perot in these proceedings when the court sent this matter back to the district court it wanted to know why the trial counsel did not quit on mitigating evidence at sentencing whether he conducted an investigation and what mitigation evidence existed we now know trial counsel conducted virtually no investigation for sentencing because he had a fundamental misunderstanding of the law council let's start with where the district court decided the remit and as i recall it found there were two instances of ineffective assistance but they were very narrow and that in any event they were counsel determinations out of this court for you to make a difference on prejudice or maybe you can put it another way around suppose we are satisfied that the only two instances where those that were found by the district court how strong is your prejudice argument then well your honor we think the district court was wrong in its analysis however if if this court just affirms the district court on on those two findings we believe that there is significant mitigating evidence that existed that undermines the confidence in the outcome of the sentencing hearing in this case even if we are satisfied that the court only found those two instances and they were as it labeled them narrow another would you you can you still make a case on deficient or his failure to review mental health records pertaining to mr chorale and his failure to obtain records regarding his head injury and to determine those points plus all the other mitigating evidence that was offered was sufficient to demonstrate prejudice one of the contention of the government  there's a factual dispute there that mr collins was in fact in possession of the gateway and the vacaville mental health records well the evidence  that we put forward at the hearing demonstrates that he was not in possession of those records that in fact the gateway records were destroyed i believe that  some of the voc will records may have existed but what was key is that evidence relating to mr corrals mental health psychiatric records and mental health records were destroyed and they were available at the time but subsequently were destroyed was i understand the government disputes the district court's findings on that what's our standard of review with rehearing did not show a causal nexus to the crime and in addition it excluded or discounted testimony of a number of witnesses when the district court rendered its decision it present mitigating evidence not withstanding that the state could have presented highly damaging evidence in response to the mitigating evidence the trial counsel failed to discover and present is of the type that undermines confidence in the sentencing outcome in this case trial counsel's approach to sentencing demonstrates that he did not understand the concept of mitigation he referred  to the sentencing hearing as a dog and pony show where there would be so much smoke and touchy feely fuzzy headed kind of stuff would be offered he thought the corrals conduct in school and his behavior as a juvenile was aggravating he believed he had to disprove a recognized mitigating circumstance in the state of arizona and when he did his investigation albeit a very short investigation all he was looking quare was good character evidence relating to mr chorale there is no excuse for counsel's failure to investigate in this case williams this mr chorale did not testify at the sentencing hearing and there's nothing in the record to indicate that he in any way limited his lawyers ability to conduct an not make strategic decisions his choices were the result of a profound misunderstanding of the law and an unreasonable but on shakable belief that the trial judge would violate the eighth amendment and confla constitutionally relevant mitigation evidence with aggravating evidence and use it as a basis to impose the death penalty counsel what are we to do with the finding of the district court on r that counsel counsel's strategy mr collins the strategy was first to argue residual doubt and then second to portray the crime as a drug rick a drug rip off gone wrong in which corral was not the trigger man and that those are specific findings in the record as i understand it i think the courts erred in making those findings because mr collins testified that factor what he wanted the judge to do was was to think that this was a drug ripoff gone bad so if it was a drug rip off gone bad that's inconsistent with a theory of residual doubt in addition  he wanted the judge to throw think that his client was under the influence of drugs at the time of the crime so if the theory was residual doubt at trial mr collins would not have wanted the judge to know that his client was even there or that he was under the influence of drugs or that this was a drug ripoff that reviewing the legal findings as well as the factual findings and it's clear that that when looking at a claim of in effect of assistance the review by this court is to know  that it does not matter if the district court believes or otherwise discounts the testimony of experts or other witnesses the proper inquiry is whether there is a reasonable probability that it least one reasonable fact finder the district court was required to evaluate the totality of the evidence hold the deuce to trial and behaviors proceedings in conducting it s prejudiced analysis there was again significant mitigation presented to the district court that under a series of cases by this court is mitigating  smith based on the complete record we now know the trial counsel conducted no real investigation for sentencing and the evidence offered at the evidence rehearing below undermines confidence in the outcome of the sentencing determination not to put on any mitigating evidence was very product of a strategic decision correct that's correct there was a lot of time as a knowledge about a district court required mandate in  well the burden vince shifts to after an aggregate aggravator is found the burden shifts to the defendant to prove that there is substantial substantive  mitigation to warrant leniency and by arguing the fact that many didn't provide any evidence at all right well he didn't put on any evidence but he did make an argument to the court and he based it on evidence it was p sentence report detailing the social history of mr corral and he made the argument that this was a drug ripoff gone bad that mr corral was not the primary actor in this case he was a follower and there was evidence in the in the trial testimony to support that he was under the influence of drugs at the time again evidence to support that during trial and that that he had a had petitioners been seen counsel gone with the strategy of presenting his client's emotional mental problems his drug abuse history his drug usage at the time of the crime and his dysfunctional upbringing that would have allowed the state to bring out facts that the district court found not to be mitigating the rape by petitioner of a psychiatric patient when he was in a car at gateway hospital the numerous escapes from mental health facilities and rejection of efforts to provide him with treatment while at the space aliens petitioners taking a hostage an armed aggression against a mental health worker in an escape attempt we were brought up the facts and rob the place it was that he had an armed robbery conviction but the facts underlying it why do you think it would have made any greater difference i mean he has an armed robbery conviction i'm not quite individuals to help him accomplish this very dangerous crime so he just one day sanitize it and keep it armed robbery mr collins did but it had gone into the dysfunctional family is based more importantly his mental health and the antisocial personality disorder that he would have had would have been diagnosed with then under arizona law those facts would have been relevant at that point so there was a reason for him to just keep it sanitized armed robbery  on the evidence of the investigation he he did he was having trouble or he could not come up with a simple sympathetic story he could not make his clients sympathetic but what he could do and what he did do was try to argue the circumstances of the crime the fact that it was a drug ripoff gone bad and that he wasn't the main actor and he that the three individuals that died did not die at his hands is that he was under the influence of drugs at the time and then he was he had this bad upbringing so he tried to make him as sympathetic as possible but if you open the door he knew enough that if you opened the door to mental health history in the damaging rebuttal testimony as the district court found of course of course there was some revival testimony that there was no affirmative case in chief and then reading through arizona it's not a pivotal factor and certainly statutory factor but certainly there would have been subject to rebuttal but with an affirmative case in chief wasn't the outcome really assured there was really nothing that he argued  that was going to make a difference unless he put on a good case in chief well he testified that there was a one in twenty chance that he would get the death penalty if you went with the way he went and in his estimation the evidence he presented his idea less of a chance for the death penalty if you put his mental health and and the other things into the record because it would have allowed again the state to drive home this rebuttal evidence that would have all but even straighted any type of mitigation as again case given the facts well i think wigan's talks mostly about a duty to do to investigate and it's as if you can you can reasonably a failure to continue investigation is reasonable and constitutional would be counter productive or fruitless and in this case mr collins thought that he went further down the road exhibit thirty four in this and the record showed that he had the vacaville and gateway's and it's studio c records and duty to investigate they do talk about about prejudice there but again those cases in the cases that mr bass spoke of that come from this court's jurisprudence didn't have the added component that this this case has and that is kohut seemed to be more concerned about this particular trial judge and then he was over the nature of that record do you disagree with that he was concerned he was concerned about judge how and how he would receive a judge how it would fail to consider the n i social personality disorder as he was as you had to wonder lockett in eddings in those cases but he just wouldn't give it much weight and i think that's a  mitigation that was presented in this case and a factual finding the standard of review in a factual finding instance is clear air so this court will have to find that judge mcnamee's factual finding in this case were clearly erroneous and overt in order to overturn now would apply to the question of the you know whether or not collins was in possession of the mental health records as well right now i'm sorry going to restate and that's standard for you would apply to the question of whether attorney collins was in possession of the mental health records as well about the term nexus in to nard the fifth circuit procedure that was held to be unconstitutional you basically had a gatekeeper process there and before the mitigation evidence could be considered it had to have been had that you had to establish a nexus to the crime itself that's not what what the law is in arizona and what is stated in footnote forty seven of the district court order to consider all mitigation evidence as judge mcnamee reflected and what was done in the trial court but the nexus part that arizona operates under deals with the weight that it's given to that evidence a finding at the hearing mr collins testified that at trial they were going without you know you got the wrong person it was mr pearl's brother not mr not mr crone so that committed the crime he didn't want to just all of a sudden flip at sentencing and say well you know yeah i did it but i you know it at trial when i was playing my end was claiming innocence so that's that's how the residual doubt came into being in this case  the underlying facts in this case are horrendous the question of guilt is no longer an issue and the aggravating circumstances in this case are overwhelming the three aggravating circumstances that were found and  consequently according to this court's own jurisprudence substantial mitigation has to be found in order for pretty substantial mitigation is necessary for in order for prejudice to be found and as i've stated before an counsel and notwithstanding that risk are cases in the supreme court cases compel a defense counsel to run that risk in other words to go through and at least put on a firm of the evidence in the negation while running the risk that the state might trumpet the point of this i understand their of their principle point is that there was no and what he brought out and in his argument at sentencing but this court has said that it's a constitutionally valid reason to forgo certain mitigation when it opens the door to powerful and damaging  you go if you're going to present mitigation you can do it in such a way that doesn't open the door for rebuttal testimony on those points and that has also been held to be the case by the united states supreme court in claim based on like the the war vs calderon where if you bring in testimony that damages your client then you're ineffective it was a very fine line he had to he had to walk there in closing i believe that try to make his client sympathetic because in his assessment after looking at it at the gateways at the voc of bill at the studio city records doing the forty to fifty witness interview he did knowing the facts of the crime that he could not put on some type of gross intoxication at the time of the crime knowing all that what his strategy was your honor was to make the crime as minimal as possible and i don't difficult to well again history i had his strategy was to put the defendant the petitioner is not the primary actor that he was under the influence that even disowned by his family and he did not actually kill the three it's he's had a long criminal history how can that be a reasonable strategy i don't know if mr collins portray this as a one time episode he said it was a drug rip off gone bad how does not mitigate well again if you take that in conjunction with the fact that he was not the primary actor he did not kill the three individuals that were killed in this case he was under the influence of drugs he's trying to minimize his activity in in the murders that he was a follower and there was evidence of that at the end during trial that he was a follower so that was a strategy to answer just schroeder's question that was a strategy sentencing again this case is better for the state in terms of evidence to impose a death sentence than it was in one thousand nine hundred four we asked the court to review the district court findings the factual findings that are numerous regarding the defendants are fishers experts are were not made in clear air we've asked this court to affirm the district court's finding pre sentence report in addition the evidence that was not in the pre sentence report pelleas never proved that the damaging evidence would have come in and trial all we have is trial counsel saying i believe that the prosecutor would have put the evidence on is there anything in the record then it can't that the prosecutor knew about these things the time there's nothing in the record to indicate that explain his behaviors and we have to remember that these acts occurred when he was a juvenile when he was eleven twelve thirteen years old i'd like to direct the court to the mayfield decision not just making a record here or presenting the evidence to the trial judge the court of appeals or the arizona supreme court would have had an opportunity  review the claims as well and at the time under the mitigating factors that existed there were numerous arizona supreme court decisions that for instance richmond clay born and grass were talked about dysfunctional family in abusive childhood which which of the potential pieces of evidence that might have been put on during the sentencing phase would be the the winning piece in other words what's out there that suggests that if we only had evidence of this then the death penalty could not possibly have been involved your honor i think under any one of the five categories there are some sort of balancing right yes and i guess i'm asking you all the potential evidence that you have a den of five as potential mitigating evidence which is the piece that tips  this circuit that hold that you have used the childhood as a defense to the death penalty is that if it's a mitigating factor yeah sure i understand that but i guess what i'm asking you is in terms of either again i think all of these factors had to be introduced at the sentencing hearing it was take every one of these not just one more thing i've ever wanted to sure i understand your argument any one of these should have been presented and all of these didn't exist so all of them should have been presented ok but i don't think you answered my question which is the one that's the trumps the all that if it had only been introduced this man would never have been sentenced to this i don't know if i could pick one and any one of them on their own i i think it is a mitigating factor of getting it or not getting i'm not i'm sorry i misunderstood that i thought the attorney general said that he that collins thought that on the existing record he had only a one in twenty chance of getting the death penalty and that had you