failure of maurice lewis's trial counsel to provide to present any evidence in mitigation at sentencing which increased more sluices prison term but before turning to the merits of the ineffective assistance of counsel claim i'd like to spend a few minutes talking about the time when this issue to explain why the district court did not clearly err in determining that the claim was timely more islamists was not represented by counsel in hay vs proceedings until two thousand and eleven when my office was appointed and during the investigation of the case and particularly the sentencing counsel went to get the case file from the one thousand nine hundred four prior that resulted in the exorbitant prison term  and there were numerous red flags in this case file once it was obtained that should have led anyone who was litigating a motion to strike that prior to to investigate whether maurice lewis had an intellectual disability and  was only once my office had the case that this was discovered and as the district court correctly found it would have been impossible for morris lewis through the exercise of normal reasonable diligence to discover the basis for that claim and so  appropriate let me ask you one question i had which is there seems to be two or maybe three different claims that you're raising here and we've seen in  claim now respectfully i believe it's one claim of ineffective assistance of counsel that something clearly don't do that i mean ineffective assistance of counsel has to be a specific claim of how the attorney was in effect of we've made that clear in countless opinions i think if the court considers the some claim to be a separate claim there are two possible bases for tolling and the first is the statutory stolen tolling is still appropriate this is an intellectually disabled person who there's no evidence in the record that he personally ever knew about these character references that he would remember that they existed that he should have known the factual basis for the  at the test because those items were found at the time of trial and any counsel would would have known or he would be held responsible i'm not sure i've seen a case where we assume the conclusion that the that maurice lewis as an incarcerated intellectually disabled person would have struggled to discover the ninety nine of the report should apply equally but if it doesn't there's an alternative basis overhauling which was raised by law and not reached by the district court to allow the district court to to reach the equitable told in question which it didn't have to reach below well let's focus on the go ahead and focus on the thousand nine hundred ninety three report which i think was the focus of your argument the i think there were there were two focuses of the argument in terms of the merits i think taken together the evidence of intellectual disability and the character reference both should have been presented by trial counsel in support of the romero motion to strike the prior and that's all that that this council did he was hired at sentencing his only task was to represent morris look at sentencing  the only thing he decided to do at sentencing was seek to strike this prior and yet despite that he failed to look at the prior case file he failed to present the character evidence he failed to do anything  that said two ph d people had visited lewis and then the council i don't know if that was you or or whatever the council is at the time was extraordinarily diligent to go into th psychologist and ask them for a copy was deficient under the strickland standard or could the state court reasonably determine that that was not deficient it was unreasonable and i want to make clear that it's it wasn't just that the the court order allowing visitation by these two ph d s there were all the other indications in that case file that there was a problem here the trial counsel in the one nine hundred ninety three case said on the record multiple times this is this person is slow witted or this i can see what exactly he said but multiple times he said you know this is a person who's vulnerable in prison he's a gentle slow wit person and that combined with the fact that he was examined should have led and anybody who's litigating a motion to strike this prior to think what was going on here that lead counsel to hire these experts that lead counsel to make these representations on the record so the the sentencing counsel in the two thousand and four case so the sentencing council of the two thousand and four case should have known that his client was slow he should have because his his only goal was to strike this prior and in reading the case  court which i'm not sure was totally clear is that to the extent that respondent says there was a strategic reason for not presenting mitigation evidence to avoid the facts of this heinous crime coming out the facts of the crime are actually much less troubling than than the crime itself would have you believe this was he was nineteen and intellectually disabled person went on sort of a double date with his cousin and the cousin's fifteen year old girlfriend the leave the twelve year old to be fifteen so certainly a crime  what i'm concerned about is whether we don't have a reasoned decision of the state court trying to put ourselves in their place could they have found that this character evidence that he was a nice man or  slow or had a drinking problem that's pretty weak compared to the facts of the current crime plus his prior pluses prison record plus is being on probation at the time and i think there was a prior and then there were some traffic violations and then one other offense in between but the default for a trial court under california law is the middle term that's that's what the court has to start with and so if the court had started with the middle term and had had any mitigation there's at least a reasonable likelihood that it would have stayed but the middle term the court remarked on the lack of medication the prosecution in the trial briefs repeatedly argued that there was no mitigation and that sort of left the trial court with its hands tied it had to impose the upper term and had there been evidence that this was a person who had family support had the support of the community had had been a hardworking person trying to provide for his family i don't think there's any reasonable determination by the state court that that wouldn't have been likely to change just to the default middle term thematic castello appearing on behalf of respondent i'd also like to just briefly address the timing us question before addressing the merits of the claim and the petitioner in this case could have taken reasonably diligent steps to discover the results of his i q test in the from the earlier case he was personally aware that he had been tested and as petitioner admitting it in his motion to amend that he felt in the district court which is document seventy six at page sixteen he was aware he had been i q tested and so having personal knowledge that he had been i q test it is enough information for him to simply have sent a letter to the trial court or a letter to his previous attorney inquiring about the results of those tests and we have no indication in this record that he took remember motion i think even the district court who was somewhat sympathetic to the petitioner here was not persuaded on that part of the claim but what about the selection of the you know the mid term or the that determination should not be credited and one is that the district collapsed the analyses between the performance problem and the prejudice problem when it very briefly addressed that after finding that you could not actually reach the merits of that at the time and so there's no separate sentence and so the argument is it's just a speculative speculative which is what the district court relied upon to say the romero motion issue failed it's equally speculative to say that the trial court would have gone with the and the prosecutor delineated six separate aggravating circumstances all of which were weighty in terms of weighing the two and those included the the defendant's prior criminal history he has the par conviction for the forcible rape of a twelve year old girl and i do want to mention because i believe this needs to be corrected that the evidence in that case was not that this was some sort of a consensual sexual encounter between voluntarily between two teenagers in fact it's the evidence was that this girl was forced into a car by her also young eighteen this year old aunt and the petitioner forcibly raped her and during that time she was screaming out in pain and pleading for him to stop so those are the facts that the prosecutor could have turned to in response to an argument by defense counsel that i want the court to consider these character letters that are that are favorable to petitioner but then that could have easily prompted the prosecutor to focus more heavily on the particular cases that we cited where the court nevertheless imposed an up or term sentence and it's also important to recognize that the court only needed to rely on a single aggravating factor even if there's multiple mitigating factors and here they were relatively weak in comparison to the aggravating factors the court only needs one to impose the up or term sentence and so even if the court had been presented with the evidence that petitioner proffers and another significant consideration is that almost all of those letters were from petitioners family members and one thing that i noticed in preparing for today was that one of the letters to the letters one is from a minister and the other is from a pastor and the  our relationship with petitioner but then the next letter in the excerpt is one where the author of the letter says she's the petitioner's cousin and underneath it she writes that she's the daughter of the minister and the pastor so it appears that even they were related to the petitioner as well and so this very same type of evidence when the trial court is weighing the the circumstances of this case the prior conviction for the forcible rape of a twelve year old girl he was on probation for a domestic violence case at the time that he committed the crimes in this case he continued to exhibit a violent pattern of behavior by chasing down the victim chasing him down with the gun threatening to kill him and starting a car chase in fact sentencing judge did point out explicitly that the there are no mitigating circumstances whatsoever yes and that's perfectly understandable because the court needs to explain on the record the reasons why the court is going to impose an up or term sentence and so it's perfectly understandable that at the outset the court would say these are the mitigating oh in this case there are no mitigating and these are the aggravating factors that i'm going to rely on so the court did remark at the outset that there were no aggravating factors but then in explaining the reasons for going with the upper and so i think in light of that and especially in light of the california cases at the very least it was reasonable for the california supreme court to say trial courts don't off track courts even when presented with the kind of evidence will still impose up or term thank you don i want to just in the minute that i have addressed the argument about what the california cases say about what judges do because i think it's a little bit misleading respondent cited three cases there are  lot of cases for the romero issue but there's spec to the selection of term cited three cases two of which involved a defendant who did not object to the imposition of the upper term and the third valdez involved a reversal in a cunningham era where the court did not reach the reasonable t upper term so those cases are hardly overwhelming support for the argument that respondent is making and additionally the question of whether a trial court abused its discretion in imposing an upper term which is what these court of appeal decisions deal what is different then the reasonable the likeliness of a court imposing the middle term which is what we're dealing with which is the default that most courts do and particularly here when respondents said the