failed to conduct a constitutionally adequate mitigation investigation and failing to follow up as this court has previously found to be ineffective assistance of counsel in frazier and wholly i'm an obvious red flags signaling mr henderson's brain damage which he sustained when a car hit him when he was riding his bicycle when he was eleven years old the issues before the court today center on the meaning and application of strickland to facts where counsel failed to do more than a nominal mitigation investigation but where the state courts nevertheless termed counsels decisions and advice strategy i would like use my time today primarily centering on the first two issues in our brief we recognize that as to the third issue regarding mr henderson's competency that this panel is constrained by the whole thing and hodges and we recognize the opinion that was issued today  caruthers and so we would rely on our brief as to that third issue although we would ask this panel to signal to the entire court that it would be appropriate for the court the court on balik to take up the issue and to decide whether the sixth circuit will continue to follow the rule of hodges or whether it will follow as the eighth tenth and eleventh have decided follow a rule that competency determinations are two fundamental to the interests of justice to have procedural bars block the resolution my plan had been to address first are in title meant to relief under martinez and then turned to our entitlement to relief for the ineffective assistance of counsel in a and the waiver of jury senate saying but i am glad to address these and whatever order the court might wish and so i'm confused by the repeated reference to martin i see references to this issue in the post conviction appellate brief and i'm just wondering why no one is talking question wow how is that different from your claim in the b s the claim that the district tort court and i'm sorry i don't know where the camera is so i'm not sure if i'm facing you face the judge is there you go ok the claim that the district court determined to be defaulted was our eddings locket claim regarding the complete picture of mr henderson which we maintain necessarily involves the presentation of evidence regarding mr henderson serious brain damage the post conviction counsel did nominally raise that claim they listed it in their claims in their petition but their after completely did not present any proof did not attempt to prove that claim in the post conviction court did not address that klein because it had been defaulted at the post conviction trial proceeding was not presented thoroughly in that in that  proceeding and so the district court below appropriately determined that as to the claim regarding the complete picture of mr henderson that claim had been defaulted and applied martin as to that claim or or said that he was but it would in essence following up on judge white's question you're really taking a claim and now you're advancing what i would think could be properly characterized as a subset of that by simply saying we have more information about that claim that wasn't presented state post conviction why is that view wrong well as this court knows  that presentation of brain damage proof has been held repeatedly by the supreme court to be different in kind from other mitigating evidence and so where there was no evidence presented in state court at all with regards to mr henderson's brain damage we would assert that this is a new claim so is the issue whether state post conviction trial counsel blewitt or appellate counsel it is very clearly an issue of state post conviction trial counsel there was no proof whatsoever presented regarding mr henderson's brain abnormalities he has h one of them is a congenital disorder involving having brain volume that is two standard deviations below the norm our experts have opined that was likely true at birth and then the damage to his which were sustained in the bike accident i mentioned earlier there was no proof presented in state court regarding the brain damage at all it is true as the state pointed out in their sole argument in response to our martina's claim it before this court that the state appellate lawyer listed the claim that had been pled in the petition in an addendum to the brief saying on in the addendum of the brief these are the claims that were pled initially at state post conviction but because if the court knows the claim involves more than just the initial petition having the words and it involves also the proof of the claim where this proof was never presented in state court that claim  defaulted at the trial of the post conviction and that's what the district court here found out but where i'm still confused is that as i understand it one of the state court decisions spent around sixteen pages reciting the evidence dressed arguably these claims including evidence from psychologists and psychiatrists so are you saying that that this that this wasn't presented or wasn't presented fully or that because it deals with the brain defect different rules apply that's a compound question it was a compound question and i may give a compound answer in that i think that it may be all of the above if i may choose all of the above that is to say brain damage evidence and i won't belabor when the court knows very well the william sears porter cases brain damage evidence is different  kind from other mitigating evidence and where what your honor is i think referencing is that him state his conviction there was evidence presented regarding mr henderson's serious mental illness and that was termed by the state court and by our district court below as being double edged evidence because in order to arrive at the appropriate diagnosis the experts had to know some of mr henderson's other criminal behavior which obviously would be  interesting calculus for a a a trial attorney to weigh in deciding whether to put on a mitigating diagnosis if putting it on necessarily involved proving up some other very bad behavior that is not the same calculus at all with regard to brain damage because though trial counsel should have been aware to investigate brain damage one from the fact that the client suffered this bicycle injury that council didn't know about at trial though they didn't follow up on it but to also from these aberrant bizarre behaviors that prove the mental illness they should have known to look further but putting on brain damage proof doesn't have a negative side in the same way because you don't have to have proof of the prior convictions of unseemly behavior in order to prove that his private lives are broken and you just have to have brain scans and then have a doctor such as we've submitted to the district court below who can opine about what those brain scans mean so i think the answer is the proof is different in kind and it wasn't presented below and it is more proof than what was presented although there was mental health proof presented and state his conviction or so this is about brain damage or brain deficiency as opposed to bipolar disease the complete picture of mr henderson of course necessarily involves both there is bipolar disease rampant through his paternal family that was not discovered because trial counsel did not bother to even find out who his father was trial counsel instead presented a very altered picture at sentencing claiming that mr henderson came from an intact family and had no prior history of much of criminal conduct clearly showing the trial  didn't know who mr henderson was or had investigated at all what bothers me about this that i'd like you to to address is that it seems like the rule that you're advancing by singling this out a nearing it down to brain injury and i'm not deprecating the importance of that but it seems to be an end run around  difference that we were new to give and part of the objectives of the limiting language in the supreme court of finality simply by saying something simply by injecting a brain defect  so i frankly didn't even really understand that was more the laser focus of your case from reading your brief so i wasn't really looking for a case that not only says brain defect is important i get that but that it it allows you to force to essentially ignore what happened below is there a case that that says i'm not asking the court to ignore what happened below there was we want to do over there was no brain damage proof presented either at trial or at his conviction because of the end of facts of mess of post conviction counsel and i believe that that is exactly what martinez says is an occasion where we do need to do over martinez was a case where there was no evidence of i remember it was just wasn't presented and here there was a lot of evidence presented just not on this one aspect of i see and i understand the court's characterization in that way however where the aspect of i see is something that is has been held by this court and others to be one of the most compelling mitigators if not the believe this court actually in glen v cited empirical evidence of this of brain damage being one of the super mitigators because it has so little downside and it doesn't and it a allows the jury to assess the person's moral capab culpability in a different way from other mitigators i would submit that where there is no proof of brain damage at all we are in a different category and do we have a case that says that or is that simply how you would have us extrapolate or extend martina's i am not attempting to extend martinez here we have a situation where the district court found that the claim was defaulted we were actually in front of this court prior to  martinez being ruled upon when martinez was ruled upon this court appropriately sent the case to the district court for an assessment of the application of martina's to our previously determined to be defaulted claims which is when the district court said that that is what the district court did and examined this claim under the martinez analysis because he'd previously found it defaulted and not within the purview of anything that was argued in state court and so where we have a default claim where the claim was not presented to the state court i think we are squarely in martina's land and it doesn't require any sort of extension  the merits of the claim and to some extent and found one that counsel had performed efficiently the district court was very clear that the failure to investigate in the ways that i've been describing or alluding to w deficient performance the district court then found that the claim was not substantial under martnez but the district court did so without considering our proof of brain damage the district court noted that in federal court there was proof of brain damage but simply said i have previously found this proof to be excluded under penn holster and cited his pre marked taina as determination of the merits of other claims where we had alluded to this proof and so the district court did not consider the brain damage proof at all in deciding that our claim was not substantial under martinez w martinez analysis is should be conducted properly in the first instance in the district court that where we've presented proof of a claim that the district court itself found we had met one of the problems of the the strickland test that that in and of itself shows that our crane claim is substantial under miller al which is of course the test for substantiality that's written into martinez and so where we have shown that we have one of the two prongs that shows the claimant's of stansell and then beyond that i have some other arguments about substantiality namely that the district court said this claim can't be substantial because  and to be clear he didn't say while i'm not considering your proof but his analysis shows he did not consider the proof but he says the claim couldn't be substantial because the state court found that the proof of mr henderson's mental illness was double edged well i would submit to the court that if something is double edged it has a good side and a bad side and so that means it has some merit even under that argument of substantiality for the martinez analysis further the district court granted us the c e o way on the issue of the substantiality of our martina's claim which shows that the district court believed that our claim that the miller l standard since that's the standard for the c e o way it is also the same standard for the martinez analysis of substantiality so it's clear that our claim is substantial enough to merit the district court's attention and then we would submit that one needs to happen is that we need to go back to the to the district court for the analysis of the full claim which is to say the proof that we've presented for the first time in federal court and for also for us to prove that it was defaulted through the ineffectiveness systems of post conviction counsel how do you reconcile sears pinholes i take it you're relying on seniors if you should look at the judges so i take it you're relying on see your sears for the proposition that you get to introduce all of this evidence in the hay vs proceeding so how do you reconcile that with pinholes but i believe that penn holster limits federal review of evidence introduced for the first time in federal court when  an unreasonable application of clear precedent then we don't get to present new proof and we don't get to present new proof of says in order to show that that determination is bad solely on the basis of the state court record here where martinez applies where because of the in effect of post conviction counsel the state court did not have the opportunity to evaluate the merits of our claim martinez says we're in a whole different field this is a different place because there is no deference owed to the state court decision because this claim wasn't presented to the state court so there's no reason to bar particular facts from consideration penalty or where these facts were not present presented in state court at all and there wasn't a claim adjudicated in state court to which this court must be deferential if you want to remain on one of the things that  still confuses me about that put twenty two fifty four to the side for just a second as i understand it when this one back you were given the opportunity to conduct discovery and you didn't all you do least as far as as far as introducing new evidence as far as idea as far as i understand it you just relied on the woods and goure reports and declarations and when asked what other evidence that would be that you would present you never stated what else you would present at evidentiary hearing i so what do you have or what do you think you can find that you would put into the record assuming we can consider if you if you did get a to be clear we had submitted the girl and woods reports prior to the remain and for martinez analysis because we were attempting to which we believed that we would be able to convince the district court that the procedural bars of twenty to fifty four d should fall away and that the court to consider the merits of our claim with new proof and federal court and then as you say when we went back for the martinez discussion we already had the proof of this part of our claim but we did develop evidence on the remain and regarding the ineffective assistance of post conviction counsel and a den of five proof and put into the proof in the record declarations of his conviction counsel denying that it was because post conviction counsel was horribly mentally ill herself that though they had mr henderson scanned and had the wrong upon which doctors grrr and woods for a lie they did not present any of that in state court and that that was because of her inability to function as as a lawyer well at that time that's the proof that we added to the record on the remaining and and that's the proof that we believe we would need obviously the state would want to cross examine those witnesses and we would need to flesh out that record in the district court but that's the proof that would need to be considered in the first instance by the district court j if the evidence was there had somebody looked for or looked at what they did have the absence of which is what you're claiming is the ineffective assistance of counsel how do you satisfy twenty two fifty four two seemingly requires that you show that it couldn't have been found or presented it was not not found through any fault of mr henderson's we believe that where martinez provides an exception because of the ineffectiveness of counsel mr henderson's first chance to present the end effect of assistance of trial counsel claim that under smith vs came from the fist circuit it's clear that our new proof should be considered in that instance so so in other words there is no bar then in twenty to fifty for you too because you know i these are all i see claims and in every single one of them you're going to be able to say it was of no fault of the petitioner it was because your lawyer didn't do or couldn't do what he was supposed to do so you've just opened up seems to me this huge hole and twenty two fifty four two that kno no other court seems to have recognized i don't think that i'm sorry that's not what i meant to do i what i think is in a case such as mr henderson's where post conviction counsel made such a wild failure where brain damage proof they knew to be very compelling an important part of the picture just like trial counsel base except trial counsel didn't even notice the red flags post conviction counsel noticed the red flags and then failed to follow up on the proof they had that they obtained and failed to present it that's a very different situation than most petitioners are going to find themselves then obviously we'll have to proof strickland both deficiency and prejudice as to both post conviction counsel and trial counsel i don't think that's going to be a wide or i think that's a high hurdle to a bomb vault but i want to chance to do so in the district court because i believe in this case where we have proof that we presented in the district court that this default occurred in the state court because post conviction counsel was so mentally ill she couldn't work  then this is a situation where that proof just like a martinez needs to be heard somewhere sometime pretty interesting you say that she was so mentally ill herself that she couldn't work there was a significant amount of evidence put in the state post conviction that you're now that was taken into account by the judge you seem to be saying well yes but what she did she put in a lot of stuff but not brain damage she put in more stuff yes than the trial counsel did i mean this is a case where trial counsel put on only references to mr henderson's participation in a spelling bee and third grade and yes by comparison with trial counsel post conviction counsel did some better however according to her affidavit i realize this is a tiny bit outside the record but i have deposed her psychiatry list in another case and that psychiatry is very remarkably said this woman was qualified to flip flip burgers much less practice law and that's testimony that's been introduced in the eastern district of tennessee in a related unrelated but hey vs matter where she dropped the ball in that case this is a very extreme case of missing the i mean she didn't totally miss the red flag because she got the client brain scans but then never put that proof on never gave that information to her experts and so where this is such compelling mitigation with no downside in terms of being presented there could be no strategy behind that and that is a result of a very unusual situation but that yes is ineffective assistance of counsel may please the court john blood so on behalf of the respondent and i believe my argument before the court will be be fairly brief i was prepared to address the underlying deference that should apply to the  m as it was raised in the state court regarding the martinez issue that has been raised our position is that this is subsumed within the exhausted claim of ineffective assistance in regard to advice given surrounding the petitioners decision to plead guilty to first rumor and the other charges and to waive the right to a jury trial in the sentencing this in effect is a i claimed that claim wasn't sufficiently proven there is additional evidence that has been discovered afterward and that should be considered this court in the case look to whether martinez applies when you have a claim that is not procedurally defaulted it is exhausted on the merits but the petitioner objects at the federal hate me as level two the amount of evidence put on the way it was argued and presented and what this court concluded is that the first step in a martinez inquiry is whether the claim is procedural or default you don't go further if it's not procedure with the fault  the opposition on the the unique subset claim regarding the brain damage evidence whether counsel should have found that how that should have factored into advice given at the time of the plea and the waiver of the right to jury trial can be presented in the state court in the postcondition proceedings to support a claim of ineffective assistance at the time which was not done but but yes this f this is this is proof that could have been presented and was you just don't create a procedural default based upon the later arising evidence that could have been discovered before and was not present so our position o is actually quite to think you just don't get past that first factor this is all part of the claim that was squarely raised now i agree this court may review under the dead deference of section two to five four d the proof presented up to that time and an inquiry then into the reasonable ness of the state court's decision under the proved developed in the post conviction because it was additional proof developed at that time and we dressed that in the brief and i'm not going to go too far into that since counsel didn't get into it unless the court would like but in terms of martinez and the specific unique claim that's being addressed today in oral argument and regarding the district court's inquiry we disagree that that merits further inquiry because that is subsumed within the claim of ineffective assistance of counsel in the plea process that so interesting if you look early in the litigation of this case prior to martinez there was a dispute among the parties as to what certain claims not the so this is the claim addressed by counsel today but what claims are fit in that part of martinez the position of the parties is different petitioner was arguing that certain claims that were included and not which they're certainly free to do but this court looks to the actual legal claim the sixth amendment right to the effective assistance of counsel the right the deprivation is whether there was a deprivation of the right in the plea process and basically this comes down to how you define the claim exactly and of the way you did it was present it was ruled upon deference applies you define it the way apparently the district judge and your fellow counsel is in order to fit in to martinez but but it is an effect of a system counsel in another way i mean that's how i understand their argument my point is it's not you should not parse it that way because it's the one right to the effective assistance of coun which involves an inquiry of what counsel should have done what was he was recently expected to discover what was he not constitutionally compelled to know before i mean there are lots of lots of factors that fit under that  have to be a claim of ineffective assistance of counsel in order to fit under martinez to secure further proceedings under that our position as it's not that it is subsumed within the claim that was raised and exhausted in state court and this unitary that once you raise in our easy claim in post conviction proceedings it doesn't matter the nature of the claim it doesn't matter how restricted it is it covers every conceivable  viable claim of an effect of assistance in some way that undermines the knowingness or voluntariness of the plea but that itself is one client there is not multiple sub part of how counsel might have specifically case well your honor i don't dispute that there could be a separate allegation of ineffective assistance of counsel in what actually happened in the senate and hearing the bench trial but but that's that's not the issue on probability was granted and we're looking at it's the pond up of council in that moment when the decision was made to play yes there can be separate claims regarding council conduct during that hearing the evidence presented things of that nature that that's a separate inquiry into whether there was ineffective assistance at the time advice was given regarding the plea and whether to waive the right to jury trial now i'm really confused because there are four issues the first issue that the district board certified as i see of trial counsel and preparing for sentencing those seem to me to be maybe they're related maybe they're not but they're but they are separate issues as judge white said you can be effective in connection with the you should plead guilty and horribly ineffective in connection with sentencing in a death case yes your honor and i believe how how that came out well first of all clay nine has multiple sub parts that was  brawl cline when we get to the briefing our review of the brief the principal brief power went was that their argument at the time of briefing was limited to nine and that was the senate seeing component of the decision to plead guilty so that is how we briefed the case that's how we addressed it and in terms of the martinez argument it was not the fault of someone doesn't plots of the only have the numbers wrong i thought they were talking about here's the is the nine n claim well maybe miss miss understanding from the briefing and how the claims are raised so obviously the briefing lays out what it is in the court will look at it but our understanding of the way the claim was raised and litigated is that we're looking to the claim regarding in effect a sense of counsel in the guilty we brief the claims as we did your honors because these call these the merits of these claims are so intertwined one cannot although i think the state tries to artificially divorce the advice counsel gave to mr henderson to plead guilty from counsels failure to investigate the case the proof in this case and i met the state caught that i cited in our twenty two fifty four d an mosher declaration the fact of the matter is mr measure said the same thing in state court that he said in our declaration i'd provide the court with that citation it said or twenty three dash two page id twenty five sixty six to twenty five seventy two when he testified that essentially the primary consideration in deciding to tell mr henderson to plead guilty was that they had no mitigation and they thought they knew they'd heard a courthouse rumor that judge blackwood was against the death penalty so what we have is a case where counsel failed to investigate failed to do their job and it vies the client to plead guilty because counsel just wanted to get it over with and get it over with quickly another way to look at that is he pled guilty seems to me that largely knowingly because there was no defense to elt i think that there may be a lot of argument about the extent of mitigation evidence the mayor made out of way the arab leaders but what was the defense to his guilt other than potentially competence where i agree with the court is that counsel did not know there was a defense to his guilt where mr henderson has brain damage that affects his ability to weigh and deliberate and where he was charged with first degree murder counsel at least had an obligation to look into the brain damage and to allow mr henderson to make the decision whether to plead guilty or not knowing that he had a defense to first degree murder in the form of his inability to weigh and deliberate that might have convinced one juror or more than one juror to not vote for first degree and certainly would have begun putting in his mitigation story in the first phase of the trial i think the court's aware that the a b a guidelines say that a plea is to be avoided in a capital case at all  costs when there is not an exchange for a life sentence for this very reason because counsel has a duty to always begin telling the story for life whether it starts in the first phase and continues through the penalty phase you're essentially saying that that can't be a question of trial strategy where at least arguably the strategy here good or bad was that you can generate a mitigator by accepting responsibility and pleading guilty  and it appears as if the district the state judge actually counted it as a mitigator the state judge absolutely did not if the court checks the rule twelve the state judge found there were no mitigating circumstances and however  is where our the heart of our twenty two fifty four analysis is your honor because under strickland is the court's well aware there cannot be a strategy decision in the absence of a competent investigation of the facts so here i agree the state court did term this a strategy decision but that is an unreasonable application of strickland where the state state court knew and acknowledge in their and their opinion that counsel had not done the investigation as as this court's aware and sears the supreme court clarified that there can be strategies that in the abstract appear reasonable but that where counsel doesn't really know what's going on or not in fact a strategy decision at henderson's client should be reviewed on the merits the state is right that at some points we argued that the brain damage evidence should should be considered in the district court and the fact of the matter is mr henderson should get one chance for a court to review this of events as the court said in martinez these claims are too important for ineffective assistance of counsel to cause the default at the initial stage and at the post conviction and for a partition or to never have a chance to present his proof and just to follow up on what you just said there at the end to clarify prior to the plea dr zager only assessed mr henderson for competency was a three hour interview where she made sure he knew who the parties were that sort of very quick analysis of competency what counsel had prior to the plea first and foremost was the information about mr henderson's brain injury at age eleven which is what we now know caused the deformity of his atrophied counsel should have followed up on that but even more than that was a continuing injury and that's just a normal injury of there was more than that yes or the more than that your hon is the prior crimes that mr henderson had committed that council was unaware of and much like counsel and run tell us didn't bother to investigate or find out about mr henderson was actually also had heart pending charges a very aberrant and bizarre behavior which doctors agar says if i had known about those charges i would have advised counsel we needed a neurological so that is to say were were poor behavior were for its very unseemly he had kidnapped and raped his girlfriend's mother he had broken into the home of the school secretary who knew him quite well had broken in the home of an art combination with her knowledge of the bike injury had she been told about that prior to the plea she would have told counsel there needed to be a neurological consul so that is to say council had the by country if he had investigated even known what his client was charged with in the same courthouse at the same time this proceeding was going on and provided that information to the psychologist that the state was paying for to help and then this brain damage would have been discovered that his doctor's akers testimony of post conviction was a going too far to characterize your position then as saying that in one of these cases particularly death case that if somebody has has some unexplained criminal behavior and you know they fell off their bike or were hit by a car or whatever and you to be competent you have to have a brain screen and hire a neurologist no sir i think that to be a what what distinguishes this case from your answer you know i think to be competent mr mosher would have had to perform reasonable investigation and the proof that we have put before the court is that had he done minimal things it would have led to the discovery of this proof and i'm back to just following up on judge clay's question which i thought was a good one and what there doesn't seem to be anything that came out in councils in reactions with this suggest that he had had or was currently suffering from brain damage well that alternately interacted with this fellow exactly three times for very very short periods of time in the nine months preceding the pla helpful had very little with which to assess that but that begs the question in however much time he did have with him there's no suggestion that he exhibited behavior that was suggestive of brain damage correct i can't answer that because counsel mosher was very clear at the post conviction proceeding that he i think he said i'm a psychological lay man i don't know anything about these things i would not recognize the symptoms you've answered it by saying you don't know know we also have these five letters he wrote his counsel that are really quite extraordinary compared to the letters that we normally see and i'm sure you do as well written by by defendants that suggested this was a reasonably well educated articulate young man so which obviously belies his real condition so i'm just trying to figure out what what what were the triggers that indicated the brain scan should have been anticipated in undertaken earlier and you've answered it as i understand it by saying well he had some bizarre crimes right and there was evidence that he had been in a car accident yes or so is that it i believe that the incredibly aberrant nature of those crimes cannot be overstated and this isn't a case where it's just someone doing something foolhardy or unwise the circumstances of those cases which as mr henderson's advocate i'm sort of to regale the court with how bizarre they were we had it you know but i mean it involved living in the cause i won't know mr henderson social history i'm glad you asked because now i'm remembering mr social to mr henderson social history the council also failed to develop or investigate involved things like living in closets when he had a perfectly nice home to live and hiding under people's beds for weeks and staying there there was very bizarre behavior separate and apart from the criminal activity that had council investigated just where his client was living it would have tipped counsel off that they needed to go further and i guess in the second part of what so by definition you're saying that should have led them to the question of brain damage as opposed to the bipolar diagnosis that was obtained i think that whenever counsel has an indication that the client is mentally ill they need to look into that and if they have an indication the client has brain damage they also need to investigate that and what the proof was that post conviction was that the expert that they hired that they were relying on said had i known about the average behavior i knew about the head injury i would have said there needed to be a neurological