thank you judge south lake may please the court i will start with the state's appeal and ask the court to reverse the conditional grant of habeas relief and render judgment for the state i will then turn to wardrobes pending application for a c e o way and i will ask the court to deny that evidence of multiple independent and deprived murders is the most powerful aggravating evidence imaginable in this case the jury heard from two dozen witnesses who described in agonizing detail the five murders that fairy wardrobe carried out over a year and a half a forensic pathologist testified for example that horrifying for words the jury heard similarly agonizing testimony as towards four other victims he did it again and again and again and again it's no surprise that the outraged jury sentenced to death one of the most heinous serial killers in the history of the state of texas now in seeking he beats relief warship raises an ineffective assistance claim claiming that the jury would have given that horrifying testimony less w only it had known that on this previous prison stint he took an art class and they participated in the prison newspaper but his claim fails on both of strickland's problems and that's especially true when viewed for the un for when viewed through the recently articulated by this court in the mission he a case just over a year ago now make him makes clear that anything is possible and therefore the petitioner to prevail has to show up substantial likelihood of a different result that is  order to come in order to overcome the prejudice hurdle in this case order has to tell us which witnesses would have testified what they were going to say that was going to overcome the evidence of the stated put on and perhaps most critically what those witnesses we're not going to say that is we need some assurance that the witnesses he proposes would not have been liable to give damaging testimony on cross examination now warder price do that in the way that set out on page twenty four of his brief and i just want to underscore how implausible the theory is that he set out in this briefing his basic theory is that even though the jury heard horrifying gut wrenching testimony of torturing and raping women to death they would have nonetheless scared him the death penalty if only they'd known that when he was in prison the st time around he took an art class that he participated in the prison newspaper that he organized or participated in some sort of fundraiser that's a textbook example of the type of speculation that maybe he had just over a year ago rejected as insufficient to overcome strickland's prejudice prong wardrobe speculates for example that if only sergeant falkenberg had been able to testify he would have been able to talk about this clean prison record and what you did in prison but there's two reasons why that speculation fails the he attest st falkenberg indicated that he didn't actually have anything positive to say about wardrobe so it's questionable whether he would have even been willing to testify at all nd falkenberg would have been liable on cross examination to testify to things like warders reputation in prison where he was known as having an angry temper and known as being a liar that might have hurt order its case with the jury the bottom line is that wardrobe has not put forward anything to support a finding or me heah of a substantial probability of different result wardrobe also fails on the what the supreme court called apex deference now to the extent that wardrobe is attacking the state courts factual finding that curry had a strategy that finding is subject to twenty to fifty four easy ones here in convincing he set out in fact to pursue the prison record claim to show that warder had behaved himself in prison but over the arc of the affidavit we see curry realize that that strategy isn't going to work because he doesn't have the facts and the witnesses to back it up i think it's worth going i think it's worth going in some detail through curry's affidavit to show just how he pursued different angles in the attempt to defend wardrobe as i mentioned a minute ago he started out with the prison record defense we see him explain that page eight hundred and sixty five dollars of the record but then he changes course as he conducts an investigation he then turns toward family members he says maybe we can get something out of the family that's going to help wardrobe interview wardrobe's sister but she didn't want to testify in defense of wardrobe and she says that other family members are also not going to be willing to testify based on the things that wardrop said and did them when he was in prison we see in the record of page fi fifteen for example wardrobe says he hates his family and then a page eight hundred and forty eight of the record we see you know from what you're saying that he understands why his family hates him right back and doesn't want to testify in his  your honor i don't know the town in denton county the record says it was transferred to denton county the judge signed an order transfer into that county i don't know the record says the name of the city it was in it's a room it's a row county or the four north  denton county is north of fort worth and south of wichita falls your honor as i understand so that the next prochoice curry took is let's look to wardrobes wife maybe she's going to say something that will be helpful the problem is that water himself instructed curry not to call his wife as witness because he was worried about how she would hold up on cross examination so there's another debt at curry also hires an expert dr leon morris to evaluate wardrobe but ultimately he trial it does seem to me that it is possible to read this affidavit and actually indicating somewhat cursory work on some of these areas somewhat after the responses that number one i think that the affidavit certainly shows that currie did enough investigation to overcome the bare constitutional minimum i don't mean to push back on your question but i do think as our next question back i'm just saying there are different ways to re and our role is not usually as the initial interpreter and i'm just wondering what all i need to be considering all along those lines yes judge southwick so to the extent it's a big us that only confirms that we defer to the state court under ed at page and seventy five dollars of the record we've got factual findings by the state court and legal conclusions by the state court what the state court finds is that we ordered did investigate and did have a strategy and that  saying i had a strategy and i didn't want to put on evidence of the prison record claim because that's double edged now we know from this court's decision and makiya we know from cases like saying all been ok says that he realized that it is objective lee reasonable and as to others it's clear from his continued use the word we that he's working alongside susan rice her notes from these interviews are set out in the record and there's nothing that i'm aware of that suggests that she just simply making up that she talked to these people but even if i'm wrong about that judging about minister because the minister was going to testify that ward had lied to other parishioners about why he'd been in jail curried also reached out along with rice to kenneth bishop who was a coworker at the screen door plant in  mitigation strategies and approaches and witnesses and came up with a lot of dead ends that doesn't mean that curry is incompetent it just means that ferrie in wardrobe is an exceedingly difficult man to defend because he's a serial killer so judging about that i think there's two reasons the court should reject that number one all of that evidence  well so judging by the movie starts out in the affidavit saying that he wants to focus on the prison record claim but the affidavit spends several pages and it's told as a narrative alk and we see over the course of that narrative arc him saying he were to start out with a prison record but then realize as he goes along that it's not actually going to be borne out by the facts that he's coming up with and so he and so it is worth focusing on the strategy he does pursue number one he calls to the witness stand the parole officer border patrol officer curry thinks that's a good strategic move for two reasons number one the prole officer is one of the few people in this world who don't have anything negative to say about wardrobe so he's not worried about what's going to happen on cross examination in the rules of a very complicated system that being the role of the nd person that he calls as a witness is the owner of the screen door plant in only where wardrobe works and that to and that person also testifies towards good character and doesn't have anything negative to say on cross examination so anybody from the prison who koreans of putting on the stand and calling can testify to things like wardrobe is a liar can testify to the t v incident which was the  nd disciplinary infraction which pot is unclear from the record but possibly actually involved assault on another prisoner all that would be in play if he trumped if he plays a prison record and that's why the evidence of the prison record your honor is really a double edge sword and therefore it's not a problem to forgo it there's things we're spending time on there's really three ways why it's double edged number one it would potentially enrage the jury by reminding them that border only served eleven years out of the thirty five year sentence for murder number two it shows the jury that wardrobe is a manipulator he knows how to work the system he knows how to get what he wants and number three by emphasizing the prison record and bringing up the idea of parole he'd be putting in the jury's minds the image of wardrobe being a free man out on the street one day and then makes it easier for the jury to think of him as a future danger to society he's back in the world surrounded by twenty year old women who he can black federal law under me he insane often that choosing to forgo that strategy is not ineffective i'd like to just touch on a couple of different counterarguments that ward is making number one he says that the state court should hold held a hearing on his claims judging about and we had a discussion about this a moment ago there is no supreme court authority that required the state court to hold an evidentiary hearing the decision whether or not to hold an evidentiary hearing is a legal decision and denying it is plainly reasonable since the affidavit that was before the state court told the state court what it needs to know now wardrobe cites the brumfield case for its proposition but that case just says that when one side puts on zero evidence and the other side puts on a lot of evidence you can't side with the side put on no evidence and disregard the evidence the other side had that's an implication here because we've got this affidavit from curry that's reasonable on its face he also tries here to raise borne out by the facts we've given the record cites in our briefing that the claims made about rice and her relationship with wardrobe or her relationship with kim brewer and cambridge family is just simply not reflected in the record let me ask you about another procedural question the argument that the only thing decided by the district court had been with reasonable determination facts are going about whether we can reach a reasonable application of the law  is it is that just a matter of a potential affirmative on a different ground supported by the record even though you would agree that it would play out that way is that why we could consider would you isn't that an alternative reason potentially to affirm and so it's something we could consider well judge something else i want to make sure you're saying your question our position is that there's no reason to a farm that the district court's judgment cannot be a farm on the stand i'm talking about whether we can reach to because he's still going to show that the state court's decision was based on that unreasonable determination of the facts and here it wasn't at seven thousand and seventy three through seven thousand and seventy five of the record the sea court makes clear it's basing its holding on the fact that there's no prejudice stick or says it explicitly so we can't overcome the two because there's no there's no based up now to the extent he's raising a legal argument saying that as a matter of law there was an error that he's got to clear the d one hurdle and he's got to permission i'd like to turn briefly to the pending application for a certificate of appeal ability and we will ask the court to deny that largely for the reasons that are set out in our brief this is related to the judicial c came the claim is time barred it's procedurally defaulted it's outside the scope of this court's two thousand and eleven mandate he's raising this thing many many years after the trial and i think there's a reason why he didn't bring it up sooner because he affirmatively waved the judicial conflict claim when he pleaded guilty now as i mentioned earlier his lawyer curry filed a motion to recuse or disqualify the trial judge in state court you tried twice to do that the court denied those motions now had curry got rich he had ordered gone on to plead not guilty that would have been potentially an issue on appeal but when he pleaded guilty this is dollars of the record he waived any right to challenge any non jurisdictional defect in the proceeding prior to the entry of the guilty plea i think that's why this claim is so untimely it's being brought up years after the fact perhaps because they forgotten that it's actually in affirmatively ways of is a st time is injected in some form into the proceedings in the in the initial federal aviation in two thousand and eight but it wasn't a specific claim is that its application in the texas court of criminal appeals which gets rejected as abuse of the red and then it comes in to the federal proceeding he lost on that in the district court and now he's asking for a c l a to challenge that because he says that that would invalidate the guilty pleas or require change the judgment so he's right that he needs a c o way on that but he's wrong and that is application is meritorious it should be denied we'll take a thirty seven seconds back and i think your hon having heard as the solicitor general recounts detailed evidence of the heinousness of the underlying office of nonetheless with little more to go on because of the limited defense that was presented still to members of that panel initially held out against a finding of future dangerousness if this case it would be a solicitor general's argument seems to be that given the nature of the off chance that nobody would have granted believe it if the inception of the deliberations there were twenty two jurors that were willing to do so had they been given any other information or had any other development of the end of the  factual basis for saying that he was not a future danger been developed as the as the magistrate judge found as a district court judge from below it's read there's a reasonable probability that better a negative finding would have been made on the nd issue that least one juror would continue to hold out that was with a posse of evans was presented by the media by mr curry below now this case it involves it centers around the adequacy in the investigation conduct of the trial that his untried tire presence before the jury was relatively de minimus he can gauge and really no cross examination extensive cross examinations of anywhere this he put on to brief witnesses of the punishment phase little to work with on appeal is that there was little objection made to anything that he did if he had it if he at having strategy it's not apparent from the record in that regard but what i'm suggesting what i'm suggesting to you were asked counsel thought  what does trial counsel's post hoc rationalizations by his trial strategy work on the one hand he says i don't want to alert the jury of parole but the entire prison case is based upon showing the status of little over a decade in prison and then was paroled and then he doesn't want to bring make role an issue before the jury for their consideration yet one of the only two witnesses he calls is his parole officer so if far from trying to bury that there the concept of parole or hide it from the jury it appears that that was the emphasis of his case to the extent that it involved any evidence that put off but then also part and parcel that his decision is i didn't want to show that record of being able to conform his his conduct in that institution such that he would not represent a future danger society right now he also eschewed on the same point just looking at the state laudrup was a con orders a liar would get in front of a jury of some sort of goto across syria emanation and that the evidence of his good prison record introduced by the state before the jury i may not be the best way or even particular good way to do it i'm saying one way or the other but it does seem to me looking at this through the lens of whether the state havey is court went off the rails which is not official legal terminology the court is as well aware in many death penalty issues there's always a double edged sword i don't want to conflate the obligation to investigate with the decision to use information that was developed during the investigation the decision for example to say i don't want to call him at this point because an inmate will say he's a liar can be a reasoned strategy only if they do that testimony has been investigated and balanced and trial counsel has weighed it against the plethora of other information to make that determination and what we have here in this case is it is the state the solicitor general arguing and mr curry asserting well i decided i'm not going to use that he made that determination that it was a two edged sword without knowing what else was out there that would back up that would balance the scale the that kind of investigation i mean his entire case judge southwick is based upon the prison records and yet he did not investigate prison records his affidavit refers to the fact that he that this basically it was a favorable circumstance address any of those factors as a matter of fact he just simply says i was aware of his prison record but the prison record introduced at trial was simply the judgment in sentences the fingerprint sheets and the two disciplinary reports that the state chose to include in the prison packet and nothing else and the affidavit does not show any awareness on the part of mr curry that he that he had knowledge of any of the other circumstances that mr schramm pointed out below wh the most prejudicial omission they are focusing on that's what i'm struggling with here is what that in today what what is the information that would have swayed this jury i i don't think there's one particular piece of information but i think that the  eleven years in a penal institution state of texas he had only two minor disciplinary problems that was introduced to the jury so there's the to be clear that we expect prisoners to behave in prison we absolutely  believe that the the indications are that mr it were the words on you to demonstrate that this was such powerful evidence that it's omission it was clearly prejudicial to the death to the death sentence i've got to have some sort of i'm smoking gun here to the jury and this case knowing nothing else about mr ward's time in prison except that he did spend a little more than a decade in prison they only had two disciplinary issues two of them danger that that additional information would have been enough to to make the difference and i do think that some of the things that he did in the prison system such as the fund raising were at it kind of extraordinary out  recollection is that there was one instance in which there was a dispute over changing the channel on a television set and better fight broke out and that mr wardrop was one of the people that was punished in that  case because the underlying facts are hanging us but what we have here is a person who has spent ten years in prison without incident and that the status is that he may be able to conform his behavior i i i think the issue before d the court is given that they've given what they had before was there anything additional that could have swayed them and as the magistrate judge found below there were there's a constellation circumstances from the prison but i guess i guess i'm wondering if you got the statement you know best proly after and that wasn't enough it seems to me that the commissioner talk about ayers cumulative evidence about we i i would ever i think that when you have a jury on a death penalty case and this jury has a apparently diligent enough to want to consider all the facts and circumstances that when you have a jury that's willing to consider that he's his ten years in prison alone is of it raises sufficient doubt as to answer the special issue number two that any supplemental facts that you can add to it to show not only that mr warder but served there's a difference they answer the questions where i think there's a difference between going to prison and not working stay in your cell going to prison and contributing in some way and going to prison and taking positive steps to improve yourself and i think that the record that was how i see the decision to draw you know and it's a fairly i guess my question though is if the jury's already heard that he was a great parolee and that wasn't given sort of the jury why why do you feel that jury would have heard it's true that the jury heard that he had ten years without incident but they didn't hear how much he to improve themselves and it's good that while he was out on parole he was a he was a model parolee but i think and in terms of is he a future danger in the end sensing him to prison how he's going to do in prison i do think that there's a difference that would be that would have been persuasive to the jury other than saying simply saying he went to prison and didn't cause any problems versus did not touch list the factors we talked about about the fundraising and the good conduct in prison and and mr curry so when he says why was where is good conduct you notice that the trial court below on the state level when they curry's affidavit this solicitor general makes it sound as though mr curry made had conducted in vista investigations and made decisions based upon his what he learned not to call people but he did if you read the affidavit carefully he didn't talk to mr ward dips family he said he was told by sister that they may not be willing to help although that may change what could be a bigger red flag in terms of further investigation than reaching out to to your client's family and say let's hear what good things they have to say about him but he foreclosed further investigation simply because he believed that the family would be hostile hostile he talks about the fact that he expected there would be anticipated there would be hostility in the community but he doesn't say that the investigator went out of the community to talk to anybody he just for closed investigation that additional testimony because he felt that it probably wouldn't be  the the investigator that was part of the office dana rice approach mr curry wow after he'd been a point on the case and disclosed to him that she had had a relationship some of the victim's family members and she felt apparently she felt strongly enough about bringing to mr curry's attention of that was the case and yet he engaged no other investigator as the record this is the record in the district court this is not the record in the state court below but was developed in the district court we know is that she was bipolar she was on lithium she missed a month for hiv here hysterectomy that she was given a list of witnesses to contact about approximately a month before jury selection was a start and by the middle of september w selection already commands had not contacted most of them we have the questionnaires where the contact information simply to reach out the witness and then say i got no response or they didn't answer the phone so that it's inconceivable to me under it's not just you might don't make these determinations just upon what you knew but you also have to look at what was available to you and what should have raised red flags and what you should have followed up on his if your entire case to the jury is based upon the prison records it's inconceivable to me that you wouldn't go get the prison records to see what else was in there it's inconceivable to me that you would rule out entire classes of information by saying it could be a two edged sword when you haven't talked to anybody to know what side which side of the blade is sharp or if it's going to cut worse or what's going to help the public funding in that county it's fun yes you and i assume that the number of people involved in death penalty litigation of capital that undertake a point of capital murder cases in wichita falls is a small community and so it's probably not a coincidence that judge brotherton if he's practicing law would have the opportunity to be appointed to represent somebody and then down in the small community certain that many of the practitioners don't exclusively gauge in criminal law or exclusively in gage and pursue civil proceedings but have been having mixed practice and that's not surprising neither and yes it what's it particularly troubling about dana rice the investigation that was done is that because it was a small community and she knew these people  that was also more likely to be predicted but but it's certainly there would i would think that the investor would feel a certain moral pressure from the local town folk if there's a limited number of them bought her and get involved in the case and it should come from a much larger pool and i think we can't be certain of how much that played upon her investigation the case we know this her investigation is totally inadequate i mean that was  any standard have an investigator get in a capital murder case do basically nothing till after jury selection is commands is unfathomable in jury selection your spoke at the trial counsel supposed to be putting out their legal theories to the jury talking about what their plans are in presenting the case and looking for the right kind of jurors as a juror that's going to be persuaded by the future dangerousness issue is this a juror that's going to be persuaded by mitigation and not to have made those decisions based on evidence until after you you're in the middle of jury selection game saves any notion of a strategy when mr curry in his affidavit says that he knew mr law and that based on that lie he didn't think that he could would call him as a changed man i want the court to understand that he learned map after jury selection in the middle of september when the mediation were reviewed by him for the st time so in other words going into jury selection that was not a decision he made and what's what's more remarkable about the investigation is a point in february and by his own admission he didn't start investigation there was to determine strategy not to reach out to people for three months  our position on this case is that as i think set out in rom pia is that council has a duty the minimal requirement for effective assistance that if you think that there's a bit before you can determine that you're not going to use a certain type of evidence you least have to go seek it out and review and then you can make a decision for senator or not but in this case none of that information  think you judge southwick just a few points i think my friend on the other side just demonstrated that the easiest way to resolve this case is on the prejudice prong of strickland his presentation was focused almost entirely on the performance problem only set up prejudiced was in response to judge hos question about what is best case precious was his response to that was to say nothing other than the prison fundraiser that wardrobe was involved with i just want to underscore how implausible that is and i urge the court to look at the trial transcript pages six thousand three hundred and ninety six of the record page six thousand four hundred and sixteen of the record this is graphic testimony that the jury heard about how exactly terry simms was orally raped vachon raped and literally tortured to death the jury heard testimony that wardrobe severed a major artery and punctured both of her longs such that she had laid in a pool of her own blood dying to death or dying over the bleeding and suffocating to death over the course of several minutes and counsel is now suggesting that the jury would have put that aside if only had known about a fundraiser about a prison newspaper strickland is it places the burden on wardrobe to show a substantial probability in light of the evidence that the jury heard there's no basis for finding a substantial probability that even one juror would have reached a different result in light of the horrifying testimony else is in this record is more than speculation well so the juror the juror no about whether we're talking about time in prison or outside of prison just being involved was asking about the court's response that i think it's worth stressing texas law on this point it's all right for a jury to think about the future dangerousness inquiry without impermissibly considering the possibility of parole i'd like to cite two cases to the court for that proposition both from the c c a there's a case called matchup versus state nine create a continuing threat whether in or out of prison without regard to how long the difference would actually spend in prison if sentenced to life is something that the jury can take into account and i think that's why i judging about them the judge in this case gave the response that he did so because he knows that the jury can think about a world in which water is back on the street whether it's through a prison break or something else at the end the data jury heard that he was and i feel probably that's correct judge joe so the idea that thought about that and that's why he focused on the pro officer because the prologue officer was one of the only witnesses he talked to who didn't have something negative to say about what happened and judging about him if he called somebody to talk more about the prison record somebody from prison he'd be opening himsel to bad testimony that would harm water in particular the video of wardrobe lying to the parents of tina kimbra saying he never harmed anybody else before that's something that was good that was concerning judge show you asked about the potential assault in the