jurists would debate the district court's denial of the claim in other words does mr wesson have a substantial constitutional violation and additionally for several of the claims that are before the court there is the separate inquiry under slacks versus mcdaniel whether the district court was correct in its procedural ruling mr weston i counsel just to say i can cite your yasuni i'm just i'm curious where the state proceeding is is that very far have a year or two to go where is that proceeding it is not very far along your honor as you're aware it was remanded for the atkins claim and so far the the government has able to get an expert to examine mr wesson decoded restrictions and we have a status conference set for april with with the common pleas judge and akron possibly looking at july for a hearing but we're still kind of up in the air on covert considerations w reasonably only filed them when they help so i don't i don't think it's much of a phrase but there is something to the idea here that the record makes it clear that a minimum your client was not sure what to do in the german jury waiver point quite understandable given the stakes you know when you get the affidavit i mean this is pretty long after the fact if this comes in and isn't it something that we should require some waiver which do support mr weston's and i ask can i ask you can i ask you a technical point about the affidavit it says on the day i needed to sign the jury waiver i changed my mind if i understand your argument your argument is that after the hearing on january th and after he changed signed it he changed he was going to change his mind and was not informed by his counsel that he could do that or was a e mail that mr wesson agreed to waive jury trial but since then he's changed his mind several times but the matter was entered so i think that this would case would be most appropriate for a hearing on the caus davit isn't clear to me that he changed his mind after the hearing and after he was asked and he went through the colloquy with the judge and the judge made sure that he was waiving his rights i mean if that if the affidavit isn't clear that it was after that hearing i don't see how you have any evidence that supports your argument well it does say on the day that he signed the waiver he would he he was told by trial tales so that  too late and granted the fact that there was a colloquy would cut against the prejudice analysis admittedly but i don't think it ends the prejudice analysis because we're dealing again with a client who has  low i q cognitive limitations trouble with language and it's an i think it would be worth hearing to flesh out whether when he was told by counsel and if he was told before the that might we don't have a jury waiver claim but we do have an ineffective counsel claim so the issue is counsel ineffective in their advisement of mr wesson if they gave him the wrong information that he couldn't take back his waiver once he signed the form the st time with his level of low intellect and concrete thinking that may have been prejudicial enough to convince him that he was unable to take it back because if we look at the actual colloquy itself mr wesson does ask the court a question he were actually causes and he asked his counsel a question and they come on the record with that and it deals with appellate rights so it may be the best for weston believe that the act of citing a form made it conclusive in that trial counsel misled him by saying that so with regard to ineffective post conviction counsel in the cause and prejudice inquiry we did move for a hearing in  our motion it was e c s forty seven and that motion was resolved in this final order that's before the court now which is e c f fifty one the memorandum opinion in order so that the hearing questions were resolved at the same time the court resolve the deal with the the sufficiency of the waiver in court itself i'm not familiar with other capital cases at least in ohio or cases from the koran where we're dealing with a change of heart after the way for most of the cases deal with the actual weather that the client made and knowing intelligent way but there's a big body of case law on that but not your honor no i'm not familiar feeling with a client who wanted to take back as waiver  he was told you know signed the form it was done well on the on the nd argument the obvious thing you have to come to grips with is whether this additional evidence of mitigations cumulative of the sister's testimony so when she go to th neglect poverty that mr wesson grew up in alcohol exposure low i q some head injuries but what that what was aware is what was missing from that is a separate picture of mr wesson making efforts to get through life struggling to succeed and there was mitigation that was omitted from an expert dr bard policy would have testified to mr wesson's good adjustment in prison which would which would not have been cumulative there's testimony from an employer named edgar we and although it was a part time job at the district court sort of dismissed it on that basis that he only had a part time job with mr lee but mr wesson really had no opportunities for extended employment very much he was in prison he got out and then he went back in prison with this crime so i think missing from the mitigation case was information that could have been cold from the employer and the prison records and the other the met the community mental health records that mr wesson was trying to redeem himself as best that he could but he ran into a failure to gain steady employment and he is in the northeast ohio area michigan where people stayed in they sort of became mired in the poverty in the chaos and the alcohol abuse but mr wesson's cousins were able to get away from that and move out to los angeles and  herbie as was a city councilman and he had another cousin who was in the california assembly and i think that those witnesses would have been of a strong character to show a contrast that if mr wesson had been able to get  away from his instant environment he would have had maybe not obviously not a chance to be as successful as they were due to his intellectual limitations but he could have had a life he could have succeeded to some extent and you know it is a blue collar job and trying to make it outside so i think that we got a picture of mr weston why theo but we didn't get a picture of mr wesson that he try to extricate himself from his circumstances and that he was amenable to adjustment in prison and i do think that simply having just one witness although it's not necessarily per se ineffective there is value to having additional witnesses to come forward to humanize the defendant to humanize mr wesson and again he could have put on some pretty impressive witnesses to show a big contrast which plays into the affidavit of his cousin sharon clark who i know that mr wesson came to live with her family and she wishes that they could have kept him because she feels a bit you could have stayed out of the trouble if that happened ringback so i think that the mitigation evidence is not so cumulative and the additional information would have added value post conviction and some were raised in the successor post conviction so we are limited to the state court record for some of the mitigation claims in the request for the c e o way and  contacted they may have been on a list somewhere but they were not contacted according to their affidavit some still successor post conviction and maybe as counsel contacted them the issue here is whether mr wilhelm has shown that reasonable the arrest could disagreed with the district court resolution of the ineffective assistance of counsel claims we would like to focus on the district court's decision for that reason as a court knows that the with the merits analysis we would like to start with the in focus on the district court decision here i think it's pretty well our arguments pretty straightforward that mr willem  a a basis for for finding that reasonable jurist would disagree with those resolutions were after we are dealing perhaps it's an uphill battle i mean we are dealing with well settled law here you know that the assistance of counsel standard has been applied many times in capital cases the procedural default questions really do not give much rise to much controversy legally if there is a concession here that there was a default so the issue is really caus prejudice with respect to the waiver claim and i did district court found that mr wesson was given he waived his rights three times either orally or in writing the district court make findings that there was extensive discussion with his attorneys that the court gave him drop or gave him thorough advice on his rights and also the district court did later it actually your honor it would be reasonable to think that that it would not be the controlling question here given the the evidence the very compelling evidence on the also that because of the the of the circumstances a reasonable jurist would not would not question that a reasonable jurist would not think that the possibility really could because perhaps speculation a reasonable jurors would not think that would be sufficient to overcome the district court resolution of the case and to just that this once again the claim is it mr wesson wanted to change his mind and he was given defective advice by is attorney that he could not change his mind given the  given the idea that i again that the cited by the district court the number of times he actually did waive either writing or orally and the advice he received in court and also from based on the findings of the district judge again we would submit that it's really no reasonable question here there's a great teacher you agree right the e mail the e mail shows that at least he was waiver we know he was wavering right i mean there's no his own counsel says he was wavering yes yes yes you're i think it's pretty plain that that that that that's the case but then again and again it's understandable it's a monument it's a it's a momentous decision or an important decision but what do we do i'm curious about the timing and i go back to this timing question the e mail one of the e mails i think is sense on the day january th the afternoon of the th which is the after the amended waivers been signed so i don't know what if we construe that e mail to be i guess consistent with the idea that he was wavering after the the main colloquy on the january the sense he was wavering after that which is consistent i suppose i mean i don't know how we construe the evidence here but consistent with the idea that maybe he did want to want to waive on the day of the amended hearing our men that hearing on the amended waiver and there is again your honor what i think it comes down to is the focus here is the attorney's conduct and it is it's not the focus is not whether mr wesson had reservations or he didn't even really wasn't sure about what he was doing i don't sulk ases the attorney's conduct there is no evidence really that that the that the attorney gave him faulty advice there really is no evidence that the attorney  said i could not take my jury waiver back because it was too late now at some point that's not correct right he could have taken it i mean yes that's added i don't know if it's great evidence  but but is it reasonable was it was it reasonable well st of all was the district courts a central rejection of that evidence was that it was that supported by the record yes and is there any reasonable basis to question the district judge reliance on the record in resolving that particular question at the c e o a stage i think we would s and the difficulties of understanding so isn't part of the calculus of the evidence the fact that yes he did sign he did have these two times before the court but the thought processes of somebody with a lack a whole syndrome suggest that he could very well have believed a comment by his on cancel that it's too late to be the concrete rule he was aware of mr wesson circumstances when he gave him advice that's something we can presume because the law says we can presume that counsel affectively took that into consideration again  expectation is is that that council mind my strategic or investigatory decisions and isn't that what kind of gives the leg up on the assumption of proper action by the court about i mean by the by that counsel but that's not what we're talking about here there's no klein that it was an investigatory decision or a strategic decision it's very simply did counsel say you can't do that in a way that my this man with with capacity problems believe that it was impossible to withdraw his wife your honor we said is we cannot look at it in hindsight as to and judge from hindsight what an attorney has done again i think we can and not only the presumption that counsel was  gave mr weiss an extensive test so i think there's plenty of evidence to show that counsel had understanding of mr wesson situation and counsel could would reasonably have take take taken that into the calculation in terms then if there's there's lots and lots in the record indicate that to reject that that allegation and to find that that didn't happen and once again if that's the case that if there is but if that's if if i if it's a finding by the district court it's well supported by the record then at that juncture it is sustainable and more importantly in the c e o a stage we asked a question is there any reasonable basis to clearly here and these and norton's perspective the warden's view it did not it was the same kind of evidence and it was not certainly the evidence allegedly omitted it certainly was not greater in strength mr wesson presented his his case really through the testimony of dr smalled and is expert and if one takes a look at the independent sentencing evaluation of the supreme court of ohio that evidence was was found to be i will say substantial i think the ohio supreme court recognized it there that this was was intitled to wait and i under that circumstance again it would seem that the evidence that was presented was of the same type of the alleged and it was and it was substantial and a jury or even a panel of judges who hears from one witness that this person was trying to make the best of a difficult situation and tried to do it this way that's one thing when you're considering punishment it's like it's like i've got a neighbor who says i'm a good person but if you're a juror or or a panel of judges listening to that that's well yeah everybody may have a neighbor who thinks they're a good guy it's when you get the teacher to say as in addition yes and here's how he struggled in school and then you get the pastor who says he can to make a to talk about his struggles and then you get the nieces or nephews for hung this person  undertook efforts to aid them and to warn them a wife from a lifestyle i'm struggling with calling that cumulative because what that does is really present a picture of somebody who's not just accepted by the neighbor next door or the one person that he knew well but is in fact regarded by the can unity as making the kind of effort that's necessary to overcome his circumstances why is that wind your estimation is that not admissible evidence that really matters at the met actions which you are i would i would think your honor that again if we focus on what counsel did and how did counsel choose to put that evidence on what you described where he put out he put it down through the testimony of an expert and there are some advantages to that because the expert can talk about the extensive investigation of the defendant's background if he's conducted the expert can talk a lot about that what that investigation revealed in terms of mitigating mitigating circumstances and that would be very helpful to the defendant counsel can reasonably decide that putting this happens on through an expert has advantages that's had these problems is if they're a different to have the testimony or affidavit of the pastor or of the teacher or of the relative that tells you something about the problems in this person's live or the white i have sought to overcome that that matters to the decision of what type of punishment is important or appropriate honor can and can we say this that i've got a reasonable counsel decide that it would be better or perhaps better for the defendant to present this type of evidence through an expert versus actually going to write wouldn't that be a necessary underpinning for that decision there is here the record is very clear that mr dr small didn't and counsel did conduct a thorough investigation  wesson's background i think that's plain from from from the record also again that bears emphasis is that he did present a witness he did present a witness from the family again counsel can reasonably the waiver file an affidavit and even without support of counsel bringing to claim that that's really striking to me particularly in a world in which i have not found it difficult for  mates to get the lawyer to support the theory i mean that's not usually a problem particularly in a capital case it happens all the time usually that's the best evidence the evidence from the lawyer yes  required is anything new right i mean you have to appreciate that consideration but i but i think we have more than anything i think we do have mr wesson it's flat assertion of what happened and then we have supporting documentation from trial counsel to the expert that mr willie noted was relied on and it says that he wanted a jury trial and in establishes that he agreed to waive but he changed his mind since then and then he said trial counsel simply says rather too choice well i disagree that judge fletcher was saintly obviously yes it was a hard choice but i think what judge poster ultimately said was that the only conclusive evidence that mr wesson wanted to change his mind comes from the but i say if you take it on text yes we take that david in context with everything that was happening with the other e mails that creates the fact question that would be proper for development of the hearing where we could hear from trial counsel so so