good afternoon may please the court i'm mark macdonald representing the petitioner tom lowden and the appellant in the case when mr logan was approached by his counsel on september eighteenth two thousand  they came to him and said you have to decide whether you're going to plead guilty or go to trial they didn't tell him of any defense strategy that they had they didn't discuss with him and he potential mitigation case they might present they didn't tell him of any mitigation evidence they collected or any mitigation witnesses they had lined up they didn't talk to him and try to persuade him that the best course of action would be to proceed to trial present a defense present mitigation evidence they just asked him to make a decision and he's alleged in this petition and supported by his affidavit that those facts were what occurred and that based on that he'd decided i might as well plead guilty i might as well waive jury sentencing and he also has alleged that if he had been properly advised with a full mitigation case that we developed in post conviction proceedings had been advised of all the witnesses who were prepared to come forward and talked  on his behalf about his life the abuse he had suffered as a child his military experiences most importantly how changed he was as a result of his combat experience and in the gulf war if he had been told that he had a psychologist and psychiatrist lined up prepared to testify the mr lowden suffered from post traumatic stress disorder based both on his combat experience his military expense experiences and all of his experiences growing up he would have changed he would have elected to proceed to trial he would have and told them to present mitigation of true now if the court can look at record evidence trial transcript evidence that belies the allegations or refutes the claim the court the mississippi's courts can decide that on the papers but that's not what happened here there was no record evidence no trial transcript that belied mr lowndes claims and yet the mississippi supreme court did reject all of that  that he chose to do that and that he said at some point on the record that he thought is only shot was with the suppression and that if he didn't have that he did and one point he just wanted to die and put into it all i mean there is some contrary evidence in the record isn't there well some of what your honor just said is in the record and some of it is not there was no statement in the record there is no statement in the trial transcript any statement to the court by mr lowden saying i want to die no but the fact that he said i just want to get it over with in that my only shot is this other thing and then i understand i'm going to get the death penalty but he did say i understood that i was going to get the likely going to get the death penalty again not on the trial transcript in the trial transcript there's no question that he was advised of his rights to go to trial and he elected not to but this is a substantial point that the mississippi supreme court and frankly i think the district court got wrong which is to say that if a defendant is advise of his right to go to trial and waves the right if he's advised of his right to have a jury sentence and waves the right that that forecloses an ineffective assistance of counsel claim and the u s supreme court has made clear that that's not the right analysis under strickland it's not a question of whether there is that it whether the defendant knew of his rights and wave the two issues obviously  have it was a reasonable probability outcome would have been different but the what which or honor was asking me about is well as are nuff here on the trial transcript to review mr loads claims and therefore to respond to judge is question about whether this could properly all be decided on the papers i say the answer is now that's not in the trial transcript said mississippi law is that if it did the role played it allegations of the petitioner need to be credited and the less it can be refuted by by the trial transcript and by a colloquy for example you know if if the claim is that i didn't know i had the right to go to trial but here this is these republicans are affidavits put in by the state after the fact by what authority do we are we allowed to look behind the the mississippi court's finding to say that there wasn't really any mitigation done when the mississippi court found that there was missing mitigation research done  is was it a reasonable or unreasonable application of established law and second was that a reasonable or unreasonable determination of the facts right and here i think on both of t the mississippi supreme court's conclusions were unreasonable first of all the legal question and in a case like this is did counsel do a thorough investigation the legal test isn't was there some mitigation evidence conducted clearly established federal law wiggins rumpy a williams all require a a thorough investigation of the defendant's background and there's no finding by mysteries mississippi supreme court here that there was a thorough investigation of mitigation evidence under what what what we're going says is that all readily available mitigation evidence has to be uncovered there's and there's no finding here that these counseled uncovered all readily available so first of all as a legal matter it was an unreasonable application of federal law because the mississippi supreme court never claimed that these council performed a thorough investigation identified it found all the readily available information with respect to an unreasonable determination of facts i would also say that some of the facts that were found were were unreasonable and were clearly rebutted by clear and convincing evidence and for example the mississippi supreme court relied in part on this claim by mr daniels that he interviewed and spoke with a marine corps officer well first of all the clear and convincing evidence to the contrary is the marine corps officer put into an affidavit in support of our petition stating that he was the one who reached out to mr daniels it wasn't part of any contact by mr daniels as part of an investigation this was a marine corps attorney who had been assigned to mr lowndes case in connection with separation proceedings that lawyer said i contacted because mr daniels because i wanted to find out what was going on in the criminal case right but how does that make a difference in how would that convince a jury not to give him death if it were before a jury well and then also the spa would question the fact that he wasn't going to let people put on mitigating evidence doesn't that matter that do away with whatever the mitigating evidence that you found was all right so the first question your hon well how does that make a difference if because the fact that he did that was in an investigation of mitigation evidence when he spoke to the attorney the issue is was counsel performance deficient the fact that they didn't and investigate didn't do the thorough investigation establishes the first prong they didn't do they were the performance was deficient the second prong is reasonable probability but the issue here isn't just a question of is it a reasonably probable that a trial would have resulted in something less than death the issue here is it's not it's a it's a hill case hill says we're a defendant says i was misled vised about the pros and cons of pleading versus going to trial what has to be established underhill is was a reasonable probability that the defendant would have pled differently and in hill that claim was rejected because the petitioner there didn't allege that he would have pled differently here mr load specifically pled and alleged in his petition that had counsel done the investigation been able to tell tell him the fruits of that investigation and the pros and cons of presenting it he wouldn't have pled guilty and waived  jury sentencing so that the prejudiced tast first where a defendant says i was misled by i got ineffective counsel in connection with my plea decision the two issues are one did he alleging his petition that he behaves please decision would have been different and second and this is what the deal holds pedia says that the court can still evaluate that to evaluate whether or not a different plea would have been rational and the court says and says well so that means there's a there's a check and balance here it's not just the defendant's word we have to look to see would it have been rational for the for the defendant to make a different play decision and so here the issue is if he had been properly advised would have been rational for mr logan to say you know rather than plead guilty and waive jury sentencing i'd like to i do want to go to trial would that have been rational i think it's obvious that it would be irrational what's irrational hearing along the lines of your argument today i know he testified that he did testify that his lawyers were ineffective but did he specifically testify on the lines of if they had told me all the mitigation evidence that i doubt that he did all right but that's my question for you well you're out of the answer is that he didn't because that wasn't the issue presented in that exact particular proceeding because the state court found the state court didn't credit his testimony so your case depends upon it and it's hard when you read the state trial court's findings for a federal court to quarrel with those so your case depends your case today depends upon your allegation that he he he has taken the position and writing not and not in any theory that if he had understood the true import of all this mitigation evidence for his sentence that he would have elected to go to trial isn't that implications of pleading guilty right and the state trial court specifically refused to credit that that's right to the state court and that proceeding said we think that he was probably he was advised of his rights by the court in the colloquy that he had the right to go to trial and he waived it that's that's right he's never testified to the fact that if i had and he's never testified in person that if i had understood that the all the mitigation evidence that was available and the true import of it then i would have gone to trial he never testified because we never had a hearing we filed that in the in the in the in the  conviction proceeding that we filed after the two thousand and five one your honor is referring to at that point we've made the claim that he was denied effective assistance of counsel because of the failure to do the mitigation investigation and for all the reasons that he wasn't properly advised an evidentiary hearing so it's true he hasn't testified to that before alive but he's not through any fault of his or counsel we've made the request and made the claim and we've never been given given an opportunity to have live testimony your argument basically is there was a wealth of mitigation evidence and and he never understood he was never correctly advised of the import of that because his lawyers really never the advice or kind of lack of advice that he was given when he was told it's time to make a decision you've got it you're going to trial or not what's he going to be and then part of it it's not merely all of substantially it's because of the failure to develop a case or defense case or a mitigation case but it also had to do with the fact that when he said wall i need to understand what the implications are there's no question that on this record mr alone always was interested in keenly interested in figuring out how he could seek review of all the adverse rulings that had had occurred before but that's not the point here that's part of the point here because a part of our point here is and is not just limited to mitigation it's the totality of the advice that he was given when he was forced to make that decision and part of that was he was he said in my going to be able to appeal am i going to have a chance to have these rulings reviewed and the answer was this kind of non committal not very precise and not very accurate answer well if it's in the record the mississippi supreme court will review it well but they asked what was the dress by the mississippi court on the first round here the second round which is the one you started out arguing about is different standard is has the play defendant alleged that he would have played differently and is that rational that he would apply differently landrigan is not that sort of case landrigan is a case where the court the arizona state court said it wouldn't have mattered what mitigation investigation counsel had performed this defendant wasn't going to allow it and the u s supreme court said that as a factual matter that factual determination that that defendant would never have allowed mitigation evidence was not unreasonable to fermentation of the facts wise and that the same thing that we have to defer to here the mississippi supreme court did not make a finding that if mr lowell lowden had been given all information that he never would have allowed it i don't think that's in the mississippi supreme court decision but a bit that what they said is they treated landrigan as announcing a rule of law not a factual dispute what they treated it as if a defendant at any point in the proceedings said in fact the missa piece of supreme court went so far as to say if at any point in the proceedings the defendant says i don't want mitigation evidence presented then that means that the performance was not deficient issue isn't whether or not a defendant made a had a knowing and voluntary plea or a waiver that's not sixth amendment jurisprudence  this is from i think i misspoke i said missouri v frye but this is a laugh lawyer quote an inquiry into whether the rejection of a plea is knowing involuntary however is not the correct means by which to address a claim of ineffective doesn't answer it the issue is did counsel perform their obligation and is a reasonable probability he wouldn't have pled as he did if they had performed competently also let me also say that the facts and land landrigan what the u s supreme court said it based on deference to the state court finding said that it was not in on a reasonable terminations but here it would be an unreasonable determination had been made and i said the mississippi supreme court did not say we find here that mr low never would have allowed any mitigation evidence to be presented we have to have a supreme court precedent that says it would be an unreasonable determination we can't go based upon the ninth circuit or some of these other citations we under and we have to have the supreme court precedent that it was unreasonable so what supreme court precedent do you give us that it's unreasonable well it's a question determination wasn't reasonable and here this is not a case like like landrigan where the defendant stood up and said judge i don't want mitigation evidence presented i opposing i'm interfering with any effort to present it and fact your honor if you want to give me the death sentence i say bring it on what kay says that this mississippi supreme court's legal determination that landrigan applies is incorrect again or i think it's an it's a function of this court has the same ability as any other court to say the mississippi supreme court unreasonably applied federal law and to we have to look at federal in to be unreasonably apply federal law it has to be supreme court precedent it can't be our precedent well that would be like under our precedent it can't be our precedent the clearly establish deficient and that the and that and the state courts conclusion it was not deficient was an reasonable this court can make that decision even if there's not a u s supreme court case on exactly the same facts this this court of value waits whether or not a claim is unreasonable application of strickland and on with respect to the prejudice problem this court decides whether it's an unreasonable application to say that there was no way that this defendant would have allowed mitigation evidence to be presented if he had been properly advised please the court i'm marvin white with the mississippi attorney general's office representing the respondent i mean in this case as i think you said mccarty i didn't know they had changed the name yet so it's just been a recent change unreasonable application of strickland and then of course the mississippi supreme court's decision dealing with all of these issues is likewise not contrary to our own unreadable application if we see how do you see i think the argument you're posing counsel is making is the critical argument in this case please that's my take on the can only for myself so would and number two that it led to his his waiver of his right to go to trial being not knowing and voluntary tell me what's your take on what's up best case well that the best issue here and i think i think in my view counsel opposite has conflated several issues here and of course he's trying to say that he pled guilty because he wasn't fully informed of the ramifications of his pleading guilty i think that the transcript of the guilty plea and the transcript of the post conviction hearing that was conducted in state court refute those and it was a credibility determination by the trial court in the postcondition hearing there he could have called counsel he did not now present counsel has called and or deposed in those depositions were considered in the the post conviction before the state court and again by the district court in this the information they had he would have still pled or did the court just say oh they did do the mitigation and so we don't have to get to that i think th found that there had been litigation desiccation done and so did the district attorney court so if we if we believed that was unreasonable would you lose or would you still w that investigation was unreasonable no if we believe that the finding that the mississippi did that there was an investigation if we believe that finding was an unreasonable finding would you lose or would you still win on one of your backup arguments probably win because of the land with an argument the that he said that he you know do not object to don't put on a mitigation case don't cross examine witnesses don't put on witnesses said that and i was sitting in court when that's was you know once all this was presented to the judge made no objection to it whatsoever go back i'm i'm having trouble here go back and tell me what the state court the relevant state court findings were on this question whether his lawyer had been had done enough review of the potential mitigating evidence to advise him correctly about it well what we have i'm sorry i have the impression that the lawyer didn't address that but what maybe i'm i haven't done enough work on the record to have out and and it's it's more in the deposition that it is in the record the deposition of the two attorneys and what they had been doing as far as mitigation geisha but i think what's the question has to do with what did the trial court or be at their court the mississippi court find regarding the investigation yeah what was the finding about did the court find either court find that there was an investigation missing the supreme court found it was an investigation started the district court found that the does and set forth in the opinion you know reasonable investigation i know that the district court looked at it in both both ways and i think the mississippi supreme court did also look at it in the context of that landrigan and you know while that's true and of course when you look at the circumstances of this case though there you know we've got to weigh that in the whole mix and he you know he said that he didn't want this put own they didn't stop at that time to stop their investigation at that point when he said that he didn't want they continued to do that ride up and fill the hearing on the and if i recall from the record and the depositions that were taken from the trial counsel and you know at i think when you look at the facts of this case i don't care what a jury or no jury or what if they had gone before a jury i don't think the results would change that there's a reason probability the results would have changed and of course in the context of federal h that was not that was only presented much lighter and not at the earlier hearings and he's he's never testified in person or has never you know his his affidavit is all we have his investigation that one some scouring this opinion double checking on this because the opposing counsel asked about that you think i'm going to find them some page in this opinion i don't know but they do talk about the investigation but if they didn't if if theory doesn't say that there was a reasonable investigation then you believe you win because of landrigan case right  and bishop case and and the and of course which was later decided by this court the bishop versus apps that are sat in my brief and of course you know it's it's  at the finding there is that he was sitting right there in court with you know when this all was said to the circuit court judge he made no objection didn't say no that's not the way i  want this done in fact at one point he says yes i understand i'm waiting to go all this and waiving the appeal and so as i understand the timing this that first hearing this information really wasn't developed the one that took place the circuit court judge signed that order  february of two thousand and six writes a long time ago as i understand it the evidence that we're talking about today the mitigation evidence that was available was not before the mississippi court was  taken into account that you know that was it was well it would not have been since it was only on the guilty plea and not the the of course that's they're trying to relate back to the guilty pl right to people the senate's was there and while it was pending the the first post conviction was filed on the guilt phase and the court halted proceedings on the direct appeal remanded it back for hearing the hearing was hell then it was consolidated with the direct appeal on the direct appeal that post conviction was consolidated with a direct appeal that was all decided he was denied relief  firm down both of those doubts then the post conviction was filed the on the senate's face and there is where a good bit of this stuff came in about the because it was already the guilt phase issues are already decided and under mrs b s procedural bar rule i think in the opinion if i remember correctly i say that those claims they doing with that part of issues were not let me get it there so as i understand opposing counsel's argument it's that there's a wealth of information about his background and his military record that should have been discovered by his lawyer should have been investigated was not and if it had been and they had talked to him about what kind of a mitigation case they could have put on he would have elected to do on any kind of trial whatsoever moving on the sentencing phase that should have been done wasn't done well at the so let's face his trial counsel got up and said i know he's told us not to do this and the stated if we had a case in litigation this is what we would have put out and did a brief summary that's six eighty nine through ninety two of  the the trial transcript the sense phase so is your response to judge king that the mississippi supreme court determined that there was not a wealth of information and in fact the it was not presented that in fact what was presented was significant and that therefore there can't be a wealth of information that would have been presented that would have changed his mind is that what you're saying that the court knew of all of the things about the doctors in all of that that that was already before the court on the post conviction yes all that was before the court you know they pointed out when they spoke this summer he gave a summary thing to the judge that the military service eighteen years service in the middle of the military so they knew about that and did that if they had known it and they had understood the potential impact of it and had told him about that that his decision would have been different that's the argument yes and i don't agree with it i mean i don't agree that that's the case i think they did you know this was just a shorthand and of course if we look at mr loadings affidavit of course he is totally you know never know anything what do you see they did know of this information is that what you're saying what is that they did in your senate yes ok so you so you disagree with the premise of the question that if they before the circuit judge despite loads insistence that no mitigation evidence be presented i e that the judge knew of the mitigation evidence and that is that a finding then we have to defer to i think so and i'm ok thank you not contrary to either factual findings are on the lol and that they are the district court was correct in finding that it would there was no and reasonable application and the proper respond to a few of the points that mr white made and also to follow up on questions that were asked of both sides first of all mr white has a lot more hevia cases than i do so this is understandable but this is not a case where there was a month long hiatus between the decision to plead guilty and the time of the sentencing hearing judge mr white suggested that even after being told he didn't want to put mitigation evidence on that his counsel went out and continued for another month to investigate mitigation evidence that's not this case the first time that anybody claims there was a discussion about whether mr logan was going to plead guilty waive jury sentencing and not put on mitigation was on september eighteenth two thousand and one two days later the sentencing hearing occurred there was no mitigation investigation conducted by counsel after september eighteenth this idea that notwithstanding some instruction by mr louden that he didn't want me to geisha an investigation conducted his counsel were out there charging forward with investigation is not this case there was no further attention to the mississippi supreme court determination that that the investigation conducted by daniels to that point had been significant and that the evidence that they did that the mitigation investigation conducted and tell they were told to stand down w stark contrast to cases such as weekends and porter that it was significant and that the information that he says would have should have been presented was not any greater than what actually was presented this is what the mississippi supreme court has found again your honor yet there's deference to findings of fact but that doesn't mean that a finding of fact is necessarily reasonable ok but it you agree now that i think you said different issues and i stick with my original answer which is the mississippi supreme court did not say that there was a thorough investigation which is what's required under williams did not say the coun identified and found all readily available mitigating evidence which is what's required under strickland and wiggins that is not with the mississippi supreme court found now i i have the statement i agree with your honor what it said is this case different than puerto because the court said puerto the defense counsel allegedly found nothing in here mr daniels did something but that under federal law clearly establish federal law doing something it said it was significant and that the new stuff is not any significantly better or different i guess i would say i don't think they made the finding that this satisfied the fine a thorough investigation finding all readily available mitigating evidence let me address the second point there your honor which is you say well didn't the mrs be supreme court say this wouldn't made a difference two to two points first of all again the the prejudice prong here is if mr lone had been properly advised we got all this evidence we've got the psychiatry's who's prepared to testify that your experiences give you a diagnosis of post traumatic stress disorder we've got all these witnesses lined up to say that you are a changed man when you came back from combat would you have played differently if the answer to that is yes then the issue isn't that it would have made a difference the issue is he would  well again what landrigan decided it did not a chicken articulate a rule of law it articulated and said we find here on this particular record that the arizona state court didn't on reasonably determine as a factual matter that mr landrigan never would have allowed any mitigation evidence to be presented no matter what his cut counsel uncovered and here i don't believe the mississippi supreme court made that finding and secondly it would be unreasonable because this is not a case where mr lowden stood up said on the record i want to i don't want mitigation evidence presented stop trying to present it i want to be sentenced to death bring it on and so that had been the ruling in landrigan the court would have said we've never we've never imposed a knowing and intelligent waiver obligation with respect to the presentation mitigation evidence period case closed what the court did is they said let's look though here we although we've never ruled on that as your honor just set it here we find that the mississippi the arizona state court did not unreadably determine the facts so it did not say that that ends the inquiry if the if a defendant is advise of his rights and waves that he can't make out a six amendment claim that's not how landrigan was decided and the other supreme court cases i've cited say the contrary which is that evidence a trial waiver and evidence say i'm not going to put on a defense it's a completely different context well first of all i think this context in this case is an issue of would he have pled guilty and waive jury sentencing if you've been properly advised and so that is those that is that case ok i have a question that mississippi supreme court said to daniels brief summary of the mitigation evidence that would have been presented see footnote for supra the the summary report of the forensic mental evaluation of lowden by the hospital and dr o'brien's report  collectively addressed nearly every subject deemed pertinent by load and the court determined that what was their collectively addressed nearly everything deem pertinent pertinent therefore accordingly on this basis as well lowden fails to prove that he's entitled to relief on this issue so you need to tell me what was pertinent that wasn't collectively addressed that that shows that the mississippi supreme court was unreasonable so this goes to the prejudice plain wrong and and as i've said first of all it's not a question of is a reasonable reasonably probable the outcome of trial would be different the prejudice prong in this cases is a reasonably probable he would have pled differently so that's one thing further though what counsel said as the summary is he stood up and said he was a good student he was in the marine corps and served honorably for eighteen years and he had been abused as a child ok i can you asked answer it i'm asking you what that you deem pertinent was not presented one thing that was not presented for example is that he had been diagnosed and i am in connection with the materials we've uncovered he was diagnosed with suffering from post traumatic stress disorder as a result of his combat experience and his own abuse that was there was no diagnosis and nobody was told at the trial court level and during the trial by mr daniels that mr logan suffered from post traumatic stress and he had significant impairments so you're saying the title and the name of the impairment is what is the significant pertinent difference that makes the mississippi supreme court's decision and unreasonable well you're i i guess i would just say i think there is a big difference between a lawyer standing up and saying my client served in the marines for eighteen years it honorably versus a lawyer standing up and saying our psychiatry evaluated mr logan they concluded based on his combat experience being involved in very traumatic combat experiences a valving seeing people die killing people involved in friendly fire incidents as and all the witnesses who testified about how it affected him and then and that being presented to a jury and a contested sentencing hearing saying he suffered from post traumatic stress disorder and that would people's lives that wasn't before a sentencing hearing decision maker about whether he should be sentenced to death or possibly been given life without possibility of parole none of that was in front of this judge and also when this judge heard this evidence it wasn't in the context of your honor here's this mitigation evidence please don't impose the death penalty it was in the context of michelin's pleading guilty he's waving jury sentencing and but here's the investigation we've uncovered and here's what we're would have shown there was no way there was not wasn't any evidence of course is anybody in you know as a you learn in first trial you do statements of counsel on evidence so there was no evidence in front of judge gardner the trial judge to suggest his life be spared so the difference between what was in front of judge gardner and in the way it was presented versus what could have been presented at a trial with all the mitigation of it in evidence that we've uncovered i think it's