next case for argument is johnson versus united states please the court only lawless federal public defender for the eastern district of missouri here on behalf of appellate wendell johnson mr johnson filed a motion pursuant to twenty two thirty five in the southern district of illinois after extensive briefing before the district court the district court denied that motion without a hearing this court then granted a certificate of appeal ability finding that we had made a substantial showing of the denial of the right to effective assistance of counsel we believe that the denial of a hearing in this case was an abuse of discretion and that resolution of that question depends on me answering the following question is the distinction between two significantly different mental health diagnoses important does it matter that the evidence in front of the sentencing judge was that mr johnson had severe antisocial personality disorder the evidence that we presented to the district judge  validated by three different doctors as i will discuss later was that that diagnosis was mistaken and that in fact he suffered from post traumatic stress disorder vast if the district court said in its order and mistakenly that differences were not significant that the correct diagnosis was irrelevant and it wouldn't have made any difference to the sentencing court and therefore found no prejudice under the prejudice prong of strictly well this court in donnelly has previously held that the correct diagnosis was i mean that to district court judge is important to counsel i don't see why the name attached to something matters the question is what danger of companies a person so described so the what interests me is whether there was an offer to show that post traumatic stress disorder made him less dangerous than he was depicted or more treatable because one might think those would matter a lot to sentencing yes so definition post traumatic stress disorder is treatable i'm not asking your view i'm asking about the evidence that was presented to the district judge was evidence presented about these two potential differences in evidence i'm not a physician norma good that's why we need evidence i'm pretty sure judge rosen stengel is a physician united states government and in its publication antisocial personality disorder is what we commonly think of as being a criminal having a criminal mentality can't leave suggest that that had a stigmatizing effect and the defendant was th judge is there anything in the record to suggest that the sentencing judge was told that this makes someone irredeemably anti social or if it's untreatable  antisocial personality disorder from the defense perspective is the kiss of death if everybody comes back on a client because it is well known i think among all the district courts when you when you look at them and you have that diagnosis and the reports suggest no treatment that no treatment can be provided that that is the situation that that  s it is in fact a condition for which at this time there are no known treatments the d s m three four and five all indicate that we presented reports from doctors think martin and cross both of them examined mr johnson they were viewed as history they administered of battery of validated tests in they made  diagnoses based on validated criteria as set out in that the system the diagnosis that was presented to judge steele the sentencing  part of a a one page report on admission to the illinois department of corrections it indicated no indication that any standardized  in cross indicated that from their tasking mr johnson was intellectually disabled having an i q somewhere between the mid sixty's and the low seventy's and it's absolute i have never heard or encountered anyone with anti social personality disorder the hallmarks of which no one with an i q in that range of i ever heard of it having anti social personality disorder because that the essence of that disorder is to be able to get over other people that misdiagnosis than appeared in the professional the diagnosis from this prison report was twelve years old and it was a one time confinement diagnosis there was also a finding  that was and it was not an aggravating fact that mr johnson had some history of mental illness and had struggled throughout his childhood and i really think that's a key because maybe the best analogy i could come up with would be like a law school exam and you take the exam and you get a c and i'm not speaking from experience but you get a c and you go talk to the professor afterward and and and if you said well i would elaborated you know ten more pages on this one point if i had more time and the professor might say well that i gave you credit for that point that the problem with your essay wasn't that you didn't go on for ten pages on that one point was that you had all these other issues that you didn't point  and i think that's the same thing here we've got some essentially monday morning quarterbacking here coming back and saying well mr holmes as mr johnson's counsel should have investigated all of his background should have fleshed out all these details more and and had he hired these particular experts would have come up with a different conclusion about his mental illness but all of that was and was not under dispute it was all pointed out to the district court at sentencing the government did not c test any of it there's nothing in the record to show where the government was trying to use any of that information against mr johnson and so so really we're just talking about fleshing out details for points that were made so there wouldn't be any  ineffective assistance of counsel i want to say just a couple points on the treatment issue out i just looked at mayo clinic online as i'm not a doctor either i don't know this stuff but it seems to me that anti social personality disorder is treatable potentially with psychotherapy it's and with mayo clinic said was it depends on the person's willingness i must say it has a king whether x is treatable is much less important than asking what effect on behavior would treatment and so far as i can see no one has asked that question about either of these names or other possibilities you know i may be misunderstanding what's in the record i asked mr wallace for pointers i know asking you is there someplace i can go to the record to see where this is discussed i don't think so i don't think that that was addressed in our group because that anti social personality disorder was not seen as something that that the course of take into account sensing other than as a mitigating circumstance it forget about what happened at sentencing you can put into the record in this twenty two fifty five proceeding statement saying the risk of misbehavior from post traumatic stress disorder is much more subject to mitigation than the risk of misbehavior from that eye social the province of the court by trying to opine about whatever what would have been reason reasonable conduct for an attorney and mr holmes is position i also think because the district court did not go to thank you at sentencing judge steele was looking at this gentleman's criminal history record most of the more severe matters were back when he was in his early twenty's but his concern had to do  with with whether or not there were he could be pointed towards anything that would suggest rehabilitation he asked for that there was nothing presented to him because that nobody had bothered to get the correct diagnosis it wasn't that mr holmes didn't get this expert or that expert he didn't get any expert he didn't get anybody to look at the history that was twelve years old he didn't talk to anybody he didn't get any records nine but over ninety five percent of the criminal defendants in the seventh circuit plead guilty sentencing advocate and advocacy is a key component it's not just an afterthought it is a key component of effective representation of of the other five percent maybe what one or two percent get dismissed the rest go to trial and ninety percent of those are convicted so the notion that you can just go in and say well i ratify the piece pre sentence report which has a completely different purpose than advocacy for the social personality disorder is not mitigating it's the worst thing that you can come across there's a whole history discussion of anti social personality as in all the cases that deal with death penalty  mitigation having trying to deal with with that diagnosis because it's so damage it means that somebody essentially doesn't apply by the same rules that we do as opposed to post traumatic stress disorder which is