remained that his case to the district court for the purpose of having allowed him an opportunity to develop develop the factual basis of his underlying we can flame the court applied had applied trevino and found that state showing and that included a wealth of evidence about mr canalis and social history including his childhood with what you know alcoholic parents violent caregivers ok so we ha on and i'm wondering is there an argument to be made that the law of the case applies given that they sent it back to develop the facts although having that footnote about up to the district court or whether to have an adventure e evidence  hearing so are we bound by that to say the prior court already ruled on this or is that not a fair thing to say i think it's a fair conclusion to reach from that i don't think the prior paddle would have sent it back if i thought it was going to be a futile gesture where the matter what evidence mr canalis would develop of counsel is a fair statement but but the supreme court you know yes just sent a case back with  judge prados opinion in this case says the same thing so i don't see how you can say that is law the case well i took judge proudest footnote here to acknowledge the district court at the discretion to hold a hearing at the you know the district court always a literal hearing versus the sort of semantics hearing reading materials that are submitted to the court either into any kind of supplementation of the record with additional evidence i thought introduce new evidence that was not before the spate of court t v so to say that there was an issue about an evidence you're hearing i think does draw in all of these questions that that texas is raising with us in which the supreme court itself has indicated it has not yet too does not apply then we typically hold people a lot responsible for what their attorneys do because their attorneys or their agents so this wasn't the fault of the state or some third party this was the fault of the attorney if we accept your argument for the moment that the attorney and we accept our prior panel obviously founder attorney to be deficient so it's that attorneys know why isn't that ascribed to mr canalis as we typically do because  through martinez and trevino the supreme court and the supreme court create an exception to a statute particularly some celebrity you know because they didn't purport to be creating an exception to a statute they purported to be creating an no i don't make myself clear but then i think that's exactly it if you if you say that and then you say well that's bad that's all more interesting but that you can't you can't do anything you can't really do that that's that's absolute what our attorney was deficient it will always be true that the state record is devoid of the information it just maybe the council didn't raise it properly so there may have been stuff where it was a  pretrial hearing that a bunch of stuff came out and then the turning and put that on or there were depositions with a resistor there that i mean there's a lot of things that can be in the record that tourney messes up so i don't know that every single i see case under m trevino is going to require the development of new evidence well that's why we didn't intervene you know you don't get a chance to go back unless you make an under law you know showing that your underlying claim has some merit and that's what the prior panel did the prior panel looked at what we had presented and said you know when you say what we had presented so getting back to the law the case point when was that developed the stuff that you put on to the prior pan denied but was the state court where those attachments also attach to the state court filings or the successive petition ok so can it be truly say that it was for the first time mentioned in federal i mean in other words if the state while they had the right to deny it is a piece of the writ got a chance to look at the stuff you presented to the court in the twelve dash whatever case if you can make a showing that it was with the state i'm just trying to get all the angles i'm not anything i'm asking doesn't this really mean i agree with what i'm asking trying to get all the angles is there an angle where we could say it was developed in the state court i'll be it in a successive but maybe that doesn't count or whatever is at an argument can we say that the prior panel considered that stuff whatever that stuff it is that was more than what was presented in the original trial was developed some time after the original trial and therefore the last law of the case and then can we consider that trevino must allow some development in order to make any sense and then were to the can they really do that as an exception to eat do so i'm just trying to get all these ingles because miss my last chance to talk to you so i want to make sure i understood all that yes at the first trial virtually no mitigation was present just that he was a good artist and got along well so  so when it came to federal court they presented a vastly different picture something that the jury had seen about mr canalis mr canalis to return to state court to to exhaust the claim and get a merits ruling but it was the as abuse of the writ and when this panel sent it back he did develop additional evidence that was not considered before and i think that's something you know we have to keep in  mind before when he was in federal court he did not have an expert actually evaluate him the only in there was one expert to reviewed some documents and gave a preliminary assessment it was only until and that he was seen by a doctor maddox and dr brawley and miss herrera put together a very detailed social history to which she attached a number of affidavits ago about the horrific substantial or had some merit as the prior panels then i think under those circumstances we should be able to go back to leon so you still haven't given us a route i mean makes perfect sense what you're saying martinez  has much less relevance if he too is actually a bar but i don't see the road yet to get as good gets past you to know there are a few things you cited in your brief like a ninth circuit opinion from not too more than that i think with the ninth circuit it's similar to what we're arguing for here that if you look at the way trevino is structured you know you have to show that the petitioner did not fail to develop certain facts and again it goes back to fail to develop means the petitioner was not at fault here it did the state habeas counsel and another thing to keep in mind that would also distinguish this as this evidence is also going to the procedural question so in procedural issues are a matter for the federal court to decide and so there was shouldn't be any obstacle to investigate and develop the type of evidence we had here about you know because nobody ever said anything to anyone about mr cowles his childhood and the horrors that he had to endure and there's those types of things that you have developed or not developed at that juncture after the remind you ok yeah he could have you know developed anything that went to the merits of the claim which we tried to do because you never had that apply to the expert here because we have this principle that you can't rely on an uncalled witness in essence unless you show that he or she would have been available and would have testified to this staff seduce do you all need to have shown that as to the experts are now relying on to show that they would have been available and testified to this stuff back in i think it's two thousand for which in correct me on the date on the original state a b s i don't that would have to show that these particular experts although they probably agencies councilman state a good state avi's counsel would need to have been able to find what you're talking about i think there's any question that because we didn't do anything you know unusual we didn't rely on you know sophisticated new neuro imaging techniques assists us standard they require showing this witness i don't think you can just make up a fake witness and say oh yeah they would have come on is kind of a strict rule and i'm just asking whether it applies here i  don't think it would apply in the context of an expert witness because i think it's we have applied to x from what we said would that with this doctor or this psychologist or this person have come in did you show they were available you show they would you know would have done this analysis whatever well then that that could have been something that would have been resolved that you know evidence you're hearing if the judge one of the if that was a concern but i don't think there had been any question that this type of evidence can you role is showing that this person who was even threatening witnesses from jail murdered someone who he saw as a threat to him in jail in prison can you show that the really that balancing the waiting and mitigating against aggravating really does meet the standard necessary to grant a new trial i'm sensing yes i do and i think you know one of the things that we could take into account sort of the evidence about his medical condition in prison which you know which the district court even found compelling i mean that's the you know the remarkable things about this case was the district court the magistrate judge and even the director of  much of this of it's compelling which would seem to be a sign that at least one fer would have found compelling enough to vote for a life said compelling that he has his heart condition but that's exactly what took him down this path he says of being frightened and center and even if he's in a more secure facility unless you're in complete solitary confinement with you know armed guards all around you you never totally secure and so if he ever gets in the same situation where he feels threatened either because of his condition or just in general we can expect he'll act the same way he did it several times that seems to be his reaction to his own condition i think that even if the evidence that's kind of the first instruction they're given and they could factor all that into the future dangerousness thing but in the next step they're just asked to consider mitigation evidence and they could vote and they're not given a burden of it i mean how really like you might say this guy just never had a chance and so but how does having a heart condition a lot of people have heart conditions and it doesn't justify the murder everybody they find difficult to deal with ok now how does having a heart condition mitigate against murdering anybody that bothers you not everybody has a gag put out a hit on them and have to find relief or protection by another gag because their life is literally on the quarter versus mccullum where there was expert evidence that she was impulsive and toward tend toward violent behavior and yet that was considered sufficient enough to more relief for mr porter one case that's requires the jury to find future dangerousness and williams had up besides the murder he had committed armed robberies multiple other offenses he beat two elderly people he started a fire outside their home before attacking and robbing them and brutally assaulted a woman and left her in a vegetative state and the state even presented to experts that he would be a future danger yet the supreme court found that his abusive deprived childhood and mental impairments might well have influenced the jury's appraisal of his moral culpability and so i think we're in the same position all of the you know the dramatic facts of mr canalis of life of being in a strip naked and beaten with a belt buckle or trying to come to the aid of his sister who's being raped even though he knows he's going to get a beating for that all those things might well have influenced the jury's appraisal was moral culpability and also as we know that you know mental illness especially something like p t s d is classically considered something that reduces someone's moral culpability to the question is it could it could a jerk find future dangerousness and sentence him to death because yes you know but in a strickland it's not a sufficiency of the evidence test we don't have to show you know that there's no way he would have got the death penalty we just have to show there's at least a reasonable probability that in a juror would and there's also i mean one of the things that you know the comeuppance you know this court has recognized that there's no real you know there's not a case that you know that's you know like this it's going to be so awful where a juror you know juries would never consider continued efforts to kill anybody he thought was a rant that is worrisome to me and i think would be worrisome to injure and in doing this waiting that we're supposed to be waiting the district courts w sentences at the just a con we case was a federal case with you know horrible facts where he had killed several people in prison or you know terry nichols one of the oklahoma city bombers received a light sentence so there's been  is a fact specific case in which under the specific conditions there because of particular facts if that petitioner could establish in effect an assistance then he could introduce new evidence because he was not at fault and that's the critical difference here he didn't fall into each issue because he did not fail to develop the evidence supporting his claim within the meaning of the now williams vs tailor made don't we have a circularity as well because the council developed facts or she should have developed therefore i didn't get my mitigating evidence therefore i've got a problem and then the state a b s doesn't raise that and therefore i've got cause and prejudice but i now i still can't show that because of the two how does that ever work well it could work in two situations or not and i and i want to get back to why that is a separate question from make you question only on its terms it does not mean that no person ever has a remedy in the schools to your question we're not saying but if you know the answer my question of what what used to him of affect just but i suppose you're right but that won't be true in every case is the point i'm trying to make it will certainly be true in some cases that a person who sets aside procedural the fault when i am just reading the language from the diligent or were at some other type of fault for not developing the record in williams vs taber the court said the language failed to develop and he too means quote lack of diligence or some greater fault attributable to what it is counsel ineffective is not law is not being captured by the ineffectiveness which is what you're doing with your argument is to his lawyer and you quoted that whatever his lawyer might do that and could not have done it with sure but that's not up to hearing your we're not communicating so we're stuck with have to say that is that is not what more they did something very limited they did not develop the record if he can overcome procedural defaults then he too doesn't impose a ball he is not like an ox because there was an f there was something external to the defense that prevented him from developing the record the question and this is a two thing comes up that you're you want to raise so your inability to cite is a case of another circuit while not absolute probably suggest there isn't such a case because you'd certainly have been looking for it because you love to come running in here and mention it right i mean that's fair what we focused on here is that we have focused on supreme court cases because this is an area of law call in each ok so as an officer of the court you are telling me you did not look to see if any circuit had done something consistent with what you're arguing here since not looked to see if any court that was my point and i mean i understand you're not swearing to us that it doesn't exist because they're going to decide it last week and you missed it or you missed it and they decided to years ago i'm just saying that is a normal thing you would look at i'm not faulting you for that that is something you should look at and we just need to know these things because when we create circuit splits that's something we need to know about as a circuit we also need to know if some other circuit has gone opposite the ninth circuit that's helpful to know the as you say this is a developing area it's relatively new in the history of maybe this law that we have martina's interview know so we're we're trying to struggle to make sure we are consistent with supreme court opinions and i appreciate you focusing on that but we do have the problem that col n's also supreme court opinion and martinez interview no change that so we're having to see what practically was affected by that i understand that and what i can tell you now is i am not aware of another circuit that has adopted the position that we're arguing to i will i am happy to go look again and provide that to the court if i find something i have not found before let's assume argue window a two does not apply more than a two does not bar the evidence they've developed in the district court subsequent to the original decision what would be your winning argument then if even if he too does not bar his new evidence he can show prejudice because his new mitigating evidence also had an aggravating effect and not just a general aggravating effect it had an aggravating effect that highlighted the very reasons that the jury found that he posed a risk of future danger the existing evidence that the jury already knew about was the birder of  dickerson obviously it was a gang related murder they knew that he had boasted about it they knew also that in a previous conviction he had sexually assaulted a young woman and while he was awaiting trial he called her because he had stolen her wallet and threatened to kill or if he testified if she testified against him he did something similar while he was awaiting trial here he tried to have i believe it's larry with a lighted hit by his gang to prevent him from testifying his new evidence all it might do is explain why he is the way he is but it would also highlight that the way he is is inherent and inherently based and how it affects people to some extent based on our view is lawyers and judges have been not the best estimate of so i don't think it's enough to say that it's aggravating as well as mitigating you but your answering precisely and i didn't ask it precisely the way i don't think that's a fair characterization because our whole point is and this is consistent with you know this court's cases considering mitigating evidence the notion that something we double edged doesn't mean that it's not ever mitigating it just means that you know there is a balancing that goes on when you're waiting for the new evidence against the old and the nature of double edged evidence is that it places weight on both sides  and the problem here is that is that his evidence juror would hear all of this evidence think about what they knew and say well he couldn't help it i think it is equally if not more likely that they would look at that and say oh my gosh he can't help it he's going to do it again and he is already in a situation where he is subject to the very pressures that allegedly led him to engage in the murder and and there's a new aspect of this which is the heart disease but i think it's important to note that the stress and pressure that led to this exists independent of the heart disease he was in one gang that he was the was not the latin kings the texas syndicate they found out that he had been in the latin kings and that he was in on a sexual assault charge so they put a hit out on him and that's why he sought protection from the texas mafia that had nothing to do with heart disease that had to do with being a gang member of prison and we know that gang members in prisons unfortunately are subject to this kind of violence and retaliation that's what happened to gary dickerson can you remind me how we went through your view we used to evaluate the district court's way of aggravating so point is that by explaining how mr phenolics got to where a good example of this principle is clark versus staler i think because it articulate it articulates and well it says culpable it also would have led them to think that as a product of his environment he would be likely to do this kind of thing i'm sure he isn't sick get better exactly and so i think you know the notion  f the notion that we can separate medication i was facing is is artificial because they are intertwined that's why we can stalks about balance and only way and in this case we factor in  interrupted you i'm sorry but how do we factor in that that kind of evidence of drugs different people in different ways and show me you saying he can't help it may be struck like that sad in the supreme court is recognize that it is inherently speculative to some degree and i think that's why it's difficult so what we have to look at is from a from an average jurors perspective your colleagues too that we see a lot of these capital cases that do that for the longest capital punishment has been back on the table look at these things and with overwhelming except to a rare exception it is that is  question if anybody's going to capital punishment and this is a guy i would be a candidate for it ok but that just doesn't answer the question the problem here is that it just didn't happen and i have a question of do you remember that or not we i mean we can make that judgment but it's a difficult one it isn't and i don't mean that we should step aside but it's an off work and i've been doing this long enough to know the child is the worst part of its case but i think it course of course a jerk and what you've not said is a it's not the jurors decision is that your decision said you don't need the jury has to be a entitle to weigh that he's entitled to present that case let me give you an persuade the jury that not to do that and so i could cite got a lot of cases where that happens and somehow renders case of the juror just said this is a terrible thing that there's not you know i'm not going to hold him accountable for the i don't know how to answer that here but is it reasonably likely and is the likelihood substantial it's not mike and so i think the counter examples that i think are are helpful are cases like quarter versus mccollum where it's a crime of passion and it's a one off event and so you can trace a specific outburst or you know violent act to persons or will last but it's not a pattern it's not part of a criminal it is a different situation from where the curious looking at something and saying yes this is terrible but look what it's written and so i think that is the defense if i could before i before i run out of time if i could go back to t is that you are responsible to be diligent can't just pass it off on cancel yes that's just that's right and and not only is it right that's what he to continues to say and martinez failure to develop is a heightened bog and i also want to point out as far as the ninth circuit martinez was very clear that they were deciding a narrow question and they were clear in davida the courts the edged to that even if it goes toward something like teacher dangerous this nevertheless might explain why you think that was one of the big things and sears merger you do with the fact that we you know maybe the supreme court might should have overruled williams in part in martina's slash to reno but they didn't and we're a lower court we can't do it forum and they tell us that and every day that's a very solid rule in their court and i respect that i'm not being disrespectful i'm saying they are the ones to say you know what williams this part of williams just doesn't live past martnez but for us to say that i now  response from the supreme court so how do we square that ak i think i think there are two things to for this one is that trevino actually you of prejudice jurisprudence it doesn't you know and i think that's why the fs a you know i'm speculating but that's probably why the supreme court that actually mentioned eight because going back to michael williams cause means petitioner did not fail to develop and intervene of the partition or can show cause by pointing to state hey b s counsel so i think that makes it you know work within that the chance and i asked us to go oh yeah we direct relevance to to texas but i think it covers this point very well intervene and in martina's they said they would make an equitable exception if you received poor havey as council state habeas counsel or if the that not offer counsel all like a state like alabama so want to stay they did not find a constitutional right to counsel they just said that's going to allow causing prejudice that's a significant limitation on martin but the prejudice has it you know ineffective assistance almost always depends on new evidence let's see what you've shown can't so even if you could argue that to show cause and prejudice you can put on what you want and once you're past that to the underlying ineffective then you got to each two situations and as i sent i mean i think your argument is the more logical one but i've already seen how the supreme court deals with us you know t leaving them they don't appreciate that and i feel very much like i need to do my job as a lower court judge and not intrude upon the role of the supreme court i think that's why i mean no other circuits adopted the position attorney in the end you could show cause by that now what's the point of allowing a petitioner to show cause and prejudice if the end result is going to be you can see the merits i mean what you're saying it's ok you can show cause you can even show prejudice but you know we just can't look at you know the merits oh my again might is not to question why i mean right right i kind of like you're in an open season i come like your argument better but i'm really reluctant to tre precedent i think all you're saying is you know fail to develop means means different things at different times it means cause it means you don't have caught you know it in and you know and it could because