should set aside mr runnion death sentences for two different reasons st the jury that sentenced him today did not hear compelling mitigating evidence as if brain for setting aside the death sentence i will talk about the strickland claims farce and then i will move into discussing the day this coming trial camp will fail to present compelling mitigating evidence that used to run in is brain damaged and suffers from severe mental illness this evidence is not cumulative and it would have supported t mitigating circumstances but mr rankin suffers from a severe mental illness or psychiatric disturbance and that his capacity to conform his behavior to the law is impaired  trial counsel had in his possession three preliminary reports from experts that suggested mr brandon suffered brain damage asking for additional information gives operate a preliminary report and he noted that the right side as mr rennie and forehead does not mean eve when he makes a facial expression and he noted that his right lip  the death penalty because there was no chance of him being dangerous in prison and what you refer to was mental health evidence that emphasized to two traits one answer and impulsiveness and if that evidence had been brought before  forward your honor it would not and has undermined that aspect of the case we know that people who have brain damage can do very well in a controlled setting where little all of their choices that arise during the day to day living are were made from them that they do very well in a structured said he but i'd also like to back up and talk about what the court e strategic decisions based on incomplete information are reasonable precisely to the experience that reasonable professional judgment directs that this is an acceptable point to terminate the investigation in this case trial counsel all of the investigation with the mental health experts indicated that the statutory mitigating circumstances were going to be fruitful so it was not a reasonable professional decisions for counsel to terminate that one of investigation and the question of a strategic decision  this record does not support that counsel made a strategic decision if you look at the the motions that were filed pretty trial counsel was asking for more to stop it so that he could d investigation into mental health evidence once the jury came back with a guilty verdict or the trial counsel again and ask for more time so he trial counsel had an intention the record reflects that to investigate and present you know health evidence and what in the record your honor there are two different declarations that trial counsel prepared and under oath that he does not remember why the expert testimony was presented he also was not  to and he he also states that the type of evidence that we and covered in post conviction was the type of evidence that he was trying to find that he was hoping that he could on progress and present to the jury and he was asked about barry as you know reasons why he might not have presented this evidence and he explained that  be presented is compelling because it's not only expert testimony there are records that exist from one before these charges happened that suggests brain damage and  for example the veil or military records concerning an accident for example but the problem was they did not contain evidence of  serious neurological damages damage most of the evidence related to the car accidents contained went to physical damage hand the records concerning the accident seem to go to joint damage but not your logical damage so what went through these different pieces of evidence and you know i just was unclear about why they didn't represent a reasonable strategic decision and whether they w damage and did that affect his behavior and your honors i want to address the davis claims also so i'm going to wrap up the strickland claim now your honor the evidence that is presented i company in the petition we've offered the expert testimony and we have arnie reports there are jail records the document him having a voice a delusional we have a lay witness declarations all of that was presented to the district court all of that is evidence that occurred outside of the records and we have trial coun saying that he does not remember a decision being made to not present this well we believe based on all that evidence we're entitled to relief under on the stricken claim that should this court have questions about any of that evidence that appropriate remedy would be to remain in for an evidentiary hearing and we offered all of this evidence the government didn't come back with any evidence in the trial court actually made several credibility findings in denying really and of course we know if you're going to deny hearing the court should of accredited all of their evidence  will had to go to the jury in the conjunctive and this court has held that when you have a crime that goes to the jury in the conjunctive like that unless you have a special verdict you have to as the court has to is saying that it was the least culpable predicate at the end in this case we do not have a special burden and so the court has to is saying that you're going through it where we have been through this type of analysis quite a bit but let me just ask you would you agree that we should be determining whether there was a crime of violence that is the conspiracy what elements are we looking at with respect to the conspiracy count what were the elements of the conviction so that the conspiracy is an agreement not to hersey the conspiracy in this case what was he charged with and what was he convicted off and he was charged with conspiracy to commit murder for hire resulting in death and he was convicted isn't that  element of that conspiracy that there be the intent to kill your honor there is not and i have two different reasons for that and ferns under torres miguel this court has conflate the intent with the resulting element but that is not my question i understand that issue we have the all read decision which addresses that much more directly but that's not my question just if you can follow me because i really it's important my question is well put it a little differently i have assumed in reading this that the element of the conviction in this case was number one a conspiracy number t with the intent to kill three resulting in death and my question is is is that are those the elements of that yes your hon explained how that is almost impossible to not have the intent to kill implicated in the resulting debt and if you think there is a case where they we're required to show there's a reasonable probability that we propose that happened that ickle where an act that far accident per occurs and the death of accidental but that doesn't include the conspiracies intent to kill and other words the conspiracy has told the intent to kill and when you have that mance rayder as part of the conspiracy and then you have resulting death all red teaches us that  and ends with the elements in the court when you look at their result the resulting in that does not have any ins ray in it in we've offered several good several published cases where  has resulted in the court where the language of the stand today is resulting in the down to a real a real world situation you have a conspiracy in which the conspira have an actual intent to kill they must have bad intent that's what all meant they get to run a conspiracy have an actual intent to kill and gas result you would have to have a suggestion where they intended to kill but some different death result that's correct your honor and i've never seen such a case your honor in the on bank this court has the phrase mandane legal research meaning that we can do legal research in other cases define the l on it we're talking about  start to those other cases to the end and straight that there is a reasonable possibility yeah but you like to isolate the resulting in death which of course can be by accident or can be by recklessness or could be intentional but the more difficult task is to combine the resulting death with the intent to kill as part of the conspiracy when you have those two elements present you have a different situation if if the court finds that the conspiracy is a crime of violence or is not a crime of violence i'd like to turn to what the appropriate remedy would be you you that question thank you mr in that and then charged mr runnion with murder with the firearm in relation to a crime of violence and  course the murder with a firearm rests on the non twenty four dollars seeking owns that the court would have struck as void and so the appropriate remedy here would be and the sentencing hearing because the jury was instructed all of the elements of murder all of the jury instructions centered on was the trial court called the murder charge although it is well that is the conspiracy charge  so that obviously takes away a lot of weight from what is a death ace and also the jury deliberated twice as long on this case in the sentencing phase as it did in the guilt and where half of the basis for the death sentence is satisfied the appropriate remedy is to remain and for any sentencing hearing thank you  you chief judge gregory good afternoon your honors brian channels for the united states and may please the court the defense counsel has raised a number of challenges to mr runnion his conviction and death sentence to  is a petition and an appeal to discuss two of those issues out of the four today i will start there but i'm also willing to discuss any of the other issues of course i'll start with miss bales did with mental health prejudices the defendant and that was such a case here your honour's in st looking at this case on the strickland claim looking at what counsel did here it is hard to envision that counsel could have taken more steps than they did to try and investigate their mental health claim and the record as judge smith reviewed in her order denying the hades claim went through some detail in laying out all of the steps that trial counsel took to obtain experts to modify in results and provide testing and all of the efforts that defense counsel prior to the penalty phase and what the court has to look at is what counsel had done and what was left with at the time this penalty phase had started and initially counsel looked at dr nelson and dr cunningham dr nelson's report by the same declarations that defense counsel are referencing was not favorable to david runnion and declaration from attorney woodward indicate that as well his report was not favorable so trial counsel looked for new experts and found new experts going into the trial in the raw just in a neuro psychologist but as they were preparing to examine david runyan defense counsel did not discuss there were reports of the government experts and those government experts certainly threw into question whether there were any legitimate issues for mental health on mitigation finding in fact no issues and that david runnion had a personality disorder so what defense council had was an unfavorable report from dr nelson into unfavorable reports from the government's experts and they had preliminary reports from dr mirsky and dr recommended that the test be done that the m r i and the p t test be done trial counsel follow it up with that arrange for that to be done move for the court to provide the results of that test directly to trial counsel and to be able to supplement the report the indication from the materials in the joint appendix is that the results of those scans did not reveal any issues they were clear scans and both preliminary reports of dr  a little a little misleading because the radiologists saw it as clear but it was not an expert and the experts that reviewed it did see extenuated white matter they did that the defendant had clearly had an impaired executive functioning suggested of the director of a frontal lobe brain impairment in other words it was sure there was a problem and he wasn't sure i and the same thing is true with respect to dr mirsky he said it's clear from the data there is strong evidence he's suffering from a neurological disorder there's a pretrial and those two doctors were not mirsky why weren't they put on or why wasn't that pursued well your honor we do know that there were no follow up reports from dr american english dr mirsky at that time prior to trial or  thereafter until two thousand and fifteen when those reports prepared we do know that defense counsel had sought permission to get those results of those scans and provide them directly to the experts it's unclear when exactly that was done until we have that letter from dr mirsky to tribal council in september of two thousand and nine where dr mirsky indicates your report to me indicated that the m r i and in p t imaging studies used to running were read as normal did not have the information and they so stated most doctors did indicated that their reports could not be final until they conducted not analysis but both doctors indicated the pres but both doctors said that further investigation needed to be conducted now the question is why wasn't that done before trial and why didn't the attorneys put these as to how that opinion was derived what supported that opinion the report of dr mirsky said the damon runyon had strong showings in the general intelligence area he had issues in terms of the attention area and i am going to answer your question on what counsel had those reports and then he had to report to the government and then we also have to consider if the council had the findings of the jury in determining that david runnion had a gauge in substantial planning in carrying out this crime and so trial counsel had to do confirm and what was the best strategy to pursue given the findings of the jury and all of the other evidence that came in on this is not a face where he said i consider that information and rejected it i don't mind if you can point that out your honor i look at the declaration as well it didn't appear that he had a clear memory of what the skin were he talked about this being the type of information that he wanted to find but i know there's room the statement that he made a strategic decision and he didn't he clearly didn't he said he didn't well your honor what i meant by that was trial counsel in looking at the evidence that was available for the one in mitigation they chose a course that would not of aligned with this mental health information that indicated even taking it as it is the mitigation case including one expert dr coming to testify as to factors stable factors about david running his age his education his work history his relationship with families that would show that he was not going to be a danger going forward they also his mother his father his brother his ex wife and the clear pattern that emerged from all these witnesses was an effort to show the david running and it was a genuine caring gentle helpful good with children that sort of individual the last witness they called was a pastor who described david running as quiet gentle fun and generous they were trying to as the government had in terms of presenting victim impact evidence also show that david runnion had friendships and relationships and family that would be impacted by a sentence and they were also trying to focus on the equally culpable factor whether or not this was fair and you're wrong this was a case where david running had contested his guilt he had gone to trial the jury had rejected that defense and they found him eligible for the death penalty and so the focus on the defense as attorney fund the court also has to consider is there are reasonable probability that this would have changed the sentence when compared with all of the evidence of aggregation and i guess my point is that this mental health evidence cut mitigating not that he didn't do it not that he's not responsible but rather an explanation that brain injury contributed to an explanation for what he was  doing i don't know if that's what would have come out but the that was the information that was provided to the attorney that the attorney could demonstrate that the defendant was delusional at the time how does  evidence the jury have contradict that well your honor the evidence that the jury had was this jury had sat through a guilt phase and ever dozens of witnesses and hundreds of exhibits and that allowed them to make findings in aggravation before the mitigation phase ever started and one of those findings with the defendant potentially last another was that he executed in the engage in substantial planning and preparation to do so and this was not a case where there are cases out there of course where mental health information would tend to explain away the cross this was a crime done for greed it was planned and carefully it was done deliberately david runnion buying the gun the day of the murder arranging with michael graves to do it driving six hundred miles from west virginia lying in wait for corey boss at an a t m machine in newport news trying to make this look like a bank robbery or carjacking to dissuade long forstmann from knowing that this was really a complex murder for hi he could have done everything you just suggested but yet the delusion might suggest might suggest an argument for medication i mean i don't this is for certain i think the question is  're lacking an explanation of why the jury wasn't allowed to have this information and consider it and your argument basically is trying to say well it wasn't prejudicial and i'm not convinced about whether it's prejudicial or not because the issue isn't whether he did it or the issue isn't whether he planned it the issue is whether he is doing it and his planning was part of a and if the jury thought so then the question is would they have weighed the mitigating and aggravating factors differently we can't say of course but i think that's the argument that runnion is making here today yes i understand your honor and on that point i would also say that in looking at what counsel had i think this goes into both the effect of this issue into the prejudice issue  reports you would have to take them as a whole both the reports of the zacks birds and then also the government reports that would then come in on the bottle then we don't have any law that says they have to withhold conference approach and what information counsel had available to them at the time they decided to put on their mitigation case and again the government's use of the strategy of the council employed was focused on this equally probable counsel w i think the strategic decisions an excellent argument but i don't see any evidence for a strategic decision being made as a matter of fact everything we hear from hodgins is that had he known this information or appreciated it he would have followed up on it and he has no explanation why he did it he does not say he made a strategic decision more often than not pressed for this information rather than abandoning that p pressed the court and he indicated he was working hard to gather this information rather than abandonment in favor of a different course all of those which would have been indicative of our strategic decisions but do you have any evidence to point to that i can go look at up that indicates that hudgens did not put on or pursue the information from the american angus and the other doctor because he know that these cans were done by mr hudgens off to mission to give those scans to to the experts and at least by the letter of dr mercy that those two scans were clear based on the report that the information that we have any put that information together with the unfavorable report of dr nelson which hudgins acknowledges which woodward acknowledges and the reports of the two government experts which go against any kind of cognitive impairment and even all of the been even more powerful if he were able to say that that differential is not appropriate here because while runnion is a very smart man and very capable of thinking and reasoning he was delusional at the time he committed not to say i mean yes your honor i think i understand what you're going at and i think you're going at this both through the competency prong of strickland and through the prejudiced prong could i say just make your argument speak to both prongs and the district judge but the circumstances certainly suggest that he had a strategic decision because he put on evidence of mental health problems which went to anger management and to impulsiveness it would have undermined his entire case it would have undermined the portrait he was trying to paint of this individual as being somebody who was gentle hands pacific going forward and to say that he didn't make a strategic decision here when to pursue the road right now and say  council now says on collateral attack we're not supposed to nd guess this kind of thing under strickland and this this evidence had it been put on prong of it then you get to the prejudice prong of it and there's a key link missing in my judgment because they it's not clear to extensive planning that doesn't seem to me to be too true on a link up causational a he may have had mental health issues i don't know strategic point of view or prejudiced point of view and what we're talking about here is the results of the proceedings where the jury had a great deal of evidence not only about who committed the crime but with that kind of planning and foresight and delivered as in cold calculating rationality with which it wasn't with which it was  committed so i don't i don't have any particular breed for capital crimes i think it's our in a legislature legislature i vote against capital punishment but i think just as a matter of a little old or strickland and not using collateral attack to undermine the scandal proceedings into which so much effort has been put and i don't see it either from a  world and looking at that the way that we've put together there for council and the efforts that he was only taking and then looking at what was actually done there the focus was on showing a david running was not the worst of the worst in mental health picture that w your honor i certainly understand that and from the record it was clear that attorney hudgens was pursuing this innings pursuing it diligently and then the scans came and the information that we had in the scans from the radiologist which was passed on some point was that it didn't show information and so at that according with the penalty phase coming up their defense counsel made it clear from the array of witnesses and that in this tragedy took on that the focus was again not trying to explain away something that defense counsel had asked the jury to find him not guilty and in the guilt phase but to try and ask for mercy to try and look for fairness in the focus was on those aspects and pointing out the positive aspects of david runnion not counsel from what they presented was looking for a consistent thing to present to this jury and that's why they presented the mother other of that family information on information sharing good things about david runnion and in the past to show that all kinds of claims were raised there was a consistent strategy pursued throughout and you can always come on you know there's always some other terms that is developed oppose trial or that you can or if not you can always say whoa they have could have should have and you know it's trite but it's still true that hindsight is always tw twenty but to say that this man was ineffective i read this record and looked at the kind of arguments that he made and it was very gross from start to finish and his problem was not the mental health problem or delusional his problem was with the nature of the case which was a deliberate cold blooded murder of another individual for money and the jury saw that and i can't believe anything would have dislodged did in fact had this all the evidence been brought up it would probably have been blown out of the war by the prosecution and i doubt it would have dislodged the jury from its its ultimate verdict here because this was a good lawyer either or that if you put on evidence that someone is a good citizen that you're not allowed to put on evidence that they're also mentally ill or that they have brain damage those tapes try to g s are not inconsistent and so you know the council could have put that evidence on and about the intel illness and brain damage and it would not have undermined the mr running if it gets in and citizen the evidence would have supported  added weight to trial counsel evidence on equal culpability you know not only did everyone participate in this crime together but used to runyon is mentally ill and has brain damage and so he's actually that lessens his culpability another point i would like to make for the court is the jury thing on that eas led to believe that yes your vase was harming his children and this was not argued to the jury it was not presented as a non statutory mitigating circumstance  on its own we picked up on this evidence and they found that it was mitigating if they had had been in or held evidence of use to randy delusional disorder it would have given that explains that a radiologist reading a report as regular or normal is not the same as giving that report to the expert he is asked about this and he explains that and he also explained that he you know he would anticipate that the government would offer mental health evidence but that would not be a reason for him not to present his own mental health mr rennie and head injury when he was three years old and the some of the symptoms that he was describing and said the nearest psychological exams would either would rule in or rule i out brain damage so you know the t government's reports were not really something to run from another point i would like to make is that and the government was talking about all of the efforts that the trial attorney made but the the test is what step trial attorney did not and another point i would like to make is the government noted the talk noted that it was keep the trial attorney was concerned the evidence would blow up but or w skin street is bad harmful to mr runnion and that the jury failed the aggravating circumstances that the government offered so that negative evidence was already in the record but the credibility findings from based on the evidence that the district court handed and you know again i would be interested if the court has concerns about that evidence the appropriate remedy is to ring in for an eviden