may please the court jill button for the petitioner appellant richard seeley here with shauna brown and jessie gabriel program counsel with the court's indulgence i'd like to focus my argument today on trial counsel's failure to prevent sentencing phase evidence and defendants who testified pursuant to a negotiated agreement they pointed out the lack of physical evidence directly establishing mr mr seely the nd goal was to quote humanize mr seely as mr beale told the trial court while the sentencing phase proceedings were ongoing he wanted to present quote mr seely's family his background and specific items of mitigation evidence such as advice that mr seely had given to his younger relative counsel presented the jury with any evidence concerning mr background and loved ones it is reasonably likely that the outcome would have been meant so so will impact that for us why do you say that seems to me sort of the sixty four thousand dollars questions  use well several reasons and we can we can talk about that what those reasons are and then we can get to the unreasonable denisov the court's order to the contrary st we know from the jurors themselves the st vote in this case and the jury room on sentencing was six for life without and six for death we have one juror who testified quote i know from our deliberations that some members of the jury me included were waiting for the defense to give us some reason not to give richard seeley the death i was surprised they didn't didn't get just one relative  friend somebody to get up and say this is a person this person is somebody i care about please so so i'll have to confess like i found the testimony pretty compelling but then i looked into it and it seems like sort of excludes that sort of what it calls sort of idiosyncratic decision making process kind of evidence that says look with this is an objective standard so how far can that testimony get you newsome first you're right it's an objective standard but this tells us objective lee how far the defense got with residual doubt right they got the jury to the point where they were receptive to a life sentence and nd the jurors are telling us with their message and you say in your brief that mr seely's family members were ready to testify and beg for his life but is there testimony to back to because i'm concerned the evidence doesn't go that far it's more in the nature of you know the nephew saying he once gave me good advice and he laughed a lot it seemed to me the other family members testimony was similarly kind of stopping short of that so mr to time the nephew does say that in those words he says it in his disconnect between what the juror testimony was and what it was family members actually would have said i mean the sum and substance of the jury testimony is we can't believe that nobody stepped forward to speak up on behalf of this man right here or people who are ready to do so you know if we i don't know if we need to put it in terms of beg for his life the sort of traditional testimony that comes from say a defendant and but you have relatives who want to say this is somebody i love this some i care about this is someone i have a fond memory of someone i don't remember as a monster so that there can be some kind of counterbalance to to the state's aggravation you know that goes for a full day and then is answered by nothing by the way not even by defense counsel defense counsel doesn't stand up and say please don't is there is there any similar authority where you have a situation like this of jurors saying like if i had heard anything because it seems to me in most of our president you're simply weighing the evidence against aggravate aggravating factors well what the cases do say is when the mitigating evidence is very thin or nonexistent at trial that that sends a message that that way substantially the difference between zero witnesses and one witness is substantially different than when nine witnesses that and you know that goes all the way back to forty years of capital case jurisprudence that the idea that mitigate it mitigating evidence has to go to the sentence or cases but what they are saying is when you keep this kind of evidence from the sentence or you you you basically for close the possibility of a life sentence you are creating an unconstitutional risk that death is going to be the result it's you said that there were some relatives who were willing and able to testify on mr seely's behalf but isn't it also true that some of the most relevant were not and so there was i think one of the sisters who said she was not going to be able to say anything favorable aunt she didn't want him put to death but she wasn't going to be able to say anything favorable on his behalf and then there was the other one i think the other sister who said that just couldn't be bothered didn't want to be bothered i'm summarizing with being called as a witness and then you have the whole dynamic of mr seely informing his counsel that he didn't want his mother involved for lack of a better term how do you factor all of that into the mitigating evidence he so there's a lot there as your foot st point yeah that's that's correct his sister geraldine which is only full bloods to playing declined to come to georgia she lives in the state she lives and there is another sister in the mainland who lives in boston who was more than a full generation older than mr seely she was the mother's daughter by a prior relationship and when trial counsel called her she said i didn't really know him because i didn't grow up with him i grew up somewhere completely to so there's those two relatives there's a rd sister on st croix the trial council spoke to pauline and pauline says so long as it doesn't interfere with my work as a teacher i will be there that's memorialized and trial counsel's contemporaneous notes and that is corroborated by her testimony in the state court saying that so long as they could arrange it so that i would have the availability to be there i would be there mr seely's trial was in august so presumably she would have been available her testimony as to be as court's as they called me at the very last  minute and that is consistent with counsel's contemporaneous notes they're calling mitigation witnesses that they want to come from st croix in the middle of the trial proceed as late as the morning of the sentencing phase aggravating evidence mr beale is referencing mitigating witnesses plural that he wants to bring up from st croix so there is some intent and there's evidence that they don't get in touch with them but so maybe maybe in a way back judge priors question the substance of the testimony that you're complaining wasn't brought forward not that i'm not suggesting that it's a necessary condition but it doesn't for instance look like you know we're going like  w to your point no it does differ from that kind of evidence it's it's not abject abuse or abject poverty just sort of to clarify the record the testimony about trips to europe in disney world that's not in any of the testimony that is in tribal councils notes from their interview with geraldine the sister who declined to come to trial so as not part of the penalty phase evidence the evidence is that he had no parenting of any kind he had a unstable mother who was disengaged from his upbringing and that he then you know she abruptly moves the family to the bronx where he does not thrive gets in you know in progressive leave his grades go down he's struggling he comes back to st croix and because again nobody is parenting him he gets arrested and you know is the culmination eventually of that but he has a stutter that makes him ostracized you know he has sort of nobody on his side the teacher is  telling this other story of a kid who is desperate for some kind of attention and it responds to the the child responds to limits and encouragement when she gives it to him she's tutoring him for his life and for his difficulty in school  and and maybe that's not wigan's but that's a whole lot different than the trial counsel but i think for most for myself i think you've got a relatively strong case on the performance side  particularly when it comes to not trying to figure out what the mental health evidence was before deciding not to use it right that can certainly be strategic i don't know if it's a winning argument on that problem but i think you've got a relatively strong argument on performance at the mitigating phase of the penalty phase but my concern goes to the prejudice prong of strickland because in so far as murders go i don't want to minimize any murder this was horrific and brutal and involved torture and when you have not just one murder like that but a couple of them combined with prior violent activity for example the shooting of the postal worker when he was in his teens during a botched robbery attempt a pretty lengthy history of disruptions and misbehavior in prison you put all that together and it starts to become a real hard mountain to climb so i'd like you to address that if you if you could agree and prejudice is i think the more difficult question and to your point i think his initial early problems as a teenager kind of snowball on top of each other because of the difficult conditions in wh incarcerated and that he becomes progressively more what you know his history becomes more aggravated not just during his incarceration but because of it and i think that is that argument that trial counsel noble stricklin matter tell me why you think you prevail on prejudice and on top of that of course you have to layer that but deference but just tell me why on a pure did noble reading you think you prevail approach so st there's the mental health evidence which shows you know even with the sort of disputes about what that evidence is and what you can what kind of conclusions you can draw from that we know from at least two experts that he has deficit in the kind of things that impact or culpability he has deficits in reasoning in complex problem solving his processing speed is very impaired dr king emphasizes that that was the that was the portion of his stanford benet which was most striking is his processing speed so he has these high verbal abilities so he looks as though he's functioning fine but when it comes time to engage in a complex task or or take in new information or make decisions under stress he cannot do that so we know that about the way that his brain functions we know that he had very little in the way of parenting or guidance to help him with those specific deficit swear ever they came from perhaps they came from birth trauma perhaps they came from a head injury perhaps they came from some other source but we know that they were there and then you take that child and keep you know kind of  ending him from one unhealthy environment to another and then put him into a prison environment that is later you know there are the conditions are so bad that there's later consent decree between d o j and the territory where the d o  takes over the running of the prisons because they're so bad in terms of staffing and ins and safety and control and juvenile inmates like mr he would have been housed with adults and we have testimony from people who knew him peace who says that that experience changed him that he's now a different person coming out and that is you know that's a completely different thing than what trial counsel put forward and you have to combine fahy does have ms carter playing a substantial role in provoking and encouraging and planning this crime so the jurors are responding to that and we know it because they said it but we also know it because you know it wasn't a slam dunk for sentence they're out for a wow so you combined the mitigation evidence that trial counsel didn't get in front of this jury that the starter the lack of parenting you know no it's not in a case like we're going through in p r you can sort of see like ok brutal murder but was like look at the stuff that was never put before the sentencing and in this case and i don't mean to denigrate the that it's hard to imagine that this is the sort of case that warrants upsetting the court of a cargo it's an aggravated crime but it's not a crime that was so aggravated that the district attorney thought that the only right answer could be a death sentence the district attorney offered a life sentence and the jury was receptive to a life sentence and in fact were looking reason to give so however aggravated it was it wasn't in some prejudice with respect to the nephews testimony and then separately with respect to the mental health evidence does that violate stricklin or more particularly williams which says that you have to aggregate all of the potential mitigation evidence against the aggravating evidence so then what's what's the impact of that yeah i think that the state court was under the duty to consider all of the evidence as a package deal if you will the different picture that the jury would have received and not only that but it was required to consider all that evidence together and consider how it would have impacted what trial counsel did present and now we have to mental health experts testifying that wow mr seely's verbal ability and his presentation is very high is actually functioning cognitively emotionally and socially much more like a teenager a fifteen year old and so when trial counsel is trying to argue that ms carter or other co defendants are more culpable than what's being let on and  responding or reacting to to their planning and their impetus well now suddenly we don't have a teenager an adult man now there are two teenagers functionally in the room so the residual doubt theory gets better and the state court gives no attention to that and the state court moreover dismisses the mental health testimony out of hand you know with these sort of twin findings that the mental health testimony is a unsupported by the record and be the product of errant analysis and those to the district court wants to call that a credibility determination but those are facts findings that just aren't supported by the record i mean to the extent that the current diagnoses are supported by the testimony of a renowned neuropsychologist they have supported the record you know what wait a jury would give to each of those experts respectively is a different question that the state court was entitled to consider and we think considered wrongly and as to being the product of errant analysis that's not really the whole story either that's not what the record shows can i ask you just one question back to a prior question because i genuinely don't understand how this works so in aggregating the mitigating evidence for purposes of conducting the produce analysis right i don't want to call it cumulative error because it's got like a context to it but you know what we're getting at and you only count the mitigating evidence that is the product of deficient performance so for instance in this silo it's failed to put on the middle health evidence if we find that that was deficient performance then we put the mental health evidence into the kitty then there's two tynan if we find that that was deficient performance and we put him in with it kitty is that how it works we don't consider stuff i guess in aggregation that wasn't the product of a deficient right i mean you really don't yes if there's no deficiency i mean that's you know i think we take the mitigation evidence adieus during post conviction and that to whatever mitigation evidence was presented course here there's very little i agree with that i thought the judge newson was talking about whether st we had to meet  very different than here but there's a hypothetical a lawyer after proper investigation makes a reasonable strategic decision to not put on certain evidence if that finding is correct about holding is correct you don't take that evidence and then weigh it against the aggravating evidence and the mitigating evidence that was present you need some sort of a deficient performance finding to consider the evidence that was not introduced and that therefore his waist score is illegitimate and we should throw it out there's conflicting testimony about that dr wendy says i know how to administer way so i've done it for twenty five years but even if you even if you take dr king at his word and throw out dr twe time absolutely so so bucket two is what i'll call nomenclature differences dr king says i don't know what organic brain syndrome is i don't know if i would call this dementia due to multiple etiologies he sort of takes issue with with what we're calling  i don't know so that's that's the st effects but the th the th is where it's at dr plenty gives fifteen or psychological tests that test very specific tasks very specific cognitive abilities some of those mr seely is fine some of them he is above average but some of them and the ones that really matter his complex problem solving skills his working memory which is different than short term or long term memory his working memory which is what allows you and i to have this conversation and solve problems and think things through that's impaired his processing speed is impaired and for those fifty test there is no rebuttal in the record when mr graham is cross examining or is performing the direct examination dr king and tries to ask him about what conclusions can be drawn from one of those neuropsychological tests dr king says i'm sorry i'm not familiar and that's because neuro psychology is not his area of expertise he's qualified to give the stanford binay but he he can't respond to these fifty tests that show that he has very specific cognitive impairments and so for the status court to say that these are the product of quote errant analysis and toss them aside completely is realize i am considerably over the additional time you literally gave me we've given you the extra time so you've saved your full time for rebuttal thank you thank you very much good afternoon may please the court my name is sabrina graham i am here on behalf of the responding asking that this court affirm the district course and so i'd like to address all of things that were just talked about a lot  first let's go to the middle help evidence since that was the last topic that was before this court i would but you've got a little bit of a problem at least with regards to performance i mean when you've got a doctor st of all you've got a horrific murder with substantial evidence of guilt which would lead any lawyer including these lawyers because they set themselves to think ok i've got to start thinking penalty phase and then you have a doctor it's not just your interaction with your client but you have a doctor telling you i think he's got these issues some of them are significant i recommend this sort of testing you have done you have notes from the lawyers saying need to do this testing and then there's no testing done that's a problem right well actually i would disagree with you on that at short because trial counsel testified that they did have doctor for  counsel said that they spoke with dr for after that particular evaluation i don't think there were any psychological tests minister so i'm not implying that at all the chalk also stated that from that they did not see any reason to investigate further they said that mr the other man reasonable as a matter of law i don't think that would be an reason why do you know how do you know not to proceed before you know what you have when a medical professional is telling you you've got these significant red flags do a little bit more in other words that if the testing had if the testing had come back and said he is mentally disabled under adkins he is incompetent to proceed he has this sort of organic brain damage that prevents him from determining between right and wrong the lawyers would have been faced with a very different decision right and there's a fair amount of supreme court case law that says you can make strategic decisions but you know judges and courts shouldn't question they usually only after you figured out whether that's a reasonable alternative or not and that's my concern in this case not on the prejudice problem but the performance problem sure an i've i would i would say the truck also did make a reasonable decision there's no testimony from trial counsel that dr farrar told them that he had these issues and when you look at the remainder of the evidence regarding seely's background you see not someone who had an impoverished childhood not someone who had a mental health history they have tons and tons of records from the prison system there is nothing in there on mental health they speak to him many many many times they see nothing there to suggested then that there's anything and they never testify that dr farrar actually told them that so we're just so i'm clear i've just got a quote written down in my notes but where does where does the quotation come from that in my opinion there was something very very wrong with  suggested to him that he needed to go further what did dr farrar testify at the state haber's hearing that he told the lawyers what judge nelson just oh ok so so whether there's documentation at the front end or not that might be a fact finding issue but there is testimony from dr farrar that he told him there are these issues at least at the surface level you need to do something more but that's assuming that the state court created dr farrar and he did not create it trial counsel because  court do the say hey vs court doesn't mention doctor for our the state court found they did a thorough investigation into mental health therefore and it doesn't exactly go into a lot of detail about that but you could say is there any reasonable adamant i mean to the point of stating exclamation point i did not see any minute help here that needed to be investigated further i have only so much time so much money and so many resources i chose not to go down that path i thought he had funds for a mental health expert he did he did have it and didn't use it he did he did use some of those funds for to start for did go and speak with rice and he had and he had funds for mental health evaluation afterwards but didn't use them so it wasn't like he ran out of money sorry i didn't mean to imply that all i mean to imply is that that was mr beale's testimony that these are the resources i had i chose to use in the best way i could and i did not see this is an avenue to go down but having stated that if this court you know know if you assume that they were deficient in some way i don't understand how you could say that no reasonable juror would have found prejudice in this case would not have hammered in this particular case they make out that petitioner had a chaotic childhood that he was neglected by his peers and things of that nature but when you look at the record there's contradictory evidence to that st of all the issue of chaos comes from dr pou intake and when dr point a was specifically asked where you know where is this chaos you're getting coming from well the mom moved him when he was twelve to new york there's no actual direct evidence in here showing that he lived in a chaotic home dr pointed didn't even know what his home looked like in st croix he could not answer the question was it chaotic inside i don't know mr seely told trial counsel hey you know my dad was great he was loving he never beat me my mother was really strict my dad would step in if she would get to me too much with the wire but there was no evidence from mr seely his family was neglectful in fact he even told trial counsel that his father came to all of his games they make much about the fact that you know people kept saying in the affidavits we'd ever saw his family at the games but that's not what mr seely told trial counsel so there is very little if evidence that he had any kind of impoverished neglected chaotic childhood it's not unusual for parents to split up and for the parent to move away there's no testimony regarding what happened in new york why it was chaotic up there there's nothing about that all we have is dr pou into a going to see his mother many years later and she has and he diagnosis her with dementia and relying upon that information there's nothing in the school records showing that there's nothing in the prison records showing that so all that evidence that he had this terrible chaotic childhood isn't supported in the record and that's what the state havey as court found and they make out that he had a stutter yes he had a stutter when he was a child there's no evidence is actually stating there's just nothing there and dr king does refute the fact that he has organic brain down to the difficulty says no i don't find that and he specifically says i don't think he has borderline intelligence because when you look at his general can tell maybe only to the issue of mental retardation and in particular the state habeas court seems to make what i would call a factual finding that king is more credible than what but does that factual findings sort of extrapolate to what i'll call an on mental retardation talks st about the mental intellectual disability and then he talks about the organic brain syndrome and that when he he did he says he doesn't credit dr pointed because dr king testified that his testing of the waste was unreliable and then he goes on to he thought they were consistent with his that he was overall normal on most of the tests and that did not show that he was in fact had organic brain damage or he had brain damage he said but yes he did have a learning disability he had and with with arithmetic he did disagree with him on that from my understanding of what dr king was stating now and dr king also stated when he was questioned about the emotional immaturity he said i don't know what you're talking about and i do believe unless and i do apologize if i misrepresent that i'll just read that dr king stated that he did not think he was acting like a teenager and i would like to go back address that particular issue where they state that they could have put up evidence that he was functioning as a teenager and that he was this easily led person that is could absolutely be refuted by the state and this record this man was a predator he was a predator when he was seventeen years old and he shot that man the back that he was trying to rob he went into the prison system and when you look at all of his prison records what does it say in the prison there on st croix it says that he was the one who was trying to incite a riot it says that he escaped he was a troublemaker he was a troublemaker so many times we get in the federal bureau of prisons and they transferred him four times for being a disciplinary this guy was a complete predator in prison he comes out of prison and he continues that behavior he tells trial counsel i worked over at the mall here in atlanta and i had a lady bring me credit card receipts and i would take this credit card receipts and i take trips down to miami and then what does he say oh he had this little gang of people that he heralded over teenagers over their little five points this was a man who was easily led this wasn't a man who was functioning at the age of a teenager this is a man who was preying upon teenagers he preyed upon teenagers all the time and the idea that mr fay he is saying that the andrea the fifteen year old was telling him what to do in there that's that's not exactly what happened at all in that particular testimony i mean mr fay he said that d'andrea did certain things but she didn't say that he was leading sealy deer in this crime there's absolutely no evidence and here mr seely is an easily led man who is functioning like a teenager the evidence here shows more likely that he was  petitioner sr gerald a and mr seely both told him that if you contact the mother we're not going to cooperate with you we're not going to give you any information that was that was the information but as far as just just the hearsay testimony from dr parin today when he went to interview her there in the bronx assuming we could get to the nova overview what do you make of the fact that these jurors testified that they just wanted to hear something anything in mitigation and that have made a difference well i don't think that's inappropriate i don't think it's appropriate to look at what the juror stated under strickland i do think it is a way in process i also would point the court to the  order and i just briefly reviewed it it's on page forty four where he talks about the core allows jurors testimony in regarding the extrajudicial information regarding the bible but then for any other evidence of germs conduct the court goes on explains that you can't use the jurors affidavits impeachment purposes so to the extent that they're tending to use that to impeach their own verdict and say we would have considered this then i  think that has not been admitted by the state habeas court but putting that aside i still think that you have to do away in a sonnet to the jurors to come in and say well maybe if i had given some information i might have changed my mind it doesn't show  what information they were given if they were given all of the information here if they were given the information from dr point take from dr king all of the prison records that he had if they had been given all of that would they have changed their mind i don't see that in the might have caused prejudice like you're right that you can't take into account what was going on in between the jurors but if the four person happens to report to the judge judge we're split six to six on guilt and we've gone through seventeen votes and we're still  i don't know of any supreme court precedent that says that you look at the split but that's assuming that jurors only move in one direction and this court has specifically stated that you can't assume that a juror is only going to move towards life without parole they they could have heard all of the evidence from the stay and said you know what that makes me even more sure that i want to vote for death so i think that it to that extent it just can't be assumed that those six people who were on the side of life without parole would automatically gone to life without parole if they had been presented with this week mitigation evidence and ultimately that is i think respondent strongest argument here that the evidence is weak when compared to the crime it does fall in the r mitigating evidence and certainly we're not saying that dr quinn taste testimony or the family's testimony is that mitigating but it does not mitigate this particular crime it doesn't explain in any way whatsoever i mean if he had had a mental health or something truly affecting him you could understand that but this is a crime where he went and i mean you know the facts of the crime i won't repeat them but they are her in this and there's nothing in any of this  their new mitigation evidence that explains what he did in a manner that shows that the state habeas court's decision was unreasonable under supreme court precedent one question borne more of curiosity than anything else was there any evidence presented at the trial as to why mr seely thought that there was so much money in the whole well mr to he or a lot of brains in jewelry he had several vehicles and the jeweler testified at trial that mr to miss julie testified that she always had all these all this jury and that it gave the wrong impression of how much wealth he had i think but other than that i'm not aware of why they thought that why he thought they had money or didn't have money all right thank you i asked you before you sit down just to make sure i'm clear about the different aspects of the ineffective assistance claims whether we owe deference under and so on and so there was a sub claim about the failure to proffer the polygraph results and i  that the state court made a merits decision on deficient performance on that one but not on prejudice is that correct well the way that i read the court's order as it's typically says they were deficient in the court states that the evidence would not have it wasn't reliable enough to be missable so our argument is that that's an implicit prejudice argument because if it wasn't miscible then you can't show a reasonable probability of a different outcome ok and then what about the failure to call to tain at the penalty  phase as i saw it there was no state court merits decision on deficient performance but there was one prejudice as i correct correct that's correct all right and then for the failure to present mental health medication looks like we would know a difference on both pro strickland on that one i'm sorry can you repeat the last part looks like there was a state court near its decision on both deficient performance and prejudice on that one and then i thought the most confusing one was the aspect about background and family life and so forth was their merits decision on both deficient requirements and prejudice or just deficient performance i thought it was on both but if i'm wrong i'm i'm wrong but i understood it to be both of them because he found that thinking about it sorry he talks all about trial counsel trying to get the family up there talking to them and he definitely says they were deficient i thought there was a prejudice analysis ok thank you   if i could briefly just address a couple of things with respect to deficiency because we didn't talk that much about it and there is evidence that dr farrar told mr beale of his findings and that quote that doesn't fact come from dr for i think it was you who raised the quote it comes from dr farrar but it also comes from mr beale who in an august rd two thousand and one ex parte hearing tells the trial court that he needs money for the evaluation because dr ferrars preliminary take is that he has as july of two thousand and two is a full year later and just a few weeks before trial mr beales time sheets show the doctor for are still calling him and leaving messages but mr beal's doc doesn't have corresponding time in trees where he's calling dr for our back so dr for us clearly still trying to get in touch and say can we move forward or what's going on mr gill says nothing apparently  with respect to the prejudice from the mental health experts all of what mr graham said about mr seely's history and his behavior that was in front of this jury already nothing about the mental health testimony would have provoked that it was already out there there's no downside to telling the jury or trying to explain to a jury why this behavior is what it is and tell his  story the idea that two experts are fighting over what to call the deficit's that they agree he has the idea that two experts are fighting over how severe those deficits are that's a far cry from a jury who thinks there's nothing wrong with him at all and has already heard about his prison behavior and moreover his deficit's do have something to do with this crime he thinks there's a one million dollars in the house because m carter told him that because it was ms carter's idea to go to the house to get the money she gained access for them she was the one who knew the victims she's the one who encouraged him page two thousand two hundred and ninety five of his testimony she's telling him you've got to do it you have to kill them that was never part of the initial plan she plans and then she's encouraging the crime as it's ongoing and because he has these deficits he can't look around and say this is not a house where there's a one million dollars hiding and he doesn't have the processing speed he doesn't have the problem solving and so they do they do they might not explain entirely but they'd certainly have something to do with what happened here with respect and just briefly to wrap up with respect to the jury testimony i would submit that while the state score ruled that any test made in peaches the verdict could come in this is something else entirely these are jurors it's explaining why their verdict was what it is they're not undermining the verdict they rendered their explaining and justifying it and saying we we ended it because we were given no mitigating evidence and that i think is something and representing mr seely and we want to thank you for your efforts on behalf of him in your service to the court really we really do appreciate we're in