[00:00:00] Speaker 01: Good afternoon, may it please the court. [00:00:01] Speaker 01: I'm Paul Harms and I represent Mr. Ramirez. [00:00:08] Speaker 01: No problem. [00:00:09] Speaker 01: Thank you. [00:00:10] Speaker 01: So we believe this is a unique case in which relief is still warranted under Martinez because we can show trial counsel's ineffectiveness based upon the state court record alone. [00:00:23] Speaker 01: In their brief, the state- Which state court record are we talking about? [00:00:26] Speaker 01: The Atkins record. [00:00:27] Speaker 01: After the McLaughlin Oliver case, I think [00:00:31] Speaker 01: we would acknowledge that we need to prevail on the Atkins record, but we still can because it was presented in a procedurally appropriate manner. [00:00:40] Speaker 01: I think our case is less like McLaughlin and more like the Leeds case out of this circuit, which is 75F4. [00:00:46] Speaker 03: So you would want us to look at the Atkins record alone? [00:00:52] Speaker 03: Yes. [00:00:53] Speaker 03: On the question [00:00:54] Speaker 03: of the IAC's second petition. [00:00:58] Speaker 01: Yes. [00:00:59] Speaker 01: And if you look at this Leeds case, it granted relief on Martinez on the underlying ineffectiveness claim based upon the state court record. [00:01:09] Speaker 01: We don't need the successor state court record because it is all and more is in the Atkins record. [00:01:17] Speaker 01: Dr. McMahon's declaration is in the Atkins record. [00:01:21] Speaker 01: Declarations of the three aunts, the two uncles, the stepfather who said they were never spoken to by trial counsel or post-conviction counsel. [00:01:29] Speaker 01: Those are in the Atkins record as well. [00:01:31] Speaker 01: So we believe we are distinguishable from McLaughlin because the Atkins record was put in a procedurally appropriate manner in the state court record. [00:01:41] Speaker 01: The state's position during the cert proceedings and also in this court is that this court can consider the Atkins evidence. [00:01:49] Speaker 01: Also, the brief of their amicus Curiaeus. [00:01:52] Speaker 01: Can or cannot? [00:01:52] Speaker 03: I'm sorry. [00:01:52] Speaker 03: Excuse me. [00:01:53] Speaker 03: Can or cannot? [00:01:55] Speaker 01: Can. [00:01:56] Speaker 03: Yeah. [00:01:56] Speaker 03: Well, they do seem to say that in their brief, at least with regard to prejudice. [00:02:03] Speaker 03: I'm sorry? [00:02:04] Speaker 03: They said that at least with regard to prejudice. [00:02:06] Speaker 03: They seem to assume that the Atkins record is probably before us. [00:02:09] Speaker 01: Right. [00:02:09] Speaker 01: And if you, you know, you look at Shin versus Ramirez, what they were concerned about was federal court intervention. [00:02:16] Speaker 01: and federal courts and new evidence in federal court. [00:02:20] Speaker 01: We don't have to worry about that here because all that evidence is in the state court record on the Atkins claim. [00:02:26] Speaker 05: So what do you make of the Supreme Court's observation in Shin that says, respondents do not dispute and therefore concede that their habeas petitions fail on the state court record alone. [00:02:43] Speaker 01: So if you look at the post-opinion filings, we filed something stating that we do not concede that. [00:02:50] Speaker 01: We simply did not address it because the question before the court, the question presented, was whether or not federal factual development was appropriate under E-2. [00:03:01] Speaker 01: So we filed something after the opinion saying we do not concede that, that we cannot prevail that. [00:03:06] Speaker 05: Well, I get that's your position. [00:03:08] Speaker 05: You filed it, but what do we make of this? [00:03:09] Speaker 01: Well, if you look, also important to point out is the state also filed something and they basically conceded that that statement is dicta because they said the language should be we assume without deciding. [00:03:24] Speaker 01: So I think that statement is clearly dicta. [00:03:27] Speaker 05: Perhaps, but it's as a lower court, it's a little hard to say, yeah, that's dicta. [00:03:34] Speaker 05: You didn't mean it. [00:03:35] Speaker 05: They didn't concede it. [00:03:37] Speaker 05: You were wrong. [00:03:38] Speaker 01: In our brief in the Supreme Court, we said that, you know, we pointed out that you did not decide the underlying claim on the record. [00:03:46] Speaker 01: And so at the bare minimum, it should be remanded to this court for that determination. [00:03:51] Speaker 01: And that is what we are here to do now. [00:03:53] Speaker 03: The state, in this case, in this brief, [00:03:57] Speaker 03: It mentions the statement, but it doesn't rely on it as dispositive in any way. [00:04:02] Speaker 01: I think that's because if you look at their post-opinion filing, they pretty much agreed with us that it was dicta, because they said the language should say, we assume without deciding, because our filing clearly indicates we do not concede that. [00:04:18] Speaker 01: That was simply not the question before the court. [00:04:20] Speaker 01: It was about, is federal factual development appropriate? [00:04:24] Speaker 01: The answer is no, we know that now. [00:04:26] Speaker 01: But because we have this, this is a unique case, because we have that Atkins record, that we can still prevail on the state court record. [00:04:38] Speaker 01: In regard to that, you know, the only things not in the state court record are the declaration of trial counsel, her investigator and our standard of care expert. [00:04:50] Speaker 01: However, we do not need those declarations to prevail because the Strickland standard is an objective one. [00:04:57] Speaker 01: And there is no strategic reason not to present the powerful mitigation put forth at that Atkins hearing. [00:05:02] Speaker 01: regarding brain damage, severe cognitive deficiencies, and the Wiggins evidence of the severe child abuse and neglect. [00:05:10] Speaker 01: There is also glaring evidence of deficient performance in the state court record. [00:05:15] Speaker 01: For one, counsel attached her client's childhood IQ scores within the ID range to the sentencing memorandum, but then failed to give them to her mental health expert. [00:05:27] Speaker 01: Dr. McMahon's declaration, which is in the state court Atkins record, [00:05:31] Speaker 01: knows that had he seen these scores, he would have given a much more comprehensive test of IQ, and it would have put him on notice of the need to inquire about adaptive behavior. [00:05:44] Speaker 05: That's true the thing that's kind of odd about this case is that the I Shouldn't say odd, but the trial attorney did investigate The trial attorney did put the IQ scores in front of the judge and then goes on to say the fact that McMahon says it's now 94 is indicative that he does well in a structured environment so her argument [00:06:11] Speaker 05: arguably strategically was, yeah, I like the 94 because it shows he's doing well in prison. [00:06:17] Speaker 05: And then she put on some guards and so forth who said he was doing well in a structured environment. [00:06:23] Speaker 05: So explain to me why you don't think that's an addition of a strategic decision. [00:06:29] Speaker 01: Because if you look at the mitigation that she presented, it was all going towards the classic mitigation strategy of [00:06:38] Speaker 01: uh... the struggles he had in his childhood that there are mental health problems uh... you know i don't think it can't be considered strategic not to inform your mental health expert of iq scores that are that well uh... i mean i think that was error the question is for it uh... it's constitutionally or not uh... i mean we've we've had other cases where [00:07:02] Speaker 05: There was no investigation or there was no mitigation evidence put on at all. [00:07:07] Speaker 05: This isn't one of those, so. [00:07:09] Speaker 01: Well, I think the Supreme Court has answered that question for us because if you look at the case of Sears, they talk about how presenting some mitigation does not end the inquiry. [00:07:21] Speaker 01: If you look at the Williams v. Taylor case, they granted relief on ineffective assistance. [00:07:26] Speaker 01: even though trial counsel presented several mitigation witnesses, including expert psychiatric testimony. [00:07:33] Speaker 01: Prejudice is still possible even when some mitigation is presented. [00:07:37] Speaker 01: The question is, is it substantially incomplete? [00:07:40] Speaker 03: Can I back up for a minute? [00:07:41] Speaker 03: Sure. [00:07:41] Speaker 03: I find this case, the layers of it, quite challenging. [00:07:46] Speaker 03: After the Supreme Court opinion, do we still have a Martinez procedural [00:07:56] Speaker 03: default cause and prejudice standards. [00:08:02] Speaker 03: We decided last time that there was, but now we've been told that we can't rely on that record for Martinez purposes either. [00:08:13] Speaker 03: So would you say for Martinez purposes also we can rely that the Atkins standard record itself is sufficient? [00:08:20] Speaker 01: Yes, because the Atkins claim was presented in a procedurally inappropriate manner. [00:08:26] Speaker 01: Now, if we were just relying on that successor state PCR, I would say we would be in trouble after McLaughlin, but with the Atkins being presented in a procedurally appropriate manner. [00:08:38] Speaker 03: And not just McLaughlin. [00:08:39] Speaker 03: Because Shin held that for Martinez purposes as well as on the merits, one can't go outside the state court records. [00:08:51] Speaker 01: We don't need to go outside the state court record because we have this active hearing. [00:08:55] Speaker 03: So the state has not made any argument against this, I recognize. [00:09:02] Speaker 03: On the other hand, that state court record wasn't made until a couple years after the state procedurally defaulted the IAC claim, right? [00:09:15] Speaker 01: Right. [00:09:16] Speaker 01: But I think what the Supreme Court was concerned about was federal court intervention, the federal court holding hearings, looking at evidence that was not presented to the state courts. [00:09:30] Speaker 03: But it wasn't presented to the state court for this purpose. [00:09:33] Speaker 03: Does that matter? [00:09:34] Speaker 01: I don't think it does because it's in the state court record. [00:09:38] Speaker 01: And if you look at the Leeds case, [00:09:40] Speaker 01: If the state court record provides an avenue from which you can decide Martinez based on the state court record alone, not the procedurally inappropriate record in the successor, but this procedurally appropriate record, that is the state court record. [00:09:55] Speaker 01: If you look at 2254, I believe it's G, it talks about how the state court record is admissible. [00:10:05] Speaker 01: And also there are other cases that have come out that talk about, you know, looking at the state court record to determine Martinez. [00:10:14] Speaker 04: Although it seems, oh, I apologize for my voice. [00:10:18] Speaker 04: It seems odd to say because it's in the state court record, even though it wasn't in the record at the time the issue in question was adjudicated in state court, [00:10:34] Speaker 04: It's still within the field that we should be judging the state court decision based upon. [00:10:40] Speaker 01: I think the difference is some of these cases addressing this issue talk about state court record evidence presented in a procedurally appropriate manner. [00:10:52] Speaker 01: Now had we just stuck this evidence in and the successor and are now arguing that that's you can still consider it because it's in the state court record, that's different. [00:11:01] Speaker 01: When you have an Atkins claim, which was heard on the merits, decided in state court, factual determinations were made, that is a procedurally appropriate state court record that this court can still look at. [00:11:13] Speaker 01: It's not new federal evidence. [00:11:15] Speaker 04: It suggests form over substance, the fact that it's in the state court record for the Atkins claim. [00:11:22] Speaker 04: I'm not sure why that opens the door to consideration on the claim that was previously considered and rejected. [00:11:30] Speaker 04: which is the claim that, I understand there's an Atkins claim here now, but can we consider this for the basic IAC claim? [00:11:38] Speaker 01: Well, the Supreme Court did not overrule cause and prejudice as a concept. [00:11:43] Speaker 01: They overruled the concept of holding new federal hearings to address that question. [00:11:50] Speaker 01: They did not say anything. [00:11:51] Speaker 01: And the state's position in the Supreme court was that you could look at the state court record to determine Martinez issues. [00:12:00] Speaker 01: Um, and it, it will be difficult. [00:12:02] Speaker 01: It will be the rare case that can satisfy the Strickland standard based on the state court record. [00:12:09] Speaker 01: Because of this Atkins hearing, we are that rare case. [00:12:13] Speaker 05: Right. [00:12:13] Speaker 05: I mean, I think that I take your point. [00:12:16] Speaker 05: And I appreciate both counsel being ready to discuss some McLaughlin, which came out today. [00:12:21] Speaker 05: And I know he didn't have much time, but we wanted to get it to you so we could talk to you about it. [00:12:25] Speaker 05: It seems like there are two ways to read McLaughlin. [00:12:29] Speaker 05: One is that the record stops at the time the first PCR hearing is denied. [00:12:38] Speaker 05: That's one way to read McLaughlin. [00:12:39] Speaker 05: The other one is to say, well, it's in the state court record, and it wasn't declared procedurally defaulted, so therefore it can come in. [00:12:48] Speaker 05: And I'm not sure the case answers that question, but that's kind of where we are. [00:12:52] Speaker 05: Is that the way you see it? [00:12:54] Speaker 02: I think McLaughlin is a little different. [00:12:58] Speaker 05: In terms of two constructions of McLaughlin and how far it goes. [00:13:05] Speaker 01: Yeah, I mean, I think it questions the idea of being able to get around some of the analysis in Shin by putting it in a procedurally defaulted claim. [00:13:17] Speaker 05: Right. [00:13:18] Speaker 05: And the Atkins claim was never declared procedurally defaulted. [00:13:22] Speaker 05: I grant you that. [00:13:23] Speaker 05: And it's in the state court record. [00:13:24] Speaker 05: It depends on how far you read McLaughlin. [00:13:26] Speaker 05: And of course, they weren't presented with this question. [00:13:28] Speaker 05: So it might be an open question. [00:13:30] Speaker 01: Right. [00:13:32] Speaker 01: And I would just go back again to the fact, like the Leeds case. [00:13:35] Speaker 01: where they did find Martina's relief based upon the state court record. [00:13:40] Speaker 01: I guess I would distinguish us by saying we have a procedurally appropriate state court record. [00:13:45] Speaker 05: in terms of that evidence um... was not defaulted so it is in the record and you can consider it you're not coming in as a federal court years later and you know we're not holding another hearing and hearing new evidence it's already there you can resort to that okay so assume that we've got uh... we get past Martinez we say that there's uh... IAC and there's some merit to the claim and therefore we pass the Martinez barrier then we get to whether there's IAC in the first [00:14:15] Speaker 05: instance, correct? [00:14:17] Speaker 01: Right. [00:14:18] Speaker 01: I believe because you've already determined that post-conviction counsel was deficient, the only question left before this court now is the Strickland underlying claim. [00:14:30] Speaker 05: And you think we can resolve that based on this record without a remand? [00:14:34] Speaker 01: I think we can because the district court basically did that. [00:14:39] Speaker 01: It essentially ignored trial counsel's declaration and just said, [00:14:43] Speaker 01: I don't think, for instance, I don't think intellectual disability or brain damage doesn't matter because he's not intellectually disabled. [00:14:50] Speaker 01: Well, that makes no sense. [00:14:51] Speaker 01: Brain damage has independent significance in and of itself. [00:14:55] Speaker 01: If you look at the Arizona cases, there's a case called State v. Roque where his IQ was not ID, it was 80. [00:15:02] Speaker 01: But the Arizona Supreme Court on independent review reduced his sentence to life because they said that low IQ [00:15:11] Speaker 01: likely had an impact on his behavior. [00:15:13] Speaker 01: So the Strickland question is quite different from the Atkins question in terms of the question on Strickland is, Ramirez, did he present enough credible evidence to create a reasonable probability of a life sentence on cognitive deficiencies, on brain damage, on all this Wiggins evidence? [00:15:37] Speaker 01: And if you look at cases like Sears, [00:15:40] Speaker 01: I'm sorry, Porter. [00:15:43] Speaker 01: They said it was, the state court should have, should not have discounted entirely Porter's neuropsychological evidence simply because the state court's experts disagreed with him. [00:15:54] Speaker 03: So this- When the state trial court listed the mitigating factors, did he list mental disability or brain damage? [00:16:04] Speaker 01: No, he did not. [00:16:05] Speaker 01: relied, he found the G1 mitigating factor based upon alcohol and drug use at the time of the crime. [00:16:12] Speaker 03: But we know that... No, but he also listed mitigating factors. [00:16:17] Speaker 01: Yes. [00:16:18] Speaker 01: He found, I think, that his background, you know, some of that information, but he simply did not have evidence of intellectual disability. [00:16:27] Speaker 01: He didn't have evidence of brain damage. [00:16:29] Speaker 01: You have Dr. McMahon saying that this crime was a product of [00:16:34] Speaker 01: drug and alcohol abuse, which we know a lot of fact-finders will discount because they see using drugs and alcohol as a matter of choice. [00:16:44] Speaker 01: When you add factors like brain damage and intellectual disability, those could have greatly strengthened that statutory mitigating factor because it creates an empathetic reason for him. [00:16:55] Speaker 01: This is not a matter of choice. [00:16:57] Speaker 01: These are things that he was born with. [00:16:59] Speaker 05: But trial counsel did make that argument under the context of impaired educational background. [00:17:06] Speaker 05: I mean, she put in the IQ tests, and he accepted that as a mitigating factor as she presented it. [00:17:16] Speaker 05: So I guess the question is, does the fact that she didn't separately argue for that [00:17:22] Speaker 01: I mean, I don't think, I think the problem is Mr. Ramirez's life history is so rich with mitigation, you can do a little bit of investigation, a little bit of work and [00:17:42] Speaker 01: Supervially present some mitigation that does not absolve her of her duty to fully investigate his back background. [00:17:50] Speaker 01: Um, the factor of the matter is these witnesses, um, the uncles, the aunts, the stepfather, um, they were all, except for the stepfather, they were all living in Phoenix, Arizona at the time of trial. [00:18:01] Speaker 01: They would, would have testified. [00:18:03] Speaker 01: They would have been willing to the stepfather lived in El Monte, California. [00:18:07] Speaker 01: Um, so simply because she was able to list some factors without, you know, compelling, corroborating witnesses, without giving your expert a social history, um, for him to expand upon. [00:18:21] Speaker 01: She did not even do that. [00:18:22] Speaker 01: He noted that his, um, social, you know, the background information was based entirely upon information from Ramirez himself. [00:18:31] Speaker 01: What he commented on at the time was a less than ideal situation. [00:18:35] Speaker 01: So, um, [00:18:36] Speaker 01: You know, you can't just send in an expert, not give them any background on your client, and just be done. [00:18:43] Speaker 01: That does not fulfill your duty in a capital case. [00:18:47] Speaker 01: I mean, all those Supreme Court cases, they're all based on how reasonable is performance. [00:18:52] Speaker 01: It's all based on how reasonable that investigation is. [00:18:55] Speaker 01: And we know that investigation was not reasonable. [00:18:58] Speaker 01: And we know what her strategy was, because she wanted to present some evidence of child abuse. [00:19:03] Speaker 01: She wanted to present some evidence of poverty. [00:19:06] Speaker 01: and this information, but she just didn't go far enough is the problem. [00:19:11] Speaker 01: She did not reasonably investigate this rich mitigation that was out there, and she did not even give her own expert things she knew. [00:19:19] Speaker 01: She knew that, you know, the family thought that the mother had drank drink. [00:19:24] Speaker 04: I mean, giving the expert, I understand that. [00:19:27] Speaker 04: I have somewhat more difficulty with the could have gone further with regard to abusive childhood and so forth. [00:19:34] Speaker 04: It's not like she disregarded that, didn't gather any evidence, didn't investigate at all. [00:19:39] Speaker 04: At that point, it gets, it seems to be more to a matter of degree. [00:19:43] Speaker 04: And what makes this performance deficient as perhaps below average, but not strictly deficient? [00:19:51] Speaker 01: Well, I think the brain damage and the cognitive deficiencies, that's what makes her performance deficient. [00:19:59] Speaker 01: If you want to crumble about, you know, the strength of the childhood mitigation, I think it's clear that it is much stronger and it is substantially incomplete what she did present. [00:20:09] Speaker 01: But she did not present brain damage or an intellectual disability at all. [00:20:14] Speaker 01: And she completely failed to give her expert those IQ scores that would have put him on notice of the need [00:20:20] Speaker 01: to look into adaptive behavior and to give a much more comprehensive test of IQ because the test he gave could not be used to diagnose intellectual disability. [00:20:38] Speaker 05: as you presented it, we still have to decide would it have made a difference to the ultimate result. [00:20:46] Speaker 05: And I realize we're talking about an objective standard, not a subjective standard, but the aggravating factors that the trial court relied on, the double homicide, heinous crime, a crime committed in a heinous manner, [00:21:07] Speaker 05: The prior violent felonies are pretty aggravating. [00:21:13] Speaker 05: Why do you think this extra material would have tipped the scales? [00:21:18] Speaker 01: I think I alluded to this earlier. [00:21:20] Speaker 01: It's because I think because the sentencing court was actually willing to find mitigation actually works in our favor because he found the statutory mitigator of drug and alcohol abuse. [00:21:32] Speaker 01: Well, now you have someone who is high on drugs and alcohol, who was brain damaged and who was intellectually disabled that greatly strengthens that G one mitigating factor. [00:21:44] Speaker 01: And if you look at this crime, it did not involve any level of planning. [00:21:49] Speaker 01: If you look at the reports on brain damage, it talks about how the portions of his brain that are damaged directly affect his impulse control. [00:21:59] Speaker 01: So, yes. [00:22:00] Speaker 03: Go ahead. [00:22:01] Speaker 03: If the state Atkins record had come in, would the state decision on the Atkins issue also come in? [00:22:06] Speaker 03: I understand it's a different issue, but would it have come in? [00:22:09] Speaker 01: I guess, are you asking in terms of, I think they made the argument that it's entitled to clear and convincing deference. [00:22:17] Speaker 01: I think that's what I was trying to allude to earlier, is that it's not, that's not the strictly question. [00:22:24] Speaker 03: But there was a decision in the state court that, for Atkins purposes, he was not intellectually disabled, right? [00:22:31] Speaker 03: And your COA on that issue was denied the last time around. [00:22:40] Speaker 03: If the record came in, would the decision come in as well? [00:22:46] Speaker 01: Well, I think the question, and I think that's why I was alluding to Sears earlier, is that the clear and convincing standard for the Atkins claim is very different from the Strickland standard. [00:23:00] Speaker 01: And we don't even have to show that he's intellectually disabled for that to be significant mitigation. [00:23:05] Speaker 01: As I was mentioning, the Roke decision that, and even the state's experts would have to concede that this is a very, very low IQ. [00:23:13] Speaker 01: If he, even if he's not intellectually disabled, as they purport to say, he's still very, very close with his IQ. [00:23:21] Speaker 01: So under cases like state V Roke, that's still powerful mitigation to have an IQ so low. [00:23:28] Speaker 01: that you almost meet the Atkins claim. [00:23:30] Speaker 01: So I'm not sure I answered your question, but I believe that the cognitive deficiencies are such that even if you don't call them intellectual disability, they are so severe that they have great strength in terms of that G1 statutory mitigating factor and creating a reasonable probability of a life sentence. [00:23:58] Speaker 03: You also made some arguments in your brief about the Atkins issue directly, and I understand that we don't have a COA on that, but I couldn't understand the arguments. [00:24:06] Speaker 03: I didn't understand the equitable tolling, what it was directed at. [00:24:10] Speaker 03: Again, there was no, so I didn't know what that was about, and I don't know, and I don't know whether you're now making a separate Atkins schlup argument, schlup-like argument, which [00:24:25] Speaker 03: I'm not sure it was made before, and I don't know whether it is. [00:24:30] Speaker 03: You'd think we'd have to have a COA on that, and we don't. [00:24:37] Speaker 01: I think, in one of my other cases, the Todd Smith case, they said that a COA on procedural issues [00:24:45] Speaker 01: encompasses all procedural issues. [00:24:48] Speaker 01: The fundamental miscarriage of justice issue on Atkins, the innocence of the death penalty that was raised in the district court below, that's at docket 215. [00:24:58] Speaker 03: But was it raised before us the last time around? [00:25:01] Speaker 01: Right. [00:25:02] Speaker 01: And I think that's one of the reasons we asked to supplementally brief how the Shin case changed everything. [00:25:10] Speaker 01: Um, you know, we did preserve that issue in the district court below. [00:25:14] Speaker 01: Um, we did not, you know, have to pursue that as much in the prior briefing, um, because, uh, the other thing I'm wondering about is how good law that the schlup is now after Martinez as well. [00:25:27] Speaker 03: I mean, if we're really going to be that tough about 2254E, uh, why does all this evidence come in in the schlup gateway? [00:25:35] Speaker 01: There is a case called Barber versus Ham out of the middle district of Alabama where they had been granted before Shin and Shoop discovery on claims of actual innocence and the state asked for reconsideration afterwards. [00:25:51] Speaker 01: And the court found that neither decision affected its prior discovery on the miscarriage of justice exception. [00:25:58] Speaker 01: They said that neither Shoop nor Shin overruled the gateway claims of innocence. [00:26:04] Speaker 01: So I would like to go ahead and reserve my time for rebuttal. [00:26:10] Speaker 01: Thank you. [00:26:17] Speaker 00: Good morning, Your Honors. [00:26:19] Speaker 00: My name is Scott Simon from the Arizona Attorney General's Office, representing the state in this matter. [00:26:24] Speaker 00: I'd like to start with this morning's case, McLaughlin. [00:26:30] Speaker 00: It includes language for the proposition that [00:26:34] Speaker 00: under e2 e2 limits a federal hate maim quoting the case limits when a federal habeas court may have Hear a claim or consider or consider evidence and that's the the language that I feel is most pertinent here or consider evidence that a prisoner prisoner did not properly present to the state courts in a [00:26:58] Speaker 00: in compliance with state procedural rules, excuse me. [00:27:01] Speaker 00: I think that makes clear to Judge Berzon's concern, actually Judge Clifton as well, about whether or not this court can consider the new evidence presented in the Atkins litigation. [00:27:16] Speaker 03: And I think McLaughlin makes clear- I'm sorry, why does- First of all, didn't you in your brief, your supplemental brief, essentially assume that you could? [00:27:26] Speaker 00: We did make the argument, alternatively, if you can consider it, that the claim still fails. [00:27:32] Speaker 00: However, we did make the argument as well. [00:27:35] Speaker 03: We made the argument as well that what? [00:27:38] Speaker 00: Essentially, alternatively, if you can consider the evidence, the claim still fails. [00:27:41] Speaker 00: However, we did argue that in Ramirez, the Supreme Court held that [00:27:47] Speaker 00: E2 precludes the federal habeas court from considering any evidence beyond which to contain in the state court record in determining the merits of the claim when the defendant fails to develop the claim in a procedurally appropriate manner in state court. [00:27:58] Speaker 03: And I think McLaughlin... But that... So your argument is that because the claim wasn't developed as such, therefore you can't use the Atticus argument materially. [00:28:12] Speaker 03: Is that what you're saying? [00:28:12] Speaker 00: That's correct, Your Honor. [00:28:14] Speaker 00: Our position at E2... [00:28:16] Speaker 00: in the context of what I just read in the fact that if it's not, if the evidence, in conjunction with McLaughlin, if the evidence and the claim are not presented to the state court in a procedurally appropriate manner, a federal habeas court cannot utilize that evidence in determining the merits of an underlying IAC claim. [00:28:38] Speaker 05: So what do we make of the fact that Arizona did not reject [00:28:43] Speaker 05: the Atkins claim on procedural grounds. [00:28:46] Speaker 05: I mean, they didn't say it wasn't properly presented procedurally. [00:28:50] Speaker 05: Now, I take your point. [00:28:52] Speaker 05: It wasn't presented in connection with the first petition, but it seems to me McLaughlin leaves open. [00:28:58] Speaker 05: If it's in the state court record and it's not procedurally irregular, why can't we consider it? [00:29:04] Speaker 00: I think the distinguishing factor in that is, yes, the Atkins litigation was brought in a procedurally appropriate manner. [00:29:12] Speaker 00: and the state concedes that the IC claim, I think we all agree, was not brought in a procedurally correct manner. [00:29:20] Speaker 00: The distinction comes in whether or not the state court was afforded the opportunity to consider the evidence for the specific IC claim. [00:29:28] Speaker 00: And because that claim was procedurally defaulted under state law, [00:29:33] Speaker 00: The state court never considered the evidence that was present in the Atkins litigation for purposes of determining the merits of the underlying IEC claim. [00:29:43] Speaker 00: Essentially, E2 must be read as being claim-specific, or else it provides an end around the evidentiary restrictions that E2 provides. [00:29:56] Speaker 00: What E2 and ADEPA itself tries to protect is the idea that the state courts should be the first form in which a claim is determined with all of the evidence before it. [00:30:07] Speaker 00: This case presents a kind of a unique take on that in the sense that you have one claim that was presented in a procedurally appropriate manner, you have another claim that was not. [00:30:17] Speaker 00: And the question is, is what do you do with that evidence for the claim that was properly presented? [00:30:22] Speaker 00: If that claim was properly before [00:30:25] Speaker 00: the federal court could obviously consider that evidence. [00:30:29] Speaker 00: But to consider that evidence in context of a procedurally defaulted IEC claim goes directly against the nature and purpose of ADEPA in the sense that the states should be the first form in which to consider those claims in the interest of comedy and in the interest of federalism. [00:30:48] Speaker 00: And I think in alternate reading, in the sense that if a court would consider [00:30:54] Speaker 00: the evidence that was never considered by a state court for a particular claim, then that just completely undermines both E2 and the Supreme Court's decision in Shin v. Ramirez. [00:31:11] Speaker 00: If that is the rule, then federal habeas courts in this particular case are precluded from considering any evidence presented in the Atkins litigation, including Dr. McMahon's affidavits [00:31:23] Speaker 00: Segal's accolades, the family testimony, and any remaining evidence that was presented at the Atkins hearing. [00:31:29] Speaker 00: So that takes us back to a procedural context in which you have a procedurally defaulted IEC claim with no evidence on which to argue that it's excused by cause and prejudice other than the state court record itself. [00:31:46] Speaker 05: But if we were examining under Strickland prejudice, and it's in the state court record, it seems odd to me that we can't consider it, because that's a federal question on Strickland. [00:31:57] Speaker 05: That's correct, Your Honor. [00:31:59] Speaker 05: And the remedy would be new penalty phase trial. [00:32:04] Speaker 05: But it's odd to say, yeah, it's in the state court record, it was properly presented, but you can't consider it in terms of Strickland prejudice. [00:32:12] Speaker 00: That's correct, Your Honor. [00:32:13] Speaker 00: And to give an example of where this is applied, it's not a unique proposition to say that the idea that the evidence, the state court record evidence, is claim-specific. [00:32:26] Speaker 00: For example, a federal court's determination of timeliness is claim-specific. [00:32:33] Speaker 00: There is well-established law that presenting one IEC claim [00:32:41] Speaker 00: does not, on different facts, does not exhaust a separate IEC claim. [00:32:44] Speaker 00: Regardless of whether or not the facts are in the record for that particular IEC claim, it's still procedurally defaulted, and that's the case here. [00:32:51] Speaker 00: You have one claim that essentially was presented correctly to the state court, and you have one that was not. [00:32:59] Speaker 03: But this is a different, well, I guess it's probably the same question, probably a different question. [00:33:04] Speaker 03: So you're arguing this at the Martinez stage, or saying it for purposes of the Martinez exception, it doesn't apply, is that what you're saying? [00:33:15] Speaker 00: I'm essentially adopting Justice Thomas's analysis in Shannon, which you analyze the merits determination first on the state court record. [00:33:25] Speaker 00: And if [00:33:27] Speaker 00: the claim fails on the merits at the merit stage, then it makes no sense to go back to the cause and prejudice stage and present new evidence in the cause and prejudice stage. [00:33:40] Speaker 00: And our position is that because this claim fails on the merits on the state court record. [00:33:47] Speaker 05: But you don't get to the merits unless you give Martinez relief, right? [00:33:51] Speaker 00: And that's correct. [00:33:53] Speaker 00: And it's kind of backwards because we can demonstrate that the claim fails on the state court record for the merits. [00:34:02] Speaker 03: But also the reason you're giving on the merits is a procedural default reason. [00:34:08] Speaker 03: So it's circular. [00:34:09] Speaker 03: I mean, in other words, the reason you're giving why you can't use this material on the records, even though it's in the state court record, is because this particular claim was procedurally defaulted. [00:34:21] Speaker 03: So how can we not answer the question of whether this particular claim was procedurally defaulted? [00:34:27] Speaker 00: It's nuanced in the sense that it's not dependent upon the claim being procedurally defaulted. [00:34:34] Speaker 00: It's predicated on E2 in the fact that the claim was not properly developed in the state court. [00:34:41] Speaker 03: Because it was procedurally defaulted. [00:34:43] Speaker 00: Well, which I think it goes the other way because because it was not fairly developed in the state court, it is procedurally defaulted. [00:34:51] Speaker 00: It wasn't, E2 doesn't apply. [00:34:53] Speaker 00: I'm trying to think of a scenario in which you could do it. [00:34:58] Speaker 00: Yes, it's procedurally defaulted, and that, it triggers E2, but E2's language states, it doesn't say if a claim is procedurally defaulted, you can't consider the evidence or hold an overturn hearing. [00:35:11] Speaker 00: It says if a party failed to develop, and that's where we're at, is the way it's analyzed as you look at E2. [00:35:18] Speaker 00: If it was not properly developed, [00:35:20] Speaker 00: Yes, if a claim is procedurally defaulted, it necessarily triggers E2. [00:35:25] Speaker 00: But the operative languages fail to develop. [00:35:28] Speaker 00: And because the procedural default is an indication that the claim was not fairly developed, E2 applies. [00:35:40] Speaker 00: And therefore, any evidence that was not properly before the court in context of the IEC claim can't be considered in the underlying merits of the claim. [00:35:48] Speaker 00: And because the claim fails on the state court record, you can't consider that new evidence for a Martinez cause and prejudice determination. [00:36:01] Speaker 04: I understand the distinction you draw. [00:36:06] Speaker 04: And yet, at some point, you take a step back since the Adkins [00:36:13] Speaker 04: issue and evidence was in the state court record and presumably the state court had the opportunity, had it chosen to examine and consider that for whatever implications may flow from it. [00:36:30] Speaker 04: Doesn't it seem a little odd to you that we're required to close our eyes to something that was before the state court, but as you argue before the state court on a different issue? [00:36:41] Speaker 00: I'd like to answer that in two ways and the first the first way I'd like to answer that is. [00:36:47] Speaker 00: The court never the state court never had the opportunity to consider the evidence that was subsequently developed at the Atkins hearing. [00:36:54] Speaker 00: because the notice of PCR is the one that raised the Atkins claim, the secret notice of PCR that raised the five separate claims, including the IEC claim at issue here, was determined to be untimely under state law and dismissed before the Atkins litigation took place. [00:37:16] Speaker 00: So therefore, the court never had the opportunity to consider that evidence in the context of the IEC claim. [00:37:23] Speaker 04: It had the opportunity, if it wanted to, it applied the timeliness bar to not give further consideration to it. [00:37:36] Speaker 04: And yet the evidence shows up under the guise of the Atkins issue. [00:37:42] Speaker 04: So it is in the state court record. [00:37:44] Speaker 00: It is in the state court record in the context of the Atkins claim, but not for the IC claim. [00:37:49] Speaker 00: And I'd like to point out that [00:37:51] Speaker 00: It wasn't a discretionary choice on the part of the state PCR court to find it untimely. [00:37:57] Speaker 00: An IEC claim in Arizona, a successive IEC claim in Arizona is necessarily untimely unless one of the exceptions is met. [00:38:07] Speaker 00: And in this particular case, they attempted to claim a significant change in the law, which [00:38:14] Speaker 00: On the face of the notice, there was insufficient pleadings to make the determination that that was sufficiently excused the untimeliness of the PCR petition. [00:38:27] Speaker 05: How can a petitioner conceivably win on a failure to develop claim? [00:38:33] Speaker 05: Because the attorney failed to develop it, and you said, well, because he failed to develop it, you lose. [00:38:39] Speaker 00: Not necessarily. [00:38:40] Speaker 00: It's difficult to come up with a scenario, but it would have to exist from the state trial court record. [00:38:53] Speaker 00: If you have an IEC claim that is procedurally faulted which triggers E2, [00:38:58] Speaker 00: it precludes the court from considering evidence that was not presented to that claim. [00:39:03] Speaker 03: That could be something like the trial court lawyer walked out and never showed up. [00:39:07] Speaker 00: It could be a chronic claim, for example, that would show an IEC claim on the record. [00:39:15] Speaker 00: It could be a [00:39:19] Speaker 00: problems with the jury things along those lines there are there are scenarios in which you could uh... demonstrate uh... ineffective assistance on the state court record without further evidence I think we've seen a couple in summerland uh... the petitioner told his attorney not to present a mitigation defense [00:39:37] Speaker 05: And he said, okay. [00:39:40] Speaker 05: I mean, maybe. [00:39:40] Speaker 00: It's conceivable. [00:39:42] Speaker 05: But on an ordinary failure to develop case, it's very hard for me to see under your theory how the petitioner could ever succeed because it didn't develop. [00:39:53] Speaker 00: I think that is we're making the argument post. [00:40:02] Speaker 00: State court proceedings, and I think that's the whole reason that that e2 is so strict is because it is supposed to serve as an incentive for The defense bar to develop the claims in the in the courts in which claims are supposed to be developed in with a pretty hard to see 30 years ago [00:40:21] Speaker 00: Fair point. [00:40:22] Speaker 05: I mean, I think, and you practice in Arizona, so you know this, that we have these old cases like this one where people were operating under a different theory of how to present death penalty cases. [00:40:33] Speaker 05: They were arguing to judges, not juries. [00:40:36] Speaker 05: I mean, it was a whole different world. [00:40:39] Speaker 05: So to fault, of course, hindsight is very difficult in those circumstances. [00:40:45] Speaker 05: to say, yeah, it's an incentive to develop the record better. [00:40:50] Speaker 05: And you're like, who could have foreseen back then about what Edpo would have required? [00:40:55] Speaker 00: And my response to that is it's not like this is a case in which first PCR counsel was unaware of the possibility of this claim existing. [00:41:06] Speaker 00: That would have been the appropriate time to develop this claim as in the first PCR. [00:41:11] Speaker 05: Right. [00:41:12] Speaker 05: And the other issue with Arizona, as they know, is sort of a split representation between the federal defender's office and what you can do at the state court, which has caused problems in many cases. [00:41:24] Speaker 00: I would agree. [00:41:25] Speaker 05: I know, it has nothing to do with this case, but it does, it's sort of head spinning. [00:41:29] Speaker 00: I think, I think, and to your point, I think that in the context of Shinvi Ramirez and E2, I think the Supreme Court's decision may help alleviate that problem in the sense that we now know that if you want to [00:41:47] Speaker 00: to pursue a claim in federal habeas court and present evidence on that claim to a different court, you must first present it to the state court or else the federal habeas court is precluded from considering that evidence. [00:41:59] Speaker 00: So it gives more incentive. [00:42:02] Speaker 00: to bring the claims in the appropriate court in the first instance. [00:42:06] Speaker 00: And I think that's consistent with ADEPA. [00:42:08] Speaker 00: I think that's consistent with the procedural default doctrine. [00:42:11] Speaker 00: I think it's going forward. [00:42:12] Speaker 00: Yeah, going forward. [00:42:14] Speaker 00: Exactly. [00:42:15] Speaker 04: Except when the context, when the argument is that counsel's ineffective, it's just hard to understand how we put these pieces together. [00:42:26] Speaker 00: It is definitely, I believe, a unique case in the procedural context, because the game essentially shifted in the middle of the game. [00:42:38] Speaker 00: E2 was always there. [00:42:40] Speaker 00: However, the Supreme Court clarified the appropriate context in which E22 should be applied. [00:42:48] Speaker 00: And yes, it makes it... [00:42:52] Speaker 00: more difficult for defendants to pursue their claims in federal court if the claims are not developed in a procedurally appropriate manner. [00:43:03] Speaker 05: Right. [00:43:03] Speaker 05: And there's no way for them to present this claim in state court now, would you say? [00:43:09] Speaker 00: I would agree. [00:43:10] Speaker 00: I think if you attempted to go back to state court, you'd just run into the same roadblocks. [00:43:13] Speaker 00: It would be hopefully the court could clarify that it was precluded for not being raised in the prior [00:43:20] Speaker 00: and it would be untimely. [00:43:23] Speaker 00: So that avenue is closed. [00:43:26] Speaker 03: We're faced— Isn't an argument in the petitioner's brief just another one I didn't fully understand about giving permission to go back on the Atkins issue? [00:43:38] Speaker 03: You didn't respond to it, I guess, because you weren't responding on the Atkins issue. [00:43:41] Speaker 00: Yeah, that's—we didn't respond in the sense that it wasn't certified, but I'm happy to talk about it today. [00:43:50] Speaker 00: We have, I mean, at this point, a stay does not preclude this court from determining the underlying merits of the cause and prejudice of the claimants for it. [00:44:04] Speaker 00: It's completely separate, it doesn't. [00:44:08] Speaker 00: Additionally, a stay at this point would be to go back and try to litigate the Atkins, would almost be an exercise in futility in the sense that the claim has already been adjudicated on the merits in the state court. [00:44:22] Speaker 00: So if you went back and attempted to raise the Atkins claim again. [00:44:25] Speaker 03: The argument is that there is additional sedation of Atkins in the Supreme Court since then. [00:44:31] Speaker 00: And my argument to that would be that [00:44:34] Speaker 00: The further Atkins litigation does not constitute clearly a significant change in the law, particularly in the sense that if you look at the Atkins proceeding that the state court held in here, it complied with the concerns that were raised in Hall and Moore. [00:44:49] Speaker 00: For example, in Arizona, if a defendant scores below 75, [00:44:55] Speaker 00: the court will immediately appoint experts, which has happened in this case, appoint experts for the state, the defense, and the court, and hold an evidentiary hearing, which is exactly what happened here. [00:45:05] Speaker 00: And those were largely the concerns, and Hall and Moore were in the fact that if a defendant didn't meet a certain score, the court wouldn't address or allow the defendant to address adaptive functioning. [00:45:19] Speaker 00: And that's simply not what happened in this case. [00:45:24] Speaker 00: followed its own procedures which were compliant with Atkins, Hall, and Moore. [00:45:28] Speaker 00: So even if you went back to the state court at this point, any further Atkins litigation would likely be precluded untimely. [00:45:35] Speaker 03: And what about the Atkins Actual Innocence Schlepp Argument? [00:45:42] Speaker 03: Is that preserved for one thing? [00:45:45] Speaker 00: I would argue it's not preserved, but I don't think the claim itself [00:45:52] Speaker 03: You think that Schlepp, particularly with regard to the new evidence that's required to establish it, survives Shin? [00:46:04] Speaker 00: My inclination is to say no in the sense that it would be difficult to prove an actual innocence claim without new evidence. [00:46:12] Speaker 00: And unless that claim was properly developed in state court, you wouldn't be able to present that evidence to a federal court under E2. [00:46:21] Speaker 00: But specifically in the context of this case, I don't think that it changes the analysis at all in the fact that [00:46:33] Speaker 00: to establish an actual innocence claim, you would have to demonstrate that no reasonable fact finder would have determined that the defendant lacks... No reasonable fact finder would fail to find that the defendant was intellectually disabled. [00:46:49] Speaker 00: I mean, that's not simply not the case here, because you have four independent findings of expert findings that are above. [00:46:58] Speaker 03: But it would overcome the mail problem. [00:47:01] Speaker 03: Overcome, I'm sorry. [00:47:03] Speaker 03: If it worked, it would overcome the MYLE problem, the relation back problem. [00:47:09] Speaker 00: It could, Your Honor, yes. [00:47:11] Speaker 00: But I don't think they reached that here, given the conflicting evidence. [00:47:17] Speaker 05: The potential claim of Adkins under Adkins at the time of execution is not ripe yet. [00:47:24] Speaker 00: I would agree with that, Your Honor. [00:47:25] Speaker 03: Is that right? [00:47:26] Speaker 03: You would agree with that? [00:47:27] Speaker 00: I think that if... [00:47:33] Speaker 05: Right, I mean somebody can be confident at the time the petition is filed and then later become incompetent. [00:47:40] Speaker 05: We've seen that. [00:47:41] Speaker 05: So what are you going to do at the time of execution when he tests under 70? [00:47:49] Speaker 05: And I think that presents a unique problem in the sense that there's... Maybe it's we're talking to the defense about this because we've had other cases where it appeared that the defendant was not competent. [00:48:00] Speaker 05: And they've worked out a live sentence on it because it was going to chew up a lot of resources at the time of execution. [00:48:07] Speaker 05: So obviously you don't have to answer now. [00:48:09] Speaker 05: I'm just saying. [00:48:11] Speaker 05: They've got a live Afghans claim that won't be ripe until a writ of execution is executed. [00:48:17] Speaker 00: Yeah, and I think that it's an interesting dilemma because the question is now, which we're not conceding that it's not ripe. [00:48:25] Speaker 00: No, I understand. [00:48:26] Speaker 05: What do you say you're not conceding it's not ripe? [00:48:28] Speaker 05: You can raise an Atkins. [00:48:30] Speaker 00: Okay. [00:48:30] Speaker 00: Fair enough. [00:48:31] Speaker 03: Well, it certainly is ripe. [00:48:32] Speaker 03: These are adjudicated all the time at this stage. [00:48:36] Speaker 05: It's ripe at this stage for this client. [00:48:39] Speaker 03: there was a footnote in the original opinion that said it could be done later, but I think what would be done later would be something sort of different, i.e. [00:48:49] Speaker 03: it would be about his state at that time. [00:48:50] Speaker 00: I would agree, and I think the question that the parties in the court will have to face at that point is which avenue would allow a defendant to raise that claim. [00:49:03] Speaker 03: What about which avenue? [00:49:04] Speaker 00: Whether it be in the state court, in the sense that [00:49:11] Speaker 00: a court that could consider that, for example, an under-70 score and how you would procedurally present that to a court. [00:49:18] Speaker 00: But I don't think that's an issue that we necessarily need to address today. [00:49:20] Speaker 00: That's down the road. [00:49:22] Speaker 04: Yeah. [00:49:24] Speaker 04: It just does raise a practical question as to what exactly are we fighting about if that's what we see down the road. [00:49:32] Speaker 04: Is that something your office can consider? [00:49:35] Speaker 00: Yes. [00:49:36] Speaker 00: Yes, Your Honor. [00:49:37] Speaker 00: And I don't think we're at that point yet that I would follow up on that. [00:49:41] Speaker 00: I would like to spend a little time. [00:49:43] Speaker 05: Given the course of this litigation over many years, and potentially many more years. [00:49:50] Speaker 05: So that's a lot of resources. [00:49:52] Speaker 04: Not that we don't want to see you again frequently, but. [00:49:57] Speaker 03: And Atkins' claim is about his state at the time of the crime or the trial. [00:50:03] Speaker 00: Correct. [00:50:05] Speaker 03: What would be adjudicated later, if anything, would be about his mental state at that time? [00:50:11] Speaker 00: I think you would have to adjudicate both the idea of intellectual disability and competence at that point, because if you... I guess in the sense that if you develop evidence that he is... For example, whether it manifested before the age of 18 wouldn't matter at that point. [00:50:30] Speaker 00: Correct. [00:50:31] Speaker 00: Yes. [00:50:35] Speaker 00: But again, I think that's an issue that we can address at a later time. [00:50:39] Speaker 03: Just I don't believe it's... We can, and my prediction is that you're going to take the position that you can't do it at that point, and we're going to be back fighting about all this again. [00:50:52] Speaker 00: And that's more than likely. [00:50:54] Speaker 00: We'll probably be back here again. [00:50:55] Speaker 05: But a lot of the case from our first opinion is, yeah, it can be raised. [00:50:58] Speaker 00: Yeah. [00:50:59] Speaker 00: Yeah. [00:51:00] Speaker 00: uh... i do want to i would like to spend some time in in uh... and and and discuss if this court does determine that uh... the evidence presented in the atkins litigation can be considered in context of the merits or in and vis-a-vis the uh... cause and prejudice uh... i in in reviewing the the totality of the evidence including litigation that was presented the atkins litigation uh... in in uh... [00:51:30] Speaker 00: comparison to the aggravating factors, there's simply no likelihood that the sentencing decision would have changed, particularly considering the strength of the aggravating factors. [00:51:45] Speaker 00: Two of the aggravating factors are two of the strongest aggravating factors in Arizona, the multiple murders and the F-6 aggravator. [00:51:53] Speaker 00: And it's important to note that in the Wayne, [00:51:56] Speaker 00: although this court is reviewing it de novo, the weighing must be taken in context of Arizona law and the fact that there were three aggravating factors, two of which were the strongest aggravating factors that Arizona has. [00:52:11] Speaker 00: And when you weigh that against the mitigation evidence that was presented, the new mitigation evidence that was presented in the Atkins litigation, it wouldn't necessarily [00:52:25] Speaker 00: change the sentencing decision and the fact that, yes, there was testing done on the defendant, but two of the experts in the Atkins litigation found that he was not intellectually disabled. [00:52:42] Speaker 00: Two found that he was intellectually disabled. [00:52:44] Speaker 00: My point being is that there's so much conflicting evidence [00:52:48] Speaker 00: And when you take that conflicting evidence from the Atkins litigation, you compare it to what was presented in the original sentencing. [00:52:54] Speaker 00: The court already had before it two IQ scores from Ramirez's school years, which I believe were 70 and 77. [00:53:03] Speaker 00: I apologize if those were incorrect. [00:53:07] Speaker 00: But it already had before it evidence that the defendant may have some limitations. [00:53:15] Speaker 00: So the fact that you have additional experts [00:53:17] Speaker 00: that reflect the same type of evidence, there's simply no likelihood that the verdict would have changed. [00:53:28] Speaker 00: And if the court has no further questions. [00:53:31] Speaker 00: Thank you very much. [00:53:40] Speaker 05: Why don't you put five minutes on the clock? [00:53:43] Speaker 01: Thank you. [00:53:45] Speaker 01: Thanks. [00:53:46] Speaker 01: I would just like to reiterate that Chen versus Ramirez did not overrule Martinez in terms of the ability to look at cause and prejudice as long as it is in the state court record. [00:54:00] Speaker 01: Now I understand the McLaughlin case, but that is a different case than ours because it talks about this procedurally inappropriate successive petition where all this new evidence was put in. [00:54:10] Speaker 01: We don't have that problem here. [00:54:12] Speaker 01: We have a procedurally appropriate Atkins proceeding where all this evidence is put in and can be considered. [00:54:19] Speaker 01: If you look at the Gelsinger case out of the Third Circuit, they had granted Martinez relief after a federal court hearing, and the Third Circuit remanded it [00:54:31] Speaker 01: Um, back to the district court and it specifically noted, it may be that the district court would have reached the same conclusions, even absent council's testimony. [00:54:43] Speaker 01: Um, in this case, I think because the errors of council are so glaring, they do not conflict with her chosen strategy that you can find efficient performance and prejudice based on the state court record alone. [00:54:57] Speaker 01: I don't think it's fair to call brain damage and cognitive deficiencies that they would not have affected this death sentence. [00:55:06] Speaker 01: I just simply think that is powerful mitigation evidence. [00:55:09] Speaker 01: Brain damage is some of the most powerful mitigation that you can put forth. [00:55:14] Speaker 01: You have this very low IQ on top of that. [00:55:17] Speaker 01: You have this mother drinking during pregnancy trying to abort her fetus. [00:55:22] Speaker 01: These are empathetic [00:55:24] Speaker 01: mitigating facts with a clear connection to this crime that could inspire empathy and a reasonable fact finder. [00:55:31] Speaker 01: If there are no other questions, I will sit down. [00:55:36] Speaker 01: Thank you. [00:55:37] Speaker 05: Thank you. [00:55:38] Speaker 05: Thank you both for your arguments and even coming to San Francisco to argue the case. [00:55:42] Speaker 05: And again, we appreciate the fact that McLaughlin was just decided today. [00:55:46] Speaker 05: And thanks for taking the time to be prepared to discuss it with us. [00:55:50] Speaker 05: And I understand you're going to review it some more. [00:55:52] Speaker 05: You may have some additional thoughts on it. [00:55:54] Speaker 05: But I thought you communicated well on that issue and on short notice. [00:55:59] Speaker 05: So thank you. [00:56:00] Speaker 05: And the case just started will be submitted for decision and will begin in German.