[00:00:02] Speaker 01: Okay. [00:00:03] Speaker 01: Good morning. [00:00:04] Speaker 01: Each side in this case will have 15 minutes if appellants would like to reserve time for rebuttal. [00:00:09] Speaker 01: Please be aware that you are responsible for keeping track of your time and is it Ms. [00:00:13] Speaker 01: Lai or Ms. [00:00:13] Speaker 01: Lei? [00:00:14] Speaker 00: It's Ms. [00:00:14] Speaker 01: Lai. [00:00:15] Speaker 01: Lai? [00:00:15] Speaker 01: Okay. [00:00:16] Speaker 01: Ms. [00:00:16] Speaker 01: Lai, you may begin when you're ready. [00:00:17] Speaker 03: There's a button in front of you right below you that can lower the podium. [00:00:22] Speaker 00: Yes, I am definitely going to lower. [00:00:25] Speaker 00: I think Mr. Sampson is quite a bit taller than me. [00:00:28] Speaker 03: There's no comment on your height. [00:00:38] Speaker 00: Good morning, Your Honors. [00:00:39] Speaker 00: May it please the Court. [00:00:40] Speaker 00: My name is Vicki Lai. [00:00:42] Speaker 00: I'm with the Federal Public Defender's Office, and I represent Petitioner, Appellee Jeffrey Weller. [00:00:49] Speaker 00: With me at Council's table is Jonathan Sullivan, who represents Co-Petitioner and Appellee Sandra Weller. [00:00:59] Speaker 00: I would like to reserve five minutes for rebuttal if I can. [00:01:03] Speaker 00: At the heart of this case is N. Ray Rice's inadequate briefing rule, which the state courts in Washington have used for the last three plus decades. [00:01:18] Speaker 00: Outside of this case, [00:01:20] Speaker 00: the Washington State Prosecutors, the Attorney General's Office, this court, an unpublished decision in 2012 in Corbray versus Millerstown, the federal district courts in Washington have all agreed that the NRA rice rule is an independent and adequate state rule that when applied constitutes procedural default. [00:01:45] Speaker 02: So getting to application of the rice rule, [00:01:50] Speaker 02: In your view, do we consider just the Washington State Supreme Court Commissioner, or we also factor in the Court of Appeals decision? [00:02:00] Speaker 02: How do those interrelate? [00:02:02] Speaker 00: Judge McKeown, under Supreme Court law, you would only look at the last reasoned decision. [00:02:10] Speaker 00: I know you were the writing judge for Barker versus Fleming, where you can look at both if the high court actually incorporates the lower court's reasoning. [00:02:29] Speaker 00: But under either scenario, there was only an application of rights. [00:02:37] Speaker 02: So you're saying it's solely an application [00:02:39] Speaker 02: State Supreme Court Commissioner? [00:02:42] Speaker 00: Yes. [00:02:42] Speaker 00: The State Supreme Court Commissioner cited to Rice as the sole basis for his decision to deny any further review because there simply was not the evidence to make a merits ruling. [00:02:57] Speaker 00: That's what Rice says. [00:03:02] Speaker 00: In fact, neither the report and recommendation, which was wholly adopted here by the district court without indication that the district court reviewed it to novel, nor the respondents have cited to any case that says that the NRA rights rule is not independent and not adequate. [00:03:26] Speaker 00: And I have looked extensively and have found none myself. [00:03:32] Speaker 00: And as I previously said, the Washington Supreme Court and the Court of Appeal, the Court of Appeal paraphrased Henry Rice, did not cite Henry Rice, but said the problem here was that the wellers who were pro se failed to provide the affidavit from a medical expert. [00:03:53] Speaker 00: It's a very harsh rule. [00:03:58] Speaker 00: I would say unrealistic burden on pro se petitioners. [00:04:02] Speaker 00: And in Washington state, they're almost always pro se that if they're relying on their allegations of ineffective assistance relies on, uh, persons outside the record with personal knowledge, they have to provide the affidavit from that person. [00:04:22] Speaker 00: And that is quite unrealistic to ask of uncounseled [00:04:28] Speaker 00: indigent petitioner who were also imprisoned. [00:04:37] Speaker 00: Here, the report and recommendation does not, and the respondents do not dispute that Inray Rice is a procedural rule. [00:04:47] Speaker 00: What the report and recommendation found was that Inray Rice is dependent on Strickland. [00:04:59] Speaker 00: That is actually an absurd ruling, because the court earlier, the report and recommendation earlier in its decision, in talking about when a procedural rule is independent or dependent, cited to ACAY versus Oklahoma, which is the seminal Supreme Court case on whether a state procedural law is independent. [00:05:30] Speaker 00: to be dependent on federal law. [00:05:32] Speaker 00: It doesn't simply mean that you cite to Strickland. [00:05:37] Speaker 00: It means that the federal law has to be decided antecedent to the procedural state rule. [00:05:46] Speaker 00: So in Acre versus Oklahoma, the rule there was a waiver rule. [00:05:51] Speaker 00: but it did not apply to federal, if the claim was based on a federal constitutional rule. [00:05:58] Speaker 00: And so the court had to decide whether there was in fact a federal constitutional law involved before they could apply the procedural bar. [00:06:11] Speaker 00: That makes sense. [00:06:14] Speaker 00: In this case, [00:06:16] Speaker 00: The report and recommendation and the respondents argued simply by citing to the two-part test of Strickland, by identifying the claim as a Strickland claim, that the Inland Rights Rule is not independent and that it is dependent on Strickland, which again, I have found no case to support that. [00:06:44] Speaker 00: Because the Wellers' ineffective assistance claims were procedurally defaulted in this case, because the high court applied a procedural bar, and it was never adjudicated on the merits, [00:07:02] Speaker 00: The Martinez versus Ryan, equitable exception applies. [00:07:06] Speaker 00: Since the wellers were uncounseled, which would require the court, it's essentially a pretty low bar. [00:07:14] Speaker 00: There is cause here because they were not represented below. [00:07:19] Speaker 00: And the claim has to be substantial, which just means that it has to have some merit. [00:07:24] Speaker 03: If the relief you seek is a hearing, an evidentiary hearing? [00:07:28] Speaker 00: Yes, Your Honor. [00:07:31] Speaker 03: What would your client show at such a hearing? [00:07:35] Speaker 00: We actually produced the evidence that she would show. [00:07:38] Speaker 00: We retained a board certified child abuse medical expert. [00:07:44] Speaker 00: We gave the expert the medical records that were produced in the personal restraint petition by the Wellers, their pro se personal restraint petition. [00:07:55] Speaker 00: They submitted all the medical records. [00:07:58] Speaker 03: That's sort of the substance, if I can describe it that way. [00:08:02] Speaker 03: if you were allowed to proceed on the merits that you would show, what's the reason that would excuse the conduct? [00:08:12] Speaker 00: Oh, I see. [00:08:14] Speaker 00: What they alleged is that at trial, the prosecution only called one medical expert. [00:08:26] Speaker 00: That medical expert was not rebutted. [00:08:31] Speaker 00: The defense counsel, both defense counsel, in fact, said that they were not going to bring forth the medical records and the children, the pre-existing medical records, which showed that these children had [00:08:47] Speaker 00: extreme pre-existing conditions and that they saw a multitude of doctors. [00:08:56] Speaker 00: Our experts said that this is highly unusual that children would see this many doctors. [00:09:02] Speaker 00: They saw psychiatrists. [00:09:03] Speaker 00: They saw psychologists. [00:09:05] Speaker 00: They had nutritionists. [00:09:06] Speaker 00: They had endocrinologists. [00:09:09] Speaker 00: They went to therapy two to three times a week. [00:09:12] Speaker 00: None of that was presented to the jury. [00:09:16] Speaker 00: The argument here is that if council had presented a medical expert to rebut the state's medical expert, which was devastating to the defense, that there's a reasonable probability that the outcome would have changed [00:09:34] Speaker 00: And here, it's not just at trial, but at sentencing. [00:09:40] Speaker 00: Because the jury made aggravated findings, that gave the court discretion to impose an exceptional sentence beyond the 10-year statutory max for the petitioners who this was their first offense. [00:09:59] Speaker 00: sentencing because the sentencing court has said this is going to be a difficult sentencing because I do have this discretion with aggravated findings and urged the parties actually directed asked the parties to file pre-sentencing memoranda only the prosecution filed a pre-sentence memoranda charged and now convicted conduct is pretty horrific would you admit yes [00:10:31] Speaker 03: And the defense on the merits, if the panel were to grant habeas relief, would be what? [00:10:41] Speaker 00: The defense on the merits? [00:10:43] Speaker 00: Yeah. [00:10:43] Speaker 00: Again, we're alleging both trial and sentencing in effect assistance. [00:10:51] Speaker 03: So your position is this is pretty one-sided. [00:10:54] Speaker 03: They were not represented. [00:10:56] Speaker 03: They didn't present medical evidence, et cetera. [00:11:01] Speaker 03: And all of that means that the panel should grant habeas relief and instruct the state to either try, retry or dismiss these charges. [00:11:14] Speaker 03: Is that correct? [00:11:15] Speaker 00: I think before the panel [00:11:18] Speaker 00: I mean, grants habeas relief, it would have to engage in another part of the analysis. [00:11:26] Speaker 02: See, I understood your request is that we would reverse and remand for a hearing. [00:11:33] Speaker 00: Reverse and remand for a Martinez hearing because the court never engaged in that because the court found that there was adjudication on the merits. [00:11:45] Speaker 00: and then also determine the merits. [00:11:48] Speaker 00: I mean, the court here could determine that cause and prejudice was met under Martinez, because as I said, it's not a very high bar or standard. [00:11:59] Speaker 00: I see that I only have about three minutes left, so I'd like to reserve the rest for rebuttal. [00:12:04] Speaker 01: Thank you. [00:12:14] Speaker 01: All right, Mr. Sampson. [00:12:21] Speaker 04: Thank you, Your Honor, and may it please the Court, John Sampson, Assistant Attorney General for Respondent Appellee. [00:12:28] Speaker 04: This Court should affirm the District Court's judgment denying habeas relief for two reasons. [00:12:33] Speaker 04: First, regardless of the procedural arguments, the Washington Court of Appeals denied the claim on the merits. [00:12:40] Speaker 04: And even if there was a procedural bar ruling applied, 2254D still bars relief because the court would have to overcome that in order to grant relief. [00:12:52] Speaker 04: Second, the State Supreme Court did not apply a procedural bar, but addressed the claims and denied the claims on the merits. [00:12:59] Speaker 04: The Washington Court of Appeals decision clearly was a merits decision. [00:13:05] Speaker 04: The court cited to Strickland, cited to the presumption of competent representation, cited to Strickland's requirement that they prove [00:13:16] Speaker 04: reasonable probability the council errors prejudice to the defense and the court of appeals then held applying Strickland that the petitioner did not prove that council was ineffective they did not prove deficient representation and they did not prove prejudice that was a merits adjudication [00:13:38] Speaker 04: So even if this court were determined that the state Supreme Court had a denied review on procedural grounds and found that there was cause and prejudice to excuse that procedural default, the court still could not grant relief because there is a state court adjudication of the merits. [00:13:59] Speaker 02: Well, I know that you'd view the Washington Court of Appeals as an accusation on the merits, but I thought if you look to the highest court, the Washington Supreme Court, I thought there was really an express determination that it was procedural by the invocation of Rice. [00:14:17] Speaker 02: So when we [00:14:19] Speaker 02: typically do these cases, as you know, we're always asked to look at the highest court, which in this case is the Supreme Court, albeit in a commissioner. [00:14:28] Speaker 02: Why wouldn't we use that same construct here? [00:14:32] Speaker 04: Yes, Your Honor. [00:14:33] Speaker 04: So assuming that there was a procedural bar applied, and that's the second issue I'll talk about, but assuming that the state Supreme Court did apply a procedural bar, [00:14:42] Speaker 04: the court still has a state court adjudication of the merits. [00:14:47] Speaker 04: And as the Supreme Court said, in my case, Utick versus Brown, even if the state Supreme Court did not address the issue on the merits, in that case, the trial judge did. [00:14:59] Speaker 04: And so they went beyond the state Supreme Court decision and looked at what the trial judge actually did. [00:15:05] Speaker 04: The same rationale was recently announced by the Supreme Court in Mays versus Hines, and I can do a supplemental citation of authority for that. [00:15:17] Speaker 04: But in that case, the court said, as long as a state court has ruled on the merits, 2254D applies. [00:15:27] Speaker 04: So as long as you have either at the intermediate appellate or at the state Supreme Court level and adjudication of the merits, it still exists. [00:15:38] Speaker 04: You cannot just simply say, well, the later court said it was procedurally barred, so therefore we ignore what the prior court did. [00:15:46] Speaker 04: And it's true that in most situations, this court will just look at the last reasoned decision, which is the state Supreme Court. [00:15:52] Speaker 04: But what they're asking you to do is to say that, [00:15:56] Speaker 04: Supreme Court decision was not an adjudication on the merits. [00:16:00] Speaker 04: So it doesn't apply and ignore the prior decision, which was an adjudication on the merits. [00:16:07] Speaker 04: And in that situation, this court cannot do this. [00:16:09] Speaker 02: You're saying that in Mays v. Hines, you looked past [00:16:16] Speaker 02: a higher court's determination of procedural default and went back to the lower court's decision on the merits? [00:16:23] Speaker 04: No, Your Honor. [00:16:23] Speaker 04: What I'm saying is the Supreme Court said that as long as a state court has adjudicated the merits, in that case it was Tennessee, and they said as long as a Tennessee court has adjudicated the merits, 2254-D applies. [00:16:42] Speaker 04: Because even if the state supreme court applied a procedural bar and they overcame that, then you have to look at, okay, what else has occurred in this case? [00:16:52] Speaker 04: Is there another adjudication on the merits? [00:16:54] Speaker 04: And there was an adjudication on the merits. [00:16:56] Speaker 04: It's the same as if there was an evidentiary hearing in state court. [00:17:01] Speaker 04: The court could not simply say, well, the later court applied a procedural bar, so we're going to ignore all the factual findings of the state court. [00:17:07] Speaker 04: The other provisions of 2254 apply, and that's what the Supreme Court has indicated in its cases that involve the application of both TIG and EDPA and the application of the BRAC Harmless Error Standard and EDPA. [00:17:23] Speaker 04: You have a statutorily requirement [00:17:26] Speaker 04: that bars this court from granting relief unless that statute is complied with, and a separate judicially created procedural bar, which if that were the case, the court would have to fountain to be overcome before it could grant relief. [00:17:42] Speaker 04: You have both of those coming into play here. [00:17:44] Speaker 04: But even if we look just at the State Supreme Court decision, which is my second point, the State Supreme Court did not apply a procedural ruling. [00:17:55] Speaker 04: They adjudicated the merits of the claim. [00:17:57] Speaker 04: Yes, they did cite the rights. [00:17:59] Speaker 04: But that citation to Rice was in the context of adjudicating the merits, not in applying a procedural bar. [00:18:08] Speaker 04: Rice itself discussed the different levels of a PRP review. [00:18:14] Speaker 04: PRP is what Washington calls their collateral attack. [00:18:18] Speaker 04: And when a PRP is filed, the chief judge first looks at the petition itself. [00:18:24] Speaker 04: determines whether it's untimely or timely, whether it's successive or not successive, and whether it's frivolous on its face. [00:18:32] Speaker 04: And the chief judge conducts that review, and if it's frivolous or if it's barred, the chief judge dismisses it in an order. [00:18:41] Speaker 04: If the petition is not barred and is not frivolous on its face, then the chief judge refers it to a merits panel, a three-judge panel, which is what occurred in this case. [00:18:52] Speaker 04: The case went to a three-judge panel, and the three-judge panel in the Court of Appeals then issued a decision on the merits applying strictly. [00:19:02] Speaker 04: Then what happens is, after that is decided, then they can seek discretionary review in the State Supreme Court, and the commissioner makes the initial determination whether further review is needed. [00:19:15] Speaker 04: And the language further review is not, do we go beyond a procedural bar? [00:19:21] Speaker 04: It's whether or not the State Supreme Court should spend its time looking at this case. [00:19:25] Speaker 03: Did the commissioner cite Strickland? [00:19:29] Speaker 04: Yes, Your Honor. [00:19:31] Speaker 04: And under this court's decision in Park versus California, the fact that it was interwoven, even if the state Supreme Court was applying a procedural rule, the fact that it was interwoven with Strickland means that it's not an adequate procedural bar. [00:19:48] Speaker 04: So it would not procedurally bar the claim. [00:19:51] Speaker 04: The State Supreme Court did cite to Strickland. [00:19:54] Speaker 04: It cited both the presumption that the courts must apply in reviewing counsel's performance and the prejudice standard. [00:20:03] Speaker 04: And the commissioner said, they have not shown that the Court of Appeals erred in determining there was not ineffective assistance to counsel. [00:20:12] Speaker 04: And therefore, because they have the evidentiary burden, [00:20:17] Speaker 04: failed to show the need for this court to further review it. [00:20:20] Speaker 04: And that evidentiary burden was discussed in the Rice opinion. [00:20:24] Speaker 04: And in Rice, what the state court did was they did, again, they talked about the different levels of reviewing a PRP. [00:20:32] Speaker 04: And once you get to the level where it's before a three-judge panel, then the petitioner has the burden to present actual evidence to prove the claim. [00:20:42] Speaker 04: Much as in this court, they don't get an evidentiary hearing in federal court simply based on their allegations. [00:20:48] Speaker 04: They actually have to present competent evidence that would show that they would win. [00:20:52] Speaker 04: Much like in a summary judgment motion, you have to present evidence showing there's an actual issue of fact that needs to be decided in an evidentiary hearing. [00:21:00] Speaker 04: If they don't present that evidence, then they have not proven their case. [00:21:05] Speaker 04: They have not submitted a prima facie case, which this court in Ochoa said is a ruling on their merits. [00:21:13] Speaker 04: So the court is clearly saying that it's an evidentiary burden that they have to meet, not a pleadings [00:21:19] Speaker 04: not a timeliness or successiveness, or even you've raised a bunch of allegations, but none of them even show any kind of an error or any kind of a constitutional claim. [00:21:30] Speaker 04: It's not a pleadings review. [00:21:32] Speaker 04: They were actually looking at the merits. [00:21:34] Speaker 04: The commissioner was looking at the merits of the claim and saying, you did not prove your claim. [00:21:39] Speaker 04: So for that reason, the state Supreme Court actually did apply or did adjudicate the merits and did not apply a state procedural bar. [00:21:48] Speaker 04: And it's also why the state did not assert a procedural bar in response to the petition. [00:21:55] Speaker 04: There was no procedural bar in this case. [00:21:58] Speaker 04: And then finally, Your Honors, even if this court were to say that there was a procedural bar, that the procedural bar has been overcome and that there is no adjudication on the merits, the 2254E2 still bars the development of any further evidence. [00:22:17] Speaker 04: Under Shin v. Ramirez, the Supreme Court made clear that if you fail to present that evidence in state court, you have to satisfy the statute in order to present new evidence. [00:22:27] Speaker 04: So even if this court were to grant some relief and to remand this, [00:22:32] Speaker 04: The statute bars any further development of the evidence and the only record that the District Court could look at would be the evidence that was before the State Supreme Court, which is the State Court of Appeals and State Supreme Court found did not prove their claims under either part of Strickland. [00:22:50] Speaker 01: I have a question about that, counsel. [00:22:53] Speaker 01: I know that the magistrate judge didn't allow the uh the wellers to uh or found that the wellers were not diligent because they didn't request funds for an expert. [00:23:07] Speaker 01: Is that fair? [00:23:08] Speaker 01: Their pros say they weren't represented by council at the time. [00:23:11] Speaker 01: Is it fair to put that on them that they needed to know that they needed to ask for funds so that they could get an expert? [00:23:18] Speaker 04: Your honor, that's as far as fairness, yes, because that's how the system works. [00:23:24] Speaker 04: It is the requirement that a petitioner [00:23:29] Speaker 04: prove their case. [00:23:31] Speaker 04: And the fact that they don't have funds is not sufficient to show a lack of diligence. [00:23:37] Speaker 04: And the Supreme Court has pretty clear in Shin that that is the case. [00:23:42] Speaker 04: There is no constitutional right to collateral review. [00:23:46] Speaker 04: There's no constitutional right to counsel on collateral review. [00:23:49] Speaker 04: There's no constitutional right to the expenditure of public funds to allow them to seek such review. [00:23:57] Speaker 01: If a state court wanted to they could simply eliminate collateral review But our state court allows that to occur in the interest of fairness and justice So you talked about shin in regard with this but in shin they were represented by counsel and the state court post-conviction proceedings and Here it's different. [00:24:18] Speaker 01: They didn't have counsel. [00:24:19] Speaker 01: They were expected to kind of know this on their own so I think shin is distinguishable on that and [00:24:25] Speaker 04: I would disagree, Your Honor. [00:24:27] Speaker 04: The fact is that before Shin was issued, the argument was, well, if I was pro se, yes, the deficiencies would be on me. [00:24:41] Speaker 04: But it was not me, it was my counsel who was deficient, and that [00:24:46] Speaker 04: excuses the statute, and that allows me under Martinez to then bring all this new evidence in. [00:24:53] Speaker 04: And what the Supreme Court said in Shannon, no, it doesn't matter if you are represented or not. [00:24:58] Speaker 04: They said deficiencies are attributable to the petitioner, and to the extent the petitioner are represented by counsel, those deficiencies are attributable to the petitioner because they're acting as the agent of the petitioner. [00:25:12] Speaker 04: So in either situation, [00:25:16] Speaker 04: the statute applies. [00:25:17] Speaker 02: There's nothing in the statute that— There is a difference, though, in Shin. [00:25:20] Speaker 02: They're really attacking the negligence of the attorney. [00:25:24] Speaker 02: Correct. [00:25:25] Speaker 02: And here, unlike in Shin, the issue was on the table. [00:25:30] Speaker 02: It was raised. [00:25:32] Speaker 02: And they asked for a lawyer and also for a hearing. [00:25:38] Speaker 02: So it seems that it is different than Shin in terms of availability of a hearing at this stage. [00:25:47] Speaker 02: I mean, I know you reference to before Shin, there was the issue of the pro se council, but it does seem to me if you look at what Shin talks about, [00:25:56] Speaker 02: That's where you're going after your counsel for being negligent. [00:26:00] Speaker 02: And as the court has said in many circumstances, that's on you. [00:26:04] Speaker 02: You kind of rise and fall with your counsel on that point. [00:26:09] Speaker 02: But here, they did everything they were supposed to do. [00:26:11] Speaker 02: What more could they have done? [00:26:14] Speaker 04: Present evidence. [00:26:15] Speaker 04: And I understand it may not be fair, but that is the system. [00:26:20] Speaker 04: And there is no right to public funds. [00:26:22] Speaker 04: There is no right to counsel in these cases. [00:26:25] Speaker 04: That's the system. [00:26:26] Speaker 04: There is no right to a collateral review. [00:26:28] Speaker 04: And this court held long ago in Hughes versus Idaho involving procedural default that inadequacies of a prisoner [00:26:39] Speaker 04: are not caused to excuse a procedural default. [00:26:41] Speaker 04: Yes, prisoners don't have the access to the resources that a rich person in the community would have, but that is not cause to excuse the default. [00:26:51] Speaker 04: And the same thing applies with 2254E2. [00:26:54] Speaker 04: There's nothing in the statute that talks about pro-save versus represented. [00:26:59] Speaker 04: It says the petitioner. [00:27:00] Speaker 04: If the petitioner fails, [00:27:02] Speaker 04: And so if you're pro se and you fail to do it, the statute applies. [00:27:06] Speaker 04: That's Congress's choice to impose that burden. [00:27:12] Speaker 04: We would ask that the court affirm the district court. [00:27:14] Speaker 04: Thank you, Your Honor. [00:27:15] Speaker 01: Thank you, Mr. Sampson. [00:27:16] Speaker 01: Ms. [00:27:16] Speaker 01: Lai? [00:27:21] Speaker 00: Mr. Samson went through a lot of concepts that I'd like to address. [00:27:27] Speaker 00: If the rule were that you could just find any state court that adjudicated the claim and disregard the last reasoned decision, that would violate Wilson versus Sellers, so Supreme Court law. [00:27:45] Speaker 00: And I think it would violate Barker versus Filming as well. [00:27:51] Speaker 00: Mr. Stamson says, well, we didn't invoke procedural default. [00:27:56] Speaker 00: And it's because there was adjudication on the merits. [00:28:06] Speaker 00: The respondents are not invoking procedural default because they're trying to avoid our Martinez versus Ryan hearing. [00:28:14] Speaker 00: Because Martinez versus Ryan says, if a pro se petitioner [00:28:20] Speaker 00: procedurally defaults, that procedural default can be excused under cause and prejudice analysis. [00:28:33] Speaker 00: Your Honors, Judge Hawkins and Judge McKeown, you had Mother's Head versus Wulford last year. [00:28:44] Speaker 00: I think that is a good case. [00:28:48] Speaker 00: to distinguish our case from that case. [00:28:50] Speaker 00: In that case, again, the Henry Rice Rule was at play. [00:28:54] Speaker 00: Respondents argued that there was a, well, in that case, it was the district court had ruled that there was a procedural bar. [00:29:08] Speaker 00: And in the opinion, the court said yes. [00:29:14] Speaker 00: The Washington Supreme Court did say that Mothershed had failed to present an affidavit of what the defense expert would have said, but it held and actually engaged in the prejudice prong. [00:29:29] Speaker 00: It didn't just cite Districlin. [00:29:31] Speaker 00: It actually weighed the evidence that was presented at trial and weighted against what would have been presented. [00:29:40] Speaker 00: And the panel, Your Honors, said in that case, that is adjudication on the merits because the court actually engaged in the merits of the case. [00:29:53] Speaker 00: They said that because the state in that case had presented 15 experts, including 10 doctors who had treated the victim, five forensic chemists, that there was just no way that [00:30:08] Speaker 00: producing one defense expert would have changed the outcome of the trial. [00:30:14] Speaker 00: We don't have that in this case again. [00:30:15] Speaker 00: We only have one state expert, a non-board certified child abuse doctor. [00:30:22] Speaker 00: We have produced a board certified child abuse doctor who says that there's no medical certainty that these kids were abused in the way that the state expert testified. [00:30:37] Speaker 00: The other issue that is incorrect and I would like to correct it is that Shin does not apply to pro se petitioners. [00:30:48] Speaker 00: This court in Rose v. Hedgepitt said that there is a difference because Shin only addressed the situation where there's negligent post-conviction counsel. [00:31:04] Speaker 00: The standard that applies here is the Michael Williams standard, which was not overruled by Shin. [00:31:11] Speaker 00: And in that standard, the question is whether the petitioners were diligent. [00:31:19] Speaker 00: And in this case, they were more than diligent. [00:31:21] Speaker 00: They produced all the medical records. [00:31:24] Speaker 00: They submitted almost 2,000 pages of exhibits, including the police reports that show that Eli was under a juvenile court case. [00:31:36] Speaker 00: They produced the report from the guardian at Lydom, who had visited the Wellers that same year. [00:31:43] Speaker 01: Counsel, you are over time, so I'm just going to ask you to wrap it up. [00:31:46] Speaker 00: Okay. [00:31:48] Speaker 00: So there was not an adjudication on the merits here. [00:31:54] Speaker 00: Martinez versus Ryan applies. [00:31:56] Speaker 00: 2254E2 does not bar evidentiary development because the petitioners were more than diligent under Michael Williams. [00:32:08] Speaker 00: Thank you. [00:32:09] Speaker 00: Thank you. [00:32:09] Speaker 01: Thank you, counsel. [00:32:10] Speaker 00: This matter is now submitted.