case due to both the importance and the complexity of this question i plan to devoting most if not all of my time to this issue here today remain as appropriate in this case for a variety of reasons first and foremost in denying funding to oh under section thirty five ninety nine the district court heavily relied on portions of the circuits precedent that would later be overturned in the i asked this decision and that decision the supreme court held that the circuit substantial needs test place a higher burden than warranted on petitioner seeking funding under section thirty five ninety nine here and its order denying finding the district court decided that standard noted that mr o choa had not shown how the requested finding would substantially improve his chances of success and also included a lengthy quote from the circuits opinion in cuts a year versus stevens from two thousand and fourteen outlining how petitioners can never show substantial need for funding to pursue a procedurally defaulted claim the yes this court also touched on this prior the circuit noting that it was too restrictive in light of the martinez intervene your decisions particularly because funding under section thirty five ninety nine could be used to allow a petitioner to establish cause to overcome procedural the fault of the underlying claims due to the reliance of the district court placed on the sense overturn standard and in recognition of the broad discretion wide latitude given to district courts i'm determining whether to grant or deny funding under section thirty five ninety nine it would be court's determination on the ineffective assistance of counsel for any other topic that's are you saying in every case we start remaining i don't think it's required in every case i think there's a couple of things that the court can look to to determine whether every man has the appropriate  the appropriate option first would be the reliance of the district court placed on the overturn standard and second it would be looking toward some of the framework outlined and i asked this regarding the potential viability of the underlying claims how does this claim have any by ability whatsoever mr cho has produced a significant amount of evidence both in the federal petition and it's also apparent from the face of the state court record itself about the incomplete delayed and significantly abbreviated mitigation investigation conducted by his trial counsel here we know that they did not retain a mitigation specialist intel jury selection was ongoing and shortly before the trial began there's evidence in the record regarding her difficulties in getting information from trial counsel that she was unable to obtain necessary records and that there were a significant amount of witnesses that she had hoped to speak to that she was unable to but if state trial counsel was ineffective how does that how is that evidence the state habeas counsel is deficient which is what we're trying to look at here i think your honor should look to the continuance motion that was filed approximately one week before mr o chose trial began in that state are exceed the trial counsel finally requested a continuance in large part because the mitigation investigation was not complete so this is evidence in the record that state council was or should have been aware of regarding the incomplete investigation that continuous motion also contained an affidavit from mr o cho as trial mitigation specialist outlining a number of the factors that i just listed regarding the delayed and incomplete mitigation investigation so here state gave us counsel merely had to look to the state court record to see that initial investigation into mitigating circumstances would be warranted and stead state a b s counsel requested no funding for an investigator no finding for a mitigation specialist or other expert and can be conducted almost no extra record investigation a reasonable status counsel in th circumstance would have been able to look to the continuance motion and the attached affidavit as a clear red flag and sign to him that further investigation into mitigation is warranted in this case and with that said doesn't say hey be as counsel have an obligation to can go and a thorough in the pen and investigation absolutely your honor status counsel has that duty trial counsel of course has that duty as this federal counsel and we can see from the record here that that independent investigation just simply never occurred despite as i mentioned before the evidence simply apparent on the face of the state court record that trial counsel was ineffective so are you seeking out three mandates that we hold the motion that was denied back in two thousand and fourteen to see whether mr roach show is able to meet the standard outline and i guess this that standard for my yes this is this court knows is that funding should be reasonably necessary when a reasonable attorney would consider it to be sufficiently important that's what the supreme court has told us and i ask this and a number of the factors that we just discussed regarding the delayed and incomplete incomplete investigation support that mr roach show will be able to meet that standard ok what if we can determine that this is not viable assuming argument at this stage mr of choice not actually saw a certificate of appeal ability regarding the wiggins claim itself that is in large part because he has requested funding are recognizing that the wiggins claim is not yet been developed and that the funding under section thirty five ninety nine that was requested could have been used to establish both the potential merit of the underlying claim and a credible chance that mr  i was ineffective as well a credible chance according to the s's court there that he could overcome the procedural default so you're not making a certificate of philip hale ability on the ineffective assistance of counsel claim right now today it was not sought in the opening briefing regarding the wig claim no you're not on any claim and there were there were two separate there there are two separate issues in which a certificate appeal ability was sought one related to shackling and mr chair was trial and a second related to bore dyer my reference before was to the a what that will allow this case to do is to proceed essentially on the same track now of course mr we're requesting that the case go back to the district court but then if the appeal either proceeds on the issues that seaway has been requested or if c o is denied and they proceed on to be more appropriate for the for the case to proceed as close i because otherwise the case will proceed either on to appeal on those issues or like i said up to the supreme court while the rest of the litigation is still pending now certainly your honour's could rule that see a way is denied us then we would anticipate appealing those issues to the supreme court you're on well how is that harmful to you to be in the supreme court in the district court i believe that would be an effective use of judicial resources just allowing the case to proceed as close as possible on the same track rather to be then being split into the district court potentially the supreme court but we brief this we're ready to rule it's a bad use of resources to get everybody geared up to rule and study an issue clearly and have nothing else that would contribute because you said that this used to sweat not contribute and austin to refrain from rolling in for what could be a couple years or something well that's not a good use of resources we'd all have to gear geared up to get that is certainly an option by if this case has remained and then however the funding issue plays out below this court will again have to likely of course a look at the issue do you want to argue the shackling with the other issue at all or you are certainly not abandoning them i'm certainly willing to answer any questions that your honour's may have regarding them we believe that the certificate of appeal ability is warranted on those ok it's not clear to me that whether you're bringing a due i apologize for any lack of clarity in the brief we believe here that mr cho is a stablish through an affidavit that he was shackled during the punishment phase of his trial one thing that separates mr osho his case i think from other shackling issues is that when the was visible it was while he was literally walking to the jury box to testify at the punishment phase of his trial there is an affidavit that states that mr cho was shackled and that he walked directly in front of the jury box while proceeding to the stand so we think it's clear that the district court you're not continuing that there was anything that could result that may result from the investigation and the funding you need of course for the investigation that would impact in any way your claim regarding the sha that you want us to wait to rule on that that's correct your honor in the funding request below was primarily to pursue the wiggins claim itself so we haven't raised yet that's correct your honor so it seems unlikely that a mitigation investigation would provide supporting evidence regarding the shackling claim here there are a couple of issues turning back to the issue of funding and what to do in light i'm sorry we've got to go if you're done with shackling and that's all you have to  don't believe so at this stage all of this case presents an interesting complexity for this court that i believe suggests that the underlying issue is debatable so in this case because trial counsel did not object at the time of trial to the shackling of mr roach show and there's simply no record as to whether the district court engaged in sort of in any fact findings fact we know that the district court the trial district court here at the at the state level did not do so in this scenario we do not believe mr cho or should be required to essentially prove the negative in th ineffectiveness argument is basically about the timing of the objection so we know that mr cho was indicted for the murder of two individuals the actual offense here until the murder of five individuals now there is a notation during this objection that occurs i believe after eleven jurors were sat the trial counsel claimed they had previously requested the ability to question jurors about whether they were willing or whether they would automatically vote for a death sentence if they are aware that there was five victims however that  motion or that objection however should be styled is nowhere in the record so we believe that trial counsel's failure to object while they were going to the question of the prior jurors raises the question of their ineffectiveness for not lodging a contemporaneous objection when they would  now i believe the prejudice question is frankly a very debatable issue what the exact legal standard is here i'm not aware of this court having any precedent ruling what the correct prejudiced analysis should be for morgan claim that it's not properly objected to at the time of trial we believe that the fact that trial counsel did not question these jurors on it is evidence of prejudice particularly in light of the fact that we know one of the jurors who did learn about that the fact that there were five victims after she was sat came to the court and said she could no longer be a fair juror based on the information that she then recall from prior news stories so the fact that one juror did come forward and say in this scenario i would not be able to be a fair jury we think is strong evidence of prejudice returning again to the question of funding under i asked this the state has made a couple of arguments that i would like to briefly address neither of which i find are compelling the first of the arguments of wafer here mr roach show has presented or had presented a finding motion to the district court which is now properly in front of this court on appeal i guess i'm at i'm happy you can return but you don't have any other arguments to make on behalf of the two claims that are live right now before us just want to make sure that you're not planning to argue anything about these the last two seconds of your time or something i'm not your honor i think the of those issues are thoroughly covered in our briefing and we believe that the resolution of them is debatable for the reasons in our briefing as well as the arguments that we've made today odd to not argue for the things that you're actually trying to get as a on well here i believe there's a signal based on the importance and some of the complexities that i've still not gotten to regarding the i a s this issue there's a significant amount of time that would be required to thoroughly go through that issue and we have decided that the i asked this issue should take priority in our limited time during the argument today and as i understand your position is not the you're ok with the ruling against do you think it's resolution of the question which is one that looks back historically at the district court's ruling in two thousand and fourteen regarding the funding motion so the funding question is not been waved in the question for this court is how to give effect to i a s this regarding the funding issue the second question that are the second argument the director makes that i would also like to touch on is that section twenty two fifty four two would bar evidence your developments of the underlying claim we believe that this argument is incorrect and that if mr roach show is able to establish both causing prejudice to overcome the procedural defaults of the underlying wigan's claim that he has not failed to develop the record for purposes of twenty two fifty forty two and that the director's argument is contrary to both supreme court precedent as well as this court precedent in parentheses versus johnson the supreme court in williams versus taylor link because unprejudiced inquiry to that of the failure to developing three under section twenty two fifty forty two moreover they noted that the legislative intent behind section twenty two funding claim where there is no nothing to go with the funding there's no been requested yet something that would go with the funding and the best example again i have your honor is the robertson is recognition that that funding was required both to establish the potential merit of the claim and to provide him a credible chance of overcoming procedural default if he was attempting to pursue want to see a way at this point he would i believe in large part be having to argue that he thought the record was developed well enough to potentially went on the merits of that claim here requesting an appeal of the funding decision while not a see a way of reflects that mr shaw recognizes that additional funding was needed for him to succeed on the merits of that claim a turning back to the twenty to fifty forty two question this circuit in parentheses versus johnson explicitly held that in scenarios where a petitioner has established cause to overcome procedural default he has not failed to develop the record for purposes of that section and the more restrictive up portions of that section do not apply in that scenario we believe that the director's interpretation of twenty to fifty forty two would turn both the martinez versus ryan as well as the it's because at that point there be simply no way of succeeding on the underlying merits of the claim at this stage we also believe that it would be inappropriate for the case for the court to deny funding based on potential downstream procedural hurdles a mr the finding that mr cho a seeks as i mentioned before is in large part to provide him the opportunity to both overcome the procedural hurdle as well as to help him succeed on the merits of the claim so creating it you have to bring it in don't for the same reasons that i stated before your honor regarding the fact that the funding itself was requested to allow mr roach to both prove the merits of the claim as well as to potentially overcome the procedural default in this in our i'm not aware of any circuit precedent requiring a see a way to be requested or even granted that you're not aware of anyone to the contrary there it would consider it where there's no way relevant that is true or not i believe it's not an issue that has ever been addressed by the fifth that funding would actually help you prove that this is in the abstract you're trying to you're not trying to prove anything because there's no claim being i don't think it's in the abstract at all your honor what mr o chose requesting is the same type of remained that occurred as it went forward and what the remained request would be would be similar to both sordo and robertson that the funding orders that the denials be vacated and then the district court have the opportunity to reassess those motions in light of the  point then an investigation would potentially be able to proceed and then of course this would also be an area where the district court would have wide latitude as to what the next steps would be but presumably if he thought funding was warranted under the standard i asked this back in two thousand and fourteen when it was requested he would then set a time for an amended petition to be filed or something similar but that the way his claim would be very much active if the case was sent back to the district court on a remained based on i a s this because mr osho would be place then crazy we believe that of the cases that this circuit has dealt with regarding what to do with in light of i asked this robertson provides the best example and of course this is a case where it was free man and for additional funding in that case that is the only case where the primary funding request was to pursue awakens claims of some of the other cases where funding has not been denied such as has been denied excuse me in that arena and has not been issued the district court either did not heavily rely on the substantial need language or the procedural default rule that were struck down by a estis or the petitioner was unable to establish a potentially viable constitutional claim mr o cho has in fact been able to do both of those two things here so we are  denied by the district court now in resolving the appeal this court must give full effect to a yes this we've course are not challenging will give full effect i mean that you should ignore whether claims are waived or not but it's a different scenario than other potentially potentially forfeiture analysis because here the underlying issue that was raised was the funding question forfeitures the actual forfeiture i completely agree because i don't think the waiver question is particularly relevant we did not get to the distinction that would also be incorrect because what mr roach a has raised is a funding motion below which is now properly presented to this court on appeal the propriety or lack thereof of the substantial need question has already been decided what this court must now do is decide how how to give i ask this a fact which it must do so waiver is not the relevant concern based on the fact that mr cho presented the funding motion below and is now correctly proceeding on appeal that you can see that it was not raised at all we certainly can see that mr church not challenge the substantial needs language in the district court and your honor at this time unless they're asked this is a pretty recent decision it is they came out in march of this year your honor but we were waiting on it  still be used i believe we may be looking at a potential for future analysis but because the yes this is in that's come out we know that that is not the standard that can be used any more we know that the funding motion was presented below and in terms of the next steps again the court must give effect to ask this which we believe would be correctly would be correctly done by remaining the case of the district court for a determination as to whether finding itself was warranted under estis if there are no further questions at this time awa may have please the court the district court did not abuse its broad discretion in denying a chill his request for funding even under a estus the lower court's reasoning is still sound and this quarter from that decision further j on no choice procedurally barred and meritless wigan's claim during the trial the jury heard that would show up murdered his wife their two daughters his father in law and his sister in law he also shot but did not kill his other sister in law who testified at trial because guilt was not in question or chose counsel made a full court press during the punishment phase the defense's theory was that his actions were the result of cocaine induced delirium that impaired his ability to control his impulses this was the result they said of a combination between frontal lobe damage and severe  put on sixteen witnesses including chillis father his brothers friends and neighbors law enforcement and two experts doctors nace and simon as the district be employed is reason the necessary and in doing so the court should use the following considerations as its guide the potential merit of the claim that the outcome would pursue if the app has a credible chance to clear  that just like in minute to the district court here quoted the familiar substantial need language it did also cite a lengthy quote from crossing or however it is important to note what the court actually said when investigated and does not indicate how further investigation of these matters will substantially improve his chances of success strategic choices made up or throw investigation of long facts relevant to plausible options are virtually  unchallengable not of course is from strickland so the crux of the denial of funding as far as the court is concerned at least as far as he tells us in his order is actually the the the idea that the evidence that show duplication of what was already presented at trial now i think it's also worth noting that we know how the district court of course would deal with the claim as a whole both the procedural bar aspect of the claim and the merits from its length the order denying its final order denying relief but it is also worth noting that in its order denying a fifty nine emotion after doing again another analysis of the procedural bar aspect the failure of this claim to the able to meet the martina's standard and also the failure of the merits the district court said this not only is the allegation insufficient to warrant habeas relief it would be insufficient to grant investigative the reasons the district court gave for its ruling remain sound after i assess we find no abuse of discretion so to hear as mamoun the district court's reasoning again going back to what it actually said about the claim that i asked us or the funding for the district court's reasoning remain sound where this claim is what we know what his claimants we know the type of evidence that he would seek to provide the courts because he actually did some investigation with the help of texas defender service in preparing his petition and he gave a very thorough explanation in this petition of what his claim would be and it would simply be more of the same it would be information about for example their life in mexico and the poverty there well as father and his older brother testified about their life in mexico or chile who testified himself the trial said that he actually didn't remember his time in mexico it would be information regarding his father's alcoholism and the abuse of his mother and yet again it would show his father a choice brothers in a choice himself testified as to these facts so as with know how the district court views this does this claim we also know what the crux of its funding decision was and the crux of that the fact that truly is just it there is no potential position to simply make the decision affirm from the decision excuse me of the lower court and move on now it is worth noting quickly wall while talking about the procedural bar that not that these records are indeed complete or accurate but even if we look at the evidence that would show himself provided to the court it's worth noting that that evidence demonstrates that there was two hundred forty four hours worth it's i think i i feel certain that i know what the district court's going to do with any further funding motions based on again it's multiple orders detailing fully its thoughts on the claim  i have two hundred fifty four but you may be right but only about twelve and a half hours were below for the non record investigation is that right well but i also i can't i don't know about that specific number i have no reason to quarrel with you but i do think it's worth noting that thirty one hours worst been interviewing witnesses from going to and interviewing witnesses and i also think it's worth noting here too it's difficult for state habeas counsel to i mean i think again we can look at what the district court said about the actual underlying merits of the wiccans claim you cannot fault that he was counsel for failing to raise a holy meritless claim and here for trial counsel presented sixteen witnesses including a witness and mentioned yet the director of a rehabilitation program that will show i mean the the full court press or was on four for punishment days they knew it is very different than other cases like this where people said that there was no medication and in fact there was a medication very different there are this is the most expensive medication is important to note that williams and brant isn't both of those cases the cause that both petitioners sought to use to overcome the procedural bar were due to actions that lay outside of a choice simply fails to overcome the multiple procedural bars he cannot satisfy the requirements under coleman or martinez and further he fails to actually show that he was visibly shackled and that he was harmed by that now first regarding his shack and in fact claim his deck claims first it's worth knowing that this is simply for clothes from the review at this point ochoa there were there was there was no objection at trial as as as opposing counsel mention but also the issue   the failure to raise it is all on him and coleman tells us that the cause must exist somewhere outside the defense or the defense's counsel and certainly hero chill would be the one who would know the best whether or not he was actually now turning to what was actually said about the shack and he mentioned the affidavits by the mitigation investigator the affidavit the mitigation best peter in her affidavit regarding the shackling simply said this i recall being appalled when i saw mr owen show up who wore leg and shackles during his trial walk to the witness stand he passed by the jurors who were sitting in the jury box shuffling his feet do the restraint the leg chains imposed there could be no doubt that mr cho was shackled when he walked to the witness stand it is worth noting that she does not say that he was visibly shackled she doesn't say he was wearing like chains and i could see them she doesn't say i could she was wearing leg chains and there was no way the jury could not have seen them she says simply that he was shuffling when he walk stand and from that the jury must have i guess inferred but i think that right there is is to the degree that it is evidence that was considered by the district court and we certainly are not waiving any arguments regarding the fact that this these affidavits would be would not be evidence would be actually leads to the implication or the assumption rather that he was in fact not visibly shackled and if he wasn't visibly shackled decked tells us that it's only visible shackles that fall within or that run afoul of that would not be visible that would still shackle somebody but that would not be visible to the jury and it is worth noting that there's simply is is no explanation by the record indeed the record still being silent the trial record itself in silent i think is definitely that's evidence that this court can absolutely consider as to whether or not he was shackled and whether or not he was visibly shackled in fact the trial court would only be under duty to make some statement on the record about the reasons why he was being shackled in the manner in which was being at the shackles were visible because again it's only visible shackles where the constitutional concerns start to become implicated it's also worth noting that ochoa fails to show that there was a substantial and injurious effect or influence something put on the record about why and further he fails to show the prejudice that he fails to overcome any prejudice now assess as this court laid out in tennis briefly touching on the board our claims your honor again for the just like with objection they made an objection that would have preserved error on the record so truck counsel cannot be an effective trial court also did not abuse its discretion orders because it is well within his discretion to limit the questions as shows indeed if he were asked if he were if you were able to ask about the number of victims chilled may have also wanted to ask about the fact that one of the victims was a seven year old daughter one of the victims was this eight month old daughter one of the victims a seven year old daughter he actually after shooting and killing his wife his father in law and his sister in law an eight month old daughter he goes back into the back into his bedroom he reloads his nine millimeter rigger he comes back in to the living room sees a seven month old or eight seven year old daughter and chases her into the kitchen and shoots are four times these are all aggravating circumstances your honour's but of course the bit that the the trial court is well within its discretion to is the appropriate remedy in this case based on the the i asked this decision and the district court's reliance on the substantial need funding now the director's argument seems to be that we know already how the district court will rule in light of the  ninety nine finding stage particularly with respect to awakens claim it cannot be said that the evidence will simply be cumulative particularly when no objectively reasonable investigation has not yet occurred but we're allowed to look at the per potential merit and the likelihood that they will potentially of sexual abuse potentially evidence of mental illness certainly other types of mitigating evidence that are not in the record ok then what about the fact that it wouldn't be admissible anyway it certainly would be admissible i mean  and also if you're able to establish a procedural default of that claim below certainly in federal court you can add new evidence if you can excuse the procedural default which can be done by looking at status counsel's failure to investigate evidence now just to correct the hours number before the billing records show the trial counsel did spend approximately twelve and a half hours interviewing witnesses i'm not the thirty one that was suggested before i mean that may be accounted for potentially by travel time but it's a significantly no lower number that was offered before and turning back to judge a question about what can be shown it's important to consider the supreme court's dictates in cases such as sears versus upton which have held that the presentation of some mitigating evidence does not obviate the need to consider whether objective lea unreasonable investigation prejudiced the defendant and well we certainly recognize that mitigation evidence was put on there is a significant amount of evidence from the trial mitigation specialist about how is delayed abbreviated incomplete and trial counsel themselves in the continuance motion noted that they would be ineffective if they had to go to trial when you're conducting the analysis here you cannot simply say by looking solely at the face of the record without considering the underlying investigation itself that potentially prejudicial evidence cannot be uncovered for mr of cho so people leave that only appropriate in this scenario to remain in this case to the district court to allow the district court to reassess the funding decision particularly because as i said the operative word in use by the district court was that mr roach show had not shown all the requested funding would substantially improve his chance of success that's a decision that properly rests within the district court and it should be allowed the broad discretion wide latitude that it has into terming issues under section thirty five ninety nine rather than just simply decided on the face of the record at this time by this court if there are no further questions at this time i'll conclude our rebuttal argument thank you counsel appreciate this case submitted