mitigation evidence presented at such we believe that the outcome of this appeal issue when measured under the standards of imposed by the d p a must be favorably determined for lopez based on the arizona supreme court supreme court the majority affirm the destines by adopting nonexistent findings of the trial court number one that the trial court found no mitigation and number two that the trial court could have found the mitigation evidence proffered by lopez had been refuted in fact both these findings are unsustained by the record and much of locus mitigation has not been refuted these arizona supreme court's findings were in the the record reveals a striking amount of mitigation that was never refuted at sentencing trial counsel presented undisputed evidence that lopez would be a positive force for good within the prison system during his time in the prison setting he was concentrating on helping others including disabled prisoners and the evidence was that he would continue to perform in that fashion or behave in that fashion during his incarceration evidence was presented that the same caring traits were observed in love his prior to his incarceration in the prison demonstrating that his was not a jailhouse conversion but rather his incarceration behavior was merely extension of his pre arrest character and his desire to help others according to the united states supreme court decision and skipper versus south carolina lopez conduct in prison confirming he was not a risk to others and that he placed a high premium on improving himself and helping fellow inmates quote unquestionably goes to the future as to a future of the defendant's character that is highly relevant to the sentencing determination close quote lopez presented evidence that his honorable service in the united states military are of his service in the military strong family ties to his seven younger brothers and sisters when he helped raise the arizona supreme court finding that lopez medication evidence could have been a trial court could have found that mitigation evidence presented by love that lopez had been refuted and this record demonstrates that the errors in the supreme court decision on an unreadable determination of facts in light of the evidence actually presented in the state court proceedings there is no record support for this fact finding and therefore the fact finding is objectively unreasonable under and put section twenty eight twenty two fifty forty two and there's no obstacle to this court's federal review in this case to objectively objectively reason reasonable fact finding resulted in a decision that was contrary to clearly established law under twenty eight c twenty four excuse me twenty two fifty four do you want the arizona supreme court's objectively and reasonable decision that lopez proffered medication had been refuted when in fact it had not been refuted is simply another way of saying that the unrefuted evidence of mitigation in this record would not be considered and that is the very practiced that the supreme court held constitutionally infirm in eddings and parker going over every little piece of aggravating evidence that had been submitted and saying well we agree with all the when it came to the mitigating side of the scale they had assumed that the  has considered all the evidence presented by the defendant in a way that mitigation those flows and it goes on to talk about the good parent far i don't know that i read this as saying there is zero on the side of descendant by way of mitigation so much as it says we believe the trial court could properly find that that's the record refuted the proffered mitigating circumstances such that the appropriate penalty is the penalty that was imposed by the trial court way why should we take this is being in effect a conclusion that there is nothing that favors dependent whatsoever and i say that because i think you have to in order to go on to the next point the fact conclusion i'm really trying to figure out what is it about the circumstances here that make this conclusion objectively and reasonably well i'm looking at that i'm looking at the plain language of the court used  and the court stated in this clear terms as i think that they could make it that the trial court could properly find the record refuted the proffered mitigating circumstances then and this through the three judges who wrote that started from mitigating factors as set forth in thirteen seventy three g i mean it is the trafford also said considered all the evidence presented by the defendant a way of mitigation there's no question but the defendant submitted evidence by way of mitigation the question is between saying that the trial court found which is almost which is another issue in the case with respect to how the trial court can make that finding it's not a probably prompt from the fact that they believe the trial court had done that to them so the contend with and so i think that we can take the leap of faith the three judges took when they signed on to this opinion was mistaken and i think that mr lopez her head examined they said they examined the entire record which of course included all the information about any trouble challenge and the court the majority said well that's you know we know they may have a look at it did they consider and  to have nothing to say about that but the majority said well let's look at what the florida supreme court did and what they set in their opinion and so i believe that we've demonstrated mr lopez right to relief i'm on that ground i would like to turn some attention to another issue that was not certified just before you get us to succeed on that issue must we be convinced of two things one the trial court in fact did not consider mitigating evidence in to despite that fact the supreme court stepped in and well i don't think that you need to make a finding with respect to court committed an independent here that it as as as as a separate body the three judges that affirm the sentence failed to consider mitigating evidence they said they did you know they said they didn't find it they said it was conduct sufficient investigation and preparation to present off if able mitigating evidence the federal district court held this issue had not been exhausted in the state court proceedings and the issue was not certified to mr lopez lawyer had essentially abandoned him during the sentencing proceedings she emphasized to the us in the supreme court that the lawyer approached the entire case on the assumption that the death penalty would not be imposed in this case trial counsel did nothing to investigate or prepare for a long mental health expert that had been appointed to evaluate mr lopez for purposes of presenting some mitigation i think that all those things once they're presented case what the failure to move through do any investigation with respect to mr lopez background his social background evidence that of abuse in his in his background with minimal parents were severe alcoholics that they lived in dire poverty throughout his childhood they lived in a shack with eight other children without electricity that money used for alcohol often left most of the kids without food or proper clothing that there was a very significant amount of domestic violence in the household and mr lopez was the second oldest of these eight children and he took on the responsibility of caring for the babies of the young children the family trying to collect them out in the desert when they'd run away from the home during these these bouts of frequent domestic violence none of these things were brought out at the sentencing and were also covered with minimal effort  at the eighth grade he had barely a second grade reading at a level and he dropped out of school not surprisingly to graduate from high school you know all of that evidence is precisely the kind of evidence that this  culpability of the defendant and quite frankly i'm a much more aggravated case is the nest both this court in error and the u s supreme court has said that when a lawyer fails  in his or her task to resent this very sort of evidence that that's prejudice that that which is of course a reasonable probability that at least one juror hearing all this might strike a presented at the original sentencing you know taking his life as a whole and all the other things that he had done or tried to do to benefit the community i saying it will go to a jury the jury will hear all of this evidence along with you know there's another sort of ineffective assistance claim in this case where the lawyer never really bothered to attack the will call the aggravating evidence have the sentencing the state called a doctor hope who was a pediatrician who who provided some very devastating aggravating evidence  regarding the level of pain that was suffered by the child and and the obviousness that the pain would have been to the parents and and nothing was done to investigate that testimony within the lawyer interview that the doctor the day before the hearing and once again during post conviction investigation it was easily discovered through a qualified forensic medical examiner in dekalb county georgia who f the director of corrections at this time that afternoon here on the floor i get into any of the other issues i want i want to make it plain that there's something there that's misleading the court counsel just got up and said that there was a claim in the second in the first p c r memo decision by the trial judge under the heading claim that he said truck counsel mr gruner failed to investigate the present certain and present certain medication and he used that to state that the trial court had considered mitigation hadn't mother his older brother his older sister and his younger siblings all testified about his childhood they were poor they grew up in a in a tough environment the defendant had to work when he was a little boy because they couldn't pay the bills  i like to discuss the arizona supreme court's refusal of the of the record and i'd like to discuss in conjunction with with what the trial court found the t present any mitigation at trial so he was going to proffer any mitigation and that's what the supreme court requires the supreme court requires a capital sentence or to be able to consider and give effect to one argument from the trial that showed that there was a lack of intent to kill in a separate sentencing memo that the court said it read and at the very end of the sentencing proceeding the defendant the defense counsel went on a long argument about that very issue the testimony of and the mother made it clear that there was no intent to kill the child should testify that he the trial court then sentenced him to death immediately saying that he intentionally the words were willfully intentionally abused a child in his care and caused his death there's no or his death or abuse the child in his care which resulted in his death there's just an and in between those two and i read that as a finding of of intent i've struggled with  he said that you never should have left the child with me because something always happens when you do and as you can tell from my statement of facts both the state medical examiner and the defense medical pathologist who was hired to review the state's medical expert testimony agreed that the testimony of the state's medical examiner was correct that baby had been abused severely beaten on several occasions and when i mean severely beaten i mean beaten strongly enough to break ribs break ribs that have been broken two weeks before bruises the long hair the so there are multiple instances of severe beatings the state's medical examiner testified that the force that was used on the back of the brain was the kind he sees in car accidents and those kind generalize horrible a generalized child i think if you generally come close to killing someone and you finally end up doing it and you've told someone else that they shouldn't leave that person around  kill the baby it's your fault for putting in a position where i could stab solution that's what you could not want to do something but you do it anyway because of whatever demons are driving you and that's you know you can do first degree murder because you have  evidence in the in the actual trial transcript that shows that there's intent and i think i read that trial judge's finding i don't have it in my brief i would ask you to read the sentencing part of my brief but i don't have the whole thing and i would ask you to read the page before the actual composition of death i ask you to do that the judge says this person had this baby it is care he was  child and injured child how he wouldn't take the child to the hospital when the mother asked them to do that that's certainly an intentional act and it's not like it's the mother walking in and seeing a baby laying on the group on the floor or on the so not not breathing or having difficulty breathing we're talking about a man who beats the heck out of this child and knew that it was in the state of of medical distress and still refused to take it to the hospital  it was broken on the day of death and it was it was bruised right underneath it was bruised i e was bleeding along and that was part of the cause of death the pathologist said that because of these broken and that also goes to the issue of whether you can get a past ologist seven years after the trial and present it to the arizona supreme court five years after that if that's going to be something that's when  about three weeks of successive beatings sepsis throughout the body except this doesn't occur in one day right it occurs over the whole thing that the intent to kill that day ha truck i mean you may know or understand from defense counsel's comments out of context but the criminal offense is what happened that day what happened last week or the week before and i respectfully disagree with that and give an always happens when she does that and it's her fault so i think that's that's it's clear you're going to get messy in this you expect him to say yeah i beat this baby to death i did on three separate occasions breaking his ribs breaking his bring up because of all these really serious injuries in this medical evidence is not only not disputed it's agreed to by that and we found out in the post conviction proceedings the never find this when you wan you there was subdural hematoma all the way around the back of the head and the medical examiner testified that it wasn't just a little bit and that's right under the skin and there affidavit there affidavit that  just the first page of the that's all just testimony that kid had bruises everywhere all over his body up and down the back of it is out of the abdomen all over his head and he was also bleeding from the mouth when the police got to the hospital mitigate the medication issue that is his lawyer was affective for presenting some medication his own k b s counsel with through that argument in a formal that council failed to investigate for six evidences of fishnet came from a troubled and dysfunctional home alcoholic parents that's my comment that it is possible that the titian was sexually abused as a boy and you don't do that by starting with arizona supreme court you started the trial also the defense cites a couple of the us criminal case the district court of appeal criminal s relief under ed and the u s supreme court has nothing to do with just simply neglecting to raise a claim in a straight criminal case in federal on a federal appeal if you look at no three in the see case is not talking about forfeiture where you just miss raising a claim because of your own and virgin's and the record is clear anyway in the court can go ahead and see itself says a deliberate waiver when you know you have a right and you're foregoing it does not apply even in a federal criminal appeal and it certainly can't possibly apply to exhaustion the he didn t raise in the rule thirty two the contention that he was counsel was ineffective and not investigating further evidence that could have constituted mitigation not further evidence not if if we're talking about the issue here the issue of whether he had a dysfunctional home or he was sexually abused as a boy which i can think it's been withdrawn now it was has said that it was to the court the trial court ruled on it in the claim that mr bruner the trial counsel failed to investigate and present mitigation that's finally false if you look at the next page there you'll see the court ruling on something other than these three  issues and finally i just i guess i just want to speak a little bit about where the supposedly the rule well for the issue because arizona law is that when a child is abused regularly and found dad and that child can't it's for children who are four years or four years old or under typically three it certainly applies in this case where we have a one year old  arizona rule is that these children can't speak for themselves they can't say mom this man's breaking my ribs every lead can say that the arizona rule is that the medical examiner speaks for them well it's karl ryan's testimony carl ryan was a lawyer that was appointed in the state post conviction rule thirty two proceedings to testify with respect to whether trial counsel fell below the standard in his investigation for mitigation evidence and she went on at length and she said here's the duty the duty is you've got to investigate the social background of your client you've got to prepare your mental health experts she testified all that it's in the record she then offered into evidence the results of some of her best to gauge and she talked about the fact that the parents were alcoholics that there was a lot of dysfunction in the family that george had started drinking at a young age that he supplemental brief they noted that there were thirty two counsel for whatever reason didn't plead them in her interval thirty to petition and that's true but then she asked the court to raise the issue an adventure hearing she asked the court to appoint an expert she asked the court to pay the expert one hundred dollars an hour to review all this material and testify and she did then the trial court did make a ruling and the state notes that in her ruling after hearing all this evidence about the family dysfunction in the trial judge's ruling council correctly points out the trial judge only mentioned some evidence that was introduced with respect to mr lopez himself being an alcoholic and she dismisse and says that would've made a difference now when we get back to the district court on that issue we're going to argue very effectively that the act rule thirty two decision was an unreasonable fact finding under finding a fact with respect to mr lopez adult alcoholism and she ignored all the other evidence that had been presented by carl right and so we is that the case that the other members of the family testified during the family thing yes and i want to  was my next point yes as you find in many of these cases one lawyer doesn't do his or her job the family comes in and they say yeah we were happy we were poor but we were happy we didn't have any problems there was no nobody testified there was any of use domestic violence in the home people kids running out in the desert to get away from the drunken parents we're one big happy family we all love each other george was a great brother that's well when you read the sentence it transferred it's just the one big happy little bit for family none of that evidence of the serious dysfunction in interviews that was going on their family ever ever present at the part of the claim is this claim that the lawyer did not do its job on investigating mitigation related to the lawyers failure to prepare the mental health expert dr morse and in the federal petition and the traverse the lawyers fairly very clearly argued that claim had been exhausted and that of course is part of the very claim that we're we're addressing which is that and that's addressed in the lawyers petition to review for that to the ears and supreme court which he says the lawyer didn't prepare dr moore so that you know that line of our our claim has been exhausted through lap the lawyer did say that the family just for reasons that i certainly can understand the lawyers also said that they thought that least the piece of this claim regarding the family dysfunction may not have been exhausted and i think that was clearly a mistake and i think that if this court when it has a clear record of the facts i think that  can elect to decide that issue even though it was a mistake made by my district court count to just talk a little bit about the intent to kill anyone and we don't want to retry the murder case here today that's not really what we're here for we're talking the prosecutor made the same argument to the jury and got up in front of the jury and said we don't have any closing argument we don't have to prove intent to kill here so this idea that that the appellate lawyer you know don't they don't have to prove it when they did you know that's absolutely true they never argued that the jury which is only dealing with guilt and didn't even have a separate family thought he's a man i can understand the lawyer arguing that but for the judge who's doing the finding intent to kill presumably you'd be arguing under the up to standard that that's not a reasonable finding what would you point to as to why that finding doesn't make sense i'm sorry your honor got me i was to soon for the moment  death this child both of the term short of reckless with your accurately argues on the other side of the line would you be arguing to us that that's not a reasonable conclusion or unreasonable finding of fact and if so based on what what is it that weighs against a finding that i think that that would be an unsuccessful i think that under at it would be extremely difficult to argue that that would be an objectively on reasonable finding and what i would have argued number one people with george in this trial said he loved his child and when he learned the child died he cried he grieve for this child and a whole bunch of witnesses had concerns that this child's mother was abusing and neglecting and you know we don't know nobody knows who inflicted these injuries that counsel was talking about on these other occasions the mother always said i never saw any bruising you know when the palace testified that this child had bruising that the mother would have been evident the day prior a week prior the mother told the police i never saw any of that bruise and we have witness statements in the record that pertain to this one occasion when mr lopez came to the babysitter sas this baby had two black eyes and george walked into what you sense and looks at this baby and says and his wife and i was there the mother said what happened and the witnesses said well she sort of squirmed around a bit and she she said oh you know george and the witness just as george just sort of shrugged his shoulders and went like this you know what happened so you know there's a lot of arguments that can be made if this case had to be retried but i think that i'll end where i started and that is with