mean very men seniors capital jury never heard that he suffered from lifelong mental impairments and intellectual disability he was born two months premature four and a half pounds and spent his first month in an incubator his seventeen year old mother who'd already had one child at that point suffered from depression and could not care for little runny berryman his family was transients and moved off and his father was alcoholic frequently violent and regularly unemployed their frequent violent arguments between his parents on display for all the children to see the government's belief lists a whole bunch of the stuff and says much of government's assertion that everything but those two items came for the jews yes we do disagree with that there are like many of the cases that come before this court and before the u s supreme court  example trial counsel knew that both ronnie berryman and his younger sister ronnie had been physically sexually abused by i understand i gave you those two i said we can talk about with all due respect just the fact that it was presented to the jury i understand that's a different question we can talk about that ok i just want it's a factual question you know you may you know you can explain why it wasn't done well  and all the things that go with premature birth and the sexual abuse by the uncles is there anything else you know the abuse by the fire all the stuff you're starting to list that that is in your blue belief were soft science in the penalty phase saw signs of organic brain disease but not these test results right so does that go on your list for judge kozinski yes that's what i was getting at you know they knew about the experienced and witnessed did not come before that the jury at least not the examples that were were given in our briefing so so that's a question of degree no view essentially trial counsel gave a good good guy defense which was running baron and his kind of women he's a good person and if he was executed it would have a impact on all the family members so they listed him being slow in school but they did not go into the details in the school records which show that he had a borderline i q score of seventy five but he had been put into special education classes in third grade at age eleven when he was reading at a first grade level and at age eleven generally children should be and sixth grade so while some of these things were introduced through the mental health experts time the supreme court as well as this court has continued to find error in cases like this one where trial counsel did some some presented some evidence of mitigation but presented a very fragmented picture of the life of the defendant so in this case i believe can holster does help us in the sense that call they say the house was i was just simply the circumstance there i've been holster did hold that our focus needs to be on everything that was before the state court when when they made their  prejudice what about the first prong of strickland what about the fact that you don't have to get a you know perfect trial if you if we're just looking at that we need to be concerned about whether that that judgment call was reasonable  of course your honor we start with the performance problem of strickland in which we look at the weather is a reasonable performance by tribal council and again i think this this court and the supreme court has held time and supported their the mental health experts opinions and in this case we don't have to wonder why we often do have to wonder why something was or wasn't done and i think that's a that's a it's always a caution for us to be viewing this as twenty twenty hindsight is i think one of the points that couldn't make him if he isn't it's one which one we talk about a lot and worry about you can always look back and wonder what if and then there's as you know all this case law about why he did not do that which is he candidly admitted in his declaration because he thought that the trial court would deny the request so he didn't make the request he just assumed that it wouldn't be authorising therefore he didn't make it the supreme court has held time and again that that doesn't as has this court that does not constitute reasonable performance in terms of your investigation you need to actually investigate in order to make tactical strategic decisions well the time of counsel at a closing argument you just alluded to the fact that defense counsel at the time accused us sorry the state accuse the defense of not getting that test strategically in other words i think the argument was was articulated that you didn't get the test because the concern was that might come from that that mr brennan didn't tap right damage right and the district court considered that in his motion when in his rule laying where he overrule the objection having ordered the test on federal hate b s the federal district court considered that and talked about the fact that under the state rules that this could all been done confidentially there wasn't concern should have been concerned that he would have tipped his hand is that your understanding of the ruling yes i'm so that's another was defense counsel could have obtained the test results experts opinions in this case that never would have been revealed to the jury so that wouldn't have been a downside what are the other arguments that we need to be concerned about when we talk about just prong one monday morning quarterbacking about that decision to not go get those test results well as the trial as trial counsel conceded in his declaration in the state exhibits he didn't think that it would be authorized yet in the next capital case in kern county that he handled which was shortly thereafter before the same judge the request of those funds and was authorized and so his and if these test results wouldn't have been admissible for example then it would be tough to say that it would be objectively unreasonable for defense counsel not to go after them and so the federal district court considered that as well and my read of his order is that he didn't make a decision about whether or not the raised these results would have been admissible yet as of one thousand nine hundred eight but that he thought it probably would have would have been the situation where the concerns about this type of testing would have gone to wait rather than  bility but my but my question is i want to make sure that i'm not missing something to the federal district court who ordered that testing ever make a decision about whether they would  believe the district court made a decision upon whether it would have been miscible but i can check on that and get back to you in rebuttal i think the point and i think under u s supreme court law the range of information that's admissible as mitigating evidence is pretty wide and i don't think there's much question that the test results that's why i'm from alaska so i have to ask carefully about these questions to make sure i'm understanding california procedural law correctly but i think in this case there was a request by defense counsel for some testing and is now from the federal district court to actually produce this person for testing mr berryman for testing then the state objected and then there was quite a bit of motion practice and there was an order that issues that run right that i would have to ch the order that i am referring to when the district judge there opined that this testing could have been obtained without a downside because he thought it would have been obtained confidentially and if i've misunderstood that would be helpful to  know my understanding is your honor that that request should have been made ex parte that the state would not know of the request whether or not it was granted and what the results of the testing would be unless  honor i misunderstood the question maybe you weren't listening there were tests done in the state court some tests whether any kind of medical testing the psychiatrist examined him like this confidential yes you're out in the state court yes i believe so i like i said i will double check but i believe that was the practice  so in this case the certified issue regarding the ineffectiveness it at the penalty phase it's our argument that ineffective because the sort of one hundred one basics of capital defense requires that trial counsel and his investigator put together a defense  develop a relationship with the client so that the client so we had to speculate that he could have got involved client is some other way he could find i mean his mother and i mean i mean these things came out berryman and ronnie very men who both said that they told bruce binns the trial investigator and assume that he told tribal council about the sexual molestation of both rodney and ronnie but when they were put on the stand no questions were ever raised regarding the abuse allegations and no investigation was done from that prior to the penalty phase so it could have been investigated could have been presented at the penalty phase and they had the information at the time but again i think it goes away from the penalty phase mitigation case th trial counsel was putting on which was essentially the good guy the defense rodney's a nice guy he's nice to women he's been hit by his wife and did not retaliate therefore he could not have committed these crimes which of course flies in the face of the conviction the jury just handed down for just that fact so while there was a mitigation case presented our argument is that it was woefully inadequate and did not cover the things that have been shown to actually impact the jury's resolution of whether or not someone should be put to death and that is heaviest petition and the same claim by penalty phase claim which was raised in the direct appeal in the opening brief denied it essentially for not having developed the claims and at the same time denied the request for funds to do just that i don't think that the state court denial is entitle to deny i was of the s was the direct appeal was fully briefed and submitted as was the state havey as they were both pending before the california supreme court following oral argument they were both denied at about the same paper testing but that the pet scan the igi weren't on they were requested on the argument was not my mind that that trial counsel was ineffective for not getting it right ok then there was a motion file able to do it he did not make any effort to do it because he was mistaken about the fact that there were places that were doing outside of the county and he thought they would not alleging ineffective assistance for failing to do this they requested the court to make funds available so that they could have this testing which directly experts recommended and the state court denied the request for funds and the ability to get this test and then the because he did not have the evidence that he could have gotten if he did the test that he would  investigation and tests at the pile i'm just talking about now state habeas is a constitutional right to have the funding i believe it's wrapped up in the right to counsel so yes there is a good morning honors brian means for the respondent to all i'm going to begin with addressing claim sixty five which is the sole claim that was certified for appeal and then i will try to respond to some of the questions and concerns i think the court has raised about the pet scan and the funding request at the state court there's been some dispute among the parties is to which  adjudication by the state court is the appropriate dudek asian for purpose at twenty two fifty four d one and application of the richter test for claim sixty five which is the family background evidence there's some confusion and i can see why council has taken the position they have the claim was raised on direct appeal and it was also raised on hay vs the same exact claim and almost the same exact time and we normally don't see that the claim though claim sixty five depended on extra record evidence which they submitted when they provided their havey as going to the california supreme court naturally they didn't include that with a direct appeal claim since in california this california supreme court is limited to the record evidence on appeal in deciding claims so they just made the bare bones allegation essentially on family background the claim sixty five issue and the california supreme court not surprisingly responded w right it's really we're talking about the pet scans well actually we're talking about all this mitigation evidence that they say was missing right whether it's the pet scans or the family social history so if the problem is some of it you can go get so that's why there's some declarations but for the pet scans in the igi in particular that's where i'm hung up on to speak for myself ok because they they said we the problem is the lawyer denied me my sixth amendment right to counsel to effect of assistance because they didn't go get this evidence essentially didn't ask for it and now i've got this motion pending please let me go get it and their argument is that the court state court denied the funding to get that but that type of testing and then denied the stric prejudice because they didn't show the testing would have made a difference well it does sound like a catch twenty two until you peel back the layers that onion a little further and it goes back to that same distinction i was making with respect to claim sixty five and that applies to claim sixteen sixty three and sixty four which is the pets and alcohol induced evidence they had presented the claim both  during the guilt phase claims addresses what is claimed fifteen in the federal petition which is they should have presented evidence of a men's read defense in the guilt phase without any mention of the alcohol induced e g or the pet scan just based on what was presented in the guilt phase or at the penalty phase excuse me should have been present in it the guilt phase then they also argue in that same part of the application a direct appeal is that they confirmation right that is correct although i would note the dog or benson was fairly confident in his diagnosis and the quote he says he petitioner does in fact have  a right sort of organic brain disorder we have to come back to that but i just wanted to be sure that i'm understanding i think what you're telling me which is which is that those two experts weren't presented in the guilt phase at the trial only in the penalty that is ok so now the california supreme cour sixteen have denominated in the federal petition and it does that by saying you said you say that you should have presented this evidence of a pet scan alcohol induced e g but you haven't said what the favorable results would be and they gave that same explanation almost verbatim in addressing the penalty phase where the same argument is made that they should have presented an alcohol induced e g d and a pet scan in the penalty phase both phases practice and said on direct appeal essentially i'm going to paraphrase because their languages you haven't shown us favorable result something of that nature what they're sensibly saying is this is direct appeal we're looking at the direct appeal record there's no result here that's what they call a catch twenty two but that's not a catch twenty two that's just the stats a practice that even this court applies on direct appeal you look to the appellate record the california supreme court was presented with a claim and i see claim on direct appeal that dependent on extra record evidence the pet scan result alcohol induced e g california supreme court correctly recognize those test results are not in the record therefore and again i'm paraphrasing because they used different language but what they're saying is look this evidence isn't here your claim has to be denied essentially what they what they could have said was you need to go to haiti yes but they already had done that so normally the california supreme court will kind of advise petitioners if you look over their long history of opinions when a litigant in state fully brings a views claim on direct appeal they would say well direct appeal the court california supreme court is merely saying essentially we can't decide this claim on direct appeal ok it's not your pet scan results and alcohol induced e g results are not in the appellate record which of course  they simply deny that on hevia as it was a summary denial we don't know what possible reasons we had in their mind i've got a lot of them why i can explain this this case is very much similar to people versus grower which is a case of the california supreme court where a party had asked for an alcohol induced igi test and the california supreme court was reviewing the trial court decision not to grant them funding very similar to this case in california supreme court said no the trial court was right to deny you funding you haven't shown that the person had this caesar or can brain disorder condition while intoxicated at the time the crime was committed and the same i'm sorry you don't need any connection for mitigating evidence well that was their theory now that you know that's not the theory that's the law which i know anything you don't need a causal connection for giving the evidence that would be so they were trying to link it up you don't have to understand that if for example he had a brain disorder completely unrelated to the crime no causal connection of course that's mitigation that can come in but that's not what their theory their theory and correctly so because it's far more powerful if you can explain somehow a connection between the two that he had this seizure at the time he committed the crime that was their theory that's what they were bands i really beg to differ with you because there was a question about what happened that night because the client crime was bizarre and out of behavior out of character according to some of the experts there's that and that's what you're getting at but they also made arguments about his cognitive abilities and his being a slow learner school and being a special ed kid and so forth and of course that's not all evidence that was contemporary us with with the of the with the murder but it certainly went appropriately to that mitigation phase certainly the benefit of the work done by the federal district court in this case in two thousand and one and that he looked back at one nine hundred eighty eight and this is in the response to the state's objection to why are you ordering this testing and the judge said i'm not convinced that it was such again this goes back to that same order it's the march thirty one order where there's you know present march thirtieth order two thousand and one and some courts admitted and some courts have and then the question was really can for brain function are we looking for traumatic injury or what are we looking for and i am no expert clearly and that in that arena but but i guess i do take issue with your statement that i think what you're getting at is that it wasn't a seat not go get these results in one nine hundred eighty eight because they wouldn't have been admissible and  i find it significant that the federal district court to differ in two thousand and one well i think the record reflects is doctor watson i believe it was  had in his own declaration had had pointed out that this evidence had not been recognized by any scientific or medical organization including the american academy of neurology society of nucular medicine f d a american college of scope of what we're going to do here today to i'm sure not going to make a decision about admissibility today but i i'm just trying to call your attention to the fact isn't it right that in two thousand and one when the federal district court considered these competing expert views about what was or was not going to be admissible he didn't make his bottom line as i read his order is that it really would have gone to weight not admissibility well it came up two times and i don't have a fresh recollection of which were you referring to ok so there's two and that's helpful for me to know i just looking at the march thirtieth two thousand and one order where the judge just responding to the state's objection that he ordered the testing yes and that there's another word i should look at well at that point we had not retained ordering us to transport this prisoner to another county for testing in that context we had said these tests also would not even be admissible and you lost that fight counsel that's what i'm that's the order i'm just referring to at that point the courts like you know basically let's go ahead and do the tacit see what happens when i'm not real convinced at this point but will will pass on that later then in responding to an opposition to evidence or hearing is when we at that point we had expert opinions one is based just on dr will's own opinion and our experts was based upon medical science not study i strongly disagree with that characterization but be that as it may for purposes of today where does that leave us i'm trying to evidence your position is what that he wasn't wrong one deficient because it wouldn't have been admissible i take it well that kind of goes to both problems if it wasn't in the miscible it also would not have been prejudicial and the district court actually wrong about that he really didn't know what he was doing and that would seem to be ineffective assistance unless is no perjury that is correct if in fact  what he is saying is accurate now he had relied upon to decisions the proctor and hold decisions but those really were different facts and circumstances and from reading those decisions they're dealing with different tests as well and you can't tell for sure if know yes under the circumstances a reasonable turning probably would have fallen application in what he got to lose and it's confidential and now although it may come up and probably one it really doesn't matter what because if you're right you then there's no prejudice and so there's no ineffective assistance to start with but if you don't even have to worry about that if i mean your argument is well yes he didn't know what he was doing  which to me would make them ineffective but it doesn't matter there's no prejudice is your argument largely so i would agree with that statement but again because we don't know for sure what a trial court would have done i have argued in my brief and i won't go back over those points that the this or hasn't shown that supreme court decision that he was not prejudice was objective your question i don't think it's a d to issue your honor i think it's a d one issue i think what happens here is the california supreme court is assuming based on what you're telling me we want to do these tests because it will confirm what our dr pierce and dr vincent are saying and they're saying kind of like in people versus grammar that's not going to be enough it's not going to demonstrate ineffective assistance of counsel so why go ahead and authorize task if they're if they've already concluded that even if they come out as petitioner hopes they well as their doctors say they think they well it won't be different make a difference with respect to prejudice so as we view it reasonable under the one i said to me assuming the test came back as the fans as they said right which is consistent with their prime of cases showing standard california and we're going to speak to that because that really is the harry question we don't know so we have to we have t reasonable factual finding by the call for a supreme court well california springboard assuming the test would have come out is there we have so we have to assume basically they presented tests and the tests kozinski hypothetical as i understand it is it's ok to deny this testing because even if the testing could come back positive meaning it confirms again a brain disease right it wouldn't matter in the medication phase because what the penalty phase as mitigating evidence because what because why why wouldn't a man sing the way that it would not have been as much for a couple different reasons the weight of the evidence the powerfulness of the probative value the mitigation it's not like they laid down and said oh yeah he's got brain disease yes but i don't think they got anywhere and the best they got is in closing argument the prosecutor made a comment to well perhaps you didn't get this test because it would have come out negative or you didn't want to find out the results but in fact they had their own expert testify at length about the circumstances of why that was true and he went on to talk about that they went to these hospitals and no hospital would do it because of the circumstances of him being charged with a crime he wants so for the prosecutor to say oh i think they're afraid to do the test in light of the in rebuttal and uncontroverted evidence that that was not true that they actually had tried to do that i don't think the jury would have found that particularly powerful so let's pretend that they evidence had been produced had they produce the evidence before they have an his own experts come in now usually in pet scans that means you go to an independent facility like they did here and you have an independent radiologist look at it like they did here and dr volkow look at the pet scan results test results are perfectly normal in the jury would have been allowed to decide like they can decide when any time they have competing expert testimony right but you've got the prosecution's expert an independent expert saying hey this is normal you've got defense expert saying no it's not now you've got about all of the expert before they had the uncontroverted testimony of dr benson saying he does in fact suffer from or gaming that's the argument that you the state made when the state wanted to get the order vacated requiring the testing this in federal district court the state argued haiti this testing shouldn't have been ordered because the state's sorry the defense expert was  already able to testify on the existing evidence that that mr freeman had organic brain disease and the defense expert came back with declaration saying no what i meant was i can't confirm it there's soft science of this organic brain disease there's all these indications of organic brain disease but i need this test to confirm an you confirm it to be absolutely certain and their diagnosis well again we have to come here at this new have less said he didn't introduce the evidence that they were seeking to introduce because he didn't demonstrate that they performed the test they would have yielded favorable results not that they would have been junk defendant established ineffective assistance in defense counsel's asserted failure to further investigate and then to introduce this he just not demonstrated that further invest effort demonstrate that if they had had the day they would have had a favorable who's dog that's correct and then they denied him the opportunity to demonstrate it by taking the test is something wrong with that i that is not my interpretation of the callus of california supreme court's decision as i was arguing before i think they're simply saying in so many words this is evidence is not near the appellate record for example test and they should know the answer to that lies in the procedure or a posture in which the claim was raised the claim the response you're talking about was raised on direct appeal the california supreme court was strictly limited to the appellate record and based on the palate record they had not shown favorable results if they had filed so example a motion for a new trial and it presented the results then the california supreme court under rect appeal could have then said oh look i can now look at the appellate record and address your claim but that did not occur here instead they had to address the petitioners claim on hay b s and in doing that they looked at the funding requests now the funding request were made in the context of haiti as corpus for the results they were made for direct appeal they filed two applications confidence obligation for funding to conduct these tests in the context of pay vs corpus explicitly says that in its caption that is where the claim was raised and that is read they summarily denied relief not necessarily on the same ground we don't know and i that wasn't the reason why he didn't request it he simply didn't know that it would have been something that he could have it doesn't matter if in fact it would have been admissible his reasons are valid and we don't know that it would not have been admissible i understand that but you can't have it both ways you can't say well we know the real reason i'm just saying if in fact it's not miscible that it doesn't matter i mean he could have not done it because for the calling and yes and we don't know that but what he came back in this declaration and said i didn't know i could get it and so i didn't ask for it in fact i thought i couldn't get it so i didn't ask for it but judge wallace who was the trial court chad allowed it in a couple of other cases with those two cases holton forg confidential the district court judge sided section california penal code section nine eight seven point nine yes so do i just mean is that the right judgment to look back and make sure that i understand how how that read as a one nine hundred eighty