there are two issues before this court with respect to these i e c claims the st issue is whether this court can get to do novo review of these claims and if so how the nd issue is whether o review mr jones been titled to relief taking the st of those issues this court can review mr jones as i see claims and because the state courts education of these conviction in court prevented mr jones from developing evidence that went to the core of these i see claims when i deny his request for a near as i call it just not only was that expert assistance critical to mr jones ability to prove his entitlement to relief on the merits but mr jones also had a statutory entitlement to that expert assistance the convention court deny him in brumfield versus kane the supreme court held that where a state court educate the federal claim after denying a petitioner the ability to factually develop that claim consistent with their rights under state law grounds for that expert assistance the court also based its denial of questioning on its perception that dr potts did a good job and interesting mr jones's mental how at present those findings are objective leon reasonable because the record here shows that the post conviction court had before it plenty of evidence demonstrating that there were grounds you know psychological expert assistance that mr jones was court's own expert and urged that that testing be undertaken in order to determine definitively whether or not mr jones has brain damage the record also shows that dr potts was not bitter john simply would not be able to demonstrate his entitlement relief on these issues after preventing mr jones from being able to actually develop and prove these claims the post conviction court went on to deny them on the merits finding that counsel was not in objective because in the court's view dr potts was a good expert and adequately addressed mr jones as to hell at sentencing those findings are objective within a reasonable not only because the post conviction made them while at the same time denying mr johns the ability to present and develop evidence to rebut those findings but also those findings are squarely not diagnose mr johns with brain damage and significantly neither the sentence or norway or the supreme court on independent review found mental illness or brain damage as non statutory mitigating circumstances specifically the arizona supreme court rejected mental illness as at being proved based on its you that there was no evidence and in the record below to support that non statutory mitigator the potential for rehabilitation was also rejected both by the sentencing court and the arizona supreme court or an independent review so the record here simply does not support the state courts finding that mr jones is at all how was adequately addressed in fact it wasn't addressed at all in finding that counsel was not ineffective the conviction court went on to ignore our evidence before it demonstrating that there were numerous red flags in the information that counsel had hired the sentencing proceeding that should have signaled to reasonable little capital they need to undertake an investigation of mr jones's mental health and the potential for brain damage by bringing in an expert counsel yes your client served in the military yes your honor he did or which branch you served in the marine corps  scheduled to pronounce mr johns the sentence as corroboration for a head injury he sustained during that incident but at that point it was too late because the court had already conducted the aggravation mitigation hearing and as the before the post conviction are also shows that counsel did have medical records from mr jones's hospitalization in the late one thousand nine hundred and eighty s at the nevada mental health institute in connection with the suicide attempts counsel testified post conviction hearing that he had those records as early as two months after his appointment to mr jones's case those records document that mr jones was hospitalized as a mentally ill person  that he experienced explosive outbursts of rage that he told the provider that he had a difficult time keeping himself under control even when not consuming drugs and alcohol  he was afraid of what was happening to him and he didn't understand why for the past six years you know become increasingly moody so council although he had these records did not follow the red flags in them pointing your welcome so in finding that counsel was not ineffective the postcondition court did not engage with the evidence it had before it hearing that she informed counsel as early as july of one thousand nine hundred you that mr jones had experienced head trauma as a result of a difficult birth head injuries that he sustained throughout his childhood that three resentence report which was an exhibit at the sentencing proceeding also documented the fact that mr jones underwent psychiatric treatment as a trial counsel had that information as early as december st a week before the sentencing hearing on december th and did not follow that up by trying to bring in an expert to explore what was going on with mr jones's mental health doctor sparks an addiction all in general cause damage to the brain's neurons not withstanding council's awareness of mr jones's long term substance abuse history including throughout the developmental period as a trial counsel faile follow that up by bringing in an expert to determine whether whether or not mr jones is brain damaged and finding counsel not ineffective for failing to introduce additional mitigation about a mental health records which would have supported a finding by the arizona supreme court that mr jones is mentally ill and that should be considered non statutory mitigation but also fail to gauge with  the records that post conviction counsel introduced at the hearing including mr jones's th grade school records showing that he was performing between two and four years behind his peers in core academic subjects that would have provided council's failure to introduce mitigation at all was was reasonably strategic because of the most profound aggravation in the client's history that he strategically decided not to risk opening up by presenting mitigation so here counsel did present some things and mr jones's defense you presented the testimony of randy jones his nd stepfather who testified about abuse that mr jones  simply didn't realise the significance of the information that he had pointing to the need to investigate other potential for mental illness and brain damage that i think is probably best reflected in council own statements to the sentencing court in urging a continuance where he says to the judge your honor i simply didn't realise that there was the there were indicators of brain damage and mental illness in the record that i had this kind of the record here shows that no reasonable jurist could conclude that the state court got it right when it found that councils investigation and preparation for the penalty phase of a capital case was cases which that where the duty to investigate and present all reasonably available mitigation on appliance that have to ensure that a client's th amendment rights are respected at a review of these issues because courts confidence in the outcome of mr jones's sentencing and in the reliability of his death sentences should be undermined because the sentence or was deprived of mitigating evidence without which it simply couldn't assess his moral culpability for these crimes in a reliable way for instance the sentence or never knew that mr jones has brain damage as a result of his traumatic birth head injuries sustained throughout his childhood and his long term substance abuse sentence or didn't know that mr jones has post traumatic stress disorder because of chronic physical and sexual abuse that he's saying beyond the age of six and throughout his you and adolescence that resulted in him approaching a stressful situations with a kind of combat readiness and explosiveness that quick provided support for the g one statutory mitigating circumstance that the sentencing court found not proved significantly because it found that there was no evidence that mr jones his crimes were the product of a mental impairment or anger explosion in a sentence or never knew that mr jones has a mood disorder a learning disability that has probably substance abuse was not simply due to the fact that he made bad choices but rather was a way to medicate the symptoms of untreated trauma and i know that mental illness this evidence is not only independently mitigating but particularly so because if for a causal nexus to the crimes here the result of mr jones's mental illnesses biological environmental social and other compromising factors culminated in at the time of the murders and impairment and danny's ability to appreciate the wrongfulness of his conduct conform his conduct to the requirements of the law in other words his conduct for all the reasons stated in this report was out of control impulsive and once one he started he simply could not stop the evidence of mr jones's mental and emotional impairments would have radically alter the sentencing profile here undermining several of the statutory  was not because he had a sadistic and vile state of mind but rather was the result of not only his intoxication with amphetamines but also as a result of his organic brain impairment if the court does not have any additional questions about these issues i have i would ask to reserve the remainder of my time or rebuttal early thinking or from the state  in harrington director the statute sets a very high bar for a b as petitioner to meet the state court's decision here was reasonable based on the facts before it at the time counsel did present evidence of jones's mental health issues by moving for a mental health examination prior to sentencing which occurred dr potts was appointed and in fact b because of the way this was done rather than hiring an expert at to serve as a i guess quote defense expert as as is sometimes done by asking for the appointment of dr potts and proceeding that way counsel was at a strategic advantage when it came to sentencing because the state then wasn't prompted to hire an expert of its own who would testify potentially in rebuttal to defense experts findings so instead counsel was able as you present dr potts at the sentencing hearing testifying rather than as a hired expert but as a court appointed expert so with that kind of additional gloss of neutrality head injuries dr potts when into the potential effects that those types of head new juries would have specifically referencing potentially making him more prone to aggressive and violent outbursts didn't d that's correct your honor dr pod's did testify to that however it was reasonable for the trial court both to deny the continuance at that time of sentencing and then also in the in the post conviction context to conclude that dr potts nonetheless was adequately able to present jones as mental health issues and that's because dr potts said that he believed that the additional testing would would help him to essentially bolster his conclusions and offer a firm diagnosis of why the things he was seeing in jones were caused by but he did say he would like to hear more and seem all the better actually honor and yes as far as having r is that common counties that is the standard practice throughout arizona is generally under the post conviction rules if the trial judge is available is still on the indicates that and this is came within the largest letter baldwin city in the world you know dr balls i believe that is correct your honor yes and he knew that  be pro defense i yes i believe there was a suggestion of that in the record i know that the prosecutor for example was essentially making arguments along those lines actually i have a couple questions on this point before you proceed if i might the trial court our court had to know that the report was only produced a few days before he testified right there's very little time for because of the day anything with it right i mean yeah it would have been apparent to the court because of the date of appointment that yet only could have been but in that window of time that the report was prepared right and there were very few witnesses presented so the court would also been aware of the extent of trial counsel's factual investigation to family history i believe so yes it added to the extent of the court could see that based on the number of witnesses and amount of information presented then yes and the records that we were just discussing not all of them were presented to dr potts particularly military records where he was found unconscious having been months but the district court knew that because they were presented at the last minute to the district court yes ready and are you referring to sentencing court the sentencing judge i am ok then yes the court did a p c r probably be in a position to recognize that that was not factored into dr process report is what i'm trying to get at and i want to give you a chance to respond that's my read of the chronology have i got that wrong potts heard otherwise correct your honor there's no suggestion that jones himself told dr potts otherwise in isabel you ation of him but there's another entry in the record that i don't understand and that's a that's an entry i think and i'm pre sentence report that indicates that that jones himself may have may have reported that his childhood was unhappy and perhaps even suffered abuse and i think during the time that potts was on the witness stand defense counsel suggested to him that that w must've been a mistake is that right there was yet a suggestion along those lines however there the stepfather randy jones did testify at the sentencing hearing about the  addressing the military records that were presented to the sentencing judge however had not been in front of dr potts there's that on this record there's no suggestion that that would have made a difference dr pods did have information of other head injuries that jones had apparently suffered throughout childhood and his teen years and specifically testified to the effect that those would have caused and did tie that to his history of substance abuse as well so i don't think there's any suggestion on this record here that having access to the record of the mugging that john suffered in the military would have changed dr pass opinion in any way and i don't believe he testified i'm sorry north korea but it stands for the broad broad position that consideration of military records and service or part of the process of mitigating civilian committed right broadly yes your honor i've always interpreted that decision as as putting the serious mitigating weight on the specific nature of the defendant's military record in that case specifically the horrific combat conditions that he encountered and endured and i read that decision as  emphasizing the weight that mitigation had given those specific facts however here you know even under the broader interpretation that that generally records of military service are considered important mitigate mitigation evidence the sentencing court had that information front of it while it was presented after the sentencing hearing it was presented to the sentencing court before a pronouncement of sentence and the transcript of the proceedings that day are clear that the court had received them in the morning in fact there's even a reference to an off the record discussion between counsel and the judge where the judge said and as i indicated before i i received those your honor if i recall correctly i believe it was on or nearby the base where he was stationed and the information is that he was essentially found unconscious or semi conscious and stated that he had been mugged i don't believe that they do well i mean there is a conclusion that he was that of alcohol intoxication so i mean to the extent that his intoxication played a role in what led him to be found in that caesar i would your honor i would your honor ok that's all i have now already so i think ultimately the information from those records is is somewhat ambiguous obviously he suffered some kind of an incident but it's unclear he states it was a mugging  but either way there was information that the sentencing court had in front of it and was relevant to his determination in the post conviction proceeding of whether trial counsel had performed efficiently or whether jones is prejudiced and i'd like to address the argument that there was no state court finding on prejudice i would i would dispute that argument the supreme court has stated in cases like harrington director that there is a presumption  presumption but a presumption none the less of a merits adjudication when a state court hears a federal claim now while the court in his post conviction order did specifically state that jones failed to meet his burden of proving deficient performance the court also addressed the evidence and the witnesses pacifically for example the court stated that dr pods had adequately addressed jones's mental health issues at sentencing that kind of a finding goes directly stricklin prejudice and whether there's a reasonable outcome a reasonable probability of a different outcome had counsel not allegedly performed efficiently similarly to the claim where jones had asserted that additional evidence and records should have been presented the court stated that the additional evidence john suggested should have been presented would have been redundant that conclusion also necessarily goes into a strickland prejudice finding of whether there's a reasonable probability of a different outcome bottom line of the superior court's decisions as the court finds it just has not met its burden of proof of showing deficient performance i trow so what in that statement lead you to believe that  gore was making approaches well your honor it's not that statement that i that i believe shows that the trial court made a prejudice finding or the post conviction or it's the other statements i referred to regarding the redundancy of the adequacy with which he addressed judges mental health issues i believe those are consistent with a finding that there was no prejudice so for that for those reasons and those in the brief it's our position that the state court reasonably rejected the three ineffective assistance claims assuming this court were to get to do novo review on these claims the  district court after the evidentiary hearing made specific and throw factual findings and those factual findings require deference unless jones shows they were clear air and he hasn't done so here i think the most important of those findings that the district court made here st was that jones ultimately failed to prove that he actually suffers from cognitive impairment or dysfunction as the district noted his experts relied mostly on his school performance and on discrepancies in his some of his testing scores to conclude that he suffered from cognitive impairment or dysfunction resulting from brain  damage however as the district court pointed out the school performance also has other equally plausible explanations such as absenteeism family stress substance abuse lack of motivation things along those lines the district court also noted dr herring one of one of jones's experts testimony that the majority of his test scores were within the average range that gaps between i q scores are not uncommon and the higher score that jones received on their performance up test and the fact that his overall i q was in the average range weighs against any impairment additionally the district court made a finding that the the testimony at the hearing established that the fact that jones's if you lower scores were not in any were not clustered in a particular domain also suggest that they were aberrations rather than evidence of impairment or brain damage as far as the other conditions the district court found that there was no definitive testimony that john suffered from p t s d at the time of the murder the court made specific findings regarding that conclusion based on the expert testimony the court also found that jones actually at the federal hearing failed to prove a mood disorder and that was largely based on the district court's  no evidence of mania or hypomania the most the district court credited jones with proving a possible low level disorder such as dysthymia and again taking that back to the sentencing hearing dr potts was able to testify that it was likely or possible that jones suffered from bipolar disorder and again there dr potts was able to present that testimony testimony without r testimony from a state expert because of the way he was appointed and his testimony was presented whereas in the federal hearing when the state was able to present witnesses expert witnesses in rebuttal to jones experts  they were able to challenge jones experts findings that he suffered from bipolar disorder so based on those factual findings which again require deference  they are shown to be clear error the district court found that there was no prejudice from trial counsel's failure to either timely request of the testing that dr potts referred to or to hire have hired a quote defense expert to assist in the development presentation of mental health evidence at sentencing additionally addressing the the claim that trial counsel failed to present evidence of additional abuse by randy jones and also sexual abuse by judges grandfather the only witness that provided the evidence of sexual abuse was jones's  sister the record is clear that trial counsel interviewed jones interviewed jones as stepfather randy is nd stepfather randy jones as well as jones as mother there is no suggestion anywhere in the record that any of those witnesses  gave counsel any information that would have suggested to counsel that jones had been sexually abused or that his sister which appears to be the one family member of that trial counsel did not talk to before sentencing had information that the other three did not so based on that that the district court concluded that there was no division performance and failure to uncover that information presumably that was information that jones himself would have had and there's no suggestion that jones provided that in the present report that his counsel then said oh this must be a mistake rather than check it seeming seemingly with rather than checking with jones because because because the record is extraordinary that once somebody asked his sister all these cards fell into place she was very forthcoming and in fact even used since you did randy the st time didn't deny the physical abuse it seems to me once he was he was challenged with it and then of course mr jones came forward with the pretty horrendous stories of of sexual abuse as a child so it's very concerning to me that there's no indication the defense counsel followed up on that indication and pre sentence report other than to suggest himself that it was a mistake mom and stepfather described everything being happy in their home after age eight that there's an indication in the pre sentence report that that's not how mr jones described things that's that's my problem i don't understand your honor however there's it evidence on i mean for all we know on this record counsel did follow up with jones but we don't know what conversation fell out of that there was no declaration or affidavit presented from jones either in post conviction or in district court  regarding what what they discussed or didn't discuss with counsel and there is nothing presented from trial counsel regarding what you know what follow up did or did not occur so i think under strickland's presumption of a reasonable performance there simply isn't enough information there to make a conclusion that council was deficient  promise it's not only a court must not only take into consideration the the mitigation evidence that was presented in sentencing and that the additional mitigation that a defendant is arguing should also have been presented to the sentencing judge or jury but also the court must take into account all of the aggravating evidence in the record and here the aggravating factors are there there are are numerous and they're very strong i believe that the multiple murders aggravating circumstances one that the arizona supreme court has always afforded great weight and i also believe that the young age of the seven year old victim it's also a very weighty aggravating factor and you know assuming for a minute and again i think the district court made clear and very supportable findings that jones had failed to conclusively prove cognitive impairment but even assuming that that i think the general thrust of his mitigation theory is that he you know and i think this is based on the fact that we don't have definitive definitive evidence of what prompted him to attack randy weaver in the garage on the day the crimes were committed and i think the thrust of jones's mitigation case or at least part of it is that he suffered an explosive outburst potentially based on you know the issues that he you know suffered from cognitive impairment substance abuse those types of things so i think that very most even assuming jones had proven those conditions and that he was suffering from them at the time of the crimes at the very most he may be able to show you know some mitigation as to that st murder i ever i don't think on this record anything adequately comes close to explaining why events entered the house attacked  grandmother and then followed the seven year old child into her room dragged her out from under a bad it or with a bat and strangled her to death now of course we all know that mitigation isn't required to be causally connected to a crime to be considered still deserves consideration mitigation however as a district court noted that an effect of the weight that is affords that mitigation and none of the mitigation he presented i don't believe on that on this record comes close to explaining those additional actions and i think that's under the supreme court jurisprudence those aggravating facts have to play a role in the determination of whether a defendant showed strickland prejudice so i think even even giving you credence to his mitigating evidence and the additional mitigating evidence that he presented at the hearing in district court that aggravation is so strong that the district court was correct in concluding that jones failed to show a reasonable probability that he would have been sentenced to life had the sentencing court had that additional information in front of it and unless there are any further questions i would ask this court to affirm the district court's ruling thank you the nature of his discharge where and how many sir i can answer the nature of the discharge your honor i believe they did indicate that there is a dishonorable discharge and  was he used and court martial for stealing i believe it was probably went through a special court martial yes you're on ther yes your honor counsel for the state it doesn't amount to a hill of beans but there's a hell of a difference between a bad conduct discharge and the dishonorable discharge and you should know that entirely dr steward's testimony and diagnosis that mr johns doesn't fact have post traumatic stress disorder under the d s m four hours criteria and also doctors you were diagnosed him with complex d as well the district court also committed the exact same error that this court call to the district court for committing in corral versus ryan by substituting its own subjective assessment of the credibility of mr jones's experts for that of an objective sentence or rather than asking whether in the procedural context of this case there was a reasonable probability that an objective sent found mr jones as experts credible and credited their diagnoses the district court instead so to its own idiosyncratic view of the credibility of mr jones's experts these are the respondents the district court found in it in its order that there were no credible instances of head injuries for example which ignored not only the one thousand nine hundred and three military records but also the information provided and declarations from mr jones mother and and nd stepfather talking about the head injuries that he had sustained over time the court also rejected the opinion of dr goldberg as well  crediting those are asking whether an objective sentence or could have credited those diagnoses the court instead found that in its opinion all mr jones had was mild depression if i could also just  made by mr sparks that the evidence of sexual abuse is not something that council could be faulted for not investigating and developing because i mr jones and his family didn't share this information or there's no indication that they did i shared this with council and it andres vs davis this court found that a client and their families cannot be faulted for failing to recognize what information it is relevant mitigation and volunteering that when there is no indication that counsel elicited that information or alerted them to the kind of information that would be relevant in the th amendment cont counsel also made the point that trial counsel made the strategic choice to rely on a neutral court appointed expert to develop information about mr jones's mental health and sentence and the logical problem however with that argument is that counsel did not know what dr hotz was ultimately going to say or whether his opinion would be helpful to mr jones until two days before dr pocs testified  counsel for mr jones testified at the his conviction hearing that it wasn't until december th two days before dr potts testified that he saw him as a defense expert under strickland capital lawyer cannot make the reasonable strategic choices to forgo following up on red flags in the records and in the information that he has pointing to the need to investigate mental health big ation and brain damage a year and a half before the sentencing proceeding on the off chance that the court appointed expert is going to ultimately say something helpful to his client that is not the result of reasonable professional judgment and counsel's own statements to the court here in belatedly urging a continuance request show that it is also true that while mr sparkes has made much of the fact that dr potts w he was the court's expert he was neutral on the record simply does not bear that out the prosecutor aggressively cross examine dr potts is crediting his opinion as biased is crediting his finding based on the absence of objective testing demonstrating that mr jones has a mental illness or has brain damage the court in fact i've found that there was no mental illness proved it rejected dr potts's finding that head injuries gave rise to the potential for brain damage the court also rejected four out of the seven non statutory mitigators that dr potts presented in his report and so it simply  undertake an overall assessment of mr jones his mental health and couldn't and in fact he found that the expert reports presented in federal court were exhaustive and exactly what he would have wanted to see so he asked that this court i remember mr jones that case of the