away from the denial of the rule sixty motion by the lower court and the absence of the arguments today deals with our claim that trial counsel was ineffective in their investigation and representation of mr valentine at the penalty phase of the trial this is a case where the defense went off the track from the very beginning of their wrappers to lawyers were appointed to represent mr valentine shortly after his arrest and for the next seven months they did nothing to prepare this case for the punishment yes they did hire an investigator but that investigator did no work that's bad enough but counsel supposed to be supervising the work of the investigation never did anything to make sure the investigator was doing work for so seven months nothing happened counsel filed the motion counsel got enough information for mr ballard time to realize that there may be mental health issues involved that  did say he'd rather have a death sentence within the context of talking about the wife offering that at the nature so the mr valentine was made an offer at the close of the state's case for a life sentence and defense lawyers went to him and said said john you have to take don't take this and the jury convicts you you'll get death and john said i want to go to the jury i will testified that as they were going to talk to mr valentine he told mr durham the other lawyer he's not going to take because you've given him false hope about what the outcome of the trial might be and the close of their case was speak osa they must have had some concern about what mean outcome of that case before the jury might be they were there in the courtroom saw the jury's reactions to what happened and then suddenly after seeking death the entire time and the end of the case make the offer and some of mr shaw rod understands that the state might be concerned about it it's easy to see how mr ballen pine could be could be thinking well if the state has some doubt i want to take my chances with the jury verdict and even if that means that i'm going to get death at the time of the penalty phase or because that's what my warriors telling me my lawyer is telling me if that without penalty and and so you can't separate i don't think you can separate counsels up deficient investigation in this case from the situation wh clear as i read the transcript and i read the same transcript you did of course as i read the transcript the only discussion was in the courtroom after the state's maybe after the state presented its punishment witnesses that we have available are not going to help so the witnesses for the punishment paid for part of the discussion about whether or not to take the plea offer or actually in the court did say that that there was a weekend in between that the jury verdict and the start of the punishment phase and there is no way that none of the lawyers billing records show that they went and talked to mr ballen time even in that weekend between the weekend it had to have been that man that's right that's right and that's clear in the court room don't put on these available witness and these witnesses weren't mitigation witnesses in the way we think of had limited their investigation of mitigation or that the defendant was doing anything other than waiting all nations and there was a record made at the time of trial and that's part of the problem here is that is that defense counsel even though he's required to wonder the a b a guidelines and under the texas guidelines and those are just guidelines not constitutional law of course and counsel had put on the record many different disagreements that they had th dollars and a half hours of preparation time mr garrison the investigator was serving subpoenas they were preparing to present a case at a penalty phase they were acting as if this were a waiver so this case  we argued that in our brief in austria talk about counsel being bound by knowing decisions informed decisions that a defendant makes in this case mr valentine's decision is informed no there is a footnote that says that panels aren't bound by c l a opinions there are other cases in this work where you have relied on c l a opinions so there are certainly some some tension inside some disagreement among the panel some of the score down about how much weight should be given but i think the more more than that that the the procedure all posture is sure and even if he weighed mitigation there's a question about his competency to do so so the the stretch i think that that you're suggesting judge maybe isn't as great as it is because of th if i could go back to shore for just a nd the the other thing i'm sure is in the end the court it's that it was reasonable for the state court to find that there was an informed waiver of the mitigation  presented in federal court the ineffectiveness claim complete with evidence of prejudice if there was a different that there had been raised in state court that had not been exhausted and therefore was weak and that was the original rulings of the federal district court before martinez trivino came out from the u s supreme court so so there is the federal court has found that the issue is waived it has not been presented to rule  so it's an exhaust and so it falls within that category and we haven't addressed state havey as counsel because that the magistrate judge's opinion was up martina's trivino requiring two part finding one found thank you very much sentence over the certainty of life imprisonment instructed his lawyers according to his own decisions foreclose any claim the trial counsel was objective really in effect or really two facts are are driving this case of course there's the fact that valentine no we don't we're in just to step back whatever the reason may have been it still happened there's an instruction the counsel it was followed and it prevented us it prevented the lawyers are going to the courts from knowing what the available really witnesses were going to going to testify not just about this residual doubt theory but the magistrate or talks about this at least some of them we're going to talk about mr valentine's background this is not a case where there once we can plead absence of of investigation  factual development it's more in the line of a case where there are eleven times his engine room i don't know specifically what they were going to talk about but nobody does because there was an instruction not presented and i think pretty he didn't ha rigorous that he that's doesn't make sense but i think that whatever the objectives of his defense word still not reasonable to want witnesses who are testifying against you that to be truthful and if you feel like there's something they've said that might you know from the evidentiary hearing this was a warrior who was opposed to the death penalty and he felt some moral compunction to make some sort of argument for life but he wanted to comply with his defend its client's instruction to not present mitigation witnesses he complied with that instruction and satisfied his own moral obligation that he felt he should at least make an argument and what he argued was was consistent with the evidence it was a residual doubt theory but he also asked the jury to consider if you really do believe mr valentine pulled the trigger was it really you know one reasonable choice that he made because valentine had some history with one of the victims now or even with all the new evidence that valentine's now relying on it's all the sort of double layer of evidence there's of course repeatedly rejected and it's not clear that reasonable counsel would have even presented it because mr sharon is an experienced  jury without risking in reaching this jury there when you've got a defendant who shot three boys despite every chance to walk away buying the wrong mission and then going back to the store to get their rating munition standing over the st victim having the gun cam and then clearing the jam coming back and shooting the boy after shooting the st one where he had some history with this person shooting two other boys he didn't even know in the kind of mitigation evidence that was going to suggest a lack of full claims were raised there's been a finding that serious council has been ineffective on that front and realistically steve may be his counsel was always going to have a very difficult job making any sort of weakens claim in a successful way on a record like this because there was a writer in charge and not witnesses it's no one's going to be able to show the prejudicial effect that more witnesses deprived him of of a better case where the records that valentine needed to show any chance of having a claim worth pursuing here didn't exist district magistrate judge gave him every chance and gave this evidence you're here if you requested to try to make the record we rolled the dice absence of evidence that there is a debatable point there it's exact like you have to assume that when those conversations happen and we know that there is an undervote a conversation where your valentine is explaining his reasons for preferring a death sentence to life mitigation witnesses you have this is claim twenty you should have at least tried it because i think his phrase was what's the worst that could have happened if you can't convince the state to give support that it was objectively unreasonable not present mitigation evidence some limitations on what they're going to look into strategically what are they going to walk into and spend their time on pursuing if counsel sitting down has a conversation and it goes exactly like the underbody testimony has been this life offer before the defense is put on one word of testimony i need case where the defendant has confessed and has zero realistic chance of acquittal and the defendant rejects the life offer and we also know just looking at the state record that something might happen a dozen witnesses are subpoenaed and right even willing to testify up to their punishment they're ready to go so he has to assume that there is in some investigation and what he's left with is a claim of a matter of degree should have done more investigation but those claims are routinely rejected by courts like in that in court those claims don't fare very well because you can always say that what we should have done more case from from this course of group work president that would allow all these types of instructions to be given to counsel and let the defendant turn around and bring an i c claim based our failure to investigate it's just never happened  so but those are the subsidiary questions once you start going back in that boil down the insurmountable barrier to a claim like this which is you've got a finding where there's this instruction and it's going to foreclose and i when when ms garrison was finally appointed and spoke with mr ballantine in terms of mitigation just prior to the start of the trial how much too late of course mr ballen type cooperated with her he gave her names of potential witnesses family made at the end of the trial is the very st time in any way that there's any indication that mr valentine showed any question about life or death and as i tried to say earlier that's in the context of the p all he had potential witnesses that threats were made against that's all he was aware of so valentine's making acquiescence to counsel's instructions because that's all counsel gave him to choose the magistrate judge here didn't really exercises discretion he didn't go through the multi factor test of seven elves to reach a sixty decision he rested his decision solely upon his legal mind th