but on the denial of rehearing it clarified that the court should determine whether sasser had properly presented the claims in the initial state post conviction proceeding whether the claims were properly presented and that proceeding for us was not a matter for a hearing but was a threshold question to be resolved by comparing the then present federal claims and the state court records if they were the same claims they were defaulted on appeal and martina's did not apply but on remained the district court held the evidentiary hearing then purported to conduct the textual review as it should have without considering the newly presented evidence it appears to have misread the federal petition and concluded that there are man it claims were nowhere to be found it and that mistakes served as its basis for going to have a bench or a record to define what the remanded claims were whether the default that occurred so as to determine whether it was even the type of default in which martinez could apply in fact the claims alleged in the federal petition were presented in the state that conviction proceeding and sasser expressly acknowledged as much twenty years ago and on the record discussions with the district court and in an amended pleading and motions for a hearing but in two thousand and thirteen when it was no longer advantages for him to take that position he dropped his stated that fact and he doesn't seem to dispute it now but argues that it's irrelevant because the district court held his newly presented evidence rendered as claims on exhausted default and subject to martinez review of the federal petition to determine what the federal crimes the alleged federal crimes were and when it looked at that petition yes its opinion or the memorandum opinion indicates that it found only  i guess you think that's when it did i thought it but i understand the court took avid and i thought it was saying that the new claims under this reading of various skills against hillary were were were fundamentally altering some previous claims your honor what what the district court said about the titian was that it could not that it raised a general claim ineffective assistance and it also what i think it was it and it used that it couldn't find the questions in the petition and so we went to the arguments and the evidence to determine what the remanded claims were what the federal claims were and there's indication and in the memorandum opinion that the district court was looking at a procedural history of the state post conviction proceeding that the federal petition listed claims that had been raised just a terse list of claims that have been raised in state post conviction and woke thirty seven and one of those who was claimed for in state post conviction was that i think it referred to claim seven in the federal petition as though it were a claim alleged in the federal petition the claim seven the one that it identifies in its opinion is what's in the procedural history for the rope or the seven petition and so that's the court then based on their not being anything other than a general claim in the federal contusion it can be evidentiary hearing and went to the arguments made after the evidence  failure to prepare and present their art and i'm sorry to prepare and to timely investigate and his psychological exam timely request a psychological exam and the appointment of an examiner those who were in the federal petition those allegations were in the federal petition and both of those claims that this court remain and those claims also were in the state petition they were they were  try to find a cite for that but those allegations i assume that this or found them in the federal that station and identified them for every man and the federal court did not find them had it looked at paragraph seven on the petition it would have seen those allegations begum and so what the court did had it had conducted the textual review and properly concluded what was in the federal petition and it it would seem that the claims were there and so  i know but you're still not really answering what you think that would you district court is referring to the nd and rd claims are st to you're saying the dischord did not find those claims in the federal petition concluded that new evidence changed the clangs that's that's correct but the proper textual review would have would have precluded consideration because where point any additional evidence introduced in federal court has no bearing on two thousand and fifty four d type review regardless of whether the court had discretion to hold the hearing and in martinez super he should have ended at that point  proper review of the pleadings because they showed martinez did not why i didn't want to say a few words that alone is grounds for reversal but i do want to say a few words about the court's consideration of the new and presented evidence the court looked at the  evidence and argument presented on remand and concluded that the state and federal crimes were fundamentally different because the factual basis had not been exhausted but it didn't drill down to supply any analysis of what facts it thought were new and how they alter the system the legal basis of the plane so that it was truly a new plane with totally different factual predicate instead it seems to recognize that both claims involve counsels failure to ensure a timely and adequate in depth history  social history investigation but it focused on the differences in the mental health related evidence and theories developed in each case in state court in federal court it never identified the facts that were supposedly on exhausted and made the claim new and a lot of those overlap with what was what was before the court in state post convention example the federal court relied on the opinion of the clinical psychologist leslie legal ones who testified below about the effects of chronic adversity related to the loss of staff from spotter when sasser was two and his mother was maternal depression and poverty when considered with the level of saps or cognitive function but that was opinion not fact and the courts should have focused on the facts underlying that opinion to determine what was new many of those facts overlapped with the jury for example had heard evidence of the tragic loss of sas which other the fact that the family had to pull together and work to make up for his when he testified at trial that poverty was a part of the culture it was still and that it limited the types of jobs people forget that he would testify and post conviction that he agreed with the anti social personality mental health disorder by gnosis explain more about cognitive testing here and with stats or being at a th grade reading level what does this have to do with the issues on appeal i'm sorry i'm just reading a so a lot of evidentiary material maybe you could just tell us what you think is the error the error in the st error is in conducting its textual review of the petition to determine whether the claims were of the requisite type of planning that would be considered under martnez the district court air and the the martinez inquiry should have ended there because the pleadings in federal  court contained the claim and counsel over twenty years ago that it was the same class and he was trying to get it hearing on it in federal court to really judy k what had gone on in state post conviction know anything else yes i think the court only that the court by considering the evidence and determining that it actually generated new claims will simply error it never identif her i mean even if it was a fine best guess the hillary considering that there was no indication that the facts were substantially different it relied on opinion testimony d the only facts that well the  significant facts that were different were the opinions of doctors like and watson indicating that sat sasser had more organic brain damage some mild moderate but not severe trial who testified on behalf of them a trial i'm sorry had pending disciplinary proceedings against her and could have been attacked at trial you know anything you want to say about twenty to because we don't even get to that point if the if the textual review has been done correctly well let's say you get past the textual review what if we get past the textual review that i'm not sure i understand the question judge quality and i'm sorry could you repeat that judge berger i'm sorry do i understand your argument correct i mean st off that they're barred because of martinez and the procedural default state court but if they're new claims if they're truly think they would be barred as excessive if they were trying to add new facts to the record and that was one of the somewhat related one of the things we pointed out is how did the court get to be used if there was no amendment there was no but yes if they are actually presenting the same finding but of course we were back on remain am on the st petition and so the process is just defective but yes if yes if he's raising claim you wish to save time you're in your bubble time that you might want to save for the cross appeal do you wish to reserve or do i i will reserve my time thank you your are all right mr braden will hear from you  not applicable here and does not refer to prevent a hearing that that statement with respect to the martinez issue that is the default question as opposed to the merits of the claims that would have to be adjudicated if you got through them procedural default i think yes but i think that what  than anything that was presented in the state court  his family separate or death of this family how that impacted him and how that him acted his family and the federal district court here pam that had the jury heard this evidence there is a likelihood that the mentions there are several examples of the claims for senate in this state as conviction petition and but there also in there is a claim that mr of the lawyer to prepare that expert is completely different then the no logical impairment claim which is much more profound and much more in depth than that evidence for spin it at the federal  i'm asking you which of those is the neurological impairment claim and where is it you know and the petition that was before the panel at the time well  quite some time for a number of reasons and these issues have been developed in the th circuit has seen this quite some for quite some time so this evidence developed in state court it through the federal prime target up in federal court through the the federal process  history it was presented into that at a hearing in two thousand and ten and the in the at this court in two thousand and thirteen remanded it back to the federal district court because the federal district court determination and again that the federal district court did the same thing here so one of the issues that and and i think it's clear and i'm i don't want to spend a lot of time on this point but has to prove and under arkansas law the statute mr sasser has to prove significantly sub average general and the d actual functioning but he also has to prove a significant deficit or impairment in adaptive functioning and he has to prove under the under the statute he has to prove that they manifested in the developmental period or that but under the age of eighteen under the medical criteria he has to prove that they say there was an onset under the in the developmental period and mr sasser shown that but the federal district court here in applying this criteria has gone outside the diagnostic criteria it's created a new requirement that's not found in the medical community when every choir mr sasser to not only show that that he had adaptive deficits inside  the inside the the bell middle period or the age of eighteen and then just show that they also existed at the time when he committed this crime and this is contrary to the medical communities is only required to show intellectual disability in the developmental period by which you mean before e g eighteen you know let me develop and is not required to show that he was suffering from that disability the time of the crime it has shown that he has suffered ever he had adaptive deficits in the developmental period and had had and also shown that he had  deficits in intellectual functioning showing that he is intellectually disabled that is all that's required and what the court said until you mean because he did it automatically continues throughout the person's life and so and if you look at the d s m five the dot current diagnostic criteria talks a lot of about support in other words how do people with intellectual disability survive in the world so to speak well most of them need support most of them need the help of family or friends or hospitals to survive in the world and and they and they're usually good at for instance mr sasser here had  supporters at some point some points he didn't have support when he didn't have support he was worse but you know he he had murder life struggles without the support he needed support to families and friends and that is the hallmark of the diagnostic criteria in the in the d s m five so for instance the question that you asked about well do we look at stuff beyond this developmental period where the course you can look at stuff beyond the developmental of the porters you can't mix and match at different points of mr sasser sly to create a picture of him you have to look at the relevant information you cannot create this composite and that's what the federal district court here it was d looking at evidence in this case looking at saying that he didn't have academic deficits eleven or twelve out years outside of the developmental period because he couldn't show them at the time of the crime district were then later was required him to show it some time later which this court has said that you don't that you can't create this composite another thing that the federal district court did  just particularly in this adaptive deficit but also threw out all the other is he relied on lay stereotypes which again you can't did the medical community does not rely on lay stereotypes s instances he said the doctor heard the state's expert who through interviewing several people had said that or some some school friends had said that mr sasser didn't do very well at school in other words attacking the academic deficit because he just didn't try hard enough or he read motivated enough but that's that's a lead a stereotype of what what people expect out of intellectually disabled people i mean certainly it could be that mr sasser wasn't motivated because he was unable to complete the academic pass or before him because he was intellectually disabled and i think that happens a the district court over what measure should the district court have used in the d s m which will came out i think in two thousand and nine and a lot of this is detailed in my brief but it came out into whatever came out the the district court that as the diagnostic criteria that it was going to look at during the course of this litigation in two i think it was in two thousand and three d thirteen  american psychological association came out with a new diagnostic criteria an updated one the d s m five and i'm sure all of you are aware of this but this is that change the meaning of the amendment when that's true that the district court here used to make this diagnostic criteria and there's been some every time this association updates their manual that triggers the new adkins proceeding dosar f e m what nation of you here now ok well comfort that that isn't the implication of two first criteria that that you know that the deficit's intellectual functioning and impairment in adapting functioning and he showed that that happened in the developmental period of change or the federal district court has deviated from the diagnostic criteria whether it be the d s m four or whether it be the u s and by by creating a new requirement it's creating the the supreme court is saying in murder this isn't just some minor deviation and he didn't industry quick conclude though that he didn't meet the standard even during the developmental d period i don't think that's true i think that the federal district or here wrangled with a lot of evidence and in the end the federal district court said and i so  so what ok about page twenty three of the order because the court finds of all of that sasser has not met his burden to show that he had a significant deficit or impairment in depth of functioning manifesting no later than the age of eighteen the court also finds here that sasser is failed to show he had a significance of average general intelligence that manifested no later than the age of eighteen or so is that a finding that he didn't need it even during the developmental period that's the district court's finding but that is not correct because what the what the federal district court house is saying was clearly erroneous and it's clearly erroneous because it is not it's contrary to the diagnostic criteria because what the district court is saying is i've looked at all d d this evidence of intellectual functioning and i but what and and i'm unsure what to do about it but i also know if you if you read on and i think it's right there in that same paragraph or maybe the paragraph above that adaptive deficits are the best so and so and and to get there to sort that out the district court look at the adaptive deficit's and that's where i'm saying that he was wrong the district court improperly deficit that conceptual to bang and what the district court is saying if there's evidence of that and it exist then he's intellectually disabled but he applied the wrong standard and in doing that he basically said that these academic good deficits do exist but he hasn't shown it what it says it does not it does not however demonstrate that any limitations were significant at the time of the crime the primus committed and that is not the diagnostic criteria so so here it was caking evidence from eleven or twelve years later to add into or to look at decide whether he's shown academic deficits in the developmental period and because he can't show that at the time of the crime he's saying he doesn't have active mcduff since well i don't and i could be wrong but i read it  suggests that he found your even during the developmental period that it didn't be that your client didn't meet the standard so so what if he went off on two to look beyond that if there conclusion that he didn't need it during the developmental period isn't the rest of that if there are much i disagree with that i think i think what he was saying is that the best measure  language that he talks about is the best measure of intellectual disability is adaptive deficit's so he looked at the intellectual functioning question and then he looked at the academics and then in the conceptual domain he puts the match these different parts in mr sasser flawed so i don't agree with that i i think that the district court was looking at adapting deficits to make a determination whether mr intellectually disabled overall we were do you think the supreme court says that it's improper to look at this ability in time of the cry isn't the whole point of a hat pins that people should was this on the person's capacity at the time of the crime so why would it be improper to consider that i agree that the issue is culpability and that's what the supreme court has said but what it is also said is that a person with intellectual disability is exempt under the th amendment from execution so if and and the supreme court has been very clear in the hall in both more cases and this court it's been very clear in sasser that the that that determination has to be made using the diagnostic criteria of the medical community the medical community says that there is an initial determination has to be made in and at the age of onset or in the developmental period so mr sasser can show which he's done that he has these two you know deficits and intellectual functioning an adaptive deficit gap the behavior in the developmental period that's all he needs to show that he's intellectually disabled as we discussed earlier this is not a something that goes away or or or changes over time  very quickly i do want to touch on the martinez machine and mr green's reference just to try to clarify the twenty to fifty four d and eat dinner play and in a can in a sense this case is almost indistinguishable from the whole story where the district court held a hearing on the mistaken view that it had did not apply it didn't think it apply it received abundant new evidence vastly different from that and discrediting that that had been presented in state post conviction  when that went up to the u s supreme for there was some dispute between the parties and in this instance it was the state that was arguing that the new evidence actually was that the claim had been originated as the same claim but the new at that point before the end and no evidence to be considered might be able to be considered if there were an exception to the of but the ability of twenty dollars to fifty four dollars and on that note i just want to point out that this specific allegations as they are presented in the state and so that on that no textual review tells us that the claims were the same and the new it made clear that the relevant time period for the court's assessment of what sasser is function was at the time of the crime of the hearing and separately from the onset prong it was in the developmental period up to age eighteen that is of course the margins and in under actions can be ameliorated so that he wouldn't be considered intellectually disabled later at the time of the crime and the court here simply observe that it had nothing to do of the crime that is not what mr mr safir provided the court with the three domains the evidence in the three domains that it one of the court to consider and one of those consider when applying athens and applying the arkansas test one of those areas were the academic skills and that was all of the evidence that mr sasser had given the court on the academic skills and so the court was trying to do both figure out whether the evidence presented to it actually showed the deficit's in the at the at the period of development the early development period and whether it persisted whether those deficits persisted at the time of the crime it wasn't forcing mr sasser to prove that it was trying to find from the evidence that mr sasser was relying on whether it can satisfy any part of the test whether at the time of the crime or in the developmental period so it wasn't adding anything on  taking the i think what mr mr brightman sent was that the court employed lay stereotypes when considering the academic domain as an example he misconstrues what the court did the evidence of intellectual functioning did not demonstrate sasser was significantly sub average that's why the court went to the adaptive functioning evidence so when considering evidence the sas was weak academic performance during that period it had to determine whether the level of performance was functional that was was a function of significantly sub average abilities or simply set average abilities that would have made the difference and to make that determination it had to consider that evidence and and sat herself are poor and the report of a childhood friend that he had the skills to do better but he wasn't motivated and he didn't make the effort because he didn't have the encouragement of the demand from home to be better with that evidence calling into question whether the poor performance was due to sub average or significantly sub average cognitive abilities you know it the court had to go through that as part of the holistic review in trying to determine whether by a preponderance thank you for appearing by video conference the case is submitted and the court will file an opinion in due course