death was caused by his diabetes and complications from his diabetes but counsel presented no evidence and no witnesses to support that theory of defense or to rebut the state's theory which was that the assault by mr smith cause the victim to become disinterested in his diabetes and neglect his diabetes and subsequently c conviction mr smith presented the evidence and the testimony that would have proven his theory of defense to trial and he submitted to the  conviction court to the trial court that no reasonable attorney would have failed to present this evidence well let me just interrupt there because in trying to see how to think about this case  mentally took that collateral proceeding testimony and inserted in the trial just to see how that would play it seemed to me that there's some flaws in that i mean she kind of said said of the heat of the only testimony he gave about diabetes was from what i understand he'd read he the victim needed insulin it's incredibly important that you stay on top of that and the dr cox drew this very specific causal connection between having a head injury and somehow he mistreated his diabetes without specifics what the post conviction evidentiary hearing and  what the affidavit and report from the endocrinologist established were some critical things that would have rebutted the state's theory that defense counsel could have used to cross examine dr cox particularly that the victim was using non prescription insulin to treat type one diabetes which is completely inappropriate and there are a couple points that dr cox made on the record of the trial that were not explained and there was no basis for these numbers that were given dr cox admitted at the time of the assault yes the blood sugar level was high but nobody explained what that meant and  and in chief there that would have been critical to explain what actually happened to to the victim because dr cox one of his one of the statements that he made he said i consider changing the death certificate from it being a homicide to it being a natural death but i didn't do that because that will it really wouldn't reflect what happened here and what happened here was a change in behavior and so neither none of the experts in the case neither dr cox nor dr christopher eighty's and post conviction obviously none of them knew or examined the deceit and but dr cox at trial testified about behavior that was changed by assault and assault what he determined to be a behavioral change when in reality this man's diabetes was out of control at the time of the assault and there's a couple other critical pieces from the trial that that go to this  point you're saying depends couple didn't bring it out didn't yes the time of the assault it was a way out of control defense counsel tried to make the argument but had no evidence to explain what that meant defense counsel did not investigate what it means to have this level of of out of control blood sugar at post conviction and a canal a just said when normal was between eighty and one ten when you're at two hundred you you cognition is affected your extremely fatigued you are able to function and at the time of the assault the big pick to head for sixty five level so his behavior and his cognition and his problems were exacerbated on his from his own mistreatment before the assault even happened but none of that information was being able to be explicit explained at the trial because counsel did not investigate or consult with an endocrinologist or to look into what the what the diabetic situation was and that's critical because the doctor packs made such a tenuous connection and there's the amount of insulin that that the victim was taking and the blood levels that he exhibited and the chronologist work was able to to review again none of that was at trial and the state court just ignored that when it considered the post conviction claim regarding the timeline and to get back to judge guys question about her speculation about the timeline of course she didn't examine the victim just like the state's experts didn't examine the victim but was critical about her explanation was that she as a as one of the top in the palaces and upper knowledge of the country she was able to say if he was confused and did what we call stacking regular insulin which is the overdose which is what happened to this man if that would have been a result of a head injury and symptoms from this from disorientation from the head injury that would he would have been down within twenty four to forty state argues that this is that it's speculation but there is a documented honeymoon period for diabetics and it usually is between six months and a year and she testified that at that year mark if you're not properly treating yourself you begin to d compensate very quickly right after that your martin how long exactly a year from the time that he was found in a coma it was exactly here and so i though none of the experts had had examined this man that is something that would have been critical able to talk about the metabolic condition and what happens when you mistreat your metabolic condition and the timeline one other point from cox's testimony that was critical was about the amount of blood in his head and in but his he had  small up the victim had a small brain bleed so he had a small amount of blood he was found at his that is the top save the day after he passed away he had twelve c c s of blood and dr cox himself said you need between fifty and seventy days three and four that's when that overdose happened she could say for sure that that's when they overdose happen between days three and four but that's when his head injury would not have been symptomatic  this that the defense counsel should have conducted the further investigation what evidence and he's been taken into account of these not a medical expert on a medical how does he know that the what to do based upon that i mean what maybe he admitted maybe he had been told that he was quiet by a medical person that is client was experiencing some kind of that a reasonable attorney when making this investigation would have consulted with an endocrinologist about what does this mean what does this number mean while the i you know and you're talking i mean i'm assuming that the lawyer is a layperson in terms situation like this where there is a medical cause of death that's not the actual injury from the client it is incumbent and it is the duty of defense counsel to investigate the cause of that death and what that means and there was no death his head injury was not serious enough to be fatal now i do want to make the point that this is a little bit complicated because at trial dr cox said the first physician who did this autopsy ruled the cause of death as being the head injury but that is false and that's not true and this is the state's witness who said this he said i changed the cause of death from head injury to diabetic ketoacidosis and it changed it because to be so at the time that counsel was preparing for trial it was a step list that the man had died from and tried from from complications from his diabetes he had already changed it oh yes your honor yes and so that was not a surprise that was not a surprise please the court your honors mr mistrusts good morning excuse me my name is mark davis and i represent the respondent happily warden charlotte jenkins formerly norm robinson in this particular case now the issue before the court is whether the ohio course decision denying smith's heaviest claim based on the ineffective assistance of counsel was contrary to or an on involved in a reasonable application of federal law as established by supreme court precedent that we apply that standard courts do not address the merits at all here the state trial court in the post conviction the initial proceeding they did address the merits of the claim both the performance of truck counsel as well as whether he received a fair trial in there whether there was any prejudice in that particular case so how does one you have somebody hit somebody i mean it happens all the time it's in the salt better and somehow the guy dies even after going to the hospital so how does a warrior defending this person not fully investigate the diabetes and not put on a strong defense that says that he died from this not from the punch this is so totally just in that no one could have anticipated that this man's diabetes was you know at a whack at the time that he was first punched it cetera how does out i think there are several points that you raise there your honor the first thing that i would note is that we don't really know what trial counsel did in this case the only evidence there were no case files offered at the april ninth two thousand and nine hearing the only evidence that we have were hearsay statements that were i believe it was the affidavit filed by mistrust where she spoke to mr cleese who said that he didn't that there is no evidence as to what he found as a result of that investigation so perhaps what the expert told him might have also had an effect on what he chose to pursue in terms of his line of thinking second i would know that  there was an effective cross examination of dr cox at trial regarding a lot of the issues that the petitioner raises so i think that counsel's performance in this instance it would be fair to say that coun qualified to speak as an expert regarding cause of death or the blunt force trauma and those are really the issues here nobody's disputing that diabetic ketoacidosis was the cause of death the question is what caused him to mismanage his diabetes in the in still wouldn't very relevant in that situation what he was doing before he was punched yes your honor it could be relevant to go into what he was doing before he was punched however there really is no evidence of what he was doing as judge guy pointed out earlier everything that dr chris stuff is testified to was speculation but it also speculation to say that the reason he didn't take it was because his frontal lobe was injured i mean we don't know nobody knows why he didn't take it so it's all inference it's all go circumstantial so you could say ok if somebody was managing their diabetes perfectly until they got perms and then add a sudden they're over and under dosing that circumstantial evidence but if somebody was all over the place before they got partners that's different evidence so wouldn't it be very important to have the other side of the story the story for the jury i see what you're saying your honor however i suppose my point is that there were no medical records to support what he was doing prior to that now the state did put on evidence best spangler his cousin testified that she had recently moved to the area within a period of weeks and that his he was functioning as a relatively healthy individual sharleen buys or testified that he used testing kits to manage his diabetes but there are no medical records that an endocrinologist or any other doctor for that matter a neuropathologist or anyone could have used to say conclusively what he was doing prior to that however after we do have some information and evidence in the record that could be used the cat scan that dr roush the radiologist testified to a trial he said that he had never seen anyone with that type of brain injury who was able to function and i did hear what the petitioner stated regarding the doctor conscious decision to change the death certificate however dr cox did not just say that it was diabetic ketoacidosis dr cox said that he changed the death certificate from homicide due to  force cranial cerebral injuries to diabetic ketoacidosis based on inability to manage it he had these were two different witnesses one said he never saw anybody function with that type of an injury and someone else said that there were twelve theses of blood and then normally to be symptomatic you need fifty to seventy c c s or were these two different brain and that may be the case but i do know that dr rush testified to that absolutely and dr cox also offered testimony regarding both the head injury and the effect that the diabetes manhattan is about the one that said i've never seen anybody function with this type of injury that was dr rush's testimony and he was cross examined on that point by counsel which was which was the strategic choice that counsel made here counsel was aware that it was possible that endocrinologist may not be qualified to rebut the testimony of the state's experts here we had dr trenton who performed the initial autopsy although he did not testify as you as we stated earlier he found that these injuries were part of the cause of death  in the ricci case that i believe petitioner cites in support of the idea that that counsel was ineffective in this case in that case the court determined did determine that the failure to contact an expert precluded effective cross examination but here as the magistrate noted on page one of the ruling recommendation that's not what we have the cross examination here was very effective as a matter of fact excuse me he was able to get d cox to admit to several things he got dr cox to talk about the fact that it's highly irregular or to have a bunch glucose level of eleven sixty nine or four sixty five for that matter dr testified that the the glucose level for sixty five that he initially came in with although wouldn't necessarily give rise to death it certainly would need medical attention he further testified that absent the disease the metabolic disease and the diabetes normal blood sugar level would be between eighty and one ten so the issue here was whether the blunt force trauma could be considered a proximate cause of the death and ultimately  led to mr pi's are still minds and here the jury found that that's exactly what happened so counsel's performance in this matter really was not deficient i have a other question certain all of this felt that he was convicted on both charges and they were murdered for the purposes of sentencing i believe he got eight years on earth a reason i asked that question because as in the nature of assaults i don't know whether it's eight years or ten years i'm actually not sure you're on her dansby to what the statutory max is off the top of my head we use a series of guidelines and look at that chart and i don't recall exactly what the chart says regarding that particular level of felony however that was not raised at any level of these proceedings that was not argued as isis stansell factor in this particular case but that i mean that that would be the result of their winning that i understand that it might affect the ultimate sense in this manner but i suppose what i'm saying is that that ultimately that wasn't the challenge the challenge in this case is whether counsel's investigation was deficient and whether that ultimately caused the prejudice in this case is a remedy what i'm saying is that one it would be up to the state to choose the remedy but one remedy that would be constitutional if we were to find a violation would be simply to enter a judgment of conviction for felonious assault because counsel was not in effect of as to that cal certainly you are absolutely i mean i suppose that that max that when the i don't know what it is in your state but it could be a difference there could be your honor as to the remedy however as i said i did not look at the guidelines directly before i came in here on this looking directly at the claim  however i do recognize that there is a strong possibility just guy that you're absolutely right on that i believe we've addressed the prejudice we've addressed the deficient performance of trial coun also testified that there was with the kind of head injury that mr baez or had it was a wide it would have a wide variety of symptoms from no symptoms to hardly able to function like there was a spectrum that he gave and he couldn't say what mr baez it was on what part of i mean that's that was part of his testimony throughout that was part of a testimony that he said both things but that separate from what dr cox talked about regarding the symptomatic nature of how much blood is in here in the brain regarding the  effectiveness of counsel's cross examination he did question dr cox and he question and question him you know about all of these issues but he didn't have the information that would have from the medical records that she was able to review she could look at how in control or how to control the man's diabetes was and again and what it was nine point seven which is huge which is she described how extremely out of control that is i think the most important point really is the state's theory is that mr baez or was healthy in all other respects helped this where they kept saying he's healthy in all other respects hypothetical question to the expert witness assume this man is help in all other respect what does it mean to you that he dies of diabetes well it means that the head injury interfered with his ability to treat himself in post conviction we had evidence that he had been using the wrong kind of insulin his cousin could testify show he had insulin but it was not prescription insulin and it did that come before the jury did it no no your honor nothing was talked about rick except nothing so the only thing that was before the jury was he had this four hundred sixty five level but that is that there was no explanation of what that meant so the the amount and also briefly about the medical records that were before the jury mr baez who was found with a blood glucose level of twenty eight at the time that he was found in a coma he had twenty eight's dr christopher peters explained in post conviction there's no other way to have that except for the overdose on insulin in the recent past you overdose you have at twenty eight when the e m s came they gave him a blockage and to increase it and when he showed up at the hospital that blockage and his completely out of control metabolic state took that twenty eight thousand something and dr cox a trial was like yeah his hit when he was found when he was taken to the hospital that prejudice mr smith is that that was not able to be discussed at trial and not come before the jury ok but actually what it meant is that he happened to know meant that he had taken two he had taken too much right that he had overdosed on regular non prescription insulin and that was not before the jury if one came in the middle of what we heard today like this was a direct appeal and their course it isn't so we can't overlook the fact that we're say i disagree with i mean i think that what the what you're discussing is the is the harrington case about how if you come to a conclusion without having a reason on the record then you assume that it was over merits but here the wrigley case from the seventh district is really on point about this and that's cited in the brief if the court below didn't apply it to give an opinion they said that it was an alternate theory of defense which is absolutely untrue and so you as the seventh district said and really you can't ignore the reasoning that the state court gave because it came to the conclusion that it came to and the reasoning the state court gave was not a strickland analysis of mr smith's claim it was a finding of an alternate theory of defense which was completely unsupported by the record so this court would consider it you know the prejudice  you go through this is an unreasonable application of struggle and an unreasonable terminations of the facts based on strickland either way this court is we should review it you know all right thank you very much