limited to conflicts of interest that arise in a concurrent representations situation a state court decision rejecting the sullivan claim rooted in any other type of conflict cannot be contrary to nor an unreasonable application of supreme from both makes no difference this court has already held that for and purposes the sullivan exception categorically cannot be applied to any conflict other than those born of representation nor appears to be to have that and that too was error because the claim cannot be granted under d two either first of all this court has already held that the question regarding whether an attorney suffers from a natural conflict of interest is a question of law it is not a question of fact because it's a question of law it must be analyzed pursuant to one and not be two in addition to that that this recording not identify any particular a lower court to conclude whether or not the conflict existed and finally you can get him put stands for the proposition that a conflict may exist in those circumstances it's not clear what standard of prejudice would be to  the penalty mitigation investigation i think st and foremost the allegations that council was deficient the failing the best mental and failing to investigate his family back the problem there is investigation with a capital case that counts will be held to a higher standard and given what information you have perhaps you should have hired experts and not an evaluation of the of the petitioner i don't think that's borne out by the record i  a test if if he doesn't have to prove anything by a preponderance or any other way in the nation it's lives you know what would be the effect of this additional information on a would not have been presented well i can understand why it wouldn't be presented at the guilt phase as which have a whole different set of theories but i don't see no reason why all the mitigation evidence the most plausible way to read those two things is to say well now we have a a potentially different different strategy at the mitigation  that those you know can see that their alibi witness was some wasn't a good witness for anymore even even in th of resulting in a different penalty out presented and i think the answer there how did he know because i haven't seen the penalty mitigation indicated that the dinner had a loving family that he had been successful as as a stupid yet s  nd he never investigated the supposed financial gain motivation of the crime the only alleged special circumstance here and he had no strategic reason for that rd he never investigated any kind of medication aside from the good person that family medication and finally in this colors everything that came before you knowledge that he had an undisclosed and i'm way into conflict of interest that conflict of interest and current but are serial in nature and that relate to different kinds of representations so that really is a legal question not of actual  castles loyalties are pulled between the different interests of the person paying and the person being represented now won't make it instead is not that every possible kind of conflict can representation party agreement because of the conflicting interests that were created in this specific instance craig i don't i don't i don't understand that you're saying that representing the company that was paying that detain they retained him in the defendants who are on trial but how could he be representing the mother she wasn't under there was no legal case of any kind involving her that was paying the bills and housefull i had a conflict between the interest of the person to retain them and the people who are being represented and that's the same thing that happened here well in that and would be the court raise the issue of the possibility that there could be a conflict based on that there are you the agreement here that we have the record we have mr create a speculation by his counsels declaration we have teachers just don't find anywhere where he says anything about mrs north nor maganda paying him or how that have impacted his representation when he talks about a conflict it seems clear that he's talking about  sanctions you know weren't any good at this but but they so there's really no evidence plus they had a very reasonable strategy at the guilt phase because they have an alibi witness presentation was not reasonable in this case and the reason there are a few reasons for that st and foremost it was an uninformed decision trial counsel didn't investigate any other approach to the guilt phase trial as you knowledge i reject all of the evidence of identity and i think district court correctly recognized that evidence was strong mr nogueira the the prosecution presented evidence that tied mr o'hara personally to the rather unusual murder from strategy and counsel should have investigated a guilt phase mental state defense argued in favor of a lesser included offense such as manslaughter or nd degree murder weak so we know that wasn't the basis for the final council's decision but it's also worth remembering that when you justify his selecting an alibi present he shall because asking the jury to believe it all i would also require them to reject direct conflict and so we have her speculation about when mr gray the understood all knew which is not admissible evidence against him not saying in thing at all about even though he was essentially california supreme court and those allegations again are relevant to all of our analysis of trial counsel's strategy but i don't know if you're presumed true they say they establish that she truthfully speculated about strickland claims are an independent basis on which this court can form the district court's pressure relief and i think we demonstrate even without miscellaneous the declaration that the state court was unreasonable for denying these claims the strongest argument for that d i think is the strickland claim about the failure to investigate the financial circumstances consul acknowledges that he had no strategic reason for that omission and that takes this here it doesn't take the benefit of hindsight to know that you should investigate the only circumstance rendering the defendant eligible for the death penalty and the supreme court in that case said it not only they trial c that i went to court in this regards you versus ryan in that he's this court and trial housel deficient for failing to investigate a financial gain in aggravating circumstances and actually the evidence supporting the financial gain circumstance but the jury wasn't presented with any other explanation for this call sorry i don't all if the jury had heard as was available the evidence that dominique was being sexually abused and exploited in her home had been for jury would have concluded that there were emotional reasons the heat of passion is what motivated this homicide not financial ga things that happened after the trilogy of cases so to summarize your honor the only two claims that we're discussing in this petition that are affected that are raised in  petition are portions of the evidence that started that support the conflict of interest and portions of the evidence that support the i c penalty claim however of course the word in  to the conflict of interest plain so if we look at the things they're barred because they were raised only in the rd petition it's just a subset of evidence relating the appeal or it didn't mean fully argue it as a part to this the claims as for the district court i do believe that they asserted it to some but not all of the claims and not claim number one  and in particular the district court in regard to some claims presumed assumes deficient performance and tonight on the basis that mr nogueira made an inadequate showing of prejudice so that makes clear that the district court was not making  further and in this case the answer is yes now as for the question of admitting evidence i had the penalty phase got my head on a sort of reversed what council had done and guilt phase again trial c i was not what motivated his strategy he says there would have been little evidence not to bring the end of the facts about domini the facts about her views and i the penalty phase i least because the jury found and child abuse would have conflicted with that in fact it would have made it a more compelling presentation to someone who had been ranging in age and trauma none the less worked hard to achieve it would have undermined by presenting evidence  to any deference the trial counsel has this this court has repeatedly said that investigation has to inform strategy not the other way around that presumption that we usually afford trial housel goes away with a lack of investigation and a conflict of interest here even if we don't believe his selena's the conflict of interest to trial counsel and it's based on his excessive representation further undermines our presumption that c is acting reasonably i think this case falls neatly in with and what the supreme court did and wrong kelo versus fear because travel counsel failed to investigate things that that he knew would be special and trial falls within wiggins because trial counsel in light of red flags about available medication evidence carl kasell didn't investigate  further his court can affirm the district court's grant if it is supported by the record independent of the conflict claims i urge this court to affirm the district court's grant of relief all that mr nogueira needs to show in order to be entitled to relief right now is that this verdict this trial this special circumstance final and his death penalty are or are not worthy of our confidence the facts vacuous councils argument that out under a straight strickland analysis regardless of any conflict of interest or not the failure to investigate the financial gain mo takes away the special circumstance i mean if if it's if it's if it strengthens the case in terms of premeditation and doesn't necessarily mean the gate the financial circumstance and if they're plotting to take the  how might have been you know not that but i think or maybe i can ask the same question in a different way yes just as a matter of law if the jury concludes that the reason for a murder those abuse physical and psychological sexual were all crimes of abuse and that that was the sole motivation here stabbing death penalty testify kept them out which means the evidence of premeditation and deliberation would have been that much stronger i think we have to consider that but what he would not have been eligible for the death penalty according to wh out on me or she wanted to hire a hit man on me but i didn't do it now that night on the jury with just believe this thing but he wouldn't a death panel probably i mean it's hard for me to say that if you if the only special circumstance the mix of death eligible is financial gain and you don't investigate that that's a reasonable strategy i think it's not as though he didn't investigate and find you guilty special circumstance in terms of what the prosecution had to offer by whether or not he should have investigated other motives that may have been out there again  for different one another and we cannot hold this particular attorney to be unreasonable for his failure to pursue evidence that contradicts the defense by he doesn't know that if he doesn't investigate and he can't make a reasoned awful relationship and the abuse and the fact that the mother had tried to move away and had put a considered getting a hit on him if you put that in and a sort of a