[00:00:00] Speaker 03:
Good morning, Your Honours, and may it please the Court.

[00:00:03] Speaker 03:
My name is Ron Sung, with the Federal Public Defender's Office of Nevada, and I represent Jesus Flores.

[00:00:10] Speaker 03:
I'd like to reserve two minutes, please.

[00:00:13] Speaker 03:
Council's concession during opening statements in Mr. Flores' case

[00:00:17] Speaker 03:
was unreasonable and lacked any strategic value.

[00:00:22] Speaker 03:
Council's goal for the concession was to build credibility to contest the other charges, but Council effectively waived the proverbial white flag, abandoned her client, and aided the state against her client's interests.

[00:00:36] Speaker 03:
counsel recited the da's opening statements and agreed with their factual narrative this your honor was a chronic violation counsel surrendered her client's case to the extent that the state could have just sought a directed verdict after opening statements counsel could i ask you about that so it seems like in the opening statement defense counsel

[00:01:01] Speaker 01:
arguably just described what the witnesses would say.

[00:01:05] Speaker 01:
But that doesn't necessarily mean that the witnesses needed to be believed.

[00:01:09] Speaker 01:
So why are you interpreting it as actual evidence?

[00:01:13] Speaker 01:
First of all, that there was a gun rather than just a witness would say there was a gun.

[00:01:19] Speaker 01:
And then how could you move for a directed verdict as if the opening statement was evidence anyway?

[00:01:24] Speaker 03:
Well, Your Honor, you're right that opening statements are just arguments, but so are closing statements.

[00:01:30] Speaker 03:
And in this court found in US v. Swanson that I cited, that was a closing arguments case.

[00:01:37] Speaker 03:
Counsel in that case conceded that her client was guilty of the one out of the one charge.

[00:01:44] Speaker 03:
This court found in Swanson that there was a chronic violation because counsel affirmatively aided the prosecutor in her efforts to persuade the jury.

[00:01:53] Speaker 03:
And we have the exact same thing here.

[00:01:55] Speaker 03:
We have an opening statement in which counsel conceded all the legal and factual grounds needed to convict her client of all the charges.

[00:02:06] Speaker 01:
First of all, you have to think that the statement that you'll hear that there was a gun means there was a gun.

[00:02:11] Speaker 01:
That's the first part of my question.

[00:02:14] Speaker 01:
The second part is even if there was a gun, there are all these other elements of kidnapping.

[00:02:18] Speaker 01:
It could allow the jury to convict on all the counts, but it doesn't require it because we have to get into other things like was this beyond the robbery or not and other issues that the jury would have to still decide.

[00:02:31] Speaker 03:
So if I'm interested in your question, Your Honor, I think it's important to note that your question is basically like, why were the counsel statements like they're not facts, right?

[00:02:42] Speaker 03:
Is that what you're saying?

[00:02:43] Speaker 01:
Well, let's go one at a time.

[00:02:44] Speaker 01:
So the first thing is, when the counsel said, you will hear that there was a gun, why does that mean that the jury has to find, as a matter of fact, that there was, rather than maybe that the victim just was confused about whether there was a gun, but he'll say there was, and then we'll attack that?

[00:03:00] Speaker 03:
Well, for one, Your Honor, they never really questioned the honesty or the credibility or the memory of the victim.

[00:03:09] Speaker 03:
And second... Well, I think they kind of did.

[00:03:11] Speaker 01:
They said no gun was ever recovered.

[00:03:13] Speaker 01:
I mean, weren't they trying to undermine whether there really was a gun?

[00:03:15] Speaker 03:
Sure, Your Honor, and I can get to that.

[00:03:17] Speaker 03:
But the other thing is that they're agreeing.

[00:03:19] Speaker 03:
The trial counsel is literally agreeing with the factual narrative of the state.

[00:03:27] Speaker 03:
And so you have both sides agreeing to this narrative.

[00:03:30] Speaker 03:
And that's what is the chronic violation.

[00:03:31] Speaker 02:
Wait, what's the agreeing part?

[00:03:33] Speaker 02:
I'm still trying to understand.

[00:03:35] Speaker 02:
How was counsel doing that?

[00:03:37] Speaker 03:
Right, so they agreed on several key facts.

[00:03:40] Speaker 03:
One was that there was a gun.

[00:03:41] Speaker 03:
Two, that the co-defendant Martinez stabbed the victim and he had a knife pointed at the victim.

[00:03:51] Speaker 03:
Another factual concession was that Mr. Flores tied up the victim, that when he left to go to the ATM, the defendants or the co-defendants

[00:04:01] Speaker 03:
were threatening the victim.

[00:04:03] Speaker 03:
All these factual concessions satisfied all the elements for the other crimes.

[00:04:07] Speaker 03:
So we can just talk about each one.

[00:04:08] Speaker 03:
Battery, for example, that was one of the crimes that they wanted to contest or that trial counsel wanted to contest.

[00:04:15] Speaker 03:
Well, we know the strategy for that because during closing arguments, trial counsel stated that Mr. Flores wasn't guilty because Flores didn't know about that happening.

[00:04:26] Speaker 03:
But by conceding to the conspiracy account for the robbery,

[00:04:29] Speaker 03:
Counsel rendered Mr. Flores vicariously liable for the actions of the co-defendants for all general intent crimes.

[00:04:38] Speaker 03:
Battery is a general intent crime.

[00:04:40] Speaker 03:
And worse yet, she specifically conceded that there was a stabbing by co-defendant Martinez.

[00:04:46] Speaker 03:
So after that concession, there's literally nothing to talk about with the battery.

[00:04:52] Speaker 03:
Kidnapping, trial counsel,

[00:04:55] Speaker 03:
specifically wanted to challenge the kidnapping.

[00:04:57] Speaker 03:
It was the most serious crime.

[00:04:58] Speaker 03:
It was the only felony-a crime in this case.

[00:05:01] Speaker 03:
But her concession rendered him guilty of three separate counts of kidnapping.

[00:05:05] Speaker 03:
She specifically stated that Mr. Flores took the victim's ATM cards, and while he was out at the ATM, the co-defendants were threatening the victim.

[00:05:17] Speaker 03:
So that's one act of kidnapping.

[00:05:20] Speaker 01:
Second, if he didn't know about that, I mean, wasn't part of it.

[00:05:23] Speaker 03:
Right, he didn't know about that.

[00:05:25] Speaker 03:
So that's why counsel had less reason to concede, right?

[00:05:27] Speaker 03:
She had Mr. Flores had no idea about the threats if he was gone.

[00:05:31] Speaker 03:
Second, she conceded that Mr. Flores was the one that drove the victim and the two other co-defendants.

[00:05:37] Speaker 03:
to the ATM and that while he was in, while they're in the car, co-defendant Martinez threatened the victim with a knife and stabbed him.

[00:05:47] Speaker 03:
I mean, Mr. Flores had no idea about this.

[00:05:50] Speaker 03:
She could have argued that he had no idea and that he was not part of any of this.

[00:05:53] Speaker 00:
Let me ask you, if the court agrees that chronic per se prejudice rule should have applied in this case, what's your best argument?

[00:06:01] Speaker 00:
What's the authority you would cite us to to support the assertion that the Supreme Court

[00:06:06] Speaker 00:
decision was, and I'm going to quote the language, contrary to or an unreasonable application of U.S.

[00:06:12] Speaker 00:
Supreme Court precedent as required by EDPA.

[00:06:15] Speaker 03:
Well, Your Honor, there is no other Supreme Court decisions on chronic, but recently in 2019.

[00:06:21] Speaker 00:
Don't we need that?

[00:06:22] Speaker 00:
I mean, don't we need to have a specific case that this decision was contrary to, to be able to say that the Supreme Court's decision was unreasonable?

[00:06:32] Speaker 03:
Well, Your Honor, the chronic case does cite two examples of chronic violations, one being the abandonment of client during a critical stage of the proceedings, and a second example being failing to subject the state's case to any meaningful adversarial testing, right?

[00:06:53] Speaker 03:
And we have both of that from the concession, right?

[00:06:56] Speaker 03:
I would say opening statements is a critical period.

[00:06:58] Speaker 03:
She abandoned him.

[00:06:59] Speaker 03:
She failed to subject the state's case to any meaningful adversarial testing because she agreed with the narrative and agreed to all the facts needed.

[00:07:08] Speaker 03:
So to answer your question, yes, Your Honor.

[00:07:11] Speaker 03:
The U.S.

[00:07:12] Speaker 03:
Supreme Court has never had a chronic violation case, but this is a perfect example of one that should be.

[00:07:18] Speaker 01:
I guess I'm still struggling, though, with how you think that she actually abandoned all the elements, because she was arguing, as I understood it, that he didn't know about the stabbing, that he didn't know what they did at the house or home while he went to the ATM.

[00:07:36] Speaker 01:
And it seems like there was the argument that taking him to the ATM was...

[00:07:43] Speaker 01:
didn't really increase the risk to him, was part of the robbery, and really didn't add kidnapping.

[00:07:50] Speaker 01:
So I don't see how he necessarily would have been convicted of kidnapping if the jury agreed with the arguments that defense counsel was making.

[00:07:58] Speaker 03:
Well, Your Honor, just like you said, she already laid out all the facts that she didn't dispute, all the facts about the kidnapping.

[00:08:04] Speaker 03:
So once you lay out all these concessions in your opening, it's pretty useless to go during closing and say, well, my client didn't actually do this.

[00:08:10] Speaker 03:
My client didn't know about this.

[00:08:12] Speaker 03:
She could have just waived her opening statements, Your Honor, and just let the concession stand.

[00:08:16] Speaker 03:
Her concession should have just been, well, we conceded to the robbery.

[00:08:20] Speaker 03:
I'm sorry, the count one burglary without the firearm enhancement.

[00:08:25] Speaker 03:
Did you have a question?

[00:08:27] Speaker 02:
Don't tell me what she could have done.

[00:08:29] Speaker 02:
Tell me what she did that tells us that she conceded that.

[00:08:33] Speaker 02:
I guess that's what I need you to be clear on.

[00:08:36] Speaker 02:
What was it that she conceded on, for example, on the kidnapping?

[00:08:41] Speaker 03:
Sure, Your Honor, as I laid out just now in my opening brief, she conceded three factual statements for kidnapping, first being that Mr. Flores took the ATM cards and went to the ATM, and while he was doing that, the co-defendants were actively threatening the victim.

[00:09:00] Speaker 01:
But if we stop you there, if she says he didn't know about that, then why would he be guilty of kidnapping for that?

[00:09:06] Speaker 03:
Okay, it's unclear whether, but in her opening statement, she never said whether our guy knew about that or not, right?

[00:09:13] Speaker 03:
So she didn't make that clear.

[00:09:14] Speaker 03:
She just said, oh, the co-defense are doing this, implying that our guy was also in knowledge about that because she also conceded that he was part of a conspiracy, right?

[00:09:23] Speaker 03:
Count 5 was a conspiracy.

[00:09:25] Speaker 03:
She conceded that upfront when she didn't need to.

[00:09:27] Speaker 03:
The second kidnapping incident was him, Mr. Flores, driving the vehicle.

[00:09:33] Speaker 03:
She had no need to concede that.

[00:09:34] Speaker 01:
She had no need to concede that the... Well, some of the things she probably had to concede because they're true.

[00:09:39] Speaker 01:
I mean, the really big problem here is that the facts were very bad for her to figure out how to have any sort of strategy at all, right?

[00:09:46] Speaker 01:
I mean, I'm not sure how they could have possibly said he didn't drive the car.

[00:09:49] Speaker 03:
Well, if we're going to the prejudice argument, Your Honor, I would just say that trial counsel failed to impeach the overall credibility of the elderly victim.

[00:09:58] Speaker 03:
And that's because counsel agreed with the narrative, right, that the state set out in opening statements.

[00:10:03] Speaker 01:
Well, this is my first question I don't really think you've answered, which is when she says, you will hear that there was a gun, but then in trial she tries to say, but there really wasn't a gun.

[00:10:12] Speaker 01:
No gun was recovered.

[00:10:14] Speaker 01:
How is that statement, you will hear that there's a gun, actually a concession to there being a gun?

[00:10:19] Speaker 03:
She.

[00:10:20] Speaker 03:
Well, your honor, I don't think it's as clear as you say it's like you'll hear that all these facts occurred.

[00:10:25] Speaker 03:
Right.

[00:10:25] Speaker 00:
And that's why does she even need to say you and before she says that she says the facts are going to be difficult to listen to.

[00:10:32] Speaker 00:
Right.

[00:10:32] Speaker 00:
I mean, she she characterizes these statements as facts that she is about to relay.

[00:10:39] Speaker 00:
about the crime, and then she says this language, I think, that my colleagues are talking about, what are you going to hear during this trial, question mark.

[00:10:50] Speaker 00:
But the statement before that is, the facts are going to be difficult to listen to, and then she recounts these facts, including many facts that are actually not related to the pled

[00:11:02] Speaker 03:
counts, correct?

[00:11:17] Speaker 03:
Never an attempt to highlight the victim's inconsistent and somewhat nonsensical statements that he made between his 911 voluntary statement and preliminary hearing.

[00:11:28] Speaker 03:
I want to list three of them, for example, firearm.

[00:11:31] Speaker 03:
There was never a gun, right?

[00:11:32] Speaker 03:
Police never recovered one.

[00:11:34] Speaker 03:
And the victim actually stated he stared at the gun for like 45 minutes.

[00:11:40] Speaker 03:
He said the lights were on.

[00:11:41] Speaker 03:
He said he had his glasses on.

[00:11:43] Speaker 03:
and yet he couldn't identify the color of the gun.

[00:11:46] Speaker 03:
They asked him if it was a fake or real gun.

[00:11:50] Speaker 03:
He said, I couldn't tell.

[00:11:51] Speaker 03:
They asked him if it was a metal or plastic gun.

[00:11:53] Speaker 03:
He said, I couldn't tell.

[00:11:55] Speaker 02:
Why wasn't that a strategy?

[00:11:57] Speaker 02:
Why wasn't that a strategy that they could have employed?

[00:12:02] Speaker 02:
Having had many victims where I'm cross-examining them,

[00:12:06] Speaker 02:
If you go sometimes too hard on a victim, that could turn the jury against you very bad.

[00:12:11] Speaker 02:
Why wasn't that, for example, a strategy that she could have been taking?

[00:12:17] Speaker 03:
Because, and I guess that's the whole point of the concession.

[00:12:20] Speaker 03:
This concession put her on the path of trial counsel, on the path that she had already agreed with all the factual allegations.

[00:12:28] Speaker 02:
Right, but why wasn't that perhaps a strategy that she took?

[00:12:32] Speaker 02:
Because that strategy lacked any strategic value so for example on the battery I listed out like by conceding to the conspiracy and Conceding to the factual allegation that no, but I thought your argument was that she could have been cross-examining this person much better or something to that effect I mean, but why why wasn't the strategy that she took which was sort of with you know velvet gloves tried to treat this person because you don't want the jury to turn around and

[00:13:01] Speaker 03:
and hate you for what happened.

[00:13:20] Speaker 03:
trial counsel did.

[00:13:22] Speaker 03:
This was an abandonment of her client.

[00:13:24] Speaker 03:
She aided the state.

[00:13:25] Speaker 03:
She firmly aided the state in their case against the client.

[00:13:29] Speaker 03:
And after the concession, the question is, what could she have possibly done?

[00:13:33] Speaker 03:
And the answer is nothing.

[00:13:35] Speaker 03:
There was nothing else to discuss after the concession.

[00:13:37] Speaker 03:
With that, Your Honor, I'd like to reserve the remainder of my time.

[00:13:40] Speaker 03:
Thank you.

[00:13:54] Speaker 04:
Good morning, Your Honors.

[00:13:55] Speaker 04:
My name is Michael Bongard.

[00:13:57] Speaker 04:
I'm with the Nevada Attorney General's Office, and I represent Respondent William Gitter in this matter.

[00:14:05] Speaker 04:
Overwhelming evidence of guilt usually means that a petitioner cannot meet the standard for demonstrating prejudice based upon counsel's error.

[00:14:17] Speaker 04:
My opponent recognizes that fact, so he has to jump through the only hoop that he can take

[00:14:23] Speaker 04:
to try to convince this court that there's presumed prejudice based upon chronic.

[00:14:32] Speaker 04:
He cited one case and mentioned it to this court, Swanson versus United States, a case where this court found prejudice under chronic.

[00:14:41] Speaker 04:
However, that's the only case he can cite that actually meets the definition of chronic.

[00:14:49] Speaker 04:
And the court chronic said that counsel ceases to function as appointed counsel when they completely abandon their client.

[00:15:00] Speaker 04:
And what do we have in Swanson?

[00:15:02] Speaker 04:
We have complete abandonment.

[00:15:05] Speaker 04:
The statement made by counsel in Swanson

[00:15:09] Speaker 04:
was during closing argument after the jury heard the evidence, after the jury heard instructions that said they have to base their finding of guilt not on anything counsel says, because statements of counsel aren't evidence.

[00:15:26] Speaker 04:
Evidence consists of testimony of the witnesses, physical evidence that's introduced, any type of inferences that can be drawn from that.

[00:15:36] Speaker 04:
You don't have that in the opening statement.

[00:15:39] Speaker 04:
You haven't even had one fact placed before the jury.

[00:15:43] Speaker 04:
Contrary to what my opponent says, at that point, if there was a motion for directive verdict, it has to be granted in favor of Mr. Flores because there was no evidence presented yet.

[00:16:01] Speaker 04:
The district court correctly found that chronic doesn't apply.

[00:16:05] Speaker 04:
The district court cited this court's case in US v. Thomas not for the standard that it's constitutional law provided by the US Supreme Court that provides the basis for finding whether it was reasonably or unreasonably applied.

[00:16:27] Speaker 04:
but rather for the fact that it aided the court in determining that chronic didn't apply.

[00:16:32] Speaker 04:
Because in that case, you didn't have total abandonment.

[00:16:37] Speaker 04:
You had an attorney that was faced maybe not with the same perils, but certainly very similar perils as attorney in this case.

[00:16:45] Speaker 04:
And they decided to press for credibility with the jury, fight for the charges that there was weak evidence on.

[00:16:57] Speaker 04:
or ask counsel in.

[00:16:59] Speaker 00:
What legitimate legal strategy could there have been for Flores's counsel to go through and make statements that were essentially factual admissions for claims that were not the claims or the charges that were pled?

[00:17:17] Speaker 00:
I'm really struggling to understand what legal strategy could even remotely be reasonable for his counsel to do that.

[00:17:29] Speaker 04:
Your honor, I will concede one thing.

[00:17:31] Speaker 04:
I will concede that defense counsel in this case didn't give the best opening argument under the facts and circumstances.

[00:17:37] Speaker 04:
However, as you pressed my opponent during questioning, she didn't concede those facts.

[00:17:43] Speaker 04:
She said you will hear facts.

[00:17:45] Speaker 04:
She prefaced- No, no, no.

[00:17:46] Speaker 00:
Before that, she said, these facts are going to be difficult to listen to.

[00:17:51] Speaker 00:
Then she asked a question.

[00:17:52] Speaker 00:
What facts are you going to hear today?

[00:17:55] Speaker 00:
Question mark.

[00:17:57] Speaker 00:
All of these facts that are, in my view, cannot attach to any legitimate legal strategy.

[00:18:04] Speaker 00:
And then at the end, again, she says, these are admissions, or he, I can't remember the exact language.

[00:18:11] Speaker 00:
Let me find it here.

[00:18:20] Speaker 00:
One second.

[00:18:20] Speaker 00:
Let me get to it.

[00:18:33] Speaker 04:
Are you looking at the opening, Your Honor?

[00:18:35] Speaker 00:
Yeah, I'm looking at the opening statement.

[00:18:38] Speaker 00:
And I was just here, but I've lost it.

[00:18:39] Speaker 00:
OK, the facts are going to be difficult to listen to, but we ask you listen carefully.

[00:18:45] Speaker 00:
But what are you going to hear during this trial, question mark, goes through several paragraphs,

[00:18:52] Speaker 00:
And then at the very end, and this is an ER 1741, it says, ladies and gentlemen, Jesus accepts responsibility for what he has done.

[00:19:03] Speaker 00:
He asks you to listen carefully to these difficult facts and to hold him responsible for only what the state will be able to prove, but prior to the statement has recounted all of the facts with respect to the charges of burglary, robbery, and conspiracy to commit robbery.

[00:19:20] Speaker 04:
And that's why I would agree with your honor that I don't think counsel made the most artful closing.

[00:19:27] Speaker 04:
But she prefaced her roadmap.

[00:19:29] Speaker 04:
She set forth her roadmap at the beginning by stating, Flores made a terrible mistake and he wants you to know this.

[00:19:38] Speaker 04:
She stated that he accepts responsibility for what he did.

[00:19:42] Speaker 04:
But then she said, the state is charging Jesus with crimes he did not commit.

[00:19:47] Speaker 04:
The state alleges that he committed the burglary and robbery while in possession of a gun or a knife.

[00:19:52] Speaker 04:
The facts will not support this.

[00:19:54] Speaker 04:
And the state alleges that he committed first degree kidnapping.

[00:19:56] Speaker 04:
The facts will not support this.

[00:19:59] Speaker 04:
So she could have left out all the facts.

[00:20:03] Speaker 04:
And she could have concluded by saying, ladies and gentlemen, he accepts responsibility for what he done.

[00:20:08] Speaker 04:
He asks you to listen carefully to the difficult facts and to hold him responsible only for what the state will be able to prove.

[00:20:15] Speaker 04:
And again, like I say, it was in our folk, but it's certainly not evidence.

[00:20:21] Speaker 04:
Because at that point, there was no evidence presented.

[00:20:26] Speaker 04:
So I would say that this is not.

[00:20:29] Speaker 01:
So can I ask, I was asking your opposing counsel some questions about whether this could be read as saying, here's what the witnesses will say, but not actually as conceding it.

[00:20:39] Speaker 01:
But you didn't really make that argument in your brief.

[00:20:41] Speaker 01:
So should we, for these purposes, assume she really did concede all these facts?

[00:20:46] Speaker 04:
I think you can read it that way, Your Honor.

[00:20:51] Speaker 04:
I don't think it matters in the grand scheme of things because based on this, there's not total abandonment.

[00:20:59] Speaker 04:
Based on what she did during trial, you don't have total abandonment.

[00:21:03] Speaker 04:
She vigorously, and I'm gonna say vigorously conceding to Judge Mendoza's point that you're not gonna beat up a witness or a witness on a stand if you're a defense attorney.

[00:21:16] Speaker 04:
You're not gonna re-victimize a victim because that's gonna,

[00:21:21] Speaker 04:
Defeat what she's trying to accomplish at this point and she stated that during the canvas She said she wanted to try to preserve credibility.

[00:21:29] Speaker 04:
She wanted to try to Defend what she could defend and the district court also pointed out.

[00:21:35] Speaker 01:
I'm not sure I understood the answer So are you saying we should assume that what she meant was to concede that these facts including that there was a gun involved in this crime?

[00:21:45] Speaker 04:
No because I think

[00:21:50] Speaker 04:
getting to what you said at that point, she said, you're going to hear evidence about a gun.

[00:21:56] Speaker 04:
But she then argues later on about the gun.

[00:22:00] Speaker 04:
She cross-examined the victim about whether there was a gun.

[00:22:03] Speaker 04:
In fact, she took particular issue with the point that he said for the first time during trial that at one point he saw Mr. Martinez hand the gun to Mr. Flores and Mr. Flores hand a knife to Mr. Martinez.

[00:22:19] Speaker 04:
And she pointed out the fact, and she went into a little bit of detail, and I would say gingerly, because didn't she give a statement to law enforcement that night?

[00:22:30] Speaker 04:
Didn't mention that.

[00:22:31] Speaker 04:
Didn't she give testimony at a preliminary hearing 14 days later?

[00:22:35] Speaker 04:
And again, that wasn't there.

[00:22:37] Speaker 04:
So she was pointing out inconsistencies, not to the fact that she was trying to hammer his credibility, because

[00:22:44] Speaker 04:
that wouldn't gain credibility necessarily with a jury or at least with all members of a jury in a case which having some type of credibility and having some type of respect was going to be critical.

[00:22:56] Speaker 04:
And I think, again, that was one of the facts and I guess

[00:23:03] Speaker 04:
I should have answered your question a little bit more directly, and I apologize.

[00:23:06] Speaker 04:
But I think that specific point, she prefaced, you're going to hear testimony about it.

[00:23:13] Speaker 04:
And that's saying that that necessarily is true.

[00:23:16] Speaker 04:
Then she went into a little bit more of a narrative with the facts, where she didn't preface everything with, you're going to hear.

[00:23:25] Speaker 04:
And again, without being able to climb into defense counsel's mind, I think you can,

[00:23:33] Speaker 04:
That's why I say I think you can read it one way or the other, but I think the better reading is to give her words meaning.

[00:23:40] Speaker 04:
And so she emphasized you're going to hear when maybe she didn't believe the facts that were there.

[00:23:48] Speaker 01:
Am I right though that you didn't make this argument in your brief?

[00:23:51] Speaker 04:
I didn't make the argument in the brief because my argument is number one, chronic doesn't apply.

[00:23:59] Speaker 04:
There was no total abandonment.

[00:24:01] Speaker 04:
Number two,

[00:24:02] Speaker 04:
This gets applied, this gets reviewed under ad pedeference.

[00:24:06] Speaker 04:
The state Supreme Court ruling receives the deference that it's entitled to.

[00:24:11] Speaker 04:
And the state Supreme Court was correct that in this case, even if there was error, it wasn't prejudicial because Mr. Flores had just about every type of evidence against him that you can think of.

[00:24:25] Speaker 04:
There was testimony of a victim.

[00:24:28] Speaker 04:
there was eyewitness identification based on unique factors of Mr. Flores, and those were his tattoos.

[00:24:36] Speaker 04:
And he made a point of that during when he was taken out to the crime scene, or to where Mr. Flores, Mr. Rodriguez, and Mr. Martinez were apprehended.

[00:24:48] Speaker 04:
And he readily recognized Martinez and Rodriguez.

[00:24:53] Speaker 04:
And that might make sense, because while Flores was gone for 45 minutes, he had time to look and observe at them.

[00:24:59] Speaker 04:
But when it came to Mr. Flores, who wasn't there that full time, he needed him to come closer.

[00:25:04] Speaker 04:
And he identified him by the tattoos.

[00:25:07] Speaker 04:
On top of having the unique tattoos, he was wearing the victim's jacket when law enforcement caught him.

[00:25:12] Speaker 04:
On top of that, there were

[00:25:16] Speaker 04:
plenty of ATM video and photographs showing Mr. Flores driving around and stopping at all the ATMs and trying to draw money out.

[00:25:26] Speaker 04:
And then finally, you had his DNA evidence in the form of, his DNA was found on one of the things that was used to bind the victim in this case, Mr. Bester.

[00:25:38] Speaker 04:
Council did the best they could, but there was no total abandonment.

[00:25:42] Speaker 04:
And again, pointing in Swanson, council,

[00:25:46] Speaker 04:
That was total abandonment.

[00:25:47] Speaker 04:
After all the evidence was in, he said, state one, ladies and gentlemen, I'm not going to assault your intelligence.

[00:25:53] Speaker 04:
You don't need to go in to deliberate.

[00:25:55] Speaker 04:
You don't have that here.

[00:25:56] Speaker 04:
You don't even have that in chronic, where the Supreme Court sent the case back for further fact finding.

[00:26:02] Speaker 04:
You don't have it in Florida versus Nixon, where the Supreme Court refused to apply chronic like the Florida Supreme Court did and found that trial counsel

[00:26:14] Speaker 04:
fought for him because this was still a trial.

[00:26:19] Speaker 04:
The state had to prove their case.

[00:26:21] Speaker 04:
The state had to admit evidence.

[00:26:23] Speaker 04:
Council got to cross examine the evidence.

[00:26:26] Speaker 04:
Council got to move to not admit evidence that could have been improper.

[00:26:31] Speaker 04:
You had a trial here.

[00:26:34] Speaker 04:
You had a person defending them as vigorous as vigorously as they could.

[00:26:42] Speaker 04:
But you had basically an unwinnable case.

[00:26:46] Speaker 04:
This was as close to being caught in the act as you could.

[00:26:51] Speaker 04:
Not only that, but again, you had a defendant who had their face exposed in numerous ATMs.

[00:27:00] Speaker 04:
You had a defendant whose DNA was found at the scene.

[00:27:06] Speaker 04:
You had three defendants whose father of one of the co-defendants turned the computer that was taken into law enforcement.

[00:27:15] Speaker 04:
You had, I can't think of a case with more overwhelming evidence of guilt unless you're like caught red-handed or there's video on you from start to finish.

[00:27:29] Speaker 04:
So finding that there was no total abandonment under chronic, the Nevada Supreme Court's decision in this case can't be objectively unreasonable under these facts.

[00:27:42] Speaker 04:
And if there's no further questions, Your Honor, I would ask you to affirm the district court in this matter.

[00:27:48] Speaker 04:
Thank you.

[00:27:58] Speaker 03:
Just two main points, Your Honor.

[00:28:00] Speaker 03:
I'm glad that opposing counsel conceded that trial counsel made errors, and that gets to my point that the vast Supreme Court's decision does not need ad pedeference because it was contrary to established Supreme Court precedents.

[00:28:14] Speaker 03:
The vast Supreme Court stated Mr. Flores can't blame counsel because he was canvas if he consented.

[00:28:21] Speaker 03:
But the vast Supreme Court precedent has made clear, such as Hill v. Lockhart, that erroneous legal advice doesn't excuse deficient performance.

[00:28:31] Speaker 03:
The Nevada Supreme Court's decision was also an unraisable determination of facts.

[00:28:35] Speaker 03:
Regardless of what he was canvassed on, Mr. Flores certainly didn't consent to the factual concessions.

[00:28:41] Speaker 03:
He didn't concede there was a gun.

[00:28:42] Speaker 03:
He didn't concede that.

[00:28:44] Speaker 03:
He didn't consent to co-defendant Martinez threatening the victims.

[00:28:47] Speaker 03:
He didn't consent to him trial counsel admitting that he tied up the victim.

[00:28:53] Speaker 03:
This court can review this case de novo because the vast Supreme Court's decision was both contrary to establish the Supreme Court precedent and unreasonable determination of facts under D1 and D2.

[00:29:05] Speaker 03:
Second point, just quickly, this is a chronic violation because there was both a total abandonment of counsel during a critical proceeding.

[00:29:15] Speaker 03:
Chronic does not require a total abandonment of the client throughout the entire case, right?

[00:29:20] Speaker 03:
You can just screw up at a very particular point and screw up very, very badly, and that's what counsel did.

[00:29:27] Speaker 03:
Counsel did not submit this case to meaningful adversarial testing because she conceded all the facts needed.

[00:29:34] Speaker 03:
And with that, Your Honor, we request that writ be granted and Mr. Flores be given a second trial.

[00:29:40] Speaker 03:
Thank you.

[00:29:42] Speaker 01:
Thank you both sides for the helpful arguments.

[00:29:44] Speaker 01:
This case is submitted.