[00:00:40] Speaker 01:
agrees that the CSC's denial was an adjudication on the merits.

[00:00:47] Speaker 01:
And under EDPA, what this means is that the court must assess what the state court knew and did.

[00:00:53] Speaker 01:
We know that the California Supreme Court looks at cases in a prima facie

[00:01:22] Speaker 01:
It contravenes the purpose of comedy and federalism and deference to the state court process and shouldn't be applied in this case.

[00:01:32] Speaker 01:
I'd like to turn to the penalty phase Brady claim.

[00:01:36] Speaker 01:
In that case, here Hart made a prima facie case that the prosecution failed to disclose key evidence that would have helped to impeach the informant Randall Gresham.

[00:01:54] Speaker 01:
in exchange for his testimony against Hart.

[00:01:57] Speaker 01:
But Hart presented unrefuted evidence in post-conviction that, in fact, this deal was much larger than what was testified to by Grasha.

[00:02:06] Speaker 01:
He was facing being charged with numerous other robberies out of state, and part of the deal included that he would not be charged with these robberies and that he would not be charged with the five-year prior.

[00:02:20] Speaker 01:
Not only did the prosecution not disclose that, but he didn't correct Gresham's testimony that that was the extent of the deal.

[00:02:29] Speaker 01:
And it was also material because here we know that the jury focused on Gresham's testimony.

[00:02:36] Speaker 01:
That's the only readback that this jury requested.

[00:02:39] Speaker 01:
And the question of ELWAP was also on the mind of the jury because they asked about it during deliberations.

[00:02:49] Speaker 01:
Because of those reasons, the state court's determination was unreasonable, and this court has so found in other cases, such as Maxwell v. Roe,

[00:03:18] Speaker 01:
additional evidence with which Grasham could have been impeached.

[00:03:24] Speaker 01:
This just wasn't more cumulative evidence of the same kind.

[00:03:28] Speaker 01:
There was one thing for Grasham to testify that he was only receiving a five-year reduction.

[00:03:33] Speaker 01:
It was another thing for him to have revealed to the jury that he was afraid that he was facing life in prison.

[00:03:40] Speaker 01:
And for the defense to have been able to

[00:03:47] Speaker 01:
proceedings about the extent of the deal and about him potentially being a government agent, which is what he signed in his 2002 declaration.

[00:03:58] Speaker 01:
In that declaration, he indicated that he was placed specifically next to Hart in order to get information, to get an admission.

[00:04:06] Speaker 01:
And he also indicated that he made up the confession at the time that he testified against

[00:04:21] Speaker 05:
Mr. Hart, that's November 6 of 1998, I mean, it says this petition is timely within the meaning of the court standard for the timely filing of petitions for habeas corpus at set forth in its habeas guidelines and in in Ray Clark.

[00:04:38] Speaker 05:
So it gives the impression that at least that Mr. Hart's counsel at this time thought that Clark set forth and the habeas guidelines set forth the timeliness rules.

[00:04:52] Speaker 01:
At the time that Mr. Hart filed his initial habeas petition, Robinson-Gallego had just been decided three months earlier.

[00:04:59] Speaker 01:
So before that, the law had been clerked.

[00:05:02] Speaker 01:
But Robinson-Gallego specifically took on that issue of timeliness, specifying that clerk hadn't been clear.

[00:05:09] Speaker 01:
And so it was only after Robinson-Gallego was decided and the court made major changes to the timeliness rules requiring their petitioners specify as to each claim and each subclaim

[00:05:22] Speaker 01:
reasons as to why the claims were delayed if there was a delay argument.

[00:05:58] Speaker 01:
had just been decided three months earlier makes this a novel bar that hadn't been adequately established at the time that it was applied against Mr. Hart.

[00:06:08] Speaker 02:
So I guess I'm confused if it's just a matter of what you put in your brief why couldn't that have been fixed in three months?

[00:06:14] Speaker 01:
Well it was fixed in three months but when it was submitted and that was one of the reasons that counsel gave for why the court should accept it and think

[00:06:25] Speaker 01:
based on the new timeless rules, it was we needed additional time to address the changes the court made.

[00:06:32] Speaker 01:
So these were all arguments that initial habeas counsel presented to the court at the time that they presented that initial habeas petition.

[00:06:40] Speaker 01:
But even if this court finds that the timeless bar should apply,

[00:06:47] Speaker 01:
way around it, which is causing prejudice.

[00:06:49] Speaker 01:
Here, the prosecution's failure to provide this discovery was the continuing barrier to Mr. Hart having presented this claim earlier.

[00:06:58] Speaker 01:
Here, counsel had actually, even though it's not required to under Brady, counsel had specifically asked for discovery about any deals or inducements being offered to any government witnesses, as well as any pending criminal charges against that

[00:07:17] Speaker 01:
prosecution witnesses have, and this was discussed on the record, and the prosecutor agreed to provide this discovery.

[00:07:24] Speaker 05:
But you would agree that habeas counsel's negligence can't constitute cause.

[00:07:29] Speaker 01:
So what would be the cause here that would create... The understricler versus Green, it would be the Brady violation understricler versus Green.

[00:07:38] Speaker 01:
So it would be the continuing failure of the prosecution to disclose the evidence

[00:07:54] Speaker 02:
got that evidence though and when they filed the claim.

[00:07:58] Speaker 01:
So the evidence was actually not provided to post-conviction counsel until 2007.

[00:08:05] Speaker 01:
The claim was actually filed in 1998, but it was filed without any support.

[00:08:12] Speaker 01:
It was raised basically saying, you know, we believe that this has happened, but there was no support.

[00:08:17] Speaker 01:
And actually at the time,

[00:08:19] Speaker 01:
The government represented, well, these are compulsory allegations and the court should dismiss it.

[00:08:24] Speaker 01:
And I was meant to this court that under Banks versus Dretke, that also requires

[00:08:41] Speaker 01:
to petitioner.

[00:08:42] Speaker 01:
And it was only when the law changed and allowed for post-conviction counsel to get post-conviction discovery under California penal code section 1054.9 that counsel was able to request this discovery at a hearing and the Riverside Superior Court forced the DA's office to provide it to Mr. Hart.

[00:09:02] Speaker 05:
But you would agree that Mr. Hart raised at least the government agent argument as to Mr. Gresham in his direct appeal.

[00:09:11] Speaker 01:
Yes, Your Honor, in the direct appeal, that argument was raised.

[00:09:17] Speaker 01:
But again, because it was an appellate claim, there was no facts outside of the trial court record to support it.

[00:09:25] Speaker 01:
And normally, those things are raised on state papers for that reason, because they require extra record support.

[00:09:35] Speaker 02:
When was it, though, that this happened that the court required them to give the discovery?

[00:09:39] Speaker 02:
What year?

[00:09:40] Speaker 01:
So the hearings happened in state court in 2006, and the prosecutor didn't provide it until 2007.

[00:09:51] Speaker 05:
But you had Mr. Gresham's first declaration prepared by the public defender's office in 2002.

[00:09:57] Speaker 05:
You had his deposition testimony in 2003.

[00:10:00] Speaker 05:
So it seems...

[00:10:07] Speaker 05:
Isn't it a bit tenuous to say that there wasn't enough before 2007?

[00:10:13] Speaker 05:
I mean, the public defender's declaration seems to be the key, and that was 2002.

[00:10:17] Speaker 01:
So in 2002, the public defender got this declaration from Gresham, but it didn't really talk about the extent of the deal.

[00:10:26] Speaker 01:
The declaration focused on these two other aspects of the Brady Claim, which were that he was a government agent

[00:10:38] Speaker 01:
about him and that he had failed and that he had made up the confession.

[00:10:44] Speaker 01:
And that's also what the deposition focused on because even at that time, counsel didn't know that there was a fuller deal that had been testified to at trial.

[00:11:06] Speaker 01:
information, and that under cause and prejudice, this is something that this court shouldn't allow for the prosecutor to basically represent.

[00:11:16] Speaker 01:
You have everything, and then only later when post-convention counsel learns you don't

[00:11:36] Speaker 01:
And even in a trial, you have Gresham saying that the prosecutor was mad at him because he had actually revealed that when he was initially charged, he was charged with attempted murder of a police officer and then it was reduced to assault.

[00:11:59] Speaker 01:
that he was charged with assault with an attempted murder because he hadn't been he had only been charged with assault.

[00:12:07] Speaker 01:
So you see in this record where really he was coached by the prosecutor as specifically as to what to say and he didn't reveal the extent of the deal and what you see in the 2003 deposition is he wrote to the AG's office expressing concern about what would happen to him if he took back what he had said in his

[00:12:31] Speaker 01:
perjuring himself.

[00:12:32] Speaker 01:
And in the deposition, he again repeats that he talked about perjury and that he was not offered any, he was not given any specific assurances that he wouldn't be charged with perjury if he contradicted his trial testimony.

[00:12:46] Speaker 05:
So I hear you to be arguing that you believe an exception to procedural default applies here.

[00:12:53] Speaker 05:
So what is your prejudice argument?

[00:12:55] Speaker 05:
Is it the same as your Brady materiality argument or

[00:12:59] Speaker 01:
Yes, Your Honor, it's the same as the materiality argument for the substantive claim that here, had this information been provided, it would have made a difference in this trial given that the McMahon murder was the centerpiece of the prosecution's case in aggravation and that we knew that the jury considered it because that was the one thing that they asked for a read back on and the jury took three days in which to decide

[00:13:34] Speaker 02:
had a deal with the prosecution to get him to testify and that they were dropping at least some charges.

[00:13:40] Speaker 02:
So am I right that we would have to decide that it was unreasonable for the state court to think that the additional evidence about a further deal would make such a diff- wouldn't have made enough difference to the jury to be

[00:13:58] Speaker 01:
And again, I would refer this court to Maxwell versus Roe and Ben versus Lambert because in those cases, it was similar facts.

[00:14:18] Speaker 01:
was an unreasonable application of Brady to find that that wasn't material because that was additional information that would have cast doubt on the testimony of the informant.

[00:14:30] Speaker 01:
Here, Gresham's testimony was the centerpiece of proving that Mr. Hart had killed McManus.

[00:14:37] Speaker 01:
He not only proved, he not only provided the motive for the murder, which was that he

[00:14:46] Speaker 01:
prior sexual indiscretions, but also that he told Gresham that he had killed before and would kill again, suggesting that removing any possibility of a lingering doubt in the minds of the jury.

[00:15:01] Speaker 03:
I guess that still leaves open in my mind the question of why this, I guess the newer information about the deal that Gresham got was, why should we find that that was so much more significant than what the jury already knew?

[00:15:17] Speaker 01:
Well, the jury had to assess his credibility, and for the jury to think this is a guy who's only receiving a five-year reduction is, I mean, you're having to assess his credibility based on that.

[00:16:00] Speaker 01:
you got this deal, but nothing to say, and now you're lying about the deal, which is something that the defense was never able to argue to the jury.

[00:16:09] Speaker 05:
Can we talk about the McMahon murder as well?

[00:16:12] Speaker 05:
Why isn't the Gresham testimony also cumulative?

[00:16:15] Speaker 05:
I mean, in addition to the criminal charges that my colleagues have asked you about, they had the cable ties, they had the handcuffs with, you know, a blood stain that matched McMahon in only 0.1%

[00:16:37] Speaker 05:
separate from Mr. Gresham's testimony.

[00:16:40] Speaker 01:
So the McMahon murder took place in the Whitney compound, which was a unique place.

[00:16:45] Speaker 01:
This was not just Hart's house and backyard where things were found.

[00:16:50] Speaker 01:
This was a compound where numerous people lived and had access to and all this other evidence that

[00:17:09] Speaker 03:
statements that implicated themselves in the murder and one of the other things that the prosecutor showed to disclose that you have this evidence that Hart had been grading his yard and then you have handcuffs with blood on them found under freshly turned dirt.

[00:17:29] Speaker 03:
I mean it's a pretty bad fact.

[00:17:32] Speaker 01:
Although the handcuffs were never determined

[00:17:37] Speaker 01:
And there was a dispute as to whether handcuffs were even used in this crime.

[00:17:42] Speaker 01:
So again, all the evidence was circumstantial pointing to Mr. Hart's guilt.

[00:17:48] Speaker 01:
And you had even at the time that this case was being presented against Hart in aggravation, the police were actively investigating other suspects at the same time.

[00:17:59] Speaker 01:
So if they were convinced that Mr. Hart committed this crime, why were they investigating other suspects at the same time?

[00:18:06] Speaker 05:
But he had ligature marks on McMahon's arms that matched the handcuffs.

[00:18:11] Speaker 05:
I mean, I guess the question is, to qualify for the procedural default exception, you have to show actual prejudice.

[00:18:17] Speaker 05:
So even though we might say, yeah, OK, I mean, but does it meet the standard of actual prejudice to qualify for the exception?

[00:18:26] Speaker 01:
Your Honor, here there was evidence that contradicted that Hart had committed this murder, that pathologists

[00:18:39] Speaker 01:
that the victim was clutching that were never attached to the heart.

[00:18:47] Speaker 01:
There was a lot of evidence here that didn't tie to him.

[00:18:51] Speaker 01:
But again, I come back to here we know it's material because the jury relied on

[00:19:01] Speaker 01:
court's denial wasn't reasonable and it's also why this court should find the prejudice under cause and prejudice because the facts of this case are that the jury deliberate for a long time, they were considering LWOP and they said they wanted Gresham's testimony to go over and over it again.

[00:19:22] Speaker 02:
Can I take you back to the Clark versus Robbins and Gallego issue?

[00:19:26] Speaker 02:
So I think you want us to hold that

[00:19:30] Speaker 02:
this, that somehow there was a difference enough between Clark and Robbins and Gallego that you wouldn't have been timely under Robbins and Gallego, but you know about Robbins and Gallego, but you would have been timely under Clark.

[00:19:43] Speaker 02:
Can you explain how that would be and why we should rule for you on that issue?

[00:20:10] Speaker 02:
Sorry, I may be remembering wrong.

[00:20:12] Speaker 02:
Is it just Robbins?

[00:20:20] Speaker 02:
I can't remember at the moment, Your Honor.

[00:20:25] Speaker 02:
I think it's Robbins and Clark.

[00:20:26] Speaker 02:
But let's, even if it just said Robbins, explain to me how it was okay under Clark, but not under Robbins.

[00:20:34] Speaker 02:
Or sorry, the other way around, how it was okay under Clark, but not under Robbins.

[00:20:44] Speaker 01:
laid out all the reasons that a person.

[00:20:47] Speaker 01:
So there were three different categories of how a person can be timely.

[00:20:52] Speaker 01:
It can be presumptively timely if you file within a certain time period.

[00:20:55] Speaker 01:
And then you can establish cause in which you can be found to be timely, even though you're past that window.

[00:21:02] Speaker 01:
And here, Hart complied with the requirements of the court.

[00:21:08] Speaker 01:
Hart's counsel provided.

[00:21:18] Speaker 02:
But that sounds like you're saying he complied with Robbins.

[00:21:20] Speaker 02:
So I guess the question is, I thought what you wanted us to say is let's put aside Robbins because he didn't have notice of Robbins and consider it timely under Clark.

[00:21:30] Speaker 02:
But I think then the question is, well, why was it timely under Clark but not under Robbins?

[00:21:35] Speaker 02:
It seems like your answer is it was timely under Robbins, but that doesn't really explain then what the court did.

[00:21:45] Speaker 02:
that the court couldn't rely on Robbins.

[00:21:46] Speaker 02:
It wasn't adequate yet.

[00:21:47] Speaker 02:
It hadn't been decided long enough.

[00:21:49] Speaker 02:
So if that's true, I think we need to have you show us why it was timely under Clark.

[00:21:53] Speaker 02:
Something changed under Robbins, but we shouldn't consider that.

[00:21:57] Speaker 02:
But I don't think that's what it sounds like you're arguing.

[00:22:00] Speaker 01:
Your Honor, that wasn't an argument that I made in the briefing.

[00:22:04] Speaker 01:
And I'd be happy to brief the issue of whether the Clark bar on its own would have applied.

[00:22:11] Speaker 01:
But the briefing

[00:22:18] Speaker 01:
bar.

[00:22:19] Speaker 01:
And so to that extent, it was, well, was the Robbins Clark bar clearly established and adequate?

[00:22:30] Speaker 01:
And here, see, the court is asking if we can parse out Robbins from Clark.

[00:22:35] Speaker 02:
Well, because Clark had been around for a long time.

[00:22:37] Speaker 02:
So Clark had been the law for years.

[00:22:39] Speaker 02:
So unless you can show us something changed that unfairly would apply to your client in those three months, then it's

[00:22:56] Speaker 01:
So one of the reasons that Robbins and Gallego were decided was because Clark hadn't been applied consistently to petitioners.

[00:23:06] Speaker 01:
And so it wasn't clear to a petitioner when their petition would be found timely or untimely.

[00:23:17] Speaker 01:
Robinson Diego were attempting to clarify that issue of the Clark bar being applied inconsistently to petitioners.

[00:23:28] Speaker 01:
And so a person could have assumed under Clark that a petition like Mr. Hart's would have been timely because the California Supreme Court wasn't applying that bar in a consistent way.

[00:23:46] Speaker 01:
petitioner like Mr. Hart.

[00:23:47] Speaker 05:
Can I ask you, I mean, I still go back to this first state habeas petition, which was, you know, filed by Phil Pennypacker, who became a judge on the Santa Clara County Superior Court.

[00:23:59] Speaker 05:
And it was a very experienced criminal defense lawyer.

[00:24:02] Speaker 05:
And it just says that the petition is timely under the habeas guidelines in Ray Clark.

[00:24:09] Speaker 05:
It acknowledges that Robbins and Gallegos were decided, but it doesn't say that that changed

[00:24:18] Speaker 05:
doesn't draw any distinctions.

[00:24:20] Speaker 05:
So I'm still struggling with the same question of my colleagues.

[00:24:26] Speaker 05:
His counsel at the time didn't think that Robinson and Gallegos changed anything.

[00:24:31] Speaker 05:
They still thought that Clark was the rule that they had to comply with.

[00:24:36] Speaker 01:
Your Honor, I don't have the site in front of me, but in the briefs we

[00:24:44] Speaker 01:
And counsel does talk about Robbins and Gallego and specifically argues why under Robbins and Gallego, he should get, the petition should have been found timely.

[00:24:57] Speaker 01:
And I can look for that site and present it for myself.

[00:25:01] Speaker 05:
No, I have it here.

[00:25:02] Speaker 05:
You know, it just says on August 3rd, 1998, when the petition was essentially completed and awaiting final revisions, this court filed its opinions in In re Robbins and In re Gallego, in which it dealt at length

[00:25:16] Speaker 05:
capital cases, and in particular the question of the timeliness of claims advanced in such petitions.

[00:25:22] Speaker 05:
In view of the significance of the question to the presentation resolution issues presented in the instant petition, it was determined that a brief period of further revision of the petition was required in order to consider taking account of the teachings of these opinions.

[00:25:33] Speaker 05:
So it does, you know, try to attribute delay on that basis, but it doesn't say that that is a new rule or it's a different rule than either Clark or

[00:25:45] Speaker 05:
effect in 1989.

[00:25:47] Speaker 05:
So that's still the puzzling piece here.

[00:25:53] Speaker 01:
Well, Your Honor, I'm happy to provide some more briefing on the differences between Clark and Diego and why the Clark bar wouldn't have applied or wouldn't have barred the time

[00:26:55] Speaker 04:
the same procedural facts.

[00:26:58] Speaker 04:
The U.S.

[00:26:58] Speaker 04:
Supreme Court conducted a 2254 D merits analysis, which was recognized by this court in Montiel, and the same process should be followed here.

[00:27:08] Speaker 04:
Turning to the Brady claim, the crux of that issue is

[00:27:24] Speaker 04:
And the answer to that is no.

[00:27:26] Speaker 04:
Penalty phase counsel Harmon and the jury did know that Gresham was arrested for the serious offense of attempted murder of a police officer when he went to jail.

[00:27:36] Speaker 04:
And that very early on, he decided he wanted to exchange information on Hart for leniency in that case.

[00:27:43] Speaker 04:
Gresham attempted to strike a deal in that attempted murder arrest case and talked to investigators before he knew about the potential of additional charges.

[00:27:53] Speaker 04:
The additional impeachment information offered here is that additional robbery charges were potentially not filed.

[00:28:00] Speaker 04:
The jury already knew that Gresham's attempted murder here was reduced to an assault, and he also pled guilty to charges from another case that was added on at a later time for two armed robberies, auto theft and firearms possession, all in exchange for a 10-year sentence.

[00:28:19] Speaker 04:
This additional impeachment

[00:28:24] Speaker 04:
were self-preservation.

[00:28:27] Speaker 04:
His self-interest was evident, and as Harmon argued in closing, this was a man who would sell his mother to save himself.

[00:28:37] Speaker 02:
So you've jumped directly to the Brady claim not having merit and skipped over this whole Robbins-Clark situation with the timeliness.

[00:28:46] Speaker 02:
Do you have an argument about the procedural bar?

[00:28:53] Speaker 04:
The state court found this claim untimely under Clark and Robbins, which is independent and adequate under Walker v. Martin.

[00:29:02] Speaker 04:
Therefore, it is incumbent upon Hart to show cause and prejudice.

[00:29:06] Speaker 04:
So is Robbins doing any work here that Clark couldn't do alone?

[00:29:12] Speaker 04:
It is not.

[00:29:14] Speaker 04:
Walker v. Martin simply recognized that the timeliness bar was clearly independent and adequate at least since the time of the Robbins decision.

[00:29:44] Speaker 04:
was independent and adequate consistently applied at least since the Robbins decision, which this petition was filed after.

[00:29:52] Speaker 02:
Therefore, since this claim is procedurally defaulted, would that mean that Robbins was necessary to make

[00:30:18] Speaker 05:
district courts were not applying Clark consistently.

[00:30:22] Speaker 05:
So why would that be enough notice?

[00:30:26] Speaker 04:
It was enough notice to notify his habeas counsel and his habeas counsel did understand that his habeas petition

[00:30:52] Speaker 05:
apply, then it can't be an adequate and independent state ground for the habeas relief in federal court, right?

[00:30:59] Speaker 04:
Yes, but it was recognized as adequate since the time of Robbins, which was decided before he filed his petition in this case.

[00:31:08] Speaker 05:
And it did not explain... Robbins wasn't firmly established, right, because it had only been around for three months when Mr. Hart filed his first state habeas petition.

[00:31:18] Speaker 04:
Robbins was

[00:31:25] Speaker 04:
It took a three additional months after the time of Robbins to file his claims, which he stated were already prepared before Robbins was decided.

[00:31:40] Speaker 04:
And because this claim is procedurally defaulted, Hart needs to show cause and

[00:31:58] Speaker 02:
the prosecution was withholding the evidence that that counts as cause?

[00:32:03] Speaker 04:
Well, the cause and prejudice analysis parallels the Brady analysis, and as the state court would have presumed the suppression cause prong in making its merits determination, then I'm turning to the Brady materiality and prejudice analysis.

[00:32:26] Speaker 05:
that was the only read back the jury asked for was aggression testimony.

[00:32:31] Speaker 05:
So it had to have been material to three days of deliberations.

[00:32:35] Speaker 05:
That's the only read back they wanted.

[00:32:38] Speaker 04:
There were two days of deliberation, but also the only morning.

[00:32:45] Speaker 04:
Yes, but the fact that the jury requested read back of Russians testimony only indicates that it considered

[00:33:11] Speaker 04:
that it was hard to hear him during his testimony, but in any event the jury was well able and should have considered Gresham's testimony as it was relevant and compelling.

[00:33:46] Speaker 04:
for an 11-year-old, that Hart had been grading his yard with a tractor that he had borrowed after Sheila's murder, and that he had dumped Sheila's body in a dumping place.

[00:33:59] Speaker 04:
All of those facts were cooperative and indicated he could have only received that information from Hart.

[00:34:07] Speaker 04:
And in any event, even if Gresham's testimony were to be discounted,

[00:34:16] Speaker 04:
heart to Sheila's murder.

[00:34:18] Speaker 04:
There were the cable ties that were found around his property, one in a plastic bag in the corner of his bedroom matching the same cable tie found wrapped around Sheila's murder.

[00:34:39] Speaker 04:
other people who had access in addition to Hart still did not negate the fact that Hart was the last person to see her alive, that there was no struggle and Sheila would not have been known to have left her.

[00:35:07] Speaker 04:
shed, one of which contained blood matching Cheela's blood type and a t-shirt fiber from the shirt she was wearing when she was killed.

[00:35:15] Speaker 05:
I'm sorry to go back to the procedural default issue, but is it the government's position that in order for any ruling to find procedural default here that the court would have to find that Clark alone was an independent adequate, you know, state procedural bar?

[00:35:33] Speaker 04:
No, it is defined

[00:35:41] Speaker 04:
an independent and adequate procedural bar under Walker v. Martin since the time of Robbins.

[00:35:46] Speaker 04:
And the state court cited Clark and Robbins in finding this claim untimely.

[00:35:51] Speaker 05:
So you're saying any ruling should rely on both Clark and Robbins, even though Robbins was only decided three months before?

[00:36:21] Speaker 04:
both of those cases were cited to find the claim untimely.

[00:36:29] Speaker 04:
Coming back to the other independent evidence that showed Hart killed his 11-year-old niece, in addition to that crime itself, that was one of a string of other

[00:36:53] Speaker 04:
murder, there was evidence that the circumstances underlying the crimes he was convicted of themselves were extremely aggravating.

[00:37:04] Speaker 04:
Hart drove two 15-year-old girls to a remote area under a pretext and separated them, leading Diana away, committed a violent

[00:37:29] Speaker 04:
same location, knocked her down with a rock when she tried to flee.

[00:37:34] Speaker 04:
And as she called out to Diane while he was tearing her clothes off, he told her, you're a funny kid.

[00:37:41] Speaker 04:
I'm about to rape you, and all you can think about is your friend.

[00:37:48] Speaker 04:
Hart then forced Amy to orally copulate him and then sodomized and raped her.

[00:37:55] Speaker 04:
His actions and remarks

[00:38:02] Speaker 04:
In addition to that, it was also presented that Hart had committed five prior sexual violent assaults on five different women, targeting young women who were alone in their homes, forcibly assaulting them sometimes with the aid of a knife.

[00:38:20] Speaker 04:
The first two of these crimes, he entered the home or apartment of two women and violently attacked them

[00:38:30] Speaker 04:
though they were able to fight him off long enough to escape or to call for help.

[00:38:35] Speaker 04:
In one of these instances, he was carrying a rope, wire and knife in his pockets.

[00:38:40] Speaker 04:
In a third incident, he was caught prowling an apartment complex and attempting to open the window of a woman inside with the admitted intent to enter and rape her.

[00:38:52] Speaker 05:
Can I ask you another question?

[00:38:54] Speaker 05:
Just trying to get a sense of what

[00:39:02] Speaker 05:
You cited Walker.

[00:39:04] Speaker 05:
If there's an argument that Walker didn't address independence, should the court then rely on Bennett?

[00:39:43] Speaker 04:
authority on that issue but as far as I understand it Walker versus Martin did establish did establish the adequacy of the timeliness bar.

[00:40:08] Speaker 02:
Walker said that

[00:40:20] Speaker 02:
needed to be confronted.

[00:40:26] Speaker 04:
And it may not have been addressed in that case, but since the time of that case, it has not been disputed that timeliness has regularly upheld to have been an independent and adequate bar.

[00:40:56] Speaker 04:
And again, the minimal additional impeachment of Gresham did nothing to undermine the accuracy of his testimony, did nothing to undercut the other independent objective evidence that Hart killed his 11-year-old niece, and did absolutely nothing to undermine the seven other crimes in aggravation that the jury considered.

[00:41:19] Speaker 04:
after recounting the details of the crimes.

[00:41:22] Speaker 05:
Can you talk about Dr. Hunter for a second?

[00:41:26] Speaker 05:
I am a little bit wondering if we had a rule that if Brady material was not memorialized in writing but the prosecutors were aware of the problems and the potentially exculpatory information, if we required memorialization in writing with

[00:41:46] Speaker 05:
than to delay memorializing the information that they know.

[00:41:50] Speaker 05:
It could be exculpatory.

[00:41:53] Speaker 04:
It might, if there was any evidence that there was some kind of systematic suppression or purposeful attempt not to memorialize certain evidence.

[00:42:09] Speaker 04:
The Hunter evidence, though, did not actually occur until

[00:42:18] Speaker 04:
was only one potential instance that in 1985, in a particular trial, Dr. Hunter testified mistakenly transposed the location of a victim's injury from right side to left side and had to be refreshed with his own autopsy report.

[00:42:39] Speaker 04:
But this was not any kind of evidence that implicated his

[00:42:49] Speaker 04:
or honesty.

[00:42:51] Speaker 04:
It was simply his inaccuracy and testifying while on the stand.

[00:42:59] Speaker 04:
And so there there is no evidence that there was anything to, first of all that nothing was memorialized until after Hart's trial, but even before then there was no evidence that

[00:43:18] Speaker 05:
But do you think that should be the rule, that it has to be memorialized in writing?

[00:43:23] Speaker 04:
It is not, but there does have to be some evidence that prosecutors knew or should have known of something to – something impeaching about Hunter's qualities, qualifications, or credibility as an expert witness.

[00:43:39] Speaker 05:
So the government's position is it doesn't have to be memorialized in writing?

[00:43:42] Speaker 05:
Is that the government's position?

[00:43:46] Speaker 04:
If there is evidence of something that prosecutors could reasonably had to have known or shown to have known, which just wasn't the case here.

[00:43:57] Speaker 02:
Sir, are you saying if someone testified to a conversation, that would be enough?

[00:44:01] Speaker 02:
Yes.

[00:44:07] Speaker 04:
Coming back to the materiality of Gresham's, the Brady evidence regarding Gresham, there's no

[00:44:25] Speaker 02:
argument sort of in two layers, like one is the additional aspects of the deal wouldn't have changed the fact that the jury already knew there was a deal, and then the second layer is Gresham's testimony didn't really matter anyway because there was all this other evidence and all this other reason to give the death penalty.

[00:44:41] Speaker 02:
Is one of those stronger than the other in your view?

[00:45:05] Speaker 04:
It also was immaterial to what Russian testified to and whether that was accurate or independently corroborated.

[00:45:16] Speaker 04:
It was immaterial to the other evidence that showed Hart's involvement in Sheila's murder, and it was immaterial to the other evidence that showed Hart's involvement

[00:45:40] Speaker 03:
and you're talking here about the murder of a child, so it's hard for me at least to fully believe that

[00:46:15] Speaker 04:
year old girl.

[00:46:18] Speaker 04:
So in that context, this impeachment evidence was immaterial and the state court reasonably applied federal law in denying this claim.

[00:46:29] Speaker 04:
And unless there are any additional questions, I'm prepared to submit.

[00:46:35] Speaker 04:
Thank you.

[00:46:58] Speaker 01:
It was the murder of Hart's 11-year-old niece who his own children played with.

[00:47:04] Speaker 01:
Nothing could have been more aggravating than having this other murder that happened just six weeks after the Harper murder come before the jury.

[00:47:15] Speaker 01:
And here, it totally, the defense was that the Harper murder had been an aberration.

[00:47:21] Speaker 01:
That Mr. Hart had redeeming qualities.

[00:47:25] Speaker 01:
He had served in the military.

[00:47:34] Speaker 01:
had been without committing any further crimes for eight years after he had been released from Patton State Hospital.

[00:47:43] Speaker 01:
So to say for the state court to find that this evidence provided by Gresham directly putting in Hart's mouth that he had committed this murder and Harper's murder was certainly something that was material and that for the state court to find that it wasn't was unreasonable.

[00:48:05] Speaker 01:
I'd also like to talk briefly about the burden of proof and towards the procedural default.

[00:48:14] Speaker 01:
Under Bennett versus Mueller, it is now the government's burden to prove that the bar applies, not the petitioners.

[00:48:27] Speaker 02:
And unless there are any questions.

[00:48:29] Speaker 02:
I actually do have one more question.

[00:48:31] Speaker 02:
I've looked at all the

[00:48:38] Speaker 02:
every time Robbins is cited, Clark is also cited in all three.

[00:48:42] Speaker 02:
So I think earlier you were saying really they only relied on Robbins, but it seems like they relied on Robbins and Clark.

[00:48:48] Speaker 02:
So can you point to any argument you made that Clark was not independent and adequate?

[00:49:04] Speaker 01:
It specifically said that the reason it was taking the case was because of how the Clark had been applied inconsistently.

[00:49:15] Speaker 01:
So I think the California Supreme Court, in taking Robbins and Diego, itself acknowledged that Clark wasn't a bar that was being applied adequately.

[00:49:29] Speaker 01:
As I said earlier, I'm happy to submit for the briefing on it because it's not in the briefs.

[00:49:33] Speaker 01:
But that was the question that the California Supreme Court took on when it took these cases, Robinson and Diego.

[00:49:44] Speaker 02:
Unless there's any more questions.