hearing on this your rights claim of ineffective assistance of sentencing counsel the seven claims are briefly and then i'll discuss them all into tale one is the nature the historic nature to quote justice kennedy intervene you know of the martinez decision stands to be executed without ever having an opportunity to have his claim heard fourth mr wright has been extraordinarily diligent more diligent i would suggest than any other habeas petition or this court has seen in pursuit pursuing his claim ineffective assistance of his conviction and sentencing counsel the timing of this case mr wright brought his case to the court in an extraordinarily diligent time two days after  became final on appeal it from the u s supreme court six the strength of the claim and seven the fact that the state has no compelling interest in finality under the specs and circumstances of this case i'd like to ask a question about what exactly is before us here argument relies on these declarations of the sister and other family members is that correct that's the argument you want to present that was that we previously held was procedurally defaulted personal history mitigation claim that is contained and supported by the declarations of several family members not just miss wright right but all of those were before us the last time around we just we just didn't rely on we didn't address them because we found that they were procedurally defaulted yes is that correct weapons but the way i read our opinion though we relied on two grounds with respect to those affidavits one was that they were the second i'm looking at the page sixteen of the graph opinion i don't have the you know the fed third site but the same paragraph we're talking about a second which is means additionally nothing in the additional declarations plural presented by rights family members renders the state courts determination unreasonable so why isn't that an alternative ari an alternative basis for rejecting the claim that you were reading which had to do with rendering the state courts determination of the ineffective assistance of counsel claim that those declarations did not render that decision state court decision and reasonable i read the second part of the court's decision as actually being a faithful application of pinhole stor to twenty fifty four d given the fact that these declarations were not properly before the state court to state course the terminations was not and reasonable but the court's decision is nothing in the declaration sprees and renders the state courts terminations unreasonable then it goes on to explain the decision not to call any family members other than the mother was made after reasonable investigation including extensive contact with rights family members right never alleges that is attorneys failed to speak to rose right and rose writes testimony would have painted a more vivid picture these are these seem to be the same arguments that you're making now this is an arguments we're honor i read the opinion as tethering those arguments to whether or not the court could rule that the state court decision was unreasonable because the court couldn't have mets the issue under apparatus whether the state court's decision is unreasonable as to the claim that was presented to the state court but now we're in a completely new territory your honor under martinez we're talking about a claim that was not presented to the state court the personal history is mitigation claim with not presented under this  martinez deals with trevino they deal with whether there's procedural default or not right yes or so if we assume for purposes of argument that there's been no procedural default then you would apply whatever the law is been holster or not right and so you're not making your claim based on pinhole story you're making it earth or some change in pinhole mean martinez didn't change you so i so i'm still having trouble seeing why this isn't an alternative holding on the on the very claim that you're talking about that we decided in the alternative that's gone to the supreme court i mean that's why you make alternative holdings in case one of them falls apart of some point right so what i don't know that's what you have to convince me of and i'm not seen it right now and let me try it's not based on procedural default and so it's not infected by whatever change in the law there is that you're relying on this thirty thing in this paragraph that's based on  believe the paragraph is based on the fact that the new procedurally defaulted facts cannot cause the state court decision that did not deal with those facts to be unreasonable and so if i was here trying to relay to gate what was raised in state court the state court ineffective assistance of counsel claim was that counsel was ineffective for failing to present mental health evidence dr anchor's report that was all that was presented and litigated in state court that decision the court found to be unreasonable and this court found that the declarations couldn't render the decision not to call the psychiatric evidence witnesses unreasonable that's not the argument here today your honor but let me let me try to a different way if i could because i don't understand this either i'm looking at the same right versus bell we call it right one decision that you're discussing with judge rogers and in paragraph number six i think it's b six it's discussing these declarations and the first thing it talks about is the fact that rights claim that is trial attorneys failed to investigate and present evidence of this troubled family background is procedurally default so that's that's the first holding now the second holding goes on to actually look at those declarations notwithstanding the first holding that it was procedurally defaulted and says nothing in them renders the state courts determination unreasonable there's nothing about pin holster in any of these paragraphs and so correct me if i'm wrong pin hole stir would have been triggered if the decision was based on the fact that we're being asked to look at things that were outside the record that had not been presented to the state court right yes that's not there's no discussion about this about that in this opinion nor does the context in which these paragraphs fall from what i can tell have anything to do with an ulster so it's just a very simple straightforward question that i think judges and i would both like you to ask why are we not bound under the law the case by this paragraph that start to a second nothing in the additional declarations presented for purposes of this sixty two b proceed being clear maybe well i'm not sure and i'm not sure you really had an opportunity to fully explain what your responses so aside from saying pin holster which doesn't appear how do we even get to this and again those declarations do not render the state court decision unreasonable but the state court decision was based on the claim presented to the state court which was not which is not the subject of the claim that we're here today but let me get to whether or not this course decision was even correct because for quite frankly it wasn't for any that's a different issue can we change it now and that's not what what rule sixty b motion is for is to challenge  decision that we made before you don't know if you don't get a do over under rule sixty b just because you think the panel was wrong the first time that's not the way it works pretty good want to already want to the supreme court so put aside it i would ask you to put aside for a second your do over argument and just cut let's just finally get to the heart of how do we get around this opinion language that starts with the word second if i'm wrong render the decision of the state court unreasonable and that that sentence that paragraph must be read as commenting on only the claim but they're not as it's a court they're not new facts if what you think we may possibly be going arise so let me try this out let's assume for a second that these additional facts were not before this the state court let's assume that you're right that when we're talking in this paragraph starting with the word second we were assessing whether the state court was right in connection with what they had before the it still goes on and actually looks at the material and it says it wouldn't make any difference i think that's the heart of that's the heart of my question and perhaps judge roger's question we looked at the material and said whether the state court had it or not even if you get by procedural default in even if you can do this over under does what i read is second nothing in the additional declarations presented by wright's family members render the state courts determination unreasonable or contrary to clearly established federal law that's correct in says that our personal histories mitigation claim which is what i want to talk about today is procedurally defaulted and then goes on to talk about how those declarations could have any impact on that portion of mr wright's claim that was not procedurally defaulted the merits of his claim presented to the state court which was a limited claim regarding the failure to call psychiatric witnesses the court does not say that it's making an alternative holding here the court does not say alternatively even if the claim was not procedurally defaulted it still wouldn't have made a difference the court very specifically did not do that it instead said looking at the evidence it doesn't show a violation of twenty two fifty forty one maybe that's where i get caught up in pin holster and maybe i thought that that was where you were going i agree you didn't cite can holster but that is what pin holes are was talking about is you know and reason why application in the state court and we were looking at twenty two fifty forty one it doesn't make sense to me and i think it's your opinion not mine so i don't know what was in in your mind when you wrote it but it's not written as an alternate holding in my mind is  attempt of me at this word so second nothing in the additional declarations are the declarations that you're promising this rule sixty b petition on motion on the same as these so called additional declarations that are being referred to in this opinion regardless of why we're referring to them yes so it's nothing new ok so now explain to me when we looked at those declarations for whatever purpose h martino's then martinez allows the court under certain circumstances to look at things they were not previously presented and put before the district or before the state court because of the their procedures at the time was that a rough paraphrase of that ok so now how does that even apply when we actually looked at the stuff we holdings were in the district court on what each claim and so when we briefed the claim we briefed not only we wanted your the court we wanted your honour's to consider those declarations with respect to result application of strickland as to the limited claim that was presented in state court so we made that argument but we made a separate argument that we had a standalone claim of ineffective assistance of counsel as personal history mitigation so there are two claims to which the same evidence is relevant bridgette prejudice is the same under the prejudiced standard is the same under both claims is it not the pressure standard is the same but the twenty fifty four d analysis would be different i got that but eventually we're going to get to prejudice on both of these arguments right now because there was a strategic reason given for not calling it the psychiatric witnesses that rendered the decision  in not calling doctoring her to the stand as being reasonable the court found these additional declarations on having to do without the family member declarations and i think that's what the court was telling me why are you arguing this why are you saying that this in any way renders that decision by the state courts to be unreasonable the court found them to not render that decision unreasonable if i was arguing to your honor's today that i wanted to resurrect the ineffective assistance of counsel for failing to call d as a mitigation witness then i would agree with you completely sam yourself so in essence you're saying everything we're asking you about had to do with failure to call dr ankur not whatever your new claim is under sixty yes would have been easier for you to answer it perhaps if it had been raised by the other side perhaps but you know i'm my own is a great lawyer so i'm not going to cast aspersions there and it's my fault because we are talking about a capital case and we are talking about a me and who was sentenced to death on the basis of a false picture of who he was and how he got to be where he was because of ineffective assistance or trial we're talking about a man who the prosecution capitalized on the effect of his this is of counsel by arguing him to be a remorseless cold blooded killer who would kill again in prison and less he was sentenced to death i'm sorry to do this to you but this is important to us and so i just i'm here to answer your question i want to finish something up our prior conversation is what you want to do correctly is look at the last part of the section of the opinion we directed your attention to and you want to you want to make sure we put it in the right context which you say was addressing the failure to call dr ankur right the second part was a very yes now i go back to the beginning of this part of the opinion which is b and it talks about what you assertions were and it says right asserts is trial attorneys failed to investigate fully and present compelling mitigating evidence at the sentencing phase of the case however the record shows that rights attorneys conducted a complete investigation into wright's personal characteristics including extensive discussions with his family members and a psychological evaluation and then goes on to say the record also indicates the district court correctly determined that the decision not to call dr ankur so on and so forth so this whole section b isn't tied only to your doctor anchor claim it's tied to i see at the mitigation phase which includes not talking to family members and not  the claim didn't have merit because in fact the record indicates that they did talk to family members now you're now presenting some additional declarations of family members but that's not new the declarations claim earlier and we are already found that there was a complete investigation into rights characteristics including extensive discussions with his family members and a psychological evaluation now i know you don't like that and i know you think that that was wrong but that was based on what we were presented and so essentially you're trying to weigh i would say that you're trying to use martinez to get a do over not for something that you were previously prevented from putting into the record but something you already presented and we already correctly or incorrectly from your perfect perspective resolved there in lies the problem is i see it because i don't see these concluding paragraphs is being cabin to dr anchor at all based on the introductory organizations track your language you would see that the claim with respect to dr ankur talked about failing to get the social history information to him and the extensive investigation that they were talking about in the state court record which is what this court was relying on related to evidence regarding the psychiatric history that's my position i believe that the record will support me on that but for us to cooperate that then what you want to do is go back and look at your briefing that led to judge and i don't believe that was what was ruled upon by this court this court found a claim that we're trying to resurrect the one that we believe that martinez intervene you know give us the opportunity to present in a rule sixty has to do with the personal histor mitigation which shows conclusively and it's not dispute it that the jury sentenced mr right on the basis of a false picture it's a clear case of for relief under porter versus mccollum martinez itself and i know i have one in twenty six seconds but i would like to talk a little bit about why we're different from and why are because i think that was one of the state's main arguments if i may and the basically there are four reasons why mr right is different from mcguire mcquire was a situation where mr mcguire abandoned his argument of ineffective assistance of post conviction counsel after he lost before the magistrate mcguire is a situation where he actually raised the claim at issue in state court on direct appeal and there was no allegation of ineffective assistance of a pallet counsel mcguire's a case where the evidence that he presented was not substantially different from the evidence that was presented at his trial court and it was a case where the court found that it wasn't particularly compelling case for mitigation mr rights case is completely different he raised in effective assistance of post conviction counsel beginning in one thousand nine hundred five in the state court and pressed it all the way through this court this court didn't have the authority in one night in two thousand and ten when it decided the case to set aside twenty years of established precedent trevino talks about the decision in martinez as being one that is historic and we would argue that the incessant commands of justice in this case under all of the facts considering the fact that this is not an aggravated capital case one single  is it is it that you think would have persuaded one reasonable juror to vote for life as opposed to death and i know you've talked generally about the personal mitigation issues but what what would be different other than we know about the troubled childhood in the impoverished background and and what was it was just a very difficult situation for mr right growing up and what would have been different that would have caused  juror to vote for life and as opposed to if you can answer that in thirty seconds or less well for example that his mother was a violent alcoholic who killed a man that his father was so brutal that he shoved his mother's face over an open flame because she bother to feed the children against his rule the fact that these children didn't just grow up in poverty they grew up in dilapidated vermin ridden shacks where a rat not on the face of one of his sisters over fifteen times these children had to beg for food in the streets this wasn't just coming up or if this wasn't just a family who we tried hard that we loved this was a family that grew up in chaos and trauma and violence that led him to be in a situation where he could be convicted ok thank you very much you have your five minutes of rebuttal time thank you j remember where we are and i and i as i listen to my colleagues argument which is always very good it sounds very much like and an argument the first time around in a case but where we are is is with rule sixty motion in a situation in which the district court's decision to deny that motion is the review of that decision is very limited and subject to differential review and an abuse of discretion standard and that's how we've we've attempted to address this in our brief because in this instance we don't think that there was any such a brute abuse given the fact that the single fact  supporting the rule sixty motion was martina's decision relief under rule sixty is requires an extraordinary circumstances it's granted in only of the most extreme cases and situations in which equity that when a petitioner defaults on a constitutional claim in the state court in order to receive federal review of that claim he must show two things first calls for that default and actual prejudice arising from the constitutional violation so it counsel's performance at the initial review stage of collateral ripper seedings as to certain claims only trial counsel ineffectiveness claim so it's a very narrow ruling the ruling in and of itself is not extraordinary just like in the ruling in our tos vs benefit been it was hardly extraordinary in the statue of limitations context so just relying on the single fact of the change in the signal law we think doesn't get or should not get the petitioner through the door in terms of reopening a final judgment and for that reason we think that the district court in and of itself for that reason which would support a funding that the court did not abuse its discretion in this case but beyond that the martinez case is even less extraordinary in this case because as i mentioned it addresses only half of the equation it only addresses the calls the calls analysis it left intact the requirement that petitioners must demonstrate actual prejudice to overcome a state court default and as the court pointed out in its own decision which which we did not make the argument in our brief i confess but what we did was we looked at the district court's decision but as a district court denial of the rule sixty motion was based principally on the fact that it had previously found that the petitioner had failed to demonstrate prejudice as a result of the procedure to fall the analysis was extensive on the procedural default it went through the arguments about clause it went through the fact that post conviction counsel or the performers opposed conviction counsel couldn't serve as cause and it clearly this petitioner was making that argument all along the the very argument that martinez addressed the district court looked in its original decision at the law as it stood at the time and concluded correctly under the existing law that the performance of post conviction counsel could not service calls for the default but the court went on and we cited this in our brief to make a specific finding that there was also no actual prejudice as a result of the alleged constitutional violations and referenced within that fact that holding its previous holding about effectiveness in general there were general claims that counsel was ineffective for failing to present certain mitigation evidence and the district court in his decision she's made decision address that claim on the merits so we i can see your argument i can see the strength of the district court's argument but we wouldn't be bound by that in any way they might we might second guess that we might say it was and it was misguided in its evaluation of a claim that it had previously been held to be defaulted and we would have but you would make your argument and  the other side wouldn't make their argument but if in fact before we rejected that very argument in the alternative that would sort of pre term it such an argument would not  but so i mean i don't want to if criticize you for how you write your brief but but if if if you don't make that argument makes me wonder whether maybe you are assuming that what what you're posing counsel says about how she read this is how you read it as well you see what i'm asking i i read this court's decision in part b as a basically reaffirming what the district court already found us bridges because what this court found was is no prejudice it doesn't standard for review is that is an abuse of discretion and the district court there's nothing in that finding where the court said i'm not granting relief under martnez because number one the sixth circuit has already determined in mcguire that the change in the signal law doesn't constitute an extraordinary circumstances for historical stance for purposes of rule sixty and number two even if it did i've already found that there was no prejudice as a result of a default in any event so motion for relief denied that we think does not in any way constitute an abuse of discretion because we asked the question right then how do you characterize this paragraph differently from the way you're posing counsel characterize the she has an argument that the way i guess the argument is the way that the arguments were presented to us before would would convey that this paragraph that starts with the word second was not talking about we have to look at it in context with the brief spec then as i read this opinion this is the way out this is the way i read the opinion number one there was a question raised on appeal about whether the the finding of default was correct because there were certain there was certain language in the state court's decision that suggested that the court may have implicitly addressed some of the claims on the merits and so the court first rejected that and said clearly the state court found a plot procedural bar and decided not to address the claim on that basis so number one this court affirmed the finding that the that the issue was procedurally defaulted number one number two and i haven't looked at are at the old briefs and don't know what's in them but i reading between the lines eyes i it seems as if there may have been an argument by the state that the claims were essentially the same they're not raising anything new they're still talking about mitigation and so it seems that the court went on to point out that in fact they are raising some different claims maybe some additional facts there are some new facts here so we are talking about number one these things were defaulted and they are different even though they had to do with background their new facts or additional facts or addition addition a little bit more of a gloss i think you used the term there's a much more vivid picture of the tragic circumstances of wright's family so the court makes it very clear that number one is defaulted number two these are different climes so they took the court being goes on to say based upon the reading of the evidence presented which wasn't presented to the state court which is on present in the federal court that in any event it would not have made a difference that's the way i read it i read it as an alternative finding of no prejudice the court doesn't say that but that is the way i read it in the way i read the decision that that does that reading actually perfectly tracks with with the the different corresponding of no prejudice below so so yes that the court could have relied on that the court didn't the court relied on its own on its own finding but again that obviously this i think bolsters that but i think in no way under those circumstances can can this ruling be be deemed an abuse of counsel reads the state's brief as being hyper technical and perhaps a two to narrow reading of mcguire and being somehow some sort of bright line rule we view mcguire as perfectly in line with the stablish case law about the role of the change and the fact that the change in decision a law in and of itself is insufficient to establish an extraordinary circumstance under will sixty be under most circumstances now there are circumstances as this court has recognized in which a change in decision a law could be could constitute an extraordinary circumstance for example in the blue diamond coal company case the court identified a situation in which a change in decision law would generate divergent judgments between the same parties to the same litigation under the same set of facts so in that circumstance the court found that that equity and justice demanded that the the that the judge be reopened that is not the situation here obviously and the ruiz versus quarterman case dealt with a situation where there was a change in decision a law of a state court that materially altered the default status of the petitioner the district court had originally found to be defaulted eroni asli ultimately the state court when ian and looked at the claim on the merits and then they were able to that petition was able to go back into federal court due to that erroneous default determination which was subsumed corrected on by the state corps so that is not the situation in this case the other category which is similar but is that the sort of the thompson  d that line of cases in which there is a a change in state procedural law that changes the balance of equities between the parties and that's not an innocent situation here that had to do weird with really couple of points i would just make and this and this is it is sort of a big thing in the in the reply brief effect this is a capital case and we all recognize that and we all recognize and i think that the u s supreme court has in the number of those to those cases deal with the initial proceeding and that's exactly what this case got the does not notwithstanding the default the district court did take a look at the additional material that was presented just to be sure that that all capital cases and certainly i think that the district courts do that as well i'd like to to ask you about the statement that you just made about the significance of mcguire and  trevino we have said that mcguire and trevino alone are not sufficient under rule sixty because sixty b requires extraordinary circumstances and that alone doesn't amount to that you've alluded to there are instances where there could be something more that constitutes additional circumstances so if we were to look for that here we'd look to see what else do they plead that would individually or collectively constitute this additional circumstances we don't have a test for that but there is a ninth circuit balancing test and are you familiar with helps i don't remember whether it's discussed in the briefs i'm sorry didn't go back and look so it goes back and it looks at the nature of the intervening change the exercise of diligence the interest in finality the delay do you agree of the connection between the case and martina's comedy those are the factors it's looking at there there are some factors that while they didn't really spell it out as factors that do seem to fit within that test diligence for example which is henry has already alluded to a couple different times is one of the things that could arguably factor into an exceptional circumstances so i'm wondering if you have anything you want to offer to guide us on how we determine whether there is something more than just the cases that had the additional factors and really for this reason to show that the there are circumstances where there are these additional things and those additional factors that are highlighted in the things that you just mentioned are things that actually change the balance of equities and change that the interest you know the weight of the interest of the party's interest in the case there the problem with this case as i see it is that there's nothing beyond martin there's nothing like the state's diminished interest in finality or something or some inequity between two two similarly situated parties there's nothing extra in this case beyond martine is that the circumstances that ms henry highlights the fact that he you know he hasn't had a horrible childhood by the capital these are all things that were taken into account in the original judgment they're not things that are outside of the original judgment that that really bear on that balance or or change the balance of equities in any way the diligence i don't think has any really should have any bearing at all because if that's the case then and then individuals like mr wright whose who judgment became final close to martina's somehow get get more of a more consideration than people than other inmates who whose conviction her suggestions are can file for much earlier that doesn't seem to be that doesn't that doesn't seem to  you know to be a very civil arbitrary to say well i my judgment was was was final very close to the dark determination in martinez and i mediately filed a motion to reopen well lots of inmates immediately found motions to reopen in fact we had an entire slew of motions to reopen in capital cases in sin city in the wake of martinez and then subsequently in the wake of trevino so that's nothing that's that's particularly out of the ordinary i mean it just to me that just shows the diligence of missing marine her team i don't know whether what i'm about to ask you would fit within this extraordinary circumstances so it would be sort of martino's and trevino plus something else but when judge kohl asked him is henry what is it about this additional evidence that set forth in these declarations that the jury didn't hear she came up with a pretty compelling list of things that she thinks would potentially change the the the judgment of one juror so how do you respond to that i respond and the way that i don't listen to the record that the district court was aware of this report looked at looked at the additional material this court looked at the additional materials those things were all considered in the context of whether or the district court's rejection of those as a stale wishing president prejudice is not an abuse of discretion is that what this comes down to i think i think it's not an abuse of discretion because that those matters but you just you said no one very judgment that that the petitioner is trying to destroy all of those things were considered and or are within that the framework of the original case that they're now trying to come back in and reopen but considered where it wasn't considered by the jury because it wasn't presented it was considered by the court and by the district court and by this court it by its own but let me just take this one so wasn't considered by the jury wasn't considered by the state court because this wasn't presented there in lies the procedural default argument so we're talking about was a presented to the district court that the declarations presumably were presented to the district court and the district court found that there was no showing of prejudice this court by its own opinion noted that it had considered the additional declarations and found that it would not render the state court decision unreasonable so presumably all of that information was encompassed within the original judgment and so there's nothing that they knew about that  hearing i'm just having trouble following when you say the the original judgment which one you me a judgment of this the judgment of the district court that was affirmed by this court on appeal and two thousand and ten oh that's the judgment that they're trying to disturb so the district work the district court the federal district court and right one is what you're referring us to correct ok right i mean because that's what i mean again and that's why i started my argument with we're here on rule sixty they're trying to disturb a federal court judgment denying hideous relief that encompasses a review of the very materials that they're presenting as an extraordinary circumstance to justify reopening and that's where we think that that they're that they that their argument falls apart because there's nothing combination we think that that maguire stands for the proposition and that that it is is not extraordinary i think the gonzalez decision certainly supports that in the context of a statue limitations argument and we've cited numbers of other circuits are some things i'd like to point out i would like to address justice make your judgment key your point about the felt sources on me to night circuit test i'm very familiar with that test that was the test that was applied in the lopez versus ryan decision which was my case and the seven equitable factors which i outlined at the beginning of my opening argument essentially is the the felt source amita test and i would argue that we need all of the factors of phelps in this case in our briefs if the court is convinced that we have a proper sixty b before switch i understand is in fact the question that your honour's want to answer here today so if we could go back and look at how the the say argue this case in write one what that with respect to the claim that i'm arguing this court found to be procedurally defaulted in only address from purposes of procedural default personal histories mitigation claim what the state wrote was rights claim the trial counsel failed to an earth the haunting details of his upbringing are as the district court ruled barred by procedural default at the state evidentiary hearing on his first post conviction right presented no testimony from his family members and his post conviction counsels failure to do so cannot amount to cause to excuse his default later on tellingly before this court right makes no attempt to explain why eleventh hour affidavit should be heard to substantiate an ineffective assistance of counsel claim instead intertwining their contents with matters that were fairly presented to the state courts that's a page twenty eight of the opening brief in write one clearly the state and we thought that those claims were procedurally defaulted and believe that was what the court was addressing now if we let judge rogers and judgment he gives you pointed me out and point out to me section b and i do this it no great risk to my own ego to try to do this argument again that mr helping us help me out here if we look at the way the court structured its decision under section b prior to getting to the question of the first or second clauses in the first paragraph the short cuts we all do that i mean that's the way these cases work right asserts that his trial attorneys fail to investigate fully and present compelling mitigating evidence at the sentencing phase of the trial but then when you go down to the end of the paragraph beginning with the sentence that begins because the court room because the state courts determination that the performance of rights trial counsel was not constitutionally deficient and was not an unreasonable application of federal law or contrary to clearly established federal law the district work correctly determine that really on this ground i would submit that that is limiting it to the claim that was raised in state court but we go on to page five ninety five and this court again when we look in the second column of the published opinion decided then we go down in that paragraph here the state appellate court determined that rights attorneys performed a reasonable mitigation investigation the failure to call doctor and anchor was reasonably strategic that mitigation investigation had to do with calling dr ankur end up calling dr anchor only the next sentence when a state court has adjudicated the merits of the petitioners petitioners claim a federal court may not reach a different result simply because the court concludes in its independent judgment the court goes on to discuss the state court decision but again limiting it to the anchor claim then we go to the top of page five five ninety six again addressing the state court record because the record amply supports the determination that rights trial counsel may strategic decisions about which witnesses to call and i would get the decisions that they were making was about whether or not to call anchor as a witness and that these decisions were supported by reason  why are you reading that part to be limited acre because we're talking about the state courts determination of reasonable isn't the only thing when you look at the state court's decision the only thing they were looking at was the investigation that led them to decide not to call anchor because that was all that was presented that was all they were deciding and then if we go down into the middle of the next paragraph yet as the state appellate court determined rights attorneys conduct a substantial investigation prepare for the sentencing phase of the trial and then pitch five ninety seven at the top paragraph five addressing the claims specifically me and the court did with the courts always do your talking about general claims the general nature of the ineffective assistance of counsel claim and you're using phrases that were used to using failure to investigate to call a witness while the witness was anchor but had no five right i'm sorry you're not a c i'm out of time and i like you to finish it if you could identify these paragraphs by the first words of the paragraph would be easier for me certainly your honor i'm sorry i had no five beginning with write argues that the decision not to call dr ankur could not have been strategic because rights attorneys merely forgot to call dr anchor and then that whole sentence goes on to just talk about the state courts decision and not calling anchor and so in then there is discussion about as right sees it the mitigation investigation conducted by attorneys constitute deficient performance and then goes on to discuss the broader investigation that we claim should have been conducted but then after discussing that immediately proceeds to find that that claim is defaulted but then go to six right also argues and it goes on to talk about the claims beyond inker just enter first and first analyzes the also argument in the context of procedural default and then as i read it addresses it on the standpoint of prejudice and there they seem to be addressing this additional right argument the deals with the family members as opposed to dr ankur his so why is it why do you think that i that that reading of that is wrong for these reasons but now that these additional and we're finding under six if we go to the conclusion of sit here is right also argues the last sentence but rights later claim that his attorneys failed to investigate your family background was fundamentally different from the claim addressed by the state courts and then the second i believe structurally under way that's pardon me just so i understand the fundamentally different is what keeps it what and so we're not going to consider that in the context of whether or not the state court determination was unreasonable and so when you go to second i believe first is ok we're taking this stuff out that we're not considering it procedurally defaulted and second when we apply it to the state court determination we're going to say that that doesn't make the state court determination unreasonable in other words that second is limited only to the anchor claim structurally under the and again would welcome the opportunity for supplemental thank you ok thank you counsel we certainly appreciate your arguments today you know we'll let you know if we think there's a need for supplemental briefing