our next case for argument is united states versus feel good morning good morning your honor may i please the court my name is hunter level which i'm an assistant federal defender from the federal public defender office in philadelphia on behalf of the appellant fields i'm joined at counsel table by my colleague catherine who is also a member of the th circuit bar your honor edward fields is a federal death row prisoner who is before the court today on three post conviction claims of trial counsel's ineffectiveness at his capital sentencing hearing two claims to present evidence of mr field's long standing brain damage as well as his troubled upbringing both of which would have given a more complete and sympathetic picture of mr field's life which could have led a juror to vote for a life sentence the rd claim involves trial counsel's failure to object when the prosecutor in closing argument urged the jury to sentence mr fields to death based on religion and not the law when these claims are evaluated cumulatively the prejudice is clear so i hope to discuss all three claims today but before i turn to that discussion i would just like to emphasize this is not the typical capital hay vs case that comes before this court as the court knows because this is a federal prisoner case review is under section tw and fifty five dollars a federal court must accept mr field's proffer as true and cannot resolve factual disputes without an evidentiary hearing at which both parties have an opportunity to question the witnesses and particularly on highly fact on claims such as the ineffectiveness claims before this court a court cannot decide a twenty to fifty five case on the cold record alone and especially in a capital case is important to adhere to the rules because mr field is challenging the constitution reliability sentence and with that framework in mind i would like to start by discussing claim one and trial counsel's deficient performance with respect to the organic brain damage issue on in in terms of deciding whether mr field title to an evidentiary hearing you ought st have to establish that if all the evidence comes in the way that he says it well that he would have a claim on which he could prevail would you agree with that that is the correct  or yes so in your organic brain injury claim it necessarily incorporates our strickland standard that's correct your honor ok so i'd like to start with the question of whether this was a strategic decision by counsel to forego the evidence of organic brain injury for a number of reasons including no confidence in the doctor who had given the report the only the only one they had at that time that pointed to organic brain injury your honor the issue about no confidence in dr gilbert is reflective of cherry picking selective culling of the record that is not reflective of counsel's entire deliberative process there were certainly concerns at the beginning of the use of dr gilbert with his report that was early on as the full record indicate she said this was one of the worst reports she'd ever read that is correct your honor however that was as noted in both our pleading as well as the government's earlier pleadings that was a draft report what then happened is counsel worked with the expert to evaluate to review his report at which point she said i am very happy with this and that's in volume twelve page five hundred and fifty three she then proceeded after that to send dr gilbert a contract for his testimony asked him for his final report and made arrangements for him to come to court to provide his information but the final report never happened and i thought i thought there was this back and forth about perhaps more testing should occur but that testing did not occur your honor dr gilbert says further evaluation is needed in his in the report in the record however in his declaration which has to be part of the record under two thousand and fifty five of the court's consideration he says i did not need any more testing there may have been the need for medical tests but not neuropsychological i've already said at some point i raised that with counsel but she did not get back to me yes right that's correct but i came to the conclusion that they weren't really finalized with any reports no your honor the record reflects that in fact dr pryce the government's rebuttal expert at trial received dr gilbert's final report your honor i think what's important is that this court has dr gilbert listed as a witness he was listed in the rule twelve point two disclosure which said i'm going to be calling a psychiatry neuropsychologist i don't know about whether he was listed on that particular witness list but he named or was there just this generic description of it was a generic description but everyone understood that to be dr gilbert and again it was four days before trial this is in the record at by and twelve page one hundred and eight miso connell the trial counsel sent back together for an e mail saying i need you at trial dr woods who did testify is also on that e mail days before that he was on her witness list everybody knew it was him being described that four days before she took she sends him an e mail says i need you at trial and then for no reason at all she just doesn't call it that and that there was no strategy involved in that your honor she in her declaration which must be credited as true she says that i simply neglected to call him i was overwhelmed because i was trying this case essentially slowly and in fact who would ever tell especially in a capital case a witness for days before trial that i need to i think you would be prepared far in advance of that with especially your mental health experts this  shows how mr o'connell was scrambling to get this trial ready well didn't she also have concerns that dr gail bore conclusion which on she also said tell she also said don't hire him that she would tell anyone not hire him because she was so i'm happy with them but she was can learned that his conclusion about the brain injury was inconsistent with the factual record about mr fields holding down jobs for periods of long periods of time and his  the brain injury is consistent with his job history as dr woods testified at trial the only time he did well in his jobs was one he was in the navy from which he was honorably discharged and when he worked as a correctional officer and the reason he did well in those jobs is because those were structured settings that provided the rules instructions and regulations that somebody with frontal lobe judgment problems like mr fields needs doctor would specifically testified that in every other job fields his wife mr fields would just bounce around it was only when he was in those stable settings that he did well additionally your honor i think that and it's very clear from this a connell's declaration she wanted to present because the manic flip is something that happens instantaneously allegedly i mean that's the picture that's painted here if you have organic brain syndrome that is that is a constant that is a disease that is a mouth functioning brain and there's no sudden this sudden that you're just not there right and you can certainly have those two at the same time and as dr woods and dr greenidge indicate in their declaration there's a synergy between the two that when he's in a manic state as he was on the day of the crime his brain damage complicates his ability to think rationally to exercise good judgment to understand the consequences of his actions two experts have the clarity and again that must be accepted as true at this point that there is a combined effect from the brain damage on the manic slip defense that trial counsel presented i mean couldn't that be viewed differently though from a lawyers trial strategy perspective may be the scientists all talking together to another group of scientists could spend could spend that but couldn't a lawyer look at that and say you know what that sounds great from a scientific perspective but i've got what i think is this bang up manic flip defense and i'm afraid that if i bring up this brain injury to that what it's going to make the jury think is that i'm just grasping at anything i can get my hands on the make an excuse and why and i don't want to do that because i really haven't been comfortable with gilbert all this time and instead i'm going to i'm going to hit hard with the medication induced manic flu defense i mean wouldn't that a reasonable thing for a look for a lawyer to decide to do it trial every response is that your honor st of all that may be a reasonable response however that is not what the record reflects that is speculation that we cannot allow that point fifty five proceeding the record reflect that mr o'connell decided to present this evidence and in fact she told the government at a settlement conference that there is a synergy between these two defenses she told the court when she asked for continuances to get more time to repair her case that this brain damage evidence was important evidence that she needed to present her public presentation to both the court and the government has to be accepted as true and it corroborates her declaration that she had in full intent to present this evidence despite any initial hesitation additionally and i think what's i haven't mentioned yet is that both dr wood and dr greenidge as their declarations indicate could have had they been prepared discussed mr fields brain damage they considered it important but dr wood said that there was some discussion and then it dropped out because of this rush preparation he was also invited to trial just prepared by trial counsel to address it during my exam my testimony and i think trial counsel i mean didn't she specifically tell one of the other two i don't want to go there what happened your honor is she told  bridge that right i'm concerned that if you mention anything about neuro psychology then the government will get to rebut with a neuropsychologist that as we detail in our briefs is an er that was more general of that about not wanting to give and to gilbert's the e mail i'm familiar with that volume thirteen page eighty five says that you know i in your report dr going to judge if you could leave out the neuropsychology that would help but as the court is familiar with the record dr price testified and he's a neuro psychologist she was the primary rebuttal witness for the government so once mental health was placed that issue the government was free to rebut with any expert of their choosing you can't lock the neuropsychologist by not mentioning me neuropsychology in your expert presentation so we're here on the performance prong we're talking about performance problem right now yes stricklin what is the district court do with the district court engage in speculation that is not permitted and said well counsel must have had some reason for not presenting it and that was contrary to what her declaration said which must be accepted as truth that the district court has cut to no prejudice well the district courts no prejudice finding was based on a misreading of this m r i that the district courts to a sponsor decided to raise up without any briefing by the parties so in terms of the if the court would like me to address that issue i'm happy to do that well i had oh sorry and i hope so right the court folk the court three times said i find no prejudice because the m r i says there's no abnormality but our case is not based on an m r i it's based on the neuropsychological testing and as we indicated in our initial brief at pages forty six to forty seven you can have neuropsychological testing that shows brain damage but because the m r i is simply an x ray of the brain at a very gross level it may not detect any functional damage to the brain the two legs was that evidence before the district court when the district court made its r i was before the district court but neither side reached that issue as to what is the effect of the m r i and that certainly that or that if you have a normal m r i that proves categorically that there is no brain syndrome hospital records that indicated no brain damage in the face of nor psychological testing that's simply a matter of accepted medical records i'm sorry medicine and science and we were never given the opportunity to respond to district courts rony as factual medical and scientific so you're saying there was no basis then for the district court to conclude that a normal m r i did did did away with the entire concept of a brain and right and even dr short who was the have been unless i misheard which i may have i think she was inquiring as to whether the m r i along with other evidence before the district court would have provided a sufficient basis for the decision no because the m r i was not subjected to any kind of adversarial testing where the parties could debate the significance of it was simply not at issue before a district court would then determined and i agree if there's a conclusion that mr field doesn't have brain damage which cannot be made on this record then it be appropriate to say there is no prejudice but the basis for judge white finding no great damage is this m r i and the m r i alone and that is simply wrong as a matter of science law and medicine this is i mean i'm sorry i want to focus for a minute you keep pointing to the mcconnell affidavit and saying it's over we have whatever she says was her motive we've got to take it is true i don't buy that at all and i don't think that's what the supreme court has said or the th circuit has said this is an objective test of whether counsel performed reasonably and i don't think that defense counsel gets to after the fact say everything i did was wrong i was deficient and you have i had no street strategy in any of the decisions i instance we have to say well there you have it deficient performance that is not what we're saying your honor again we are still in the i would say the early stages of this case simply seeking a hearing so under the standard of  united states supreme court you look to see whether there is a specific and detailed proffer then you look to see whether that proffer is corroborated we are not simply relying upon mrs o'connell's words she as i said earlier she sent a letter and twenty one through two thousand and two she says this is it almost in itself a reason the brain damage a juror could vote for a life sentence i mean isn't that doesn't necessarily mean that she objective lee believed that was her best case i mean at that point she's meeting with the department of justice trying to settle the case so they won't go for the death penalty and so at a settlement conference i mean you're going to give your best case scenario and you're going to say what to do the lawyers on the other side you're going to try to point out all the risks they have going forward i mean so that's i mean that's government is not going to take her claims willy nilly they're going to check behind them you've gotta prove when you're trying to get a death penalty case he authorized you've got to line up everything in a row you don't come with weak evidence when you're asking the government has knocked out the most serious punishment our country can impose you come with what you have right and if your evidence is weak that's what you come but she represented this brain damage as a reason alone that the jury could vote for life additionally you know again you have to look at this progression of how the brain damage evolves she ultimately decided to present that that's where she asked dr gilbert and dr wood to come to court she sent a contract it's just  ultimately decided not to present it because she employed anybody off that's because she failed to do it because she was overwhelmed from trying a case a capital federal case by herself so her affidavit doesn't say you know despite knowing that it was going to gut my case and i was leaving some of the best evidence on the table because i was overwhelmed and wanted to get through the case i just dropped the braindamage defense i mean she doesn't go that far  she she says i failed to present it because i was overwhelmed and again i think one thing i'd like to add is that you know with respect to the affidavit in and of itself mrs o'connell is the federal public defender for the eastern and northern district of oklahoma appointed by this court this is not something like a declaration from a recants in witness or jailhouse snitch the court relied upon missile connell's declaration alone in the barrett case as part of the that's the only other federal capital case in this district the court relied upon trial counsel declarations in the barricades to deny a hearing on some claims so i think the declaration at this point in the twenty five proceeding has to be given weight and i agree it's not switch to the social history yes i haven't because we we have the same issues to go through with respect to that so let's start with whether it might have been a strategic choice to question the family in ways that made it look like to support her see her flip theory that you know here is this great guy his life was very normal and then they triple his anti depressant it drives them into a manic episode and he does this completely out of character thing in killing these two people on it a reasonable strategic reason not to put on the social history well your honor the problem with that is michelle connell did present social history she put on multiple family witnesses who discussed his nice person lead a good life and boy have you if you put the social history in that you're saying she should have gotten it would have gone the other way it portrayed a totally different individual the problem with that is the door was wide open at trial where the jury did hear many many adverse facts about mr field for instance that when you don't want your own counsel to bring those up well she did bring them up during the presentation of multiple lay witnesses the jury heard that miss fields mother was scared of him that he had committed multiple acts of domestic violence against his sister and his wife that he had that he engaged in hyper sexuality that he was a father so the jury heard all these bad facts about mr field but was never can text realized throughout the entire troubled childhood that he had or is parents abandoned him where she was himself physically and emotionally abused did the jury hear about the cal slap ina and the cat hanging and the snake handling right your honor the drudge specifically said i'm going to keep that out he drew a line at the very early childhood act but the jury in both the cross examination of multiple position and witnesses for the defense in the rebuttal case from dr pryce and in the closing argument by mr sperling the assist the united states attorney heard point blank mr fields is a sociopath who uses and discards people you can't get much worse evidence than that as this court held in the wilson vs sermon's case the jury heard the aggravating edge of the evidence but never heard the mitigating well in this on this point don't we have stronger evidence that it was a strategic decision by ms o'connell with respect to the social history correct well your honor again she presented some evidence of his social history and allowed the negative facts to come out so there's no reason to not present the entire social who don't we don't we have her statements in this record saying i and i want to keep this out this crap i think is what you referred  right but a lot of the adverse facts came in the government has not pointed to anything else that would i'm eating this her statements pretrial were evidence of a strategy to take and leave this so you have a few stray comments about him being hyper sexualized and his mom being scared of him do you really want to then emphasize all that with the link the presentation on just agree just some of this past conduct of b m it's not emphasizing it's sympathising your honor by showing just how troubled his upbringing had and therefore it doesn't at all explain what happened but it generates sympathy but it but it also in face even if even with sympathy it also it also undermines the you know crux of her defense which was the manic slip which has because it paints a picture of a man because of his upbringing could act this way someone might expect to act that way because of his upbringing and at the same time she's trying to paint the picture that he's normal would have never done it except for the mannix your honor the problem with the defense of the man eclipse was it did not address any of the pre crime behavior that label that led the government to label mr fields a sociopath because as the court earlier asked was focused on one specific day the brain damage plus the upbringing focuses on mr field entire life and as dr greenidge put in his declaration the brain and i believe in the andersen case as his forte held as we noted our brief people who appear to be sociopath but have brain damage is the brain damage that is limiting their judgment limiting their reasoning and is the far better explanation for conduct that appears to be sociopathic and that here what happened is the jury is left with this view of an evil man and that is simply not correct this is a man who is mentally ill and brain damaged but that just comes full circle back to you don't like her her manic flip strategy go your honor it's that they work in synergy so the brain damage mr fields entire life and works to explain why on that day in question he could not exercise proper judgment if i may just for a minute turn to claim three which is the claim about the closing arguments by me as instinctively knew that that story comes from the book at daniel well this is a well known biblical tale and as the government said in their page seventy one mr sperling recounted an old testament story religious arguments are simply not proper in a capital case anyone listening to that would have known was a guy i'm sorry who's knowledgeable of religion would have known that the government was urging you know who is knowledgeable of religion there's a defense counsel in this case warmed tactical decision based on input from legal and medical experts to forgo the testimony of dr job or career provided i'm having trouble hearing you need  already does that does that matter so the way i understood the briefing from your op as your opposing counsel are there is that any brain damage would have been sufficient to allow them to put on this defense affectively well i have to point a response to that and the st i think is significant with regard to great regard to the  st prong which is this it seems clear that both doctors granada's and woods were aware of dr gilbert findings we know that i mean dr woods testified as much on cross examination two people in this case who truly had the expertise with which to determine whether or not there was some synergy here and ultimately and this goes to my nd point this is not a legal determination whether or not to present brain damage is not a question for a court ultimately the question is whether or not it matters and it was the neuropsychiatrist in the psychiatry as to both testified that they had the ability to talk about brain function in fact did talk about brain function it was for them to determine whether or not there was that synergy it's obvious from testimony and from their their e mails that they didn't they didn't think so were they would have raised an objection on all on direct examination dr wood was asked point blank  up any if if mr field suffered from any mental disorder defect and the impact it might have had on the crime it if if doctor would believe that there was a think that he did my point is that he was in a position to resist in fact he was the only person who could resist an illness not normally how it works is that i mean he worked with your experts and you say this is a theory we're proceeding with the trial you preparing your expert to go that way and the experts so testify i mean it's not it's usually not going to happen that the experts going to say wait a minute i have another take on this case let me tell you what it is jury is that what you're saying should happen you  know i'm saying that in the run up to this trial dr wood was in a position and we know that he had a conversation at least one telephone conversation with dr goh or about his fin s he was aware of them if ms o'connell came to him and said can we avoid this object it was for him to say you don't want to do that this is important this makes a difference to our overall present haitian it will strengthen the case for bipolar flip it's clear he did not do that both he and dr granada's were willing to go forward without reliance on that evidence is there any evidence in the record that before trial dr woods dr green eyes suggested that she should proceed with this synergistic argument as counsel has stated there is some early early correspondence e mails and letters that go back and forth starting in august of two thousand and four there's the ex parte declaration o'connell makes reference to the brain damage there's a september th extension request in which she makes reference to the brain damage evidence which still september two thousand and four in december she had a meeting with the u s attorney and she discussed the brain damage of events she apparently received an updated report from dr gail abort on march th of two thousand and five and here things begin to change she sends an e mail the next day in which counsel state my claim to fame isn't brain damage it's the manic flip due to a fax or the flip complicated by tylenol pm for sleep problems and then add on top maybe even some brain damage that same day council says in an e mail woods dr woods is her real mental health expert and potential brain damage has some value but it's not a huge part of my case what do we do with the declaration that she says these are decisions that were made with little time too much pressure not enough opportunity to prepare i  think it is this evidence your record supports the government's position i recognize that ms o'connell filed this  evidentiary hearing i mean you have issues of material fact here what was your strategy how was she pursuing it did she in fact make a decision not to call gilbert and why brain injury could have actually been supportive of the manic flip theory there is no reason that one would exclude the other mean when she says you know it's it's not my claim to fame she goes on in that e mail and at the end she still talking about brain injury well i admit tend to disagree with that because in fact the manic flip theory had the advantage of painting this crime as a completely unique event and mr fields like to introduce in these notions of impulsivity based on preexisting brain damage would have invited in the government theory of future dangerousness it would have tended to underscore some idea that he had a longstanding problem that oh this causes you to commit double murders that was not something the defense actually wanted to do the the the effect had that problem well i mean you know obviously you've got to make a judgment there but what she knew she already knew that there was going to be evidence in mid that was going to talk about the descendants hypersexuality and some of the other domestic violence and the fact that his mother was afraid of him there was already going to be some of that evidence coming in and so the question is by packaging it as a inorganic brain injury does that does that make the jury more sympathetic and still support your flip women when we say this st the brain damage evidence itself was discussion of attention deficit i can't speculate as to the extent to which that evidence would have supported the effects were flipped the e it appears to me that it would not have that in fact the evidence was inconsistent with the commission of a crime mr fields clearly did not have an attention deficit while he was stalking this couple on the hell he did not have an impulsive or the issue when he prepared to commit this crime for for days if not months so while i can appreciate there there being some theorizing about the possibility that there's evidence would have helped and it being worth some further exploration at the end of the day i don't think the evidence in and of itself really gets the defense very far number one number ms o'connell had the discretion as an attorney to make a decision about how to curate her case this is the thing that warriors do and that is a rule that strickland progeny respect well the point here is was this a strategic decision that's the issue but it and how do we know that without an evidentiary hearing when we have heard subsequent declaration saying you know this is this is in fact  you have the record but let me tell you why it need not be a strategic decision in fact stricken allows for the possibility it could be a wrong decision so long it could be a wrong decision but so long it is not an unreasonable and this is not an unreasonable decision given the relatively small weight of the evidence well her her declaration is trying to tell us i think is that it was really not a decision but that two or three weeks before trial counsel asks gilbert for a final report in the very same day asks dr granada's of hill avoid brain damage evidence so she is already thinking in terms of he she is putting herself in a position where she can avoid this evidence if she feels she has to and presented if she feels she wants to the make any difference that she was an experienced death penalty lawyer certainly i think that she was a qualified death penalty well i mean she's i she'd maybe i think this is her st federal capital case but hadn't she been counsel to to state that and i believe that's correct  and and i know much has been said about the burden on ms o'connell in this trial and i do not want to minimize her workload in this case but she had other counsel of record in the courtroom and she was not faced with as as often the case having to do two phases of a death penalty trial her client had pled guilty this was a seven day trial this was not the burden of a six or seven week production well on the performance problem did the district court address it at all we've here in our discussion have gone into it pretty deeply did the district court that is did he make a determination this is a strategic decision i don't i will i will discount the declaration i will look at the contemporaneous e mails and discussions and records that occurred closer in time to the events and i can lie almost did i don't at all have at all i don't recall that he did and so he went directly to the nd prong strickland which was there's no prejudice because of the normal m r i i think that is something of an oversimplification well you rely on i certainly i think that the normal i had a lot of influence on the district court thinking and i think putting that m r i in context underscores exactly that point the the m r i was tells statement his representations that this m r i would almost certainly demonstrate evidence of either the schema or tumor so d essence placed his own credibility in jeopardy when he made those representations so it's not only the the the finding of the m r i i think  the district court was in a position to make for broader determination about the reliability of the evidence that was potentially before to hearing about this matter included dr seward findings that mr fields did not suffer from brain and what a hearing be helpful to address whether a negative m r i preclude brain injury i don't believe so i think that to the extent that the m r i speaks to the reliability of the two different experts who are in play in the district court the court was medical aspect of it was not the be all and end all of the reporting by the two experts both of them did former of psychological evaluations and clued in that he did or did not have brain mr mr fields suffer from a cataclysmic decline as a result of the scheme era tumor that turned out not to exist or this court ever held that that kind of evidence is the double edged sword kind of evidence that could actually hurt the defendant i can't say that the supreme court or this court has ever spoken to specifically to that sort of evidence well having been good to the extent unspoken two thousand have been identified as some of the most mitigating evidence you can produce i think that it can be in in some circumstances i and i want to be fair here i think that ms o'connell made a choice this was a case in which she could have presented that evidence much like the brain damage evidence but it would have detracted from other portions of her case dysfunction but that evidence was very attenuated by time from the crime itself which happened when mr field was already in this thirty's and it was   i am however suggesting that to the extent that it was going to be the basis of sympathy it would not have played in the same way it would have had he been eighteen or nineteen well didn't she test the test the affidavit says that there was at least one whipping with the belt that happened when he was in its thirty's as i recall a strategy it certainly would have undercut the notion that the crime was simply the product of a chemical imbalance and it would have detracted from the other forms of mitigation court or a comment on where mr fields attempted to play on the sympathies of the jury for his plate as an adult the loss of his mother or the loss of his father his mother moving away and that was sympathy that and not merely sympathy but also an effort to undercut the government's future dangerous issue by attempting to portray him as a loving and lovable human being and not as a psychopath so hall was left with a choice and it is within her discretion under the six women under strickland to make a choice i think about this issue and frankly the  st is that had ms o'connell undertaken either of the strategies that she's she's being criticized for having failed to take we could be here talking about precisely the converse of the arguments that are presented here mr fields could could just as well complain that ms o'connell put on evidence of abuse that tended to undercut his hand to portray himself as a decent basically upstanding person who did a terrible thing because he was exposed to a psycho active substance recking i mean it's pretty famous story isn't it the writing on the wire you've been wading you've measured certainly i think the phrase is well known but in the end religion he didn't mention the bible he didn't even name a biblical figure he didn't state a religious commandment and he did not attempt to justify the death penalty generally or specifically in regard to this case on the basis of something that happened in that story every other case that mr fields has pointed to on this issue involves conduct like that this that has no overt reference to the bible or to a biblical figure has been held to be basically been on this harry it ultimately was used to direct the jury to precisely what the prosecutor was there to do which was to underscore for them the significance of the wing for seeking the death they were for for imposing the death penalty on this one the records clear what happened we don't need an evidentiary hearing on this one d argument the defense has attempted to characterize this as an ineffective assistance of counsel claim the government there to object is right yes but the government maintains of well it is my recollection is outpolling it in front of me whether the government penalty phase closing arguments violated mr field's constitutional constitutional rights so it by the government for using it is limited to the government's conduct but by the government's reading of that document it was limited to government conduct and not counsel's conduct and so that would place this squarely within the standard for all any other further questions will smith case thank you s versus barrett the court suggestions in questions today about why counsel did or did not present open again and brain damage and social history are in dispute and it's precisely the kind of questions that need to be resolved hearing that is what the court did in the littlejohn case and that was under the noble review that's what the court recently did in the jimmy dean harris case which is under twenty dollars to fifty dollars for review when there are factual disputes the cold record cannot control the capital aspect has to be considered because that is the ultimate punishment as this court cases say additionally when there is factual dispute which there clearly is here when it is once granted under two thousand and fifty five we do not hearing if the record indicates there are disputes that cannot be resolved yes thank you your thank you thank you both for your arguments this morning the case