[00:00:08] Speaker 00:
Good afternoon.

[00:00:08] Speaker 00:
May it please the court, counsel.

[00:00:13] Speaker 00:
My name is David Anthony.

[00:00:14] Speaker 00:
I represent the petitioner appellant, John Bayorano.

[00:00:18] Speaker 00:
I would like to reserve seven minutes for rebuttal, if I may.

[00:00:22] Speaker 03:
All right, watch your clock.

[00:00:26] Speaker 00:
The district court and this court certified four issues for review.

[00:00:31] Speaker 00:
Two issues pertain to a claim of ineffective assistance of trial counsel at the sentencing hearing.

[00:00:38] Speaker 00:
Also, there's a certified claim of ineffective assistance of counsel on direct appeal.

[00:00:46] Speaker 00:
And then finally, a claim that the Nevada Supreme Court failed to provide close appellate scrutiny of Mr. Bejarano's death sentence after invalidating two statutory aggravating circumstances.

[00:01:00] Speaker 00:
All of these claims have something in common.

[00:01:03] Speaker 02:
Does that mean you're not going to focus on the juror?

[00:01:07] Speaker 02:
Because that was also certified, right?

[00:01:08] Speaker 02:
The juror that was disqualified.

[00:01:11] Speaker 00:
Your Honor, my understanding from the COA was that it encompassed ineffective assistance of direct appeal counsel, and one of the arguments of ineffective assistance of direct appeal counsel was the issue of counsel not moving to strike, sorry, not challenging the strike of a jury for cause.

[00:01:32] Speaker 00:
I'd like to start with the claim of ineffective assistance of trial counsel at sentencing.

[00:01:38] Speaker 00:
One of the things the state acknowledges is that the district courts primary basis was its ruling that Mr. Bay Hirano did not suffer prejudice as the result of counsel's ineffective assistance.

[00:01:52] Speaker 00:
The state agrees and we concur

[00:01:55] Speaker 00:
that if this court disagrees with the district court's resolution of the prejudice issue, then it would be appropriate to remand the case back to the district court for further proceedings.

[00:02:09] Speaker 04:
Why don't you tell us why there was prejudice?

[00:02:13] Speaker 00:
There was prejudice for a couple reasons, Your Honor.

[00:02:16] Speaker 00:
One of them is, if we start by looking at the findings that the court made based on the record, the first thing that the district court found was that the jury here was not informed of the deprivation and instability that plagued Mr. Bejarano's childhood and adolescence.

[00:02:35] Speaker 00:
Second, the district court found that the lay witnesses, the good character witnesses, could have softened at least one juror's perception of Mr. Bejarano.

[00:02:46] Speaker 00:
The reason we believe that the court should find prejudice on the current record

[00:02:52] Speaker 00:
is because the district court proceeded to make a series of errors in misapprehending certain facts in the record and also making credibility determinations that could not properly be made without allowing a hearing.

[00:03:07] Speaker 04:
Counsel, even if that's true, even if the district court did make errors, don't you have to establish that the outcome would have likely been different but for those errors to make a successful showing of prejudice?

[00:03:20] Speaker 00:
yes your honor although i would add a caveat which is that in the procedural posture that we're in the pertinent standard is whether mister bay horano has made a colorable claim of prejudice so one of the things that we've complained about is that the district court's order was worded in the terms of whether mister bay horano could achieve ultimate relief rather than the standard that the court should apply which is whether there was a colorable help me understand that because

[00:03:49] Speaker 02:
Aren't we deciding whether he actually suffered prejudice at this point?

[00:03:54] Speaker 00:
You are, Your Honor, but you're doing it in a procedural posture.

[00:03:57] Speaker 00:
The procedural posture here is one where all of the credibility findings and all of the determinations were made in the absence of a hearing, where no witnesses were allowed to testify, where there was no ability to reliably sort out the facts.

[00:04:14] Speaker 04:
What is that standard of review?

[00:04:16] Speaker 00:
The standard of review, Your Honor, is de novo.

[00:04:20] Speaker 00:
This was a claim that was not adjudicated on the merits in state court, and therefore it is reviewed de novo by this court.

[00:04:29] Speaker 00:
Talking about the errors in the district court's decision, one of the glaring errors was that the district court failed to apprehend the evidence of physical abuse in Mr. Bejarano's background.

[00:04:43] Speaker 00:
Mr. Bejarano reported suffering physical abuse at the hands of his alcoholic father to almost all of the mental health experts who saw him.

[00:04:54] Speaker 00:
those instances of physical abuse were specifically corroborated in juvenile records from 1973 and 1974.

[00:05:05] Speaker 02:
But I thought that, with regard to that specifically, that they, Specio, wasn't that the counsel that was addressing this?

[00:05:12] Speaker 02:
Yes.

[00:05:13] Speaker 02:
He actually did some investigation to put on some corroborating witnesses for that, but decided that overall,

[00:05:21] Speaker 02:
They were going to hurt Bejarano.

[00:05:24] Speaker 02:
Is that not true as to these claims, or is that other issues?

[00:05:28] Speaker 03:
That's not true as to these claims, Your Honor, and I think that- So, Counsel, when you say these claims, what particular claim are you talking about right now?

[00:05:36] Speaker 00:
Right now, we're talking about claim 2A, which is the claim of ineffective assistance of trial counsel at sentencing.

[00:05:44] Speaker 03:
And what I would- Is this the failure to investigate and present mitigation evidence?

[00:05:49] Speaker 00:
Yes, Your Honor.

[00:05:50] Speaker 03:
Now isn't this procedurally defaulted in some way, a long way, because he didn't put on that evidence before the state court?

[00:06:01] Speaker 00:
Your Honor, our argument is that it is not procedurally defaulted.

[00:06:05] Speaker 00:
One of the requirements to impose a procedural default is that the default be adequate.

[00:06:12] Speaker 00:
And here, there is no dispute between the parties or the district court that the procedural default that was imposed was not adequate to bar federal review.

[00:06:22] Speaker 00:
That's the very reason why the district court addressed this issue de novo in its decision.

[00:06:28] Speaker 00:
So we would argue, no, that it was not defaulted.

[00:06:30] Speaker 00:
And yes, that it is appropriately before the federal court for a decision on the merits.

[00:06:36] Speaker 04:
Counsel, didn't trial counsel put in some of the juvenile records and he decided which ones to put in and which ones to not put in?

[00:06:47] Speaker 00:
Your Honor, I think the record is maybe a little bit unclear as to what exactly, what type of a deliberative process that Mr. Spechio used.

[00:06:55] Speaker 00:
First, he put in some of the juvenile records, is that correct?

[00:06:59] Speaker 00:
Yes, Your Honor, he took a, I guess, a smattering of juvenile records and put them in front of the jury.

[00:07:05] Speaker 00:
I would argue that the explanation for those records was bare to almost nonexistent.

[00:07:11] Speaker 00:
The entire explanation of counsel putting those into the record was limited to a single paragraph.

[00:07:19] Speaker 02:
So wait, is your argument that Specio did not adequately look at what records he should put in, or that once he put them in, he didn't explain adequately to the jury why they were relevant?

[00:07:33] Speaker 00:
Both, Your Honor.

[00:07:35] Speaker 00:
What we would argue is that if the court looks at the universe of juvenile records, there are a smattering of records that at least in my own estimation are what I would consider to be a mental health goldmine.

[00:07:49] Speaker 00:
There are psychiatric records, there are psychological records of Mr. Bayerano as a juvenile and as an adult.

[00:07:57] Speaker 00:
And when Mr. Spechio was questioned about this issue in the first post-conviction proceeding,

[00:08:03] Speaker 00:
He offered the justification that the records were too old.

[00:08:08] Speaker 00:
I don't know what others think about that explanation, but to me, that strikes me as a frivolous explanation.

[00:08:16] Speaker 00:
The fact that Mr. Bejarano was the age he was means that records that pertain to him will be old, but they were very valuable.

[00:08:25] Speaker 04:
There were— Council, the record appears to reflect that those records were mixed.

[00:08:30] Speaker 04:
There were some matters in the records that would be helpful.

[00:08:35] Speaker 04:
to your client, but there are also some matters in those records that would be detrimental to your client.

[00:08:42] Speaker 04:
So how can we say that there was ineffective assistance of counsel if counsel went through the records and then selected the ones that he wanted to put before the jury?

[00:08:54] Speaker 00:
Your Honor, the response is that the records that he put in were the detrimental ones.

[00:08:59] Speaker 00:
The records that he put in were the ones showing the status violations that Mr. Bejarano committed.

[00:09:06] Speaker 00:
So in my opinion, the bad records got in front of the jury.

[00:09:10] Speaker 00:
What didn't get in front of the jury was the good ones.

[00:09:14] Speaker 03:
And what were the good ones?

[00:09:15] Speaker 00:
The good ones, Your Honor, were the psychiatric evaluations.

[00:09:19] Speaker 00:
The good ones were the ones that evaluated Mr. Bejarano's IQ.

[00:09:24] Speaker 02:
The good ones... I thought his IQ was always above... it was in the normal range.

[00:09:31] Speaker 02:
Your Honor, I... You point me to any that were below the normal range?

[00:09:35] Speaker 00:
I know that the ones that were done by Sister Mary, I believe that was in 1974, that put Mr. Bejarano's verbal IQ in the intellectually disabled range, which is precisely the reason why those records were so valuable.

[00:09:51] Speaker 04:
But those, that could be challenged because the, I think there were at least three experts who said that his IQ was in the low to average range.

[00:10:04] Speaker 00:
Your Honor, I think if we look very closely at those records, what they show is they show a disparity.

[00:10:10] Speaker 00:
They show a disparity between verbal and performance IQ.

[00:10:14] Speaker 00:
We argue that when you assess prejudice, that type of evidence is very probative of neurological damage, because we're talking about an extremely low verbal IQ.

[00:10:26] Speaker 00:
Verbal IQ is how people socialize.

[00:10:29] Speaker 00:
It's how people relate to the world and those around them.

[00:10:33] Speaker 00:
What I would argue is that the evidence of verbal IQ in particular being very low is the same reason why they would have been very mitigating.

[00:10:43] Speaker 04:
The council, the experts, I think unanimously diagnosed him with antisocial personality disorder as a result of looking at all of those records.

[00:10:56] Speaker 04:
So why wouldn't that be a reason for the

[00:11:00] Speaker 04:
for trial counsel not to put those records in because all of it was going to come in.

[00:11:04] Speaker 04:
If part of it came in, all of it was going to come in, and that diagnosis can be considered detrimental because it can show incorrigibility.

[00:11:15] Speaker 04:
So how can we say that it was ineffective to keep those out?

[00:11:22] Speaker 00:
Our position, particularly if you're looking at the report of Dr. Etkoff, is that the evidence of personality disorder is only a sliver of the relevant mental health evidence that could have been presented for Mr. Bejarano.

[00:11:38] Speaker 00:
This court's decisions, and I would refer this court to the Lambrite case, acknowledges that evidence of personality disorder can be presented in a way that is mitigating to a sentencing jury.

[00:11:53] Speaker 02:
Well, but that's I mean, yes, it can be.

[00:11:56] Speaker 02:
But we've also got cases that say it's a double edged sword that Judge Rawlinson was referencing.

[00:12:02] Speaker 02:
So that seems to be a tactical decision that Specio considered.

[00:12:07] Speaker 02:
And so how can we find that that was an effective, ineffective assistance of counsel under those circumstances?

[00:12:13] Speaker 00:
The first argument, Your Honor, is that I don't think that the evidence, or I don't think the record supports that Mr. Spechio made such a strategic decision.

[00:12:22] Speaker 00:
Mr. Spechio was not aware of the psychological evaluations that were done by Dr. Dixon that were commissioned by prior counsel.

[00:12:31] Speaker 00:
So I would push back on the suggestion that he made a strategic decision.

[00:12:35] Speaker 02:
I thought he said that he spent several weeks

[00:12:38] Speaker 02:
Well, where in the record is it that he wasn't aware of Dr. Dixon's?

[00:12:42] Speaker 02:
Because I thought he and prior counsel had several weeks where he reviewed all of their records.

[00:12:50] Speaker 00:
Well, Mr. Spechio did testify that he reviewed records.

[00:12:53] Speaker 00:
I think what I would point the court to is the deposition of Mr. Spechio in 1992, when he was first confronted by federal habeas counsel with the fact that he hadn't followed up with Dr. Dixon.

[00:13:07] Speaker 00:
If you look at the timeline, it shows that... That's a different issue.

[00:13:11] Speaker 02:
I mean, you mentioned that he hadn't followed up with Dr. Dixon.

[00:13:13] Speaker 02:
That's a different issue of whether he'd reviewed the report.

[00:13:16] Speaker 00:
Agreed, Your Honor.

[00:13:17] Speaker 00:
But it's our position that before making a tactical decision, there has to be a reasonable investigation beforehand.

[00:13:25] Speaker 02:
And our position is that... And that can never happen on the...

[00:13:29] Speaker 02:
on the papers.

[00:13:30] Speaker 02:
He can't read it and say, I read this report.

[00:13:32] Speaker 02:
It's got good stuff in it and it has some negative stuff.

[00:13:36] Speaker 02:
I'm making a decision that I'm not going to do this.

[00:13:39] Speaker 02:
You think he has to call and talk to every expert and follow up on it.

[00:13:44] Speaker 00:
I think a reasonably effective attorney, particularly when we're talking about Dr. Dixon, I think a reasonably effective attorney needs to consult with the experts that prior counsel already put in line to investigate the case.

[00:13:58] Speaker 00:
I don't think that we can just say on this record that this evidence of personality disorder is so frightening that we just can't possibly talk to a mental health expert about it.

[00:14:08] Speaker 00:
In fact, in the Lambrite decision, that's exactly what the court said counsel should have done.

[00:14:14] Speaker 00:
it should have asked the mental health expert about the diagnosis.

[00:14:19] Speaker 00:
What I would say about the diagnosis is that if you look at each case, each case has its own facts.

[00:14:27] Speaker 00:
What I would say is that in the cases that Your Honor is talking about where personality disorder was shied away from, there were severe and extreme behaviors.

[00:14:38] Speaker 00:
that would tell an attorney reviewing those records that this wasn't something fruitful to pursue or to develop further.

[00:14:47] Speaker 00:
In Mr. Bayerano's case, the evidence is pretty light.

[00:14:51] Speaker 00:
If you look at his adolescent years, he doesn't have a contemporaneous diagnosis of conduct disorder.

[00:14:58] Speaker 00:
In fact, what's his criminal history here?

[00:15:00] Speaker 00:
The only criminal history he had before the age of 18 was one count of a car theft.

[00:15:07] Speaker 00:
That is very, very limited compared to some of the cases that this court relies on to say that personality disorder was too dangerous to get into further.

[00:15:19] Speaker 00:
The other thing that I would say about personality disorder is that because the juvenile records for Mr. Bayerano were so extensive, they helped explain the cause.

[00:15:31] Speaker 00:
They could explain the cause of the personality disorder in a way that could have been mitigating to the jury.

[00:15:38] Speaker 00:
What could they have done?

[00:15:39] Speaker 00:
Dr. Etkoff gives us the roadmap.

[00:15:42] Speaker 00:
They talk about a boy who was separated from his mother and his father and his family

[00:15:47] Speaker 00:
and put into a foster care system who has a very, very low limited IQ, who has a very deficient verbal ability, so it impedes his ability to socialize with others.

[00:16:00] Speaker 00:
It caused him to be avoidant, which is one of the flavors of personality disorder, which also makes him very prone to alcoholism.

[00:16:11] Speaker 00:
If you look at the severe learning deficits, if you look at the trauma in his background, the physical abuse that the district court missed, the rejection that he faced, his only maladaptive behavior was escaping from foster homes to find his family.

[00:16:26] Speaker 00:
He's got a history of abandonment and depression.

[00:16:29] Speaker 00:
All of these deficits are deficits that Dr. Etkoff was able to look at and to say, this is why Mr. Bejarano became the way that he was.

[00:16:40] Speaker 02:
And in fact, but I thought a lot of that that you just mentioned actually was in some form given to the jury.

[00:16:46] Speaker 02:
So what I'm trying to parse out of my mind is what are the specifics?

[00:16:52] Speaker 02:
I mean, which of those examples that you just gave was there?

[00:16:55] Speaker 02:
There was nothing before the jury at all.

[00:16:58] Speaker 00:
I would say, Your Honor, if we look at, I believe it's Defense Exhibit 42 that was admitted by Mr. Spechio, if you look at the part of the closing argument where he refers to those documents, and if you look at the universe of those documents, I don't think it even scratches the surface of what was available in those files.

[00:17:18] Speaker 02:
So your point is, even if these documents were in the record,

[00:17:22] Speaker 02:
Some of what you said, it wasn't focused on or argued by counsel, so we can't therefore consider it as being presented to the jury.

[00:17:32] Speaker 00:
Well, I guess what I would say, Your Honor, is that counsel is an advocate.

[00:17:37] Speaker 00:
And counsel has a responsibility to direct the jury to what's helpful in a batch of records.

[00:17:43] Speaker 00:
It's not enough to simply say, he had a difficult life.

[00:17:47] Speaker 00:
This occurred in the course of 20, 30 seconds of penalty hearing closing argument, and then to say that counsel properly discharged his obligations as an advocate.

[00:17:58] Speaker 00:
He didn't even refer to two of the three exhibits.

[00:18:01] Speaker 00:
One of the exhibits was an honorable discharge from the military.

[00:18:05] Speaker 00:
The honorable discharge said that he got a good conduct award when he was in the Marines.

[00:18:10] Speaker 02:
Wouldn't that go against, I mean, wouldn't that undercut some of the antisocial behavior that you're saying he should have presented?

[00:18:18] Speaker 00:
Oh, I think that his good conduct in a structured setting does push back against the antisocial personality disorder.

[00:18:26] Speaker 00:
That's why I'm saying that every person is unique.

[00:18:30] Speaker 00:
You can't just look at a diagnosis like that and not look further when this is all you have to work with as counsel.

[00:18:38] Speaker 00:
And absolutely, I would say that, yes, Your Honor.

[00:18:43] Speaker 00:
Mr. Bejarano did very well in structured settings.

[00:18:47] Speaker 00:
He did very well when he had systems of support.

[00:18:50] Speaker 00:
So he did very well in the Marines.

[00:18:52] Speaker 00:
He did very well in drug and alcohol rehab.

[00:18:55] Speaker 00:
He also did very well when he was in the community after he was released from prison.

[00:19:00] Speaker 00:
And he met with Reverend Ben Wanky at the Boise Rescue Mission.

[00:19:04] Speaker 00:
And they provided him with a place to live.

[00:19:07] Speaker 03:
May I just interject there?

[00:19:09] Speaker 03:
That to me is the greatest deficiency in the presentation and investigation by Mr. Specchio is that he kind of just lost track of Ben Wenke and did he even call Virginia Great House?

[00:19:26] Speaker 03:
I mean those were two witnesses that definitely experienced a positive two years with Bejarano and

[00:19:38] Speaker 03:
I don't know how losing contact with someone can be deemed tactical.

[00:19:45] Speaker 00:
I completely agree, Your Honor.

[00:19:47] Speaker 00:
The district court found that those two witnesses would have softened at least one juror's perception of Mr. Bayerano.

[00:19:54] Speaker 00:
That showed a period of time in his life where if he had a system of support, if he had people that cared about him and loved him, he could actually perform quite constructively in the community.

[00:20:06] Speaker 00:
Particularly, I mean, everything that Ben Wenke said about inviting Mr. Bejarano into his home with his daughters to live with them, about them working together, about him referring Bejarano to Ms.

[00:20:22] Speaker 00:
Greathouse, an old woman whose husband had just passed away, and allowing him to live on her property to have her husband's clothes

[00:20:30] Speaker 00:
and to take care of her yard and her chores.

[00:20:34] Speaker 00:
I mean, I completely agree with Your Honor, and the- Oh, I didn't mean to cut you off.

[00:20:39] Speaker 02:
You were on a roll, so go ahead.

[00:20:43] Speaker 00:
And getting back to Judge Wardlaw's point, it's extremely aggravating that in the five months after Mr. Specchio's appointment, he's not taking those basic steps of,

[00:20:55] Speaker 00:
calling these people and telling him, we have a trial starting in March of 1988.

[00:21:00] Speaker 00:
There's no evidence of contact from the time that Mr. Spechio is appointed to, we go all the way to February, the last week of February, and then Mr. Spechio writes to his investigator and says, hey, you should reach out to all of these people.

[00:21:18] Speaker 00:
And when you say all these.

[00:21:19] Speaker 03:
Excuse me a second.

[00:21:21] Speaker 03:
So given that, assuming that,

[00:21:24] Speaker 03:
Let's turn to the elephant in the room, which was Mr. Bart Hereno's own testimony at the penalty phase.

[00:21:34] Speaker 00:
Yes, Your Honor.

[00:21:35] Speaker 00:
What I would say is that

[00:21:38] Speaker 00:
The court's decision in Strickland acknowledges that there are some errors by counsel that could cause a radical change in the evidentiary picture if counsel had performed effectively.

[00:21:51] Speaker 00:
I would submit to the court that this is one of those instances.

[00:21:54] Speaker 04:
Even in light of your client's testimony?

[00:21:58] Speaker 00:
Your Honor, the way I would address that is to say that what happened at trial with Mr. Bejarano simply replicated the abandonment that he suffered his entire life.

[00:22:08] Speaker 00:
What you see if you look at the transcript of the ex parte hearing is that Mr. Bejarano is begging his attorney to contact the people that know him and that love him.

[00:22:20] Speaker 00:
What I would submit to the court to answer this question is... You really have a huge problem with that.

[00:22:24] Speaker 02:
with uh specchio he had a problem with the earlier ones i just don't feel like specchio let things drop as much as you're portraying it here when you look at the record

[00:22:33] Speaker 00:
Well, Your Honor, the proof is in Mr. Spechio's instructions to his investigator in the end of February, which were too little, too late.

[00:22:42] Speaker 00:
And then Mr. Spechio filed a request with the court to have 15 witnesses ready for trial that was only 11 days away.

[00:22:50] Speaker 00:
So when you're talking about out-of-state witnesses, you can't be appointed for five months, not do anything, not tell out-of-state witnesses that we've got a trial starting in March of 1988,

[00:23:02] Speaker 02:
And then leave it up to your investigator to run everyone down two weeks before the penalty come back to the question that we have a your client testified in his penalty phase over his counsel's objections.

[00:23:13] Speaker 02:
So you can't say that counsel was ineffective.

[00:23:16] Speaker 02:
I mean he has a right to testify and he said

[00:23:19] Speaker 02:
some pretty damning testimony.

[00:23:22] Speaker 02:
And you can say that that was a response to rejection, but that's the testimony that he gave.

[00:23:28] Speaker 02:
How are we supposed to address that?

[00:23:30] Speaker 02:
He said, the only rational decision here is to sentence me to death.

[00:23:35] Speaker 02:
And if you knew everything I'd done, you'd give me five death sentences.

[00:23:38] Speaker 02:
What is a jury supposed to do with that?

[00:23:41] Speaker 00:
Your Honor, that's why I'm talking about how this court's precedents talk about how the evidentiary picture could be radically different.

[00:23:47] Speaker 02:
Do you think he would, if some of this other evidence had been focused on or presented better, then Mr. Bejonaro would not have testified in that way?

[00:23:58] Speaker 00:
Yes, Your Honor.

[00:23:59] Speaker 02:
But you agree that's basically what we would have to find.

[00:24:02] Speaker 00:
I wouldn't say that.

[00:24:04] Speaker 00:
I wouldn't go that far.

[00:24:05] Speaker 00:
I would think that Mr. Bayerano would have been less destructive.

[00:24:08] Speaker 00:
And you don't need to listen to what I'm saying.

[00:24:10] Speaker 00:
That's what Dr. Etkoff opined in his report.

[00:24:13] Speaker 00:
He said that if people who cared about John had come and testified on his behalf, he would have had a reason not to be so angry and destructive.

[00:24:21] Speaker 00:
because it was simply replicating the abandonment that he suffered his entire life.

[00:24:26] Speaker 00:
So I would say, number one, I think that the reasonable probability standard allows this court to believe or to say that he wouldn't have testified, and if he did, it wouldn't have been as destructive, because he would have had someone in his corner.

[00:24:41] Speaker 00:
He would have had someone standing up for him.

[00:24:44] Speaker 00:
So I think the evidentiary picture would have been radically different.

[00:24:47] Speaker 00:
And even if he had testified, Dr. Etkoff could have talked about and testified about why the stress of a situation given his low functioning level means that he would tend to not understand court proceedings like what's a penalty hearing and how do you conduct yourself appropriately.

[00:25:05] Speaker 00:
So with mental health evidence, the evidentiary picture could have been radically different, Your Honor.

[00:25:11] Speaker 00:
I see that my time that I have five minutes.

[00:25:15] Speaker 00:
I want to plug very briefly for the other claims and certainly answer any questions the court has.

[00:25:21] Speaker 00:
As far as the ineffective assistance of direct appeal counsel claim, we've argued that the avoid or prevent lawful arrest aggravator is invalid because it's based on nothing but a felony murder.

[00:25:33] Speaker 00:
John Bayorano is the only client in Nevada who has the aggravator for that reason.

[00:25:37] Speaker 00:
Number two, the Nevada Supreme Court has held that a felony conviction is required to be under a sentence of imprisonment.

[00:25:44] Speaker 00:
Mr. Bayerano did not have a felony conviction.

[00:25:46] Speaker 00:
He had a misdemeanor conviction.

[00:25:48] Speaker 00:
So those aggravating circumstances should have been invalidated.

[00:25:51] Speaker 00:
And the last thing that I would say about the close appellate scrutiny claim is that Mr. Bayerano should not have been treated differently

[00:25:59] Speaker 00:
than other capital habeas clients whose mitigation evidence was considered by the Nevada Supreme Court.

[00:26:06] Speaker 00:
And whatever this court says about that, this court today has an obligation to consider the cumulative effect of the evidence, which is the absence of statutory aggravating circumstances and the mitigation evidence that should have been

[00:26:21] Speaker 00:
presented.

[00:26:22] Speaker 00:
And with that said, I will reserve the rest of my time.

[00:26:26] Speaker 00:
I'd ask the court to vacate or remand with instructions to vacate and grant the penalty, or alternatively to remand for a constitutionally adequate hearing on these claims.

[00:26:39] Speaker 00:
Thank you.

[00:26:39] Speaker 03:
All right.

[00:26:40] Speaker 03:
Thank you, counsel.

[00:26:43] Speaker 03:
Mr. Bongard?

[00:26:55] Speaker 01:
Good afternoon, Your Honors, Council.

[00:26:58] Speaker 01:
My name is Michael Bongard.

[00:26:59] Speaker 01:
I represent the Nevada Attorney General's Office and the respondents in this matter.

[00:27:04] Speaker 01:
I would ask the court to affirm the district court's resolution of the charges in this case, one of which receives at least one of which receives that interference.

[00:27:17] Speaker 02:
If the court.

[00:27:19] Speaker 02:
Can you address the standard?

[00:27:21] Speaker 02:
The legal standard of prejudice?

[00:27:24] Speaker 02:
Do you agree with?

[00:27:28] Speaker 02:
Council who said that he only needs to show a colorable claim of prejudice.

[00:27:35] Speaker 01:
With regards to the ineffective assistance of Council.

[00:27:39] Speaker 01:
No, Your Honor, I believe the standard is the Strickland standard and it's.

[00:27:45] Speaker 01:
Combine it's a reasonable probability of a different outcome.

[00:27:49] Speaker 02:
Yeah, and I think I think he mentioned that at the end of his argument.

[00:27:52] Speaker 02:
So that's why I was just trying to parse out what this what your position would be what the government's position would be on that.

[00:27:59] Speaker 02:
And you say he has to show a reasonable probability that the outcome would be different.

[00:28:04] Speaker 02:
Is that right?

[00:28:05] Speaker 02:
That's correct.

[00:28:06] Speaker 03:
So can I ask you about Nevada State Court procedure?

[00:28:11] Speaker 03:
I was very confused about how.

[00:28:16] Speaker 03:
So he filed his first post-conviction habeas petition.

[00:28:23] Speaker 03:
And even though, and this goes to the ineffective assistance of First PC Council.

[00:28:35] Speaker 03:
So even though, I guess, within five months, there was evidence that could have been submitted on those claims, it wasn't submitted.

[00:28:49] Speaker 03:
And then they tried to file a second federal, I mean, state petition where they could introduce this other evidence.

[00:29:04] Speaker 03:
at that time Nevada they could petitioners could file for post-conviction relief under NRS chapter 177 and a petition for habeas corpus so why are these views is viewed as first and second and not that he was entitled to do both and why can we not consider that evidence I'll start with the

[00:29:30] Speaker 01:
distinction between the two.

[00:29:31] Speaker 01:
At the time, there were two provisions.

[00:29:33] Speaker 01:
One was codified in chapter, NRS chapter 177.

[00:29:38] Speaker 01:
The current standard is codified at NRS chapter 34.

[00:29:44] Speaker 01:
And the whole idea behind creating NRS Chapter 134 was to create a single post-conviction opportunity for a defendant to raise all their claims.

[00:29:57] Speaker 01:
And yes, they overlapped, but in essence, they were basically the same provision.

[00:30:04] Speaker 01:
And specifically, the Nevada Supreme Court at one point that was discussed by Judge Crowe, that Chapter 34

[00:30:14] Speaker 01:
Petitions were considered the same as a, at the time, as a 177 petition, and they additionally counted as the second or successive petition, as discussed in 34810.

[00:30:33] Speaker 03:
So in the second state post-conviction relief petition, the state court dismissed 34 out of 35 claims as procedurally barred because they could have been raised in the first one.

[00:30:50] Speaker 01:
That's correct, Your Honor.

[00:30:51] Speaker 03:
And then denied the 35th, the IAC, of the first PCR council on the merits.

[00:30:58] Speaker 03:
So what do we do with all that evidence?

[00:31:00] Speaker 03:
Can we consider it or not consider it?

[00:31:03] Speaker 01:
Your Honor, I think that Terry Williams versus Taylor is the case that provides this court the signposts that it needs.

[00:31:13] Speaker 01:
Because, again, they have to get through 2254E2.

[00:31:18] Speaker 01:
And the definition of diligence was provided by the court in Williams.

[00:31:28] Speaker 01:
And they said that- Michael Williams, I think.

[00:31:30] Speaker 01:
I'm sorry?

[00:31:31] Speaker 03:
Michael Williams.

[00:31:32] Speaker 01:
It's 529.

[00:31:33] Speaker 01:
U.S.

[00:31:33] Speaker 01:
34 is where they give the definition.

[00:31:38] Speaker 01:
Diligence for the purpose of the opening clause depends upon whether the prisoner makes a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.

[00:31:52] Speaker 01:
And Your Honor, not only did the court provide that definition in Williams,

[00:31:58] Speaker 01:
But they also provided, they addressed three specific instances.

[00:32:02] Speaker 01:
One in which they found that petitioner was not diligent.

[00:32:06] Speaker 01:
Two in which they found the petitioner was diligent.

[00:32:10] Speaker 01:
And what it, what it, to me the linchpin of the difference between the two proceedings or the showing diligence and not showing diligence was that were there facts that supported the claim available in the record?

[00:32:28] Speaker 01:
And in the two cases where they found that there were facts in the record that supported diligence was that they tried to raise the claims and it was a claim of, I believe it was juror misconduct.

[00:32:41] Speaker 01:
I'm not sure I'm phrasing the claim correctly, but then the other one was potentially prosecutorial misconduct because the prosecutor didn't disclose the prior relationship with that potential juror.

[00:32:54] Speaker 01:
So they gave an evidentiary hearing or a reminder for an evidentiary on those hearings because there was evidence that something was there.

[00:33:03] Speaker 01:
In this case, Mr. Bayerano's counsel is represented that the evidence was there all the time, but counsel didn't do anything.

[00:33:17] Speaker 01:
And so what happened during that first proceeding was they raised a claim of ineffective assistance to counsel for failing to present mitigation evidence.

[00:33:26] Speaker 01:
But that focused solely, I shouldn't say solely, but primarily on the fact that they should have done more in developing mental health information with regards to Mr. Bayerano.

[00:33:39] Speaker 01:
So at that point then we had the evidentiary hearing.

[00:33:42] Speaker 01:
We had the testimony from doctors Nielsen and Howell.

[00:33:45] Speaker 01:
And we had a claim that was developed on the merit to the extent that and

[00:33:53] Speaker 01:
I'm not phrasing it correctly, but a number of times in their petition, in the federal court, Mr. Bayerano said that this information was readily available.

[00:34:03] Speaker 01:
Council had this information, but didn't develop it.

[00:34:07] Speaker 01:
Council should have done something here, but didn't.

[00:34:09] Speaker 02:
And this was, just so I'm clear, this was Council, first Council, before Specio, or it was Specio?

[00:34:16] Speaker 01:
Well, it was

[00:34:18] Speaker 01:
It was that special didn't develop the record and didn't use that information so that that should have been the light to first post conviction counsel that I need to go into more on this as well.

[00:34:39] Speaker 01:
But what happened then when they raised the second petition, as Judge Wardlaw was talking about, again, knowing that that information was already there and that they already had the first hearing, the second petition was found procedurally defaulted under state law because of the fact that it could have been raised.

[00:34:59] Speaker 01:
And the information that was presented was considered by Judge Pro when he decided the petition in federal court

[00:35:08] Speaker 01:
But even though the claim was defaulted, and it was defaulted because at that point, this court found that NRS 34810 wasn't independent and inadequate.

[00:35:22] Speaker 01:
But again, initial counsel should have known because of those signposts that were there, but they didn't develop the record.

[00:35:31] Speaker 01:
So Judge Pro said that, look, the only thing that they can do to develop the record

[00:35:39] Speaker 01:
based upon the fact that there was already information in the record is to satisfy 2254E2.

[00:35:45] Speaker 01:
And they have it.

[00:35:46] Speaker 01:
They've never made any assertion that they could.

[00:35:51] Speaker 02:
So this is all focused right now, this argument on ineffective assistance of counsel for the post-conviction.

[00:36:02] Speaker 02:
it's not I mean there's a separate issue about I just want to make sure we're on the same page because there's a separate issue about ineffective assistance of council for not presenting the mitigating factors yes but that's a different argument right yes okay can you address I mean I don't want to cut it off if there's more questions on this but but could you could you address some of that

[00:36:25] Speaker 02:
because we heard a lot of information that opposing counsel has suggested should have been brought up.

[00:36:32] Speaker 02:
Can you help clarify what was brought up and to what degree it was actually addressed before the jury and they had a proper consideration of some of those mitigating factors?

[00:36:46] Speaker 01:
Okay, so now we're shifting from the post-conviction to the actual.

[00:36:50] Speaker 02:
Well, I mean, I am, unless there's more questions, we can come back to it.

[00:36:54] Speaker 01:
And I'll address this and be happy to go back.

[00:36:56] Speaker 03:
Well, I guess I was focusing on, it's kind of a conundrum because in a way you could say that 2254 E2 was satisfied because the evidence was presented to the second state court.

[00:37:09] Speaker 03:
It's just that the second state court didn't consider it and found the claims.

[00:37:14] Speaker 03:
procedurally barred.

[00:37:17] Speaker 03:
But it was presented.

[00:37:18] Speaker 03:
I mean, that's the conundrum in this whole little messy part of this case, procedurally.

[00:37:24] Speaker 01:
Well, it was submitted to the court.

[00:37:28] Speaker 01:
But the court didn't consider it because they procedurally defaulted the claim.

[00:37:33] Speaker 01:
So I think that's where it falls under

[00:37:37] Speaker 03:
2254 you know that that mr. bear I don't want to belabor it I'm willing to move on to the question that judge Nelson is interested in but I would like you to focus on Virginia Great House and Ben wonky's yes potential testimony and Congress's failure to keep track and of those witnesses and certainly

[00:38:05] Speaker 01:
And if I believe that council was aware of Ms.

[00:38:10] Speaker 01:
Grayhouse and there was a decision made not to call her because of the fact that, and I think the deposition showed that the information that she knew about Mr. Bayerano, she learned from Mr. Bayerano.

[00:38:24] Speaker 01:
to the extent that she knew about his violent behavior, it was shaded by Mr. Bayerano, and I believe- You mean the violent behavior that he suffered?

[00:38:35] Speaker 01:
Is that what he- His prior convictions.

[00:38:37] Speaker 01:
Oh.

[00:38:38] Speaker 01:
With the two prior battery convictions.

[00:38:44] Speaker 01:
But what was more concerning, I believe, was the fact that Ms.

[00:38:50] Speaker 01:
Greathouse

[00:38:52] Speaker 01:
didn't know or knew very little of the incident, the latest incident, the one that resulted in the conviction that he was under a sentence for at the time that he committed the murder in this case.

[00:39:05] Speaker 03:
On that point, is it required under Nevada law that it be a felony, not a misdemeanor?

[00:39:13] Speaker 01:
It says under a sentence of imprisonment.

[00:39:16] Speaker 03:
Is there any Nevada law on whether it's required that it be a felony or a misdemeanor?

[00:39:23] Speaker 01:
Well, I believe I believe what it says is that if the person is under and sentence of imprisonment for a crime That if it would have been committed in this state would have been a felony So it does have to be a felony It has to it would have to be a felony in Nevada and these were these happened where I'd hope were they felonies and Okay

[00:39:50] Speaker 01:
The first two were felonies, so that doesn't come into play, but with regards to the conviction he was under of censor.

[00:39:57] Speaker 02:
Okay, but back up, because the first two felonies turned out to be, I don't know if I have the right terminology, expunged, or they were vacated, right?

[00:40:06] Speaker 02:
Or am I, I have that wrong?

[00:40:07] Speaker 01:
No, sir, they were... There were two felonies.

[00:40:10] Speaker 01:
There were two prior felonies, which were the second and third aggravators, as discussed by the Nevada Supreme Court.

[00:40:17] Speaker ?:
Oh, I see.

[00:40:17] Speaker 01:
even though they were both the same.

[00:40:18] Speaker 02:
But I thought there were two that were also retroactively resolved or something, based on future case law.

[00:40:27] Speaker 02:
Okay, I must be misremembering.

[00:40:28] Speaker 01:
I don't think so, Your Honor, because

[00:40:35] Speaker 01:
The four aggravators that they considered after invalidating the other two was he was under sentence of imprisonment.

[00:40:42] Speaker 01:
And that is the one where it would either have to be for a felony or a crime that if committed in Nevada would be a felony.

[00:40:50] Speaker 02:
So was the crime that was committed in Idaho, would it have been a felony in Nevada?

[00:40:54] Speaker 01:
Yes, sir.

[00:40:56] Speaker 01:
Well, I apologize.

[00:41:03] Speaker 01:
I'm not 100% on that.

[00:41:04] Speaker 01:
I know the aggravator, there were a bunches of changes, or a lot of changes to the aggravator.

[00:41:11] Speaker 01:
If the court wants, I can double check on that.

[00:41:16] Speaker 03:
At the time, right?

[00:41:18] Speaker 03:
At the time of the sentencing?

[00:41:19] Speaker 01:
That's correct.

[00:41:20] Speaker 03:
Would it have been a felony in Nevada?

[00:41:22] Speaker 01:
I'm trying to remember for sure if that's the way the aggravator was worded, and that was... But how does that play in?

[00:41:31] Speaker 02:
Because if... I mean, what do we do with this?

[00:41:34] Speaker 02:
If Bejonaro's counsel is correct that this was only a misdemeanor, does that mean this was an erroneous determination by the judge?

[00:41:47] Speaker 01:
No, Your Honor, because that was actually raised at prior to the the penalty hearing that there was a discussion on the record is this this is only a misdemeanor and the there was argument on and the prosecutor said The aggravator says under a sentence of imprisonment.

[00:42:07] Speaker 03:
So You're saying this was discussed at trial and the trial judge rolled a

[00:42:14] Speaker 03:
that it was a felony.

[00:42:15] Speaker 03:
But if he was wrong about that, that's a question of law.

[00:42:19] Speaker 01:
There was an objection to the use of the aggravator.

[00:42:22] Speaker 01:
The trial judge sustained the use of the aggravator.

[00:42:28] Speaker 03:
Right.

[00:42:29] Speaker 03:
So was there a ruling that if the crime that he was convicted of in Idaho had been committed in Nevada, it would have been a felony?

[00:42:39] Speaker 01:
And there was no discussion and that's why I'm I'm I'm think I may be thinking of a later version of an aggravator.

[00:42:46] Speaker 03:
So I Okay, do you want to maybe submit a supplemental I will on that your honor just Yes, to clarify certainly.

[00:42:55] Speaker 02:
Thank you Can you go back to judge word lots of question though about wanky and we'll just walk us through what happened there and why that In your opinion would not have been ineffective assistance at counsel

[00:43:10] Speaker 01:
And my legal support for my argument is Strickland going back and looking at council's conduct at the time that it happened.

[00:43:21] Speaker 01:
lost track of Mr. Wenke.

[00:43:23] Speaker 02:
What does that mean, lost track?

[00:43:25] Speaker 02:
Because as I understand it, he had an investigator.

[00:43:29] Speaker 02:
The investigator did a lot of work.

[00:43:30] Speaker 02:
In fact, I don't think he would have known about Wenke, other than hiring the investigator who went out and figured this out.

[00:43:36] Speaker 02:
Am I right about that?

[00:43:37] Speaker 01:
No, because Bejonaro gave the name.

[00:43:41] Speaker 01:
Right.

[00:43:42] Speaker 01:
And not only that, but Mr. Whalen had been the one that went and initially made contact with him.

[00:43:49] Speaker 02:
So how did they lose, how did he lose contact and what happened?

[00:43:54] Speaker 02:
Is there something he dropped the ball on diligence on this?

[00:44:00] Speaker 01:
Your honor, I don't believe so because again, we have, you know, back at the time of trial, there was no Facebook, there was no Instagram, you know, there were no ways to do a quick search to try to find someone.

[00:44:14] Speaker 01:
The record shows that counsel tried, and I believe Mr. Speckiel's representation, it was either during the post-conviction hearing or it was during the hearing while the jury was out deliberating on guilt, was that his counsel, when he told the investigator to get these people together,

[00:44:39] Speaker 02:
the comment was that he is somewhere between Idaho and Kansas City and if I remember the and that was after he'd already talked to do you agree that that would have been if he had gotten a hold of Wenke and had him testify would that have been good mitigating

[00:45:01] Speaker 02:
evidence that would have been presented or was he a mixed bag like some of the others were because you you you talked about uh is a gray house that that was a mixed bag um yes is the same true of wenke or wenke would have actually i mean we had some pretty compelling statements here that that wenke you know certainly didn't feel apparently uh like he was harmful because he brought him in and housed him and right the record the record contained no

[00:45:32] Speaker 01:
Nothing that I believe could be construed as a strategic reason for not calling him.

[00:45:38] Speaker 01:
He just lost contact with him.

[00:45:39] Speaker 03:
So let me ask you on the Great House.

[00:45:41] Speaker 03:
You say Great House was a mixed bag, but that's based on the fact that he had confided in her about his Idaho crime?

[00:45:52] Speaker 01:
There was a deposition done of her, and the prosecutor did bring up some information that she wasn't fully aware of the extent of the last crime that he committed, which included kicking out a window of a patrol car.

[00:46:09] Speaker 03:
But how did that make her be a mixed bag?

[00:46:15] Speaker 01:
It would have made her a mixed bag, or at least, and again, I can't put myself in trial counsel's shoes, but it certainly would have fit in with the information that Mr. Bayerano had an antisocial personality that he, the morals.

[00:46:38] Speaker 03:
But he didn't have it around her.

[00:46:40] Speaker 03:
He didn't demonstrate it around her.

[00:46:41] Speaker 03:
That was the point of her testimony.

[00:46:44] Speaker 01:
Right, but then when he was away from her, and again, that could be considered part of the mixed bag, if he wasn't in and around her, he showed his other side.

[00:46:56] Speaker 03:
Those crimes came into evidence anyway, right?

[00:46:59] Speaker 01:
I'm sorry?

[00:46:59] Speaker 03:
Those crimes came into evidence anyway, right?

[00:47:02] Speaker 01:
Yes.

[00:47:02] Speaker 03:
So how could that further hurt him?

[00:47:06] Speaker 01:
Well, it would further hurt him from the standpoint that, and again pointing to something that my opposing counsel said, that he functions well in a controlled environment and talked about the good conduct in the Marines.

[00:47:22] Speaker 01:
But that's not necessarily true because when he was in another controlled environment, which was

[00:47:27] Speaker 01:
in custody during trial, there were a number of officers that testified that he made threats.

[00:47:33] Speaker 01:
He threatened to kill people, he was disruptive, he failed to follow directives.

[00:47:39] Speaker 01:
I believe one of the points was, or one of the testimony from, I believe it was the third law enforcement officer that testified said, he had asked Mr. Bayerano if he could switch bunks because his cellmate had injuries to his leg.

[00:47:55] Speaker 01:
Mr. Barano said no, and not necessarily just no, but no in a way that showed indifference.

[00:48:01] Speaker 03:
Let me ask you another question.

[00:48:03] Speaker 03:
So the district court declined to rule on the grounds of deficiency.

[00:48:08] Speaker 03:
I think the district court judge was sufficiently troubled by some of these aspects, but he did go on to do a lengthy prejudice analysis.

[00:48:19] Speaker 03:
What's your best argument that even if counsel was deficient,

[00:48:25] Speaker 03:
there was no strict on prejudice in this case.

[00:48:29] Speaker 01:
My best argument that there would be no prejudice and I'll get back to the deficient conduct after I answer your question.

[00:48:36] Speaker 03:
We don't have to rule on deficiency if we agree

[00:48:40] Speaker 01:
Correct.

[00:48:41] Speaker 01:
And correct.

[00:48:41] Speaker 01:
That's why I think the best evidence of that is the analysis that the district court did comparing Mr. Bayerano's case with a number of other cases, including Williams, Wiggins, and Rompio from the US Supreme Court.

[00:48:58] Speaker 01:
And I believe Rhodes was one of the Ninth Circuit cases that the court looked at.

[00:49:09] Speaker 01:
The evidence, and I think there's two ways that Mr. Bayerano's case is different.

[00:49:17] Speaker 01:
Number one was that in the Supreme Court cases, trial counsel flat out just missed something.

[00:49:26] Speaker 01:
And in one of those cases, counsel didn't go back, in one of the Supreme Court cases, counsel didn't look at a prior conviction.

[00:49:33] Speaker 01:
And that prior conviction would have led counsel to find

[00:49:37] Speaker 01:
basically all the mitigation evidence that they missed about the person's, the lack of the upbringing, the physical abuse.

[00:49:48] Speaker 01:
He talked to the trial counsel and instead talked to a number of family members, but then there were other family members that this report would have led to that would have developed the information that the Supreme Court felt moved the needle and established prejudice.

[00:50:06] Speaker 01:
And in this case, you don't, number one, you don't have that, I guess, oops moment by defense counsel, because number one, he had that information.

[00:50:20] Speaker 01:
Number two, though, you don't have the prejudice because the information in those cases were of a nature and a type that

[00:50:32] Speaker 01:
obviously moved this needle for the Supreme Court.

[00:50:34] Speaker 01:
The district court in this case felt that the evidence from Dr. Nielsen and Dr. Howell that were developed at the first evidentiary hearing was evidence that could have been presented, but it was a double edged sword.

[00:50:49] Speaker 01:
And part of the problem was, number one, that both those doctors testified that the

[00:50:59] Speaker 01:
condition that Mr. Bayerano had wasn't curable.

[00:51:03] Speaker 01:
I believe one of Dr. Hall, I think, specifically said that it wasn't curable.

[00:51:08] Speaker 01:
Dr. Nielsen said that the literature on that is a mixed bag.

[00:51:16] Speaker 01:
But the other problem is those anti-social tendencies, Bejorano exhibited those during his testimony, both at trial and during the trial.

[00:51:24] Speaker 02:
So opposing counsel, I mean, that is a pretty tough mountain to climb.

[00:51:31] Speaker 02:
His argument seems to be that that wouldn't have happened if some of this other evidence would have come in and Bejorano felt supported

[00:51:43] Speaker 02:
How do we evaluate that?

[00:51:45] Speaker 02:
That's my question.

[00:51:46] Speaker 02:
I mean, at some point it feels like such an alternate universe.

[00:51:50] Speaker 02:
I don't know how you can put it all back together.

[00:51:55] Speaker 01:
while they can suggest that he wouldn't have testified that way, Mr. Bayerano himself at both the hearing in between before the guilt phase came out, he specifically said, look, you know, whether it's someone good or bad, I want someone to testify.

[00:52:15] Speaker 01:
But if the information had been as bad as what was put on by the state, who's to say he wouldn't have gone back into the mode he expressly exhibited

[00:52:25] Speaker 01:
at the penalty phase?

[00:52:30] Speaker 02:
Well, that's some of them.

[00:52:31] Speaker 02:
But Wenke and potentially Greyhouse seem to be in a little bit different category than some of the other mixed testimony.

[00:52:40] Speaker 02:
Because I think you're right that some of those others speculated determination that it wasn't going to be helpful in the overall scheme.

[00:52:51] Speaker 02:
I don't think that's true of Wenke.

[00:52:52] Speaker 02:
At least that was not a determination made of Wenke.

[00:52:55] Speaker 02:
He just lost contact with him.

[00:52:57] Speaker 01:
But if he had found Wenke, and if Reverend Wenke had testified, the substance of his testimony was, look, during this two-year period, he was basically a good guy.

[00:53:10] Speaker 01:
And that would have been the same with Ms.

[00:53:12] Speaker 01:
Greathouse's testimony.

[00:53:13] Speaker 01:
And those were the same periods?

[00:53:15] Speaker 01:
Yes, when he was in Idaho.

[00:53:17] Speaker 01:
But then on the other side, you've got

[00:53:20] Speaker 02:
You've got evidence that so we would have to find I'm just looking for the legal test here We would have to find that even if that evidence came in I guess we just go back to what we originally said was there was there's a reasonable reasonable probability that reasonable probability that Not only the outcome would have been different But the outcome that he wouldn't have testified in that way and therefore the outcome would have been

[00:53:47] Speaker 01:
Well, and again, and that was what the district court said, look, even if I can consider this, I'm not sure I can, but I'm going to, that it doesn't move the needle.

[00:53:59] Speaker 01:
You've got two people basically saying... Too overwhelming.

[00:54:01] Speaker 02:
The information was too overwhelming.

[00:54:03] Speaker 02:
If there'd been six Wenkees, I mean, what if there'd been six different Wenkees and they'd all been different periods of time?

[00:54:10] Speaker 01:
And I think, I mean, the testimony of those two witnesses covers of the same period of time.

[00:54:17] Speaker 01:
Right, but that's my point.

[00:54:19] Speaker 02:
I mean, at some point wouldn't this have risen to a level where we would have had to consider it?

[00:54:23] Speaker 02:
What if there had been evidence that he'd lost track of for six different two-year periods of his life?

[00:54:29] Speaker 02:
Would you be in making the same argument?

[00:54:31] Speaker 02:
Or are you saying this is just

[00:54:34] Speaker 02:
almost too little.

[00:54:36] Speaker 01:
In the Rhodes case, you know, that was, you know, that there was all this, he was a good person.

[00:54:41] Speaker 01:
That was this period of time, but ultimately the decision was made.

[00:54:45] Speaker 01:
Yes, even though he was a good period, and even though it was for this period of time, you've still got the universe of everything else.

[00:54:52] Speaker 01:
And just because he's a good person to these two people, or in the case of Rodney Wienke, you know, him and his family, that's not how he treats everybody else.

[00:55:03] Speaker 01:
And that's one of the things that the jury had to consider.

[00:55:06] Speaker 01:
And that's exactly what the argument was at the penalty phase, was that this person, Mr. Bayorano, in the institutionalized setting, he still makes threats.

[00:55:21] Speaker 01:
He's still a dangerous person.

[00:55:24] Speaker 01:
And so I don't, and that gets back to what the court did in both Wiggins-Rumpia and Terry Williams, and I shouldn't have said both, but in those cases, the evidence that Mr. Wanky would have said he's a good person and that Ms.

[00:55:41] Speaker 01:
Greathouse would have said that he's a good person doesn't move the needle like the omitted evidence in those three cases.

[00:55:52] Speaker 01:
And,

[00:55:55] Speaker 01:
Judge Wardlaw, is there anything else you wanted me to touch on with regards to the post-conviction?

[00:56:01] Speaker 01:
Because I'd like to briefly discuss the appellate reweighing.

[00:56:05] Speaker 03:
Oh, that was the next area I was interested in.

[00:56:08] Speaker 01:
And if you remember back to grade school, and maybe it didn't happen with you, but with me, my math teachers always used to say, show your work.

[00:56:17] Speaker 01:
You're going to get extra credit, potentially.

[00:56:20] Speaker 01:
This is what exactly the Nevada Supreme Court did.

[00:56:24] Speaker 01:
Even though their work, in the words of Mr. Bayerano's attorney, might be confusing, they showed their work.

[00:56:31] Speaker 01:
They showed what they did.

[00:56:33] Speaker 01:
And the Nevada Supreme Court says that the court has to do at least one of two things, reweighing or harmless error analysis.

[00:56:46] Speaker 01:
And you can't throw up your hands and say it's just too confusing because they showed you exactly what they did.

[00:56:54] Speaker 01:
So if you are satisfied that they did reweighing, that's enough.

[00:57:00] Speaker 01:
If you are satisfied that they did harmless error review, that's enough.

[00:57:05] Speaker 01:
The only way that there's relief is if they show that both reweighing and harmless error was objectively unreasonable.

[00:57:16] Speaker 01:
And even in that case, you still have to apply BRAC.

[00:57:20] Speaker 01:
And my best argument that they did harmless error rather than reweighing is the distinction between the two.

[00:57:29] Speaker 03:
Do you think they did harmless error?

[00:57:31] Speaker 01:
Yes.

[00:57:31] Speaker 01:
Because when you do a harmless error.

[00:57:33] Speaker 03:
So now they explicitly said they were reweighing?

[00:57:35] Speaker 01:
Well, no.

[00:57:36] Speaker 01:
There were two points.

[00:57:37] Speaker 01:
And one was at one EOR 92.

[00:57:39] Speaker 01:
And I believe the other one was at one ER

[00:57:42] Speaker 01:
They did harmless error.

[00:57:47] Speaker 01:
And the reason you can tell is because when a court does harmless error review, they talk about the effect of the error on the jury.

[00:57:58] Speaker 01:
When you do an appellate reweighing, they set aside everything that the fact finder did and do that reweighing as if the jury wasn't there.

[00:58:10] Speaker 01:
And in this case, their conclusion was, and they prefaced the discussion with, he gets relief if we show, if we cannot show beyond a reasonable doubt, or the state cannot show beyond a reasonable doubt, that the error had no effect on the jury.

[00:58:25] Speaker 01:
And then they drew that conclusion at the end.

[00:58:30] Speaker 01:
And I see that amount of time.

[00:58:31] Speaker 01:
If there's no more questions, I would just ask the court to affirm the district court's decision in this case.

[00:58:41] Speaker 01:
I don't believe it.

[00:58:42] Speaker 03:
You're just saying they use the word reweighing but what they actually did was harmless error review?

[00:58:49] Speaker 01:
Yes, yes what they did was harmless error review.

[00:58:53] Speaker 01:
It's clear they applied the Chapman standard at the end and again I believe it's at page 108 of the ERs it's the last page of their decision.

[00:59:15] Speaker 03:
Okay.

[00:59:17] Speaker 03:
Thank you, counsel.

[00:59:22] Speaker 03:
Mr. Anthony.

[00:59:40] Speaker 00:
So there's obviously a lot to talk about with limited time.

[00:59:44] Speaker 00:
So certainly if the court has any questions about anything in particular.

[00:59:48] Speaker 00:
One thing that I would certainly want to point out, though, is that in the district court, the state took the very opposite position that they're taking today.

[00:59:56] Speaker 00:
In the district court, the state took the position that the Nevada Supreme Court engaged in reweighing.

[01:00:02] Speaker 00:
And they also took the position that the Nevada Supreme Court was required to consider mitigation evidence

[01:00:08] Speaker 00:
proffered in the post-conviction proceeding, the court acknowledges the state's acknowledgment at EOR 19, and the state's concession was at ECF 141 at page 60.

[01:00:22] Speaker 00:
And that's where the state said that they did rewang, and they were obligated to consider new mitigation.

[01:00:27] Speaker 00:
So I think the record needs to show what the state's position was in the district court.

[01:00:32] Speaker 00:
Secondly, I'd like to go back to the sentence of imprisonment issue.

[01:00:37] Speaker 00:
My concern there is that the state did not avail themselves of the opportunity to address this issue in the answering brief.

[01:00:45] Speaker 00:
I would argue that they waived it as a result.

[01:00:48] Speaker 00:
In my opening brief, I cited to the court the case of Parker v. State at 849 Pacific Second, page 1062.

[01:00:58] Speaker 00:
And Parker says that to be under a sentence of imprisonment, it's under a sentence of imprisonment for a felony.

[01:01:05] Speaker 00:
What the state is referring to is a different aggravating circumstance, which is the prior violent felony aggravating circumstance when they're talking about whether something would have been a felony if committed in the state of Nevada.

[01:01:19] Speaker 00:
So I would argue to the court that that issue is waived and the court shouldn't consider it.

[01:01:23] Speaker 00:
But at the very least, Your Honor, if the state is afforded the opportunity to file a supplemental, I would similarly make that request.

[01:01:32] Speaker 03:
You can each file a letter brief up to five pages as a supplemental brief within, I would say, 10 days of this hearing.

[01:01:43] Speaker 00:
Thank you, Your Honor.

[01:01:50] Speaker 00:
The other issue that I wanted to discuss was I hadn't originally been able to address this issue about state law.

[01:02:03] Speaker 00:
The state cited Williams v. Taylor.

[01:02:06] Speaker 00:
Obviously, each state has their own state system.

[01:02:09] Speaker 00:
And Judge Wardlaw mentioned the very unique situation that existed before 1993, where the state of Nevada allowed two collateral attacks on the judgment.

[01:02:20] Speaker 00:
That's not something that I believe that the state has adequately addressed, and they haven't addressed our argument that it's appropriate for this court to assess the diligence of Mr. Bayerano in the proceeding where he raised the claim at issue.

[01:02:35] Speaker 00:
There are lots of states that have special proceedings for things, proceedings for intellectual disability, proceedings for DNA testing.

[01:02:44] Speaker 00:
Out of respect for comedy and federalism, why wouldn't we look at the diligence of the petitioner in the proceeding where the claim is raised?

[01:02:52] Speaker 00:
There's no reason why we wouldn't do that, and in fact, this court's decision in Pinholster expressly sanctions that approach.

[01:02:59] Speaker 00:
It says that the presentation of mental health evidence in an ineffective assistance of counsel at sentencing claim can be considered when it was proffered in connection with a second state post-conviction petition.

[01:03:14] Speaker 00:
And the state's answer simply doesn't address those authorities, including the McLaughlin case, which we cited out of the state of Nevada, where this court held

[01:03:24] Speaker 00:
that the presentation of evidence in a second state post-conviction proceeding was sufficient to show diligence under 2254E2.

[01:03:33] Speaker 00:
We can make even a better case for Mr. Bayerano, because he had the dual collateral attack remedy available to him.

[01:03:40] Speaker 00:
So my argument is this court must look at his diligence in connection with the proceeding where he raised the claim.

[01:03:47] Speaker 00:
And it looks like my time is almost done, and I don't want to neglect if the court has any other questions for me.

[01:03:55] Speaker 03:
Any other questions?

[01:03:57] Speaker 03:
No, I think that's it.

[01:04:03] Speaker 03:
Mr. Anthony.

[01:04:04] Speaker 00:
Thank you very much, your honor.

[01:04:05] Speaker 03:
All right, thank you very much.

[01:04:07] Speaker 03:
Bejarano versus Rubart will be submitted, and this session of the court is adjourned for today.

[01:04:14] Speaker 03:
All rise.

[01:04:26] Speaker 03:
This court for this session stands adjourned.

[01:04:31] Speaker 03:
Thank you.