relationship with his father had meant this depended critically on the his defense against the death penalty and it critically on showing that he was no longer manipulating his father that he was no longer  longer scheming against his family as the court may know this was a familiar sight in which the mother and son of the father were killed we have raised two claims is something that is shocking to the conscience prosecutor intice a paid what the defense to the death penalty was going to be he says in a pretrial affidavit that he realized that the defense in this case was going to beat that and when the father had forgiven the son that their relationship it mended and that he had no hope and there was no longer going to be a danger coming from mr whitaker the reason for this is because his history although he included a burglary did not include as much as a dust up in the schoolyard there was no violent actually  actions against human being you said a margaret i thought there were multiple burg there was a breaking as a juvenile into a school some computers were taken it was essentially a prank or so just a one time that's my understanding that was that was the one time there wasn't multiple burglaries and there wasn't anyone dangerous endangered it was done as a kid and he didn't have a history of beating up people of nine people of doing anything that was violent and not even mention in the record of him having a brawl in the backyard with his sibling so any two other times to kill his family yes correct that is the case let me get to why this i think is a situation in which  there was a violation of clear clearly established supreme court long it is so shocking that virtually any case that mentions fundamental fairness any case that meant that mentioned shocking to the conscious it's a the attorney saying here's what my client would say so ok and it's first brought into the case as best i can tell when the father testifies during the guilt stage and the prosecutor says and your son never confessed right that is correct didn't don't you think the prosecutor expected or wanted the answer to be yes that's true you never confessed exactly that's exactly what he wanted to say ok but the father instead instead of saying yes you're right he never can fashion i'm sorry but which as i read it is accurate he did he didn't it rick invest in the father because he wants to push back on that he doesn't want his son to look like he's not remorseful a case about involuntary confessions and the holding in that case was any use of an involuntary compassion is violates the process that's listen balmer says i believe united states as well so those i think in your argument it was an involuntary confession that's violent of a due process and in your argument above the prosecutor by asking whether there was a confession somehow meant to bring up his proper which under the rules can not is ordinarily not contrition from a statement that is the central point he manufactured the evidence that he was going to then use that trial to impeach both can't and mr whitaker thomas and he anticipated this when took the stand he asked him was there that he confessed me so i think he did and then we have this histrionics by the prosecutor in front of the jury in which he says he didn't assume liability this is  the the purposes of the bill in this case it would be if we were appealing the ineffectiveness counsel but it has not on that ground and we are not what is important is that there was a change of  remorse that was the statement that was that came across through the cross examination of both can end both and part whitaker and it was also used by the prosecute to argue before the jury that he was manipulating his the end you've seen the proffer he didn't sign it and so so how can you be saying you sandbagged and didn't know about the proffer because in his closing argument he says someone somewhere somewhere in this case was getting it getting a mr by the prosecutor in this case and i thought his final question to the father can't at the punishment phase was isn't it true he's tried to plead guilty since his day ever rest yes  there were attempts for him to plead guilty and then he explicitly and he mentions coghill he mentions the predecessor counsel saying we've all the whole mitigation case was this man's been trying to plead even his father and the uncle wanted life it's the government that won't take it the shooter didn't get it and his court of criminal appeal said this was straight up presented it was essential to the mitigation case and i think that that for one thing isn't part of and i'm talking about thomas when he's cross examined says hi i've been agreed to this he said he's there twisting in the wind because the prosecutor is asking him about why is there no expressions of remorse and contrition in this doesn't isn't this completely offensive given what your father has done company employed for your life sincerely you were manipulating the father you manipulating you retards but it was mr feldman who manipulated both the attorneys by getting them to provide him a proper without a father who just said you're right he never confessed but you know we try we ask not for the death and all this other stuff then the issue then the issue probably would never come up again about the proper probably never would have been discussed in the trial which is consistent with what the state  punishment phase the entire mitigation defense from the first moment using the father as elicited from the defendant was we entered plea negotiations with the government from day one and so then the government responsibly appropriately under four ten can say well no you didn't confess and can use the proffer the way that they did battling with the defendant well for one thing when battling with finagled innocence he was no i'm talking about the punishment phase when bar it yes and that's consistent they heard that from mcdonald they heard that from him and then the jury actually has never even given the proffer so it's not in evidence how is it that you can  concluded that what they never saw and what no witness said to them didn't contain remorse the the prosecutor is making those statements true there were attorney statements that were made but the area was informed that the a to the attorney statements don't carry any weight so what they heard from was the father and the son who both were in agreement that the defendant didn't sign or approve it then the jury at no point ever gets it in fact it's still not in this record so the in the two thousand and nine direct appeal says this is harmless under any possible analysis but once we get to the to the punishment phase it's not just not harmless it's appropriate response of use because the defense case vitally on his assertion that he tried to plea so then the government says to him well you didn't plea in fact you went to trial and that's when they had the little scuffle over the not guilty plea right yes i agree with that  right when they asked to read the witness just to see your son witness testimony read something like that in this case that's correct it wasn't ever asked and it wasn't introduced into evidence but they never asked anything about this problem that's correct that's correct so moving on to the will before you do judge graves ask you for the most appropriate case if we conclude this is an involuntary confession because it was his unilateral submission to the government you you argue to send a bellow you argued gave cleo and do you have any circuit case because as i understand the proposition this is a queen for the day type attorney proffer there's nothing wrong with limiting the scope right when the prosecutor says to the defense counsel you attorney give me a proffer that just the facts they're not asking for  remorseful today or not so i don't offhand see any law that would say a limited scope proffer would be that it's got to be how it was used correct so what circuit case do you have that establishes there's a due process violation when you ask a defendant that what the point was that it was obtained from the attorney under the under the belief that it would be it would not be introduced it would not be used to trial that's that is the point and that's why it would be given if they were going to certainly if it was known he was going to use it in the way that he did which is to focus on the omissions and focus on the lack of contrition that he directed them not to put in it in we know that the that this  about the lack of contrition was funny because at the motion for a new trial this proper comes up and the prosecutor says you know i was very pleased with mr and wanted it worded it very very carefully there was nothing offensive in it at all in other words w drawn up to my specifications but it trial they said they put on a dramatic presentation which was completely misleading in fault and it went to the heart of the defense it showed and ma statements he is manipulating his attorney is millipede he is in serious not taking responsibility when the key to the defense against the death penalty was that he had taken responsibility  up in any way the rebuttal argument by the state mr feltman it comes up by smith strange but yes that's correct ok but can you quote from me or cite the record page where he characterizes the proffer as something that doesn't that this if you can that he has a story about not knowing anything about how this was created but it's really is it's going to try to avoid the death penalty when it was the prosecutors but there's never mind t my point is the prosecutor doesn't make the misimpression you say he did in that he never says and he didn't convey remorse he just makes the observation that you were talking to your lawyers and they drive to something you now wan disavow you say you had one in your jail cell but there's nothing on true about that the lawyer submitted something that the defendant didn't sign or approve and so all that strange says is well here again he's ellison said there was no faction finding in the state court on what was said at the store but my question to you isn't there's the state court saying feltman we believe is truthful doesn't that cover that maybe you don't know that it isn't that oh we don't want it right so i mean i think what it means it was ok this is credible but what was credible in the affidavit we really don't know it was just sort of but isn't being blatantly dishonest it's with that conclusion seems to say to me judge as judge my time is up the judge ellison said i can't tell what was found either implied or directly by the court which brings up i think a threshold issue if that's the case then the operative facts of this claim the most important back to this came which have to do with the origin of that proffer and how it was procured what ruled on by the court and therefore this court is not bound by twenty two fifty four day one because it didn't you say that all you've been trying to do is to come clean take responsibility and accept punishment but you've never done what helpmann says over and over is  take whatever the jury gets me and we can disagree if that's what true remorse is but that was his theory and when you look at the specific statements regarding the proffer by felt them both into the guilt phase and the punishment phase he is not emphasizing the substance of the proffer in fact when he discusses it in the punishment phase it's him big u s what he's even talking about re says is this is insulting to me because you didn't report when you were remorseful your father was begging for your life that's pretty much the theory that the defense is suggesting and in cross examination the defendant mr feldman said so you're a sociopath sociopath you manipulate people like tools he did absolutely say that but that is not based on the profit that is based on the great body of evidence other than the proffer that the prosecution of the lied on which was that even before he was arrested after two of his family members were dead he was out attempting to bribe adam hip to life like my three did the record is there was manipulation the hip the phone call that with the jury heard fleeing to mexico there was a great deal but there were several points that feltman instead tried to have the jury get the impression that the legal rules available to the defendant were manipulated so if you remember in the record feltman tries to say cross examine the defendant on his not guilty plea until the the district  the trial judge interruptions of staines objection saying he can he can not enter a plea well then he comes into the proffer point and he gets the defendant does say i didn't write it but there is that histrionic moment where feltman is saying therefore your father's begging in tears in your shown me no repentance that is a fair general statement but the the problem with your theory is that there is only the most tenuous connection it bust argument or is this arguing that it was appropriate response of at the penalty phase what's your argument to answer that question i have to back up a little bit and start with what the question before the court is the court of criminal appeals ruled against him on the merits on his due process claim so the questions are under a what is the clearly established law and has he proven that the court of cool appeals rejection of his claim the result was either contrary to that or reflection on a reasonable application so the problem that i haven't answered your question is in order to say whether it's heartlessness argument i have to know what the clearly established law is now i guess his version of it is you can't tell a defendant write me a proffer but leave out something and then cross examine the defendant for the portion that he left out now he may not immediately articulate a case but that i don't think the government would dispute that a prosecutor can't tell someone at the onset write me something and then turn around to cross examine him for not putting that in i'm certainly not here to say that that is a great thing for prosecutors to do i don't know i'm not a prosecutor i hesitate very much to judge is that not what i would do probably but the question is it's not the problem with their argument is that they want to focus solely on one of mine her bit of conduct say that it shocks the conscious and and not talk about but i have to start with that's the question in the courts to start with and on the material on the harmlessness point one of the arguments that he makes is ok here's another line of precedent it's brady it's the misrepresentation of evidence falls occasionally under that line of cases even if it applies which we certainly don't see that it does is that work is clearly established law it wouldn't be harmlessness argument it would be his burden to show that whatever use there was of the proffer was a material because in united states versus bagley the court talks about all those cases it back fell committed gave an affidavit any piece he was adamant at the new trial hearing that the proffer was inadmissible under four ten correct that's why he said it shouldn't even go in the appellate record we don't have it correct so are you or are you not arguing that his question to the father the government witness at the guilt phase is proper in other words you say to your witness need he ever confessed but you've gotten a proffer from his attorney admitting to all the facts of the crime it  seems to me felt when under would have understood that that's an improper question separate issue is penalty phase response of use right well his question so his question he never confessed said when he came back from mexico he told me dad i'm so sorry it's all my fault and i do everything i can to make it right and at that point i knew he was guilty and willing to confess and then mr feldman says but he never confessed did it now they want to say that that's all about the proffer i don't that's certainly not necessarily true it is debatable at the very least because what i think it is if you look at the entire record and felt men's approach to the case that's not but we've got this proffer where he's not remorseful up here telling us that's what he wanted to do all along and he just doesn't do it so what am i supposed to do with that and at that point his father mentions the prophet now it's a similar sequence of events and punishment because there there's no question that the petitioner raises the prophet first on page forty two seventy one of the record and later in this mr feldman doesn't follow up with any questions he comes back later and he says that before i move on to that in his opening argument at the punishment thing he's still can doesn't refer the proffer he says of forty to twenty seven you're going to hear about a plea a plea bargain in this case it's already been brought up with the point mr macdonald has talked about a plea bargain all we wanted to do was plead to multiple life sentences and sure enough in punishment phase they heard about a plea bargain on direct petition or said yes yes sir all i want to do is plead as many life sentences as they want and so he brings up the proffer and help and doesn't return to it for several pages but then on forty to seventy feltman never said he never gets to the substance on his own instead petitioner volunteers oh i dasn't i want to do it i want to be expressed remorse there was another one and then the response by feltham and it's not based on the substance of the proffer what he says is your father's pouring his heart out to me and i don't see any remorse any repentance by you it is far from clear that that is a direct reference to the contents of the proffer but the defendant responsibly says i didn't write it and that which is an exact reference to the prophet once he's been once he asked the question father poured it out you didn't everyone understood they were talking about the proffer the defendant himself says i didn't write it well defended understood but then felt when buys into it he says that's why it was so insulting to me he's crying you're not that's when he uses the word insulting that allows use at once he brought it up that the c c is right it was in extra complete his entire mitigation defense so that he could go into my difficulty is the single question asked of the father not brought up in closing argument the guilt phase and that's entirely fair assuming that he was referring to it it was not contrary to the rules of evidence because he's he is trying to get something out of something inadmissible so yes the prosecution is entitled to respond and the way they responded was minimal and very general they did not say i've got you right here on paper saying i don't care i have no remorse and medical procedural question is that texas is usually very vigilant in forcing procedural bars on federal hate b s but in this case as i look at the state a b s court's findings on this due process claim which was characterized as claim sex paragraph thirty five which is i think fifty to sixty one of the record paragraph thirty five basically says because and of course on direct appeal there was the challenge in a four zero two in the courts as well as in contemporaneous objected to their own sta form of due process for the first time and paragraph thirty five the state court which was adopted by the court of criminal appeals says because this due process argument could have been made on the trial record on direct appeal it's it's and from being raised on havey is now they do then go on in the following paragraphs to also reject it on the merits but it seems to me that's a procedural bar but did you anywhere in the district court federal district court argue that we did not and so does that mean it's waived an involuntary statement as sort of variations were those that all raised in any state court proceeding the that was an involuntary statement i believe that he did i think he did make a variety of nonspecific arguments in his state is titian so it's not our position that there is an exhaustion problem our position is he made his due process claim it was rejected on the merits and that's it for other purposes we're not we are not relying on exhaustion for that and to get to your honor's point about what the c c a said once it discussed the procedural bar it there's no question that it  adjudicated this claim on the merits and so that means that the question as i said earlier is what's the law and why it is a c c s application of that clearly established principle on reasonable it can't be s that says it applies say into balance not to a really a plea bargain but to the inducement of getting testimony and it appears as you say straight pretty straightforward opinion not much analysis but it does say santa bell also applies to th situation without thinking as much of a difficult question now i understand under ed but you have to show an unreasonable application of supreme court law but could you address ross and all and if you don't that same develop quite so straightfor that situation why isn't that a good case for the petition right well the at least two reasons one as you suggested it's not a good case because not only do you need a clear statement supreme court law from holding but the supreme court's been very clear that you can't rely on circuit cases to quote sharpen the the application of a clearly established rule the other reason going directly to ross is that in ross it was as i recall a it was an interrogation where the defendant said something to the effect of i'll take all the responsibility if you just let my wife follow it and then they used against him at trial to get a conviction and so that was they were actually using a statement obtained  bargain to introduce a trial that was to the police the brusqueness to come down right before the federals of evidence because the statement was made to police which wouldn't be covered anyway correct if it was made to the police now that's only a statement exist ross ok but our main argument on ross is that it just doesn't help him even if it seems like this court decades ago thought sent below plied because if you look at sanibel of whatever law that clearly establishes you can't say that the c c a unreasonably applied at the chain to the conclusion it did it what portion i'm curious your statement on applying it but what portion of the  a do you say resolved the due process issue before us because really all the court does is say we adopt these findings with these exceptions so which specific finding did they adopt that addressed that the do due process violated and conclusion of law paragraph thirty four and are always five to eight one which concludes and i'm paraphrasing here references the proffer to which trial counsel did not object did not result in a due process violation so those two are sufficient to result or you believe the second one is the procedural bar that did was reiterated to judge ellison well the procedural bar is judge cost a mention is actually it's a paragraph thirty five so it's the next paragraph right right i don't want to dwell on the involuntary concession cases because i it is our position that though that line of cases cannot possibly provide clearly established law for a couple of reasons it's not his statement it was not involuntary by any means and it wasn't used against him as a concession so happy to answer any questions but we just don't think that that possible winners for the the  clearly establishes that the evidence in question it has to be shown to be material in order to support a due process violation and that means as the court said in bad week that there has to be a reasonable probability that the result of the proceeding would have been different meaning a probability sufficient to undermine cause brady in the outreaching assume that the government's concealing something he or she wrote the item that he's complaining about right so his argument is more of the napper line which is there was a misleading question why did he say they were suppressed evidence that was exculpatory or right but but the materiality and due process analysis like the same for those cases as well you probably know the facts very well i noticed be opposing counsel was asked about jury questions march seventh two thousand and seven i noticed in the record a jury question what date was the decision made to file this case is a do death penalty case wouldn't a fair inference from that be that they're trying to ascertain did this guy confess as he says he did from day one or is mr feldman right that he's a manipulator he maneuvered always and he didn't confess and that proffer we can just assume doesn't contain  confession in other words wouldn't that question show maybe the jury was struggling with exactly the dilemma that is in the record it's it's very difficult to know what the jury was thinking when they asked that question was that at the was it could be several things it could be one thing it could be is did they make the decision after the petitioner sent the prosecutor a christmas card that seemed to be some part of  macdonald's theory that once that happened there was no possibility of getting a plea deal so i really i just can't do much more than speculate so if there's a saying if we assume that it is than a poor due process line of cases that governs he's got a materiality problem one because he has not talked about it but second the question then becomes could any reasonable jurist since this claim was rejected on the merits could they possibly look at the entire record and have any confidence that the jury would have reached the same conclusion if the proffer had never happened and never been mentioned the answer has to be yes to that question the defense's theory was all i want to do is come sas except for sponsibility prosecution's theory you were manipulative all you wanted to do was negotiate you didn't want to accept responsibility you wanted to avoid the death penalty the proffer was unnecessary so that theory it was to the extent it was any part of it was a minuscule part of it and it's it's not it is absolutely clear that the prosecutor could have made exactly the same arguments if the proffer had never been mentioned he could have said all you're doing is like initiating you say you want to take responsibility but it's always i'll give you this if you give me that which is what he said the proffer is not a material part of argument as i started to mention earlier if we're talking about manipulation as you recognised it higginson there's plenty even after the arrest when supposedly he has had some sort of epiphany that he's really not ready to accept responsibility the jail phone call the christmas card of the prosecutor is it's bizarre and you know perhaps mr felt that overreacted but when a jury sees that and there's an argument and a well founded suspicion that this is a very manipulative person after all he did convince three groups of people to not only help him kill his family but to actually pull the trigger what are they supposed think about that i t's it is impossible i think to imagine that having the brief mention of the proffer in this record is what made the difference and having it out would have led to a different result i want to move on to talk briefly the whole argument is mr macdonald failed to investigate and then present at the sense based on psychological evaluations i think the most ascents response that i could give is just refer the court to mr macdonald's  more could have been provided but it is not possible under strickland to conclude that failure to provide more made any difference in the outcome and in fact i think mr macdonald's instinct is probably correct it only would have been worse that's in the pashto of whether we should grant a certificate of appeal ability should we wait until the supreme court decides the book case because at the book oral argument you know that the opinions going to say that there was discussion for more than one justice i how we're dealing with c always i recognize the concern in this case no it's this case you know to the extent that i haven't explained experience with wigan's cases the stricklin analysis here is pretty straightforward and very solid i think it is this court is absolutely on a firm foundation to say that reasonable jurists would not disagree that the district court got it right and that the c c was not unreasonable in applying strickland where we have an actual investigation a reasoned decision based on that investigation that further investigation won't do any good and a similarly reasons decision that if i introduced any of this it would only hurt my client so i'm going to focus on a totally different mitigation theory which this looks like the most effective theory he could have and not only that but history was it's certainly it's certainly strong enough to say without any question that the mr mcdonald's decision to focus on god and focus on the shooter and the other issues that it was not on reasonable as a matter of attorney did not retain a mental health expert even though there were signs in the record that he reviewed science identified by judge ellison as well in the very documents that he said that he maintained says let him not  investigate further but shows that he had a seriously mentally ill person dependent on his hand not to mention the circumstances of the crime but the more innate these characteristics are the more the jury can think eradicate him is a danger well and that's always the trick that's always the challenge of sanity you know what side of the coin do you want to play at sentencing and this trial attorney said no we're going to try to say he is remorseful he can be rehabilitated and so i don't see what with the double edge is it all because if you show he's got only serious mr johnson if you show he's got all these serious mental conditions that cannot be for the most part are difficult or impossible t in this case the record shows that he was afflicted with you know paranoia and delusional beliefs and a crumbling mental state according to his the report of his psychotic psychologist and the other aspect of it was that these were directed there not sort of generalized problems that make him a danger to anyone else they were directed towards his family that required someone of professional competence to explain it to a jury how else can it be explain to a jury that this person is not just a general threat after all that he knew that was coming in through the testimony of liniers who was a educational counsellor who was allowed to testify that he was narcissistic and he was that he said she thought she was dangerous he needed someone to explain to the jury that that those those traits are not making him a danger to society but he could have been a danger to his fame well to mr kent whitaker and i don't bother with still a lot that's right and i don't but then the jury  be have a very narrow population which he could threaten and they'd have to see well is that even a release realistic up possibility that there is on death row and he's going to be a danger to his father how can that be  picture entirely of the case his history when indicate that he could be pretty dangerous in terms of his ability to solicit others to do the bidding that's right it could be if he was motivated to do that chords or any other targets and that was why he needed a psychologist to explain yes people can be obsessive they can have a in there the mental illness can lead them in one direction and target certain people and that's what attorneys to conduct an ostrich defense of their decisions whether to investigate thoroughly i'm afraid of what i'm going to find that cannot possibly be a justification i can understand if it was time his belief that any any unfavorable could be used by the state against that with anything that his experts may have discovered could have been used by the state whether or not he chose to use that's correct and it was completely mistaken he was one retained counsel there was no need to go to the court and seek a seek funding for a defen expert he could retained a consulting expert and it would never have been discovered the claim that somehow there was a loophole in the groan that he should have been fearful i mean it would be allowed the defense attorney to take the and i didn't want to get distracted at the jury focus on anything except the uncle's pleading the father's pleading and the defendant saying he tried to plead to life so it's a highly coherent mitigation strategy except that he was similar to the one there and shows that it was persisting over time for one thing and also describing not as a vicious narcissistic person but as a pathetic character who needed help and needed which i have partly i mean the issue was to if you're going to put on any of the senses that he wanted to such is he is truly repentant now or he is no longer a danger