort of a context in that asked minute eleventh hour one page i think it was by a doctor gaffner but we've shown in our extensive briefing and that's in one hundred thirty four pages of the initial federal rick that this was inadequate and eleventh minute last hour in fact some of the reports were submitted to the defense while the jury was still being chosen or dark so we have a last minute half hearted attempt  a reasonable under wigan's are not under strickland this was not a reasonable penalty phase present what you were two are saying is it if they had started earlier and investigated more where they could have possibly come up with something that absent he failed to bring any extra record claims he was acting not as a state havey as attorney but more as an appellate attorney in contravention of the clear texas statutory authority which is eleven seventy one section three duties to bring only record extra record claims in stadiums state hate his petition consisted of previously rejected boilerplate claims with no ax to record evidence whatsoever and the fifth next extraordinary circumstance here is that the state's aggravating evidence was very weak it focused on two things have focused on robberies that occurred on the same night as the offense immediately preceding the shooting and pains had no criminal record prior to this this could have been presented to expert testimony as isolated behavior not in green behavior and therefore not relevant to the future dangerousness special issue and the six extraordinary circumstance here is the extraordinary depths of mr haines as mitigating evidence we have thirty nine uncalled in for the most part uninvestigated witnesses and three experts who could have shown the jury entirely different picture from what they heard now if we look at these affidavits and declarations we see that these people were not even talk to by the defense counsel at trial this could not be strategy not to call them because they were not talked to the defense some were talk to one or two one or yes your honor one or two were talked to but none of them were told no i didn't mean to say all i meant my almost all but i think of the thirty nine three perhaps were talked to but they were these were also people that said they were given the brush off when they were talked to they were not called and this except for perhaps those three we cannot say that this is a strategic reason not to call these people the person after person describes mr haynes as good attitude respectful behavior orientation towards a naval career and extremely low likelihood of him committing future violent acts remember that this is a young man who is in a blues program which is a program designed to put paid a path here towards acceptance at the naval academy in a naval career within a few weeks that all falls apart when he goes when he's he's dropped from the program he returns he used and gets involved with more seriously delinquent use gets involved in crystal meth and under the influence of crystal meth commits this crime now the seventh extraordinary circumstance we have here is that the expert witnesses and i touched on this before expert witnesses could have shown the jury the mitigating side of pains of psychiatric conditions as they are all treatable and if there treatable that means that they are not aggravating for purposes of the future dangerousness special issues we have attention deficit disorder we have major mood disorder we have nothing talks occasion at the time of the crime we have adolescent disorders we have developmental immaturity conduct disorder we have a significant history of familial psychiatric dysfunction all of these could not be presented to the jury without expert testimony and that was not  mostly except for two or three that they were not even interviewed by the defense counsel so their absence of trial could not as i said could not have been strategy and the ace extraordinary circumstance is that haynes has never received a hearing on his claim of ineffective since the counsel in state or federal court and nine the overwhelming showing of prejudice which is shown to be lacking in some of the other cases this court has considered on remand and honestly is we an awful lot of your  categories lists here for extraordinary circumstances the first step to sixty six are really marriage based you're saying you have very strong merits on yours what's your best case to say that extraordinary circumstances as sorts of matters are considered cantars also so there's extraordinary circumstances rarely will exist in the heaviest context because that was glee and which may not be the strongest advocate at the court in the past on this side of the issue but he did write of to me a fairly clear opinion so is or any case law from that court or from the us that says what you're talking about are analogous to sort of things that have been recognized as the right things to be looking at as extraordinary circumstance yes yes just like there is and i would point to the buffers as davis the supreme court case which we know what that says and does seem to me he would that was what the court said there is this is such an unusual departure from what is required in it's a different category of extraordinarily errant decision i think they are it is a different category however buck it is is not meant i think as with any supreme court decision is not meant to just apply to mr buck what we have here is  court in buckley district court here failed to mention any of his thirty nine affidavits or his three expert declarations his arguments for prejudice his lack of prior pleas contacts and his and also as distinguishing his case from the other cases cited or the fact that the state's aggravating evidence a very weak here and it was based on several robberies that occurred on the same night and it was based on some verbal altercations and the high school our o t c program that were never there or even amounted to that so  i think that i would point to that as probably the main this is a case of sixty six case where relief was granted and it had only one factor here which is the ignorance of the twenty eight day letter your honor and that's i think that's also very relevant so i would refer the court ever so i where you were never had a case exactly like this i think that's a fair does with somebody with a clear record nineteen years or and there's  and nor is it likely to come up in the future because we're so far removed from in time from martinez intervene you could not succeed because it would be it would not be built you know you have a lot to cover your brief has been very thorough west to say here all the reasons pre war to stream you are not been properly presented yet if not been exhausted but even if that's not relevant or that somehow can be gotten around here is my summary alternative merits of why on the merits there was not ineffective assistance of counsel so are you saying under epa regardless of how exhaustive a review it would be an improper review or you do are you saying something different that it was at the wrong time or when problems in it that time whatever are you saying because of the way judge lake did it and what he wrote in that opinion it's not a sufficient marriage what we're saying is actually the no merits case and again this is not a not the case but we're saying that because of the way judge lake did this and i'll give it all of it probably twenty eight days later there was some reference to at the this is not the case though because it's never been reviewed on the merits in the state court so but i think going back to judge sauls was question i think that the the answer to that here is is primarily because judge lake held quote without addressing the individual basis for each and exhausted the actually dependent claim the court notes that none of his arguments facially command relief and that was the identical holding three articulate it in his order and reach the conclusion that only makes sense if in fact he had looked at the record oh you're reading it differently than what i just said yes ron i am i and we are our argument is that this is an abuse of discretion because attempt to deal with these issues there's there's been no merits reveal here when there's no attempt to deal with the facts or resolve the issues and we're saying that this is a clear abuse of discretion for instance under backcrosses davis which says and this court has already held this in in re edwards this year which i cite in my twenty eight j letter box holds it can be an abuse of discretion under sixty six to minimize or ignore the main evidence in not finding extraordinary circumstances which is exactly what happened here boxing the court ignored or minimize the evidence of racial discrimination and that's exactly what happened here in edwards discord is held in the context of sixty b motions that quote a district court abuses its great lengths to ensure that ends its constitutional rights were protected and yet ignored the fact that this is a case where the record shows that the judges on the bench during or die are cleaning to test the last in full view of the prospective  his constitutional rights the district court also held that there are mission a mission of this evidence merely demonstrates the exercise of strategy which is as we've already discussed wrong because the trial attorneys could not have known what these documents would have said the thirty nine plus three experts were not going to know what they said without talking to them so it couldn't be strategy so this clearly indicates attains as evidence was just ignored  we have here i would like to unless of course any for the questions is the third basis for the district court's holding which is prejudice and we would like to point out that the district report totally ignored again just showing up thirteen instances of prejudice in eleven pages of briefing it erroneous lee held that even though trevino opened the door for hanes to argue that estate a b s representation could provide cause haynes's briefing only superficially addresses the question of actual prejudice giving a cite to one page a page of haynes's brief that was basically irrelevant to the showing of prejudice here again none of the thirteen reasons why trials council failure to present the mitigating evidence prejudice against were even discussed nor were they even identified and they occupied over ten pages of the sixty b petition he showed a multitude of prejudice and this  reason why some of these other post martina's trevanion cases of failed the lock was showing a prejudiced we've shown that so middle of little mitigation was presented that the prosecution argued that there was no mitigation we have disorders unstable and chaotic environments the westlake psychiatric hospital commitment the records were not introduced by the defense but by the state and used in a prejudicial manner  for your time let me just ask one question that is a factual question well yeah factual you can answer it and it whatever way you think the right way would you say back in two thousand and eight which is when the this court's precedents and adams and here's the answer to that question is abundantly clear a change in decision along even one that could benefit a petitioner is hardly extraordinary and here haynes relies on truly nothing more than a run  i t c claim to distinguish his case however the district court has already determined at that i e to see claims without merit and that determinate as to about something that he just said he said that this is never been exhausted what is the of which i as an alternative matter by but if we agree on the procedural point then those issues were not in front of they were not exhausted so what is the effect of a ruling by federal court on exhausted issue well you under the statute i don't remember exactly which provision at this time but i think it's twenty to be one i believe trying to get one you know to take an exam exactly you are in a way to keep going  cannot show that there was actual prejudice to turn into a particularly the first issue of extraordinary circumstances the supreme court has made it absolutely clear that extraordinary circumstances will rarely occur in the context and do that is precisely why not every interpretation of federal law or change in decision a law setting forth requirements for a b s provides cause for reopening a judgment importantly in this court has addressed the question of whether martinez intervene you are extraordinary circumstances head on have that there's more to it than that what else we had was charged disturbing the middle column of the supreme court well i think we can look to the other provisions of sixty to get some instruction and those are simply i the example i could think of would be perhaps a fraud on the court nine extraordinary circumstances that he offered six of those had nothing to do but with the merits in the claim and that was all prior to the proceedings there's nothing new here aside from or to news intervene you know which are not themselves extraordinary we would look to things that are after final judgment has been rendered sufficient to warrant reopening the judgment such as as i mentioned fraud on the court or for example actual innocence evidence which could come up in a later circumstance in bach i think it's also instructive to note that it was not merely the merits of the claim it's not merely the nature of the claim which was indeed unique and as your honor said earlier disturbing departure it was also the service fact aside from it being a capital case it was the third fact of the remarkable gunshy until the border started and they just barely found out about his possible drug use and his possible motion or mental psychiatric admission records which focus primarily on his mental health in fact the state proffered that evidence and used it to his advantage and we also know that the mental health advocates certain evidence of corporal punishment and family dysfunction and parental i could have gone there but i had a good reason not to go into that well your honor again i would disagree that he did not make a reasoned trial count trial strategy here as indicated by the two letters in which were written to defense counsel this is actually provided by haynes himself they are located in our way my no four through nine o seven in there they specifically mention much of the mental health history and  question in the record we have evidence from in particular to paint his father who talked about incidents and mentioned repeatedly that he had been submitted for psychiatric help he mentions incidents of pains approaching him with having bad thoughts he talks about in specific know not to have sound professional medical testimony well your honor i think simply given that he did hire those two experts and he received those letters we have a clear indication that he simply chose a different trial strategy he chose a reasonable trial strategy a soca sitting on a history that had no criminal history no arrest no convictions and this was ask and use the word chose what do we know to support that he chose that strategy which was for him to know trial and given that some of this evidence that he wishes he had focused on did come out and you can get an indication from the record the trial counsel in fact wanted to minimize that he wanted to minimize some of the drug abuse he wanted to minimize some of the physical psychological problems because what on reasonable but that's not the test under strickland under strickland we can't engage in this type of impermissible second guessing particularly when as your honour's of pointed out he did have a defendant who had an usual background that was a good kid and did not have anything in his background to two answers to that question your honor first of all i would say that it's important that the mere fact of the determination is important because even if extraordinary circumstances existed even if martinez intervene you apply to which they do not he's already mirror that's true your honor it was a short opinion but it was an accurate one he is arguing nothing more than your disagreement with counsel more over however in oregon this is the gist or courts first and i was sixty eight in that denial he twenty one ninety seven or twenty two hundred and in there he specifically discusses the aggravating evidence of the state have provided he cites the c d c s recitation of the evidence and addition to citing other evidence that he noticed from the record ineffective assistance of counsel procedural ruling was necessary and as i read my colleagues opinion in two thousand and eight he listened and one of the seal wages for the procedural ruling on ineffective assistance i don't know how it cuts if it is or if it isn't but it is movie on that ok so he says he says he did yes it was in this year application and this court found that they there was no reason to dispute the district's assessment not the merits of you didn't happen on the simply that he disagrees with it and that had not be an extraordinary circumstance it cannot be the inquiry which this court engages on in a sixty be given that the only other thing he has here is martin is intervening which is excel thought extraordinary if we were to take a run of the mill i a t c claim which his is that of every position or essentially could simply disagree with any merits determination made by the district court in the alternative and martinez intervenor issue he had raised a sixty raising essentially the same claims that he's raising now and there's quite specifically addressed the diligence and sounds that he had and then still found that there were no equities in the case efficient to constitute extraordinary circumstances i would also note that it but your honor again he is alleging nothing more than a run of mill garden variety i see claim his claim is a failure to investigate under wiggins which is essentially the same claim that every capital hades petitioner always brings forth and if that were to be an extraordinary court's procedural bar so arguably it is proper however given the approach that he has taken to challenge extraordinary circumstances i think there is an argument there to be made that he is in effect trying to end run around the successive position the statute he is merely to trial counsel and that was again that are away and i know for sure nine o seven and those were the psychiatric expert reports that were sent to trial counsel and then the other pieces of evidence would be through the trial testimony through the witnesses that were pro and where you can see that evidence was brought out about some of the mental health stuff and minimized and that would be the volume twenty nine of the reporters record fifty through one hundred one and also some of the drug information comes out of volume twenty nine of the reporter's record sixty five to seventy four to adams and as controlling i think this has been probably covered adams and adams refers to where the only extraordinary circumstance is the exception and that's not the court the council has referred the court to the letters that were received by trial counsel from the experts that they have i would refer the court to dr cunningham dr rosen  or during the board are this was this did not leave time for any coherent investigation not only that though that the findings of those letters are dramatically exposed as as hasty and with the west and they introduced the west folks hospital records and the and the defense because they were not prepared they had no way to deal with them as mitigating dr coming on dr rosen dr so verman can show that they can show that they could have shown that this mr haynes's background would have shown that he's not a future danger that the robberies the other leg of the stool on which the state's case rests the robberies were never ition they  the experts could have described the drug use in a mitigating manner not as an aggravating manner they could have described his actions as impulsive not a bit you will or ingrained which would go directly to the future  dangerousness special issue same thing with the r o t c evidence which occupied no less than about ninety pages of the state's case on punishment it amounted to a shouting match and this was the worst that they could present shown that this these outbursts and high school were result of a chemical in downs that could have been treated and was therefore not all that relevant for future dangerousness if the if the condition could have been treated then he could've it wouldn't be an ongoing worry if he were to be given a life sentence to a diagnosis of a d h d and bipolar both of which could have been shown to be mitigating in the sense that mr haines had less foolish no control over his actions as impulsive actions on the one night when these robberies and the murder occurred we have royce nessie here who testified for the state about prison conditions here again dr cunningham's affidavit shows that as it misrepresented prison conditions