good morning your honest deputy attorney general stephen mercer for responding to palin's if i may i'd like to reserve five minutes of my time for rebuttal this case presents this court with a highly unusual situation in which a district court following an eviden hearing has rejected all of petitioners factual allegations has found that his trial attorney has made a rational carefully considered and well informed decision to forgo one of an affirmative sanity defen has found no ineffectiveness under strickland v washington and found therefore that the state court adjudication of this claim was clearly correct yet or it's been granted why for one reason and a reason that notably not even petitioner defense and that is that the district court believed that the ninth circuit's parent article citation to dicta you know pre the death of fifth circuit case o set forth under the law of the case doctrine a nothing to lose standard practice for attorneys that was therefore made to district court feel it had to set aside  the district court erred in referring one and again not even petitioner disagrees with that argument if i may comment really on something it wasn't really fleshed out in the briefs and that involves the very nature of the law the case doctrine and i believe that the district court in this case was operating on a fundamental misunderstanding of that doctrine the doctrine as this court has said repeatedly means that a court is generally precluded from reconsidering issue that has been previously decided by the same court or a higher court in the identical action but in this case this court said expressly we do not reach the merits of this claim whether an evidentiary hearing was required for this case profit was not the law of the case if and the other cases were simply shorthand for the scribing the type of stricken concerns that might arise in this case and that th something this court makes a habit of rather this court identified factual conflicts that needed to be fleshed out in an evidentiary hearing this court identified assertions by petitioner that the parents had always going to vailable and willing to testify that wager just abandon their client wholesale that way or did so because of financial concerns in the district or the ninth circuit found that it was an abuse of discretion in light of those factual allegations to deny relief without first having evidence you're hearing that was done and fifty one pages of a fifty three page report  carefully detailing all the evidence and the strickland analysis the district court concluded that council's decision was rational well informed and well considered that the parents demonstrated an extreme reluctance to testify which amounted to quote the same thing as an express review which justified and outwardly rejected petitioner's allegations that counsel just gave up on him because he was afraid he was the get paid for this were to something i'd like to bring to the court's attention and that is here we have a case for both parties a file of objections a very unusual situation given that a request granted but the vast bulk of petitioners br goes to attacking those very factual allegations this is not a magistrate judge that just shot off a finding of summary factual finding without thought or care there's twenty seven assessment rather the only thing that matters to this court's purpose is whether the findings that this record actually made were possible clearly they have plausible given this painstaking summary of evidence also the findings themselves were entirely reasonable as the district court recognized this decision made in of trial is not to be viewed in isolation and cannot be completely divorced from defense counsel's overall trial strategy the overall trial strategy was to secure a verdict of second degree murder he knew that if he did that he might have a shot of one shot but a shot at successfully arguing and in g fact matter is when he lost that key battle he lost the war perhaps some one thing that bothers me if that was really his strategy is that he had to win that that first before they and the would remind this court that those claims have already been addressed earlier and that petitioner had made those arguments that counsel should have done that differently that his trial strategy should have been done differently that he should have put on those experts the ninth circuit on this case was first or viewed found no ineffectiveness under any of that and found that the trial strategy was in fact reasonable and for good reason was that he was going to see the bulk of his mental health testimony for a sa and the fact that dr sacks the one guilt phase witness got destroyed on cross examination it was reasonable for him to think more of the same is not going to help my case nonetheless despite the fact that the building marching wha conflicting reasons for the there were there were factual discrepancies leading up to the attorney's decision to withdraw the fast most of this happened within the twenty four hour period after the guilty verdict to the next morning when the defense was withdrawn different allegations were made about those we had asserted that there was no evidence that the parents had i'm sorry that there was no evidence refuting waiter's assertion that the parents refused to testify and that without them he was left with clinical experts all of whom had based their opinion in part or in whole on the finding that they didn't think petitioner could premeditate and deliberate the homicide but the jury had already returned a verdict finding that he could premeditate and deliberate under a higher standard of reasonable doubt so this fight the fact that the overarching defense strategy had failed it was still willing to go forward he he was willing to move forward with the sanity of things in an effort really to throw himself on the mercy of the jury and he knew to do that that he needed the heartfelt testimony of the parents the only contemporaneous source for his mental problems as a child and when they refused to testify you know in his by making a well despite the factual disputes between the parties here which again i believe are beside the point this case really boils down to a couple of essential little nuggets number one that if this court did in fact issue a mandate to decide this place under a nothing to lose standard of profit the watering just are still not entitled to relief because no united states supreme court precedent clearly analysis such a rule that would be fine for the states on the flip side if this court did not issue such a mandate as the parties seem to agree and that the district court was to decide the case under stricken v washington as the parties agreed then the district something he was all this kind of thing the rats used that feels he needed about the problem but he never had a plan b he just dropped the insanity defense but in all cases do you have to have a plan b given the facts that he was confronted with socially as i recall this did happen within a twenty four hour period the parents that essentially were reluctant to testify there is some dispute as to what they said exactly his plan originally was if he gets second degree murder there was a hope that he could  make a run at this but bottom line was there was some discussion as a reasonable possibility that the judge might be inclined to put the defendant in a psychiatric hospital or psychiatric prison rather than a regular prison and was not part of the consideration evidence you're hearing that was made up there was never anything like that there was no plan to get the judge to do anything there was no statement by by the psychiatrist that he could get near the end scene to a psychiatric facility that that was all that evidence you're hearing  and got nothing let me ask you this under your theory then if your client is going to get nothing out of it and it's your last chance if you have nothing to lose and nothing to lose defense do you think the law is that arabs had a very strong insanity defense notes which was abandoned scuttled for no reason well wait a minute now and i apologize for interrupting but as i recall reading the material there were two or three psychiatry has maybe four that would have testified in favor of the defendant perhaps but two of those i believe were subject to very severe cross examination and there's great fear as to where they're going to go and then there were two  o the prosecution psychiatric who were apparently fairly strong that he was perfectly sane so i mean doesn't the attorney have to make an evaluation of what he's being hit with or she under these circumstances and should the court now come in the after the fact and ten years after all this occurred and say well now we're going to be monday morning quarterbacks are going to redo this i mean this attorney's placed on a twenty four hour period under extreme this directly because i have to have my client a number of the things you just incorporate into your question not supported by the record ok turns out the strength of the psychiatric defense the psychiatrist who testified at the one of the prosecution's doctors came in from the call from the defense point of view and if the evidence you're hearing any are for leaving for all in mind that's the transcript where he's testifying he says in all for all intents and purposes my opinion is that the current of this tragic killing their exams believe did not know that what he was doing was wrong that's my opinion under cross examination under direct examination on the morning insanity defense was abandoned product counsel had available the same strong psychiatric defense did been working on the family been funding for years with the one exception that the the respondents read and it's it is reflected in at least brief i want to come back to the issue of the parents testifying in reality i presume probably by the end of the trial the jury had a pretty good idea those people sitting in the courtroom if they were there i presume they were parents they're not going to be sitting in the case on the issue of insanity and the attorney is not putting the parents on the stand isn't that by itself a significant factor i mean the fact that you may have an academic academically provable insanity defense but without the parents testify on behalf of their own son doesn't that say loads and does can't couldn't an attorney under those circumstances say given the circumstances i'm going to make a reasonable decision to abandon this i don't use the word abandoned to not go forward on the insanity defense i mean we're not here to pick the best route we're here to by psychiatric testimony because i haven't called the parents to testify is that a reason to entirely disband that's that's crazy that's not a reason to entirely disband because you don't have a plan b if if the if the attorney said plan b let's talk about is something in addition that you can identify or nor can he as to what what he's planning to do in place of putting on  spend expanded the factual finding with all sorts of other references to the the difficulty of the position that way it was put into on the morning of the trial and you as your honor was alluding to the you've got to do something that you know your honor maybe the magistrate judge was trying to say that that that way or use a case related reason for not going forward as opposed to a truly irrational reason like i got up that morning i rolled the dice box car so i it was subjectively reasonable under the circumstances and this is where we had the magistrate did not acknowledge with the uncontested tell a girl testimony was that wigger had no plan b that's what the ninth circuit first let me give a direct answer to the question the judge sukkot asked twice and did not get a response to that question was is the law is the six minute standard is that you must proceed if there is nothing to lose the answer to that is no plain and simple the sixth amendment has never required attorneys to have planned these is never required attorneys to proceed when there is nothing to lose is never required attorneys to make even all non frivolous argument know they were ready to testify because he was ready to proceed with an insanity trial he was ready to proceed up until the morning he drove to court with the parents and they refused to testify he had spoken to them the night before  he was ready to go but when they bailed out of his case he had nothing left but experts who had who had found that petitioner couldn't premeditated deliberate again and the district court  in this case that there was no reasonable likelihood of success that's the strickland standard political here and that standard does not change at the beginning of trial at the end of the trial in the middle of trial that's the standard we have a well informed rational carefully considered assessment that there was no reasonable likelihood of success of this affirmative defense where he or the burden would succeed but if your take on the argument and i picked it up somewhere in the briefing materials that if this matter if you didn't go forward with the insanity defense that he had a better chance of being placed in a psychiatric prison by the judge was going to do the sentencing and that was a possible consideration as i've go on i don't think that's supported by the record all right away it was very forthright at the evidence you're hearing he did not pretend that he had some you know great benefit to this decision it was a decision that was based on whether it was going to again the the factual discrepancies here we could litigate all day again these factual competing factual findings who's more credible what psychiatry would have been better that's behind us now that this record address those things that just records factual findings are clearly plausible something which petitioner fails to address and that's the stay interview as set forth by this court and the u s supreme court is the finding that the actions and there's an argument this situation number one because the district court made multiple factual findings upon which he base that this isn't one of which was that this decision was rational that appeared reasonable to him and his experience co counsel at the time that he is decision was based on a well informed assessment he had consulted numerous expert witnesses he convincingly detail the ways that he knew that they would be subject to cross examination  that even if this court and its independent judgment were defined that way bigger was ineffective in this situation it is at least reasonable for a court to come out the other way and that's the standard separate occasions two different united states magistrate judges one after the benefit of the link the extensive evidence you're hearing for the ability to view live testimony and one u s district court judge on two separate occasions all found no ineffectiveness under strickland under these circumstances and respond is confident that this court at the very least will acknowledge the reasonableness of these scores of state and federal