[00:00:07] Speaker 00:
Good afternoon.

[00:00:08] Speaker 00:
May it please the court, CB Kirshner on behalf of Kyle Rodney.

[00:00:11] Speaker 00:
I would like to reserve five minutes for rebuttal.

[00:00:17] Speaker 00:
There are two reasons why the federal courts can consider the newly presented evidence in support of Mr. Rodney's ineffective assistance of trial counsel claim.

[00:00:26] Speaker 00:
First, Mr. Rodney satisfied the requirements of Section 2254E2 because he was diligent in attempting to develop

[00:00:36] Speaker 00:
the factual record in state court.

[00:00:39] Speaker 00:
Second, even if Mr. Rodney hadn't been diligent, his failure should be excused because he was without the assistance of counsel during his state post-conviction proceedings.

[00:00:51] Speaker 00:
Neither the clear holding of Shin versus Ramirez nor its rationale apply to Mr. Rodney's situation.

[00:00:57] Speaker 01:
Counsel, Judge Gould, if I could ask you a question please.

[00:01:02] Speaker 01:
What exactly did your counsel say to the court about whether you wanted an evidentiary hearing?

[00:01:16] Speaker 00:
Your Honor, Mr. Rodney did not explicitly request an evidentiary hearing.

[00:01:21] Speaker 00:
And that's because under the statutes in Nevada, an evidentiary hearing must automatically be considered by the judge before relief can be granted.

[00:01:31] Speaker 00:
So there was really no need for Mr. Rodney to request a hearing.

[00:01:34] Speaker 00:
It would have been redundant.

[00:01:36] Speaker 02:
But he did request both appointment of counsel for the purpose of investigating.

[00:01:41] Speaker 02:
Correct.

[00:01:42] Speaker 02:
That is for collecting evidence.

[00:01:46] Speaker 00:
Exactly, Your Honor.

[00:01:48] Speaker 02:
And that would be a predecessor to any evidentiary hearing, because under Nevada law, I think you need to have something to show before you can even get an evidentiary hearing.

[00:01:57] Speaker 00:
Yes, absolutely, Your Honor.

[00:01:58] Speaker 02:
Also, it's also true that under Shin,

[00:02:07] Speaker 02:
The evidence stands co-equally with an evidentiary hearing as to whether it's accessible or not accessible.

[00:02:17] Speaker 02:
So by asking to get the evidence, he was essentially asking for whatever edition says you're supposed to be doing.

[00:02:25] Speaker 00:
I agree, Your Honor.

[00:02:26] Speaker 00:
And he also requested counsel citing the need for discovery.

[00:02:30] Speaker 00:
And in Nevada, you don't have a right to discovery until an evidentiary hearing is scheduled.

[00:02:35] Speaker 00:
So by referencing the need for discovery, he was essentially referencing the need for an evidentiary hearing as well.

[00:02:42] Speaker 00:
And under this court's prior holding in Alberni, excuse me, Alberni versus McDaniel, just the fact that he requested counsel is sufficient to satisfy the due diligence standard of E2.

[00:02:55] Speaker 04:
So counsel, when he requested counsel at the first, at the direct appeal, that was denied, is that correct?

[00:03:02] Speaker 00:
So he requested alternate counsel, new counsel be appointed.

[00:03:05] Speaker 00:
And it was granted by the trial court, and then the Nevada Supreme Court reversed and insisted that trial counsel perfect the direct appeal as well, thus precluding my client's ability to raise any ineffectiveness claims during the direct appeal.

[00:03:20] Speaker 00:
But he did make that attempt at the onset.

[00:03:23] Speaker 00:
So really, he was as diligent as he could be.

[00:03:27] Speaker 00:
And he did identify this claim and specify that his attorney

[00:03:30] Speaker 00:
was ineffective for not calling an expert with regards to the victim's injuries, again, implying the need for an expert in post-conviction.

[00:03:38] Speaker 02:
It was not possible.

[00:03:39] Speaker 02:
Was that with regard to the first PCR or the second PCR?

[00:03:43] Speaker 00:
The first PCR, Your Honor.

[00:03:45] Speaker 00:
And certainly, there would be no way for him as an indigent, unrepresented, incarcerated petitioner to retain his own medical expert and present a medical report, which is what we were able to do in federal court, just as we were able to reach out to trial counsel

[00:04:00] Speaker 00:
and get a declaration from him explaining his actions, that also would be nearly impossible for an unrepresented petitioner.

[00:04:08] Speaker 04:
But counsel, you also, you did have an opportunity then to go through full discovery on the case when the case was remanded.

[00:04:20] Speaker 04:
So after you obtained all this new evidence, assuming the district court judge had reviewed the new evidence, how would that have changed the ineffective assistance of counsel?

[00:04:35] Speaker 04:
How is the new evidence relevant to your ineffective assistance of counsel claim?

[00:04:41] Speaker 00:
Your honor, it's relevant in several respects.

[00:04:43] Speaker 00:
First of all, absent the declaration from counsel, we would only be able to speculate about why trial counsel

[00:04:49] Speaker 00:
did or did not challenge the medical evidence, the medical testimony that was offered by the victim.

[00:04:57] Speaker 00:
But once the case was remanded and we had a chance to develop the factual basis, we were able to obtain a declaration from trial counsel who really acknowledged his failures and said, if I had known

[00:05:09] Speaker 00:
that there was a basis to challenge the medical testimony.

[00:05:12] Speaker 00:
I would have done it, and here's a list of things that I could have done.

[00:05:15] Speaker 04:
But how do you meet the second prong of this trial and test?

[00:05:19] Speaker 04:
Where's the prejudice?

[00:05:21] Speaker 00:
The prejudice is obvious here, Your Honor, because the victim's testimony was absolutely critical to the prosecution's case.

[00:05:28] Speaker 00:
He was really the only witness that established the alleged intent to kill for the attempted murder and conspiracy to commit murder charges.

[00:05:37] Speaker 00:
also substantial bodily injury because there was no medical evidence presented.

[00:05:41] Speaker 00:
Had trial counsel impeached Mr. Monco either directly with the medical records or through his own medical expert and shown not only that Mr. Monco was lying, but that he was lying on the stand in front of the jury, the jury would have had every reason to doubt the credibility and veracity of his entire testimony, which largely went uncooperated.

[00:06:04] Speaker 01:
And once that you're- I'll counsel Judge Gould if I get interjected.

[00:06:08] Speaker 01:
Please.

[00:06:09] Speaker 01:
Is it correct that your client swung a baseball bat and bashed the head of the victim?

[00:06:19] Speaker 00:
No, Your Honor.

[00:06:20] Speaker 00:
That is not correct.

[00:06:21] Speaker 00:
It was actually the co-defendant, Mr. Downing, that had the bat.

[00:06:25] Speaker 00:
It was also not a full-size baseball bat to the extent that it's relevant.

[00:06:30] Speaker 00:
It was hidden up his sleeve.

[00:06:32] Speaker 00:
It was described as a two-foot long bat.

[00:06:35] Speaker 00:
that I guess is used in fishing is what the testimony was.

[00:06:38] Speaker 00:
I'm not a fisherman, so I don't know.

[00:06:40] Speaker 00:
But the witness Ashley Womack, who was in the car, said she didn't even know Mr. Downing had the bat until he pulled it out of his sleeve.

[00:06:49] Speaker 00:
So obviously not a full-size bat.

[00:06:52] Speaker 00:
But she said very clearly in her testimony that she never saw Mr. Rodney, my client, with any weapon and never saw him strike a single blow.

[00:07:00] Speaker 02:
She also said she was looking away a fair amount.

[00:07:02] Speaker 00:
She did.

[00:07:03] Speaker 02:
And somebody had a knife.

[00:07:06] Speaker 00:
It's unclear.

[00:07:07] Speaker 00:
There were witnesses that said the injuries looked consistent with the knife.

[00:07:12] Speaker 00:
There was no expert who said a knife was used.

[00:07:16] Speaker 00:
So really, that testimony also only came from the victim.

[00:07:19] Speaker 00:
But certainly, he was injured.

[00:07:20] Speaker 00:
We're not disputing.

[00:07:22] Speaker 00:
that he was assaulted, he was injured.

[00:07:25] Speaker 00:
But the intent to kill that's relevant for both attempted murder and conspiracy to commit charges, that was really only established by the victim himself.

[00:07:37] Speaker 02:
We're essentially relying on this medical testimony, not for itself, but for the credibility of the witness as to what happened to him.

[00:07:47] Speaker 00:
Yes.

[00:07:48] Speaker 00:
I think this amount of the injuries themselves are also relevant to whether there was this substantial bodily harm for- As to that issue, there actually hasn't been a COA granted, is that right?

[00:08:01] Speaker 00:
That's correct, Your Honor.

[00:08:02] Speaker 00:
The district court did something very unusual and granted the COA on this claim as to the attempt murder and conspiracy to murder charges, but not to the remaining charges.

[00:08:15] Speaker 00:
I'm not sure how that

[00:08:17] Speaker 00:
is workable in the long run.

[00:08:19] Speaker 00:
I'm not aware of this court ever finding ineffective assistance of trial counsel for certain charges, but not other charges.

[00:08:27] Speaker 00:
If Mr. Rodney had ineffective counsel, then counsel was ineffective throughout the entire trial, not with regards to one or two charges.

[00:08:36] Speaker 00:
But yes, that is what the district court said.

[00:08:39] Speaker 01:
Counsel, let me tell you what is bothering me about your client's defense.

[00:08:44] Speaker 01:
And correct me if I'm wrong in this, but as I understand it, whether your client swung the bat or whether it was swung by Dowling, by his co-conspirator, he could be equally liable, or he could be liable for attempted murder, for aiding and abetting his pal.

[00:09:11] Speaker 01:
right?

[00:09:12] Speaker 01:
That's the first point.

[00:09:14] Speaker 01:
Second point is I don't really see a difference if the bat is a full-size

[00:09:22] Speaker 01:
a full-size bat like for baseball.

[00:09:25] Speaker 01:
It's a little short bat, as you described, like the kind they use in fishing to kill fish.

[00:09:34] Speaker 01:
The reason is that in fishing, because I used to fish years ago, we used those little short

[00:09:43] Speaker 01:
that's to kill the fish after they were in the boat so they wouldn't jump around and screw things up and sometimes they're weighted they're short but weighted with lead

[00:10:00] Speaker 01:
be more effective.

[00:10:01] Speaker 01:
So either way, whatever kind of bad it was, it seems to me it's because people were held to the natural and probable consequences of their acts.

[00:10:14] Speaker 01:
It looks to me like your client or his co-conspirator or your client through his co-conspirator had an intent to kill.

[00:10:26] Speaker 00:
Your Honor, I'm glad you brought up both those points.

[00:10:29] Speaker 00:
With regards to the size of the bat, really to the extent that it has any importance is that if Ms.

[00:10:35] Speaker 00:
Womack did not see it and did not know that Mr. Downing had this bat until he pulled it out from his sleeve where it was- What's the difference?

[00:10:43] Speaker 02:
Why does that matter?

[00:10:44] Speaker 00:
Because it calls into question whether or not my client, Mr. Rodney, knew that his co-defendant had that bat either until he produced it.

[00:10:52] Speaker 02:
But there clearly had to be another weapon as well.

[00:10:56] Speaker 02:
and it appears to have been a knife because he was all cut up and he needed stitches all over his face and head because he was sliced up is my understanding.

[00:11:06] Speaker 02:
Now I, well go ahead and then I have a question.

[00:11:10] Speaker 00:
Well I'm not sure that it goes without saying that there was a knife.

[00:11:13] Speaker 00:
People can receive lacerations from other types of assaults.

[00:11:19] Speaker 00:
But as to Judge Gould's question about conspiracy and aiding and abetting liability,

[00:11:25] Speaker 00:
In Nevada, both the jury instructions and the statutes are very clear that even when you are charged under a vicarious theory of liability, those charges, as it pertains to attempt murder and conspiracy to commit murder, still require specific intent be proven on the part of the defendant being tried.

[00:11:44] Speaker 00:
So even if Mr. Downing had that intent, the jury would have had to believe

[00:11:49] Speaker 00:
that my client, Mr. Romney, had the specific intent to kill before he could be convicted, even under a vicarious theory of liability.

[00:12:01] Speaker 04:
But weren't the injuries that the victims sustained enough to show that intent?

[00:12:07] Speaker 04:
I mean, if you go through the trial testimony, it was not just his testimony, but the types of injuries, the fact that he was left unconscious, he was bleeding, left in a pool of blood.

[00:12:20] Speaker 04:
I just don't see, I'm having trouble seeing how the additional evidence that you were able to discover after the remand would have contradicted or helped your client's case during the trial.

[00:12:37] Speaker 00:
Because it shows that the testimony presented at trial regarding the injuries was largely falsified, that he certainly had some injuries

[00:12:45] Speaker 00:
He did not suffer brain damage.

[00:12:47] Speaker 00:
He was not near death.

[00:12:48] Speaker 02:
Well, he did have a concussion.

[00:12:50] Speaker 02:
He did, according to other people, become unconscious later as well as then.

[00:12:58] Speaker 02:
That's a form of brain damage.

[00:13:01] Speaker 02:
It may not have been permanent, but it was brain damage.

[00:13:07] Speaker 02:
He did say in the existing records that he was numb on one side to the doctor, that he did say that.

[00:13:18] Speaker 02:
As to the seizures, that was kind of unclear.

[00:13:21] Speaker 02:
He testified that he saw other doctors and no one's ever gone to find any evidence about what he told other doctors.

[00:13:29] Speaker 00:
We certainly tried, Your Honor, and at this point I would argue that that was on the respondents, that they had additional medical records

[00:13:37] Speaker 00:
supporting Mr. Monco's testimony.

[00:13:39] Speaker 02:
But in general, what he did was exaggerate a lot.

[00:13:42] Speaker 02:
He said he had hundreds of stitches and he had 52 stitches.

[00:13:45] Speaker 02:
52 stitches is still a lot of stitches.

[00:13:48] Speaker 00:
It is.

[00:13:48] Speaker 00:
He also claimed that when he went back and was readmitted to the hospital with the MRSA infection, that that was related to this initial assault.

[00:13:56] Speaker 02:
Well, actually, it probably was, because a MRSA infection probably came from being in the hospital first.

[00:14:01] Speaker 00:
But that's not what the medical records stated.

[00:14:03] Speaker 02:
They didn't say it one way or the other way, but Mercer infections, as I understand it, ordinarily come from the hospital.

[00:14:08] Speaker 00:
They certainly can, but he told the jury that the Mercer infection was close to spreading and killing him, and there was no evidence of that, that the medical records showed that it was likely from a bug bite or an inflamed hair follicle.

[00:14:24] Speaker 00:
that had nothing to do with the original assault.

[00:14:26] Speaker 02:
But the real question is, if you take all that away and you use what the actual records show, and this is my question, by the way, how come we don't have the photographs?

[00:14:36] Speaker 02:
I'm sorry, Your Honor?

[00:14:37] Speaker 02:
We don't seem to have the photographs and the record.

[00:14:42] Speaker 00:
I did not include them in the ER.

[00:14:44] Speaker 00:
I would actually have to check whether they were filed by the state in district court.

[00:14:50] Speaker 00:
In district court, the state is responsible, excuse me, respondents are responsible.

[00:14:53] Speaker 00:
for filing the state court record.

[00:14:56] Speaker 00:
I'm not sure what they included and didn't include as far as the photographs off the top of my head.

[00:15:01] Speaker 02:
Well, I will ask both attorneys that I really would like to see those photographs.

[00:15:05] Speaker 02:
And I don't understand why we don't have them.

[00:15:08] Speaker 02:
Because they were shown to the jury, repeatedly, as I understand it.

[00:15:11] Speaker 00:
Yes, Your Honor.

[00:15:12] Speaker 02:
All right, so assuming that the district court said they showed, which I don't know because they don't have them, they seem to show that he did have a permanent scar.

[00:15:29] Speaker 02:
He did have some injuries to his eyes.

[00:15:37] Speaker 02:
Apparently these markers would demonstrate that he was bleeding around his eyes and so on.

[00:15:43] Speaker 02:
That's according to the expert who submitted.

[00:15:48] Speaker 02:
So it appears that he had quite serious head and skull injuries.

[00:15:55] Speaker 02:
He did have several facial fractures.

[00:16:00] Speaker 02:
He had nose fractures, et cetera.

[00:16:04] Speaker 00:
He did your honor.

[00:16:06] Speaker 00:
And I think the most important facts are this.

[00:16:09] Speaker 00:
Um, one, he was the only witness to testify to one of the defendants saying to him, we're killing you.

[00:16:15] Speaker 00:
You're dead now.

[00:16:16] Speaker 00:
No one else heard this.

[00:16:18] Speaker 00:
So his credibility was very key as far as that happening because it would go to the existence of intent.

[00:16:25] Speaker 00:
What Ms.

[00:16:25] Speaker 00:
Womack heard was my client, Mr. Rodney saying, stop, I've got it.

[00:16:30] Speaker 00:
Let's go.

[00:16:31] Speaker 00:
presumably referring to the money showing that he had intent to commit a robbery.

[00:16:37] Speaker 00:
But it does not show an intent to kill for the attempted murder and conspiracy to commit murder charges.

[00:16:43] Speaker 02:
Okay, you're actually behind your time, so.

[00:16:46] Speaker 02:
I am.

[00:16:46] Speaker 02:
Thank you, and we will give you two minutes to repel.

[00:16:49] Speaker 00:
Thank you, Your Honors.

[00:17:14] Speaker 03:
Thank you.

[00:17:17] Speaker 03:
Good afternoon and may it please the court.

[00:17:19] Speaker 03:
Deputy Attorney General Elsa Felgar on behalf of respondents in this matter.

[00:17:24] Speaker 03:
We ask that this court affirm the decision from the federal district court and hold that Rodney is not entitled to habeas relief.

[00:17:33] Speaker 03:
This is for two reasons.

[00:17:35] Speaker 03:
First, Shinvi Ramirez precludes the consideration of new evidence.

[00:17:41] Speaker 03:
And second, Ronnie's ineffective assistance of counsel claim is not substantial, and therefore he fails to meet the Martinez v. Ryan standard in order to overcome the procedural bars.

[00:17:53] Speaker 03:
I'll start with issue one.

[00:17:55] Speaker 02:
But we could, couldn't we, skip all of that and simply decide that his IAC claim fails on the merits?

[00:18:02] Speaker 03:
That's correct, Your Honor.

[00:18:05] Speaker 02:
With or without the additional evidence?

[00:18:07] Speaker 03:
That's correct.

[00:18:09] Speaker 03:
I will start with issue one unless this court has any other questions.

[00:18:14] Speaker 03:
So Shinvi Ramirez precludes consideration of new evidence.

[00:18:18] Speaker 03:
Ramirez forecloses using Martinez to develop new evidence unless the petitioner can satisfy 2254E2.

[00:18:27] Speaker 03:
And that's because Martinez addressed a very specific kind of claim, which is ineffective assistance of trial counsel.

[00:18:36] Speaker 03:
The holding was limited.

[00:18:39] Speaker 03:
because this is an equitable judgment and that ineffective assistance of trial counsel claims were deemed uniquely important.

[00:18:47] Speaker 03:
So the focus was on being able to raise the claim itself.

[00:18:51] Speaker 02:
Well, a claim usually is

[00:18:57] Speaker 02:
a statement of facts and law, and for some reason they've been now torn apart, so that the factual record is not part of the claim.

[00:19:06] Speaker 02:
I would have thought it was part of the claim, but that seems to be where we are after Shin.

[00:19:10] Speaker 03:
Go ahead.

[00:19:15] Speaker 03:
The petitioner can still develop evidence in state court even if the petitioner is pro se.

[00:19:28] Speaker 02:
The premise of Martinez is that he really can't without, he has no lawyer and that's why Martinez came out the way it did.

[00:19:37] Speaker 02:
So essentially it seems to me that Shane has, especially if read as broadly as you would read it, eliminates Martinez.

[00:19:45] Speaker 02:
So one possibility is that it doesn't because

[00:19:49] Speaker 02:
It was concerned with an effective assistance of counsel claims, which are more complicated and become very overlapping.

[00:19:58] Speaker 02:
And if the person has no lawyer at all, and as here did try to get a lawyer and did try

[00:20:04] Speaker 02:
and said why he wanted a lawyer, which was to develop evidence, which he had to do in order to get an evidentiary hearing.

[00:20:10] Speaker 02:
And there is a now Bernie opinion, which does say that that's sufficient to be a lack of fault.

[00:20:17] Speaker 02:
Why isn't that at least a way of reading Shin, which doesn't accuse the court of having overruled Martinez without saying so?

[00:20:27] Speaker 03:
Well, if I understand your question, this court lacks equitable authority in order to amend the statute, which is 254E2.

[00:20:38] Speaker 02:
And Shinvi Ramirez really brings home that point that- All right, but everybody agrees that there is a fault component to E2 at the outset.

[00:20:49] Speaker 03:
I'm sorry, could you repeat that?

[00:20:49] Speaker 02:
That there is a fault component to E2 at the outset.

[00:20:53] Speaker 02:
Yes.

[00:20:53] Speaker 02:
Which the Michael Williams case was very clear about and which

[00:20:56] Speaker 02:
shouldn't be reinforced.

[00:20:58] Speaker 02:
So the going in question is whether this person was at fault for the record not being developed.

[00:21:05] Speaker 03:
And under Williams v. Taylor, the petitioner is still at fault, even if he doesn't have counsel.

[00:21:13] Speaker 03:
And that has been well established.

[00:21:16] Speaker 04:
But what if he continued in this case to ask for a new council and to ask for, even at the trial level, wanted to dismiss this current council because the current council was ineffective.

[00:21:31] Speaker 04:
And so I don't know, what else could he have done to be diligent pursuant to the 2254E2 section?

[00:21:40] Speaker 03:
Well, he would have had to plead facts that, if true, would have entitled him to relief.

[00:21:47] Speaker 03:
That's the standard in Nevada.

[00:21:49] Speaker 03:
And the court determined that he did not.

[00:21:52] Speaker 03:
And therefore, an evidentiary hearing was improper.

[00:21:58] Speaker 03:
Here, in his first post-conviction petition, he stated that counsel never presented any expert witnesses with regard to the wounds.

[00:22:10] Speaker 04:
Is your position that he was diligent, but because of the extent of the injuries, then the claim was not substantial under Martinez?

[00:22:30] Speaker 03:
No, Your Honor.

[00:22:30] Speaker 03:
My stance currently is that he was not diligent in state court.

[00:22:38] Speaker 03:
And he wasn't diligent because he pled bare claim.

[00:22:45] Speaker 03:
He stated simply that counsel never presented expert witnesses.

[00:22:50] Speaker 02:
And he said, why?

[00:22:51] Speaker 02:
He said, because I can't investigate this from prison, and that's why I need a lawyer.

[00:22:58] Speaker 03:
He didn't state that in his petition.

[00:23:00] Speaker 03:
I thought, yes, you did.

[00:23:02] Speaker 03:
And even if he did, that's still not enough for him to, he didn't plead the facts that he needed to in order to show that there were facts that were at issue.

[00:23:19] Speaker 03:
He had to show that there was some contradictory facts and therefore it prompts the district court

[00:23:29] Speaker 03:
for an evidentiary hearing, because now there are facts that are at issue.

[00:23:32] Speaker 03:
And there's no specific language that he had to use necessarily.

[00:23:38] Speaker 03:
But he did have to at least present facts that he believed were in contradiction with what happened at trial.

[00:23:48] Speaker 03:
And that just didn't happen here.

[00:23:50] Speaker 03:
And he didn't follow up.

[00:23:57] Speaker 02:
Meaning he had a name and... This is what the state court said.

[00:24:02] Speaker 02:
He had a name and expert who he could have used.

[00:24:06] Speaker 02:
Is that what he was supposed to do?

[00:24:08] Speaker 03:
That could have been one of the things that he could have done.

[00:24:10] Speaker 02:
And he was supposed to do that while he was incarcerated in prison?

[00:24:12] Speaker 02:
Find some expert.

[00:24:14] Speaker 03:
Not to find an expert, Your Honor.

[00:24:16] Speaker 02:
No?

[00:24:17] Speaker 03:
No.

[00:24:17] Speaker 03:
He was... If he had...

[00:24:21] Speaker 03:
Because he was at trial, he knew what was presented, and if he felt like there should have been... But he didn't know it wasn't presented.

[00:24:30] Speaker 02:
This was not within his knowledge.

[00:24:34] Speaker 02:
He knew that the... Now, his lawyer did have all of the medical records from this one hospital.

[00:24:42] Speaker 02:
Whether there were other medical records, no one seems to know.

[00:24:49] Speaker 02:
We have no knowledge that he had the medical records.

[00:24:52] Speaker 02:
And his lawyer was quite uncooperative, even after the fact when he did have a lawyer.

[00:24:57] Speaker 02:
So how was he going to deal with it without a lawyer?

[00:25:00] Speaker 02:
His original lawyer, when the eventual lawyers tried to get material from him, including the medical records, was not cooperative.

[00:25:12] Speaker 03:
I understand.

[00:25:12] Speaker 03:
And it comes back to the fact that he never pled those facts.

[00:25:18] Speaker 02:
I understand that, but where was he supposed to get the facts from?

[00:25:21] Speaker 02:
He said that he needed a lawyer so he could investigate and get the facts.

[00:25:27] Speaker 03:
He didn't need to point to a specific expert.

[00:25:31] Speaker 03:
He didn't need to point to specific medical records.

[00:25:34] Speaker 03:
He didn't need to know the name of the expert, for instance.

[00:25:38] Speaker 03:
He just simply needed to show that there was a reason

[00:25:42] Speaker 02:
I mean, that's a sensible requirement if the facts are facts having to do with what he did and what he knew.

[00:25:50] Speaker 02:
But these are facts about the medical records of somebody else and the medical situation of somebody else.

[00:25:58] Speaker 02:
How is he supposed to allege anything except by making it up?

[00:26:03] Speaker 03:
Well, he was able to write his petition.

[00:26:09] Speaker 03:
And he stated that there was something to do with the victim's wounds.

[00:26:16] Speaker 03:
If he was concerned with the credibility of the victim, then he could have alleged facts regarding the medical records that would have called into question the... By making them up?

[00:26:35] Speaker 03:
By speculating?

[00:26:36] Speaker 03:
By doing what?

[00:26:38] Speaker 03:
No, Your Honor.

[00:26:39] Speaker 03:
by simply having those concerns.

[00:26:44] Speaker 03:
If he truly believed, like he does now, that there was some additional evidence that could have helped his claim, then he could have raised that in state court, but he did not.

[00:26:58] Speaker 02:
And so what he's saying- Well, what's an example of something he could have said from his own knowledge that could have been helpful with regard to the medical situation?

[00:27:09] Speaker 03:
He could have said something along the lines of that the victim, for instance, lied and medical records would show that.

[00:27:22] Speaker 03:
Something along those lines.

[00:27:23] Speaker 02:
But he wouldn't know that if he hadn't seen the medical records.

[00:27:27] Speaker 03:
But he did know that the victim exaggerated, I believe.

[00:27:32] Speaker 03:
I believe that that was something that he had known or that he was alerted to that.

[00:27:40] Speaker 03:
And so he could have simply, oh, I'm sorry, Your Honor.

[00:27:44] Speaker 01:
Council, let me ask you a short question, I hope, short answer, from a different angle.

[00:27:54] Speaker 01:
What's the government's position?

[00:27:57] Speaker 01:
as to the best evidence in the record that was admitted that shows an intent to kill.

[00:28:09] Speaker 03:
I believe it was the photographs.

[00:28:12] Speaker 02:
Where are the photographs?

[00:28:14] Speaker 03:
They were, I believe, in the district court record.

[00:28:17] Speaker 03:
We don't have them.

[00:28:19] Speaker 03:
And I apologize.

[00:28:20] Speaker 02:
And if you think that's the best evidence, you should think he would have given them to us.

[00:28:23] Speaker 03:
And I apologize, Your Honor.

[00:28:26] Speaker 03:
Would you do that, please?

[00:28:28] Speaker 03:
Yes, we can do that.

[00:28:29] Speaker 03:
Absolutely.

[00:28:30] Speaker 03:
And that truly does show when the jury saw those photographs.

[00:28:37] Speaker 03:
And I think also, not just the photographs, we can take that aside.

[00:28:41] Speaker 03:
And you just look at the victim who testified and showed his scar.

[00:28:45] Speaker 03:
The jury was in that room.

[00:28:47] Speaker 03:
and saw the scar and heard the victim's voice and heard what he had to say.

[00:28:52] Speaker 03:
And they still found him credible.

[00:28:54] Speaker 03:
And that was for the jury to decide.

[00:28:56] Speaker 02:
Did it come out in trial?

[00:28:57] Speaker 02:
I think it did.

[00:28:58] Speaker 02:
That when he said there were hundreds of stitches there, it worked.

[00:29:03] Speaker 03:
Right.

[00:29:03] Speaker 03:
Right.

[00:29:04] Speaker 03:
But that's not material.

[00:29:08] Speaker 03:
The specific number, the fact that he got stitches is what was material.

[00:29:14] Speaker 03:
And he didn't lie about that material fact.

[00:29:18] Speaker 03:
And in addition, the seizures and the numbness and the sense of smell and taste, I mean, he testified to that five months later.

[00:29:30] Speaker 03:
And really, we have medical records here that are from the incident or two weeks later.

[00:29:37] Speaker 03:
It's possible that he never said that to the doctor.

[00:29:41] Speaker 03:
It appeared later.

[00:29:42] Speaker 04:
I'm sure you saw the newly discovered evidence that was not considered by the district court, but what is your position on that?

[00:29:55] Speaker 04:
Had the district court reviewed that newly discovered evidence and considered it, would the district court have reached the same decision?

[00:30:02] Speaker 03:
Yes, because that new evidence doesn't really matter here.

[00:30:06] Speaker 03:
It doesn't add anything that the district court didn't, or that the district court did consider, which was like a 12 page, I believe, 12 page medical report.

[00:30:17] Speaker 03:
But whatever happened two weeks later with the infection, for instance, that doesn't go to attempt murder.

[00:30:27] Speaker 03:
Attempt murder is how the weapon, can be how the weapon was used during the commission of the crime.

[00:30:37] Speaker 03:
For instance, a bat to the back of the head or multiple blows to the head, that can be considered attempted murder.

[00:30:45] Speaker 03:
A knife to the face can be considered attempted murder.

[00:30:48] Speaker 04:
Anything about the new evidence that would contradict any of that testimony or put into question any of that evidence?

[00:30:56] Speaker 03:
I don't believe so.

[00:30:58] Speaker 03:
The material facts, I'm not talking about the specifics about stitches or little things that maybe the victim had said.

[00:31:12] Speaker 03:
I'm talking about mainly material facts and the large scope.

[00:31:16] Speaker 03:
No, it would not have.

[00:31:18] Speaker 03:
It doesn't add anything and it doesn't really matter because at the end of the day we have to look at what the intent was and the way that the knife went to the head, a bat to the neck, and also the fact that

[00:31:34] Speaker 03:
Rodney and Downing walked up together to the house.

[00:31:40] Speaker 03:
Womack drove him, both of them, and then they both walked out, and they were together during this attack.

[00:31:48] Speaker 03:
And that shows conspiracy and intent, or I'm sorry, yes, attempted murder.

[00:31:55] Speaker 03:
And therefore, any additional medical record evidence doesn't really go to that, and it doesn't matter here.

[00:32:04] Speaker 01:
Council, I have another question, please.

[00:32:06] Speaker 01:
Yes.

[00:32:07] Speaker 01:
As I understood it, and correct me if I'm wrong, the AEDPA applies to this case.

[00:32:17] Speaker 03:
Yes, Your Honor.

[00:32:19] Speaker 01:
So in your argument,

[00:32:21] Speaker 01:
Is there any significance to that statute, the AADPA, as to whether there's a right to a habeas petition here?

[00:32:35] Speaker 03:
Well, this court would have to give deference to the state court.

[00:32:41] Speaker 03:
So that would be the...

[00:32:44] Speaker 03:
the most important and major function of EDPA.

[00:32:49] Speaker 03:
And so here, the findings... Well, wait a minute.

[00:32:52] Speaker 02:
We don't have to give deference because they didn't decide this question.

[00:32:56] Speaker 02:
I mean, as to issues they didn't decide, we don't give them deference.

[00:33:00] Speaker 02:
I mean, the whole argument for having a Martinez cause and prejudice is that it was defaulted in state court.

[00:33:12] Speaker 02:
So the state court didn't decide the trial court IEC claim because they said it was defaulted.

[00:33:20] Speaker 02:
So there's no EDPA deference here.

[00:33:22] Speaker 02:
The relevance of EDPA is 2254E2, right?

[00:33:26] Speaker 02:
Which is an EDPA provision.

[00:33:28] Speaker 03:
Yes, Your Honor.

[00:33:29] Speaker 03:
I apologize, yes.

[00:33:32] Speaker 03:
And I see that I am out of time.

[00:33:34] Speaker 02:
Okay, thank you very much.

[00:33:35] Speaker 03:
Thank you, Your Honors.

[00:33:51] Speaker 00:
Good afternoon.

[00:33:52] Speaker 00:
Briefly, I would refer this court to the expert medical report that was presented in the district court, where it was stated that Mr. Monco's cuts were described as superficial lacerations, and that ultimately he did not suffer any injuries that were life-threatening.

[00:34:11] Speaker 02:
But that's not required.

[00:34:13] Speaker 02:
That's not a useful conclusion for you, because neither the battery claim for substantial

[00:34:21] Speaker 02:
harm or the intent to kill requires life-threatening injuries, does it?

[00:34:26] Speaker 00:
No, it would certainly be evidence of an intent to kill.

[00:34:29] Speaker 00:
The only evidence here of my client's intent was this statement, you're dead, we're killing you now.

[00:34:36] Speaker 00:
Mr. Monco was the only person that heard that statement.

[00:34:39] Speaker 00:
His credibility was therefore absolutely key to the prosecution's case.

[00:34:45] Speaker 00:
As my opposing counsel stated, the photographs and Mr. Monco's testimony

[00:34:49] Speaker 00:
were the evidence of intent to kill.

[00:34:52] Speaker 00:
And if the jury had known that Mr. Monco had lied about the extent of his injuries, known that he had lied.

[00:34:59] Speaker 02:
The lie is kind of a strong word in the sense that he exaggerated, no doubt about it.

[00:35:05] Speaker 02:
But lies suggest that he had some motive.

[00:35:07] Speaker 02:
He didn't really have a motive.

[00:35:08] Speaker 02:
I mean, he just was a slightly hysterical person, as far as one could tell.

[00:35:14] Speaker 02:
But he certainly was quite severely injured, however you look at it.

[00:35:19] Speaker 00:
Injured, yes.

[00:35:20] Speaker 00:
The severity would have been clear based on a medical expert report, which was not presented at trial.

[00:35:28] Speaker 00:
And to the extent that there is still doubt in this court about the extent of the injuries, about whether there are other medical records still floating around out there that we haven't received as part of discovery, and whether the expert report would go to whether he was exaggerating or lying,

[00:35:46] Speaker 00:
then we would ask that the case be remanded for an evidentiary hearing, which is permissible under E2.

[00:35:53] Speaker 00:
Thank you, Your Honor.

[00:35:54] Speaker 02:
Thank you very much.

[00:35:55] Speaker 02:
Thank you both for your useful arguments.

[00:35:58] Speaker 02:
And the case of Rodney versus Garrett is submitted, but I really would like to see those photographs.