[00:00:03] Speaker 04:
Good afternoon, your honors.

[00:00:05] Speaker 04:
I'm Richard Ellis, representing the petitioner appellant, Mr. Sterling Atkins, Jr.

[00:00:09] Speaker 04:
And may it please the court.

[00:00:11] Speaker 04:
With the court's permission, I would like to reserve five minutes of my time for rebuttal.

[00:00:15] Speaker 04:
This is a capital habeas action challenging Mr. Atkins' conviction in 1995 in sentence of death for the murder of Ebony Mason.

[00:00:24] Speaker 04:
And we were asking this court to reverse the district court's denial of Mr. Atkins' habeas petition and grant relief.

[00:00:32] Speaker 03:
Okay, Council, let me just mention, if you want to make five minutes of rebuttal, please try to stop your initial argument before all your time's used up.

[00:00:43] Speaker 04:
Thank you, Your Honor.

[00:00:44] Speaker 04:
I will do that.

[00:00:46] Speaker 01:
So we're in EDPA land, correct?

[00:00:48] Speaker 04:
Excuse me, Your Honor?

[00:00:49] Speaker 01:
This is EDPA controlled, correct?

[00:00:51] Speaker 04:
Yes.

[00:00:53] Speaker 04:
The district court granted five COAs on five issues or partial issues.

[00:00:58] Speaker 04:
What we have here is nothing less than an extreme malfunction of the state criminal justice system that the great writ is intended to correct.

[00:01:06] Speaker 04:
The facts underlying the trial performance of defense counsel

[00:01:10] Speaker 04:
are both straightforward and indeed shocking.

[00:01:13] Speaker 04:
Atkins was represented at trial by two attorneys, one of whom was practically fresh out of law school and had never previously tried a case.

[00:01:21] Speaker 04:
And lead counsel, Ms.

[00:01:22] Speaker 04:
Malia, accepted the appointment only six days prior to trial.

[00:01:26] Speaker 04:
And two of those days were devoted to another case.

[00:01:30] Speaker 04:
Although Ms.

[00:01:30] Speaker 04:
Malia had some involvement in the case much earlier, it was only as junior counsel at the brief preliminary hearing 10 months prior to trial.

[00:01:40] Speaker 04:
This is not a case where a counsel was picking up a fully prepared case and not only to present it.

[00:01:46] Speaker 04:
As a former attorney, Mr. Segros was working exclusively on another capital case when he was replaced in Mr. Atkins' case.

[00:01:55] Speaker 04:
This unpreparedness is evidenced by the belated evaluation of the mental health expert, Dr. Colissimo, the absence of any defense to the charges,

[00:02:04] Speaker 04:
the extremely truncated and misleading mitigation case composed of only four witnesses, two experts who testified unfavorably to Atkins, and only 14 pages of mitigation testimony on direct from two family members.

[00:02:20] Speaker 04:
On the opening day of the trial, she had not yet read the jury questionnaires, was left with only a half hour to review them over lunch.

[00:02:29] Speaker 04:
And the defense had not yet obtained their client's medical records.

[00:02:32] Speaker 04:
By any reasonable standard, Mr. Atkins had virtually no defense, either at guilt or punishment.

[00:02:38] Speaker 04:
The deficient performance of Ms.

[00:02:39] Speaker 04:
Malia continued onto the appeal, which she handled, and where she failed to raise a claim about the jury instruction.

[00:02:47] Speaker 04:
I'd like to discuss the jury instruction issue first, if I may.

[00:02:50] Speaker 01:
That's your second certified issue, correct?

[00:02:52] Speaker 04:
Yes, that's correct, Your Honor.

[00:02:55] Speaker 01:
Why don't you move to that?

[00:02:58] Speaker 01:
I think in state court, Mr. Atkins raised a claim of ineffective assistance of counsel for failure to raise prosecutorial misconduct.

[00:03:08] Speaker 01:
in the cross-examination of Mr. Hardin, is that sufficient to exhaust the claim in federal court alleging instructional error?

[00:03:19] Speaker 01:
That's what I'm having a problem with there.

[00:03:21] Speaker 01:
And I think then, how did Seacrest, which I guess was decided in 2008, really change the legal basis of Mr. Atkins' claim?

[00:03:34] Speaker 01:
So I think there's a strong argument that you didn't ever really exhaust it.

[00:03:39] Speaker 04:
Well, Your Honor, it was exhausted.

[00:03:42] Speaker 04:
Basically, what happened, it was an issue.

[00:03:45] Speaker 01:
Well, how did you exhaust that claim?

[00:03:46] Speaker 01:
Because that's what I, am I wrong in reading the records saying you were dealing with a prosecutorial misconduct and cross-examination of Mr. Hardin?

[00:03:56] Speaker 01:
I didn't see that you really, that you raised what you're raising here.

[00:04:01] Speaker 04:
Yes, the district court held that this claim was originally brought as IAC for failure to raise the claim on appeal.

[00:04:10] Speaker 04:
But the Nevada Supreme Court addressed that.

[00:04:12] Speaker 04:
And also, they addressed the underlying claim on the merits.

[00:04:16] Speaker 04:
So therefore, we're arguing it is exhausted.

[00:04:19] Speaker 04:
The district court held that the substantive claim, the faulty jury instruction, was defaulted.

[00:04:25] Speaker 04:
But the IAC of appellate counsel was denied on the merits there.

[00:04:29] Speaker 04:
Malia was the appellate counsel.

[00:04:32] Speaker 04:
She failed to raise it.

[00:04:34] Speaker 04:
She could not be expected to raise it on appeal against herself.

[00:04:37] Speaker 04:
So what we have here is the failure basically to, well, getting back to the claim itself,

[00:04:47] Speaker 02:
So I just want to clarify, you are conceding that the underlying substantive claim based on the jury instructions was defaulted?

[00:04:56] Speaker 04:
No, we're not.

[00:04:56] Speaker 04:
We're arguing that it was decided when the Nevada Supreme Court decided this issue, they decided

[00:05:04] Speaker 04:
They decided that there was no ineffective assistance on appeal because the underlying instruction was correct.

[00:05:15] Speaker 02:
You're saying that's effectively a ruling on the merits.

[00:05:18] Speaker 04:
Yes, that was a ruling on the merits and that was incorrect.

[00:05:22] Speaker 04:
It ignored clearly established federal law.

[00:05:25] Speaker 04:
under Caldwell, Simmons, Gardner, et cetera.

[00:05:29] Speaker 02:
So we have case law saying that raising the ineffective counsel claim does not exhaust the underlying substantive claim.

[00:05:38] Speaker 02:
Do you have a case that says if the state court rules on the ineffective assistance of counsel claim based on their evaluation of the merits, that that is enough?

[00:05:52] Speaker 04:
Yes, well, we do think it's enough.

[00:05:55] Speaker 04:
There are some cases.

[00:05:56] Speaker 04:
What's your best case for that?

[00:05:58] Speaker 04:
I think that well, there is a Supreme Court case under

[00:06:14] Speaker 04:
There's a Supreme Court case that says when the court reaches the merits, that that exhausts the claim.

[00:06:24] Speaker 02:
But I guess I understand is that in the context of the particular scenario that we're talking about.

[00:06:32] Speaker 02:
Because I'm trying to reconcile our precedent that says pretty clearly,

[00:06:38] Speaker 02:
exhausting the ineffective assistance of counsel claim does not exhaust the underlying substantive claim.

[00:06:49] Speaker 04:
Well, it doesn't, but I think when they've already reached the merits, it does.

[00:06:54] Speaker 02:
So do you have a case that it says that so long, even when the only claim that was raised was ineffective assistance of counsel?

[00:07:04] Speaker 04:
I don't have it offhand, but I could submit a 28-J letter to the court with that case.

[00:07:09] Speaker 01:
Well, let's sort of go back to what happened.

[00:07:12] Speaker 01:
The instruction was given, and counsel didn't object to that, correct?

[00:07:18] Speaker 04:
Yes.

[00:07:19] Speaker 01:
And the jury didn't have any questions about that.

[00:07:23] Speaker 01:
And so my understanding of that and the instruction basically says that there are instances where it could be modified.

[00:07:35] Speaker 01:
And there was no objection to that.

[00:07:37] Speaker 01:
And then I think the warden testified and said that being in prison is a bad thing.

[00:07:45] Speaker 01:
He considers LWAP a bad thing as far as that goes.

[00:07:50] Speaker 01:
And counsel didn't object like to anything about that and didn't object to any statements that, and you haven't even at this point objected to any statements that the prosecutor made basically.

[00:08:07] Speaker 01:
Well, it's sort of like, I think everyone, well, I guess the prosecutor said the only way to stop him was to kill him, basically.

[00:08:17] Speaker 01:
Yes.

[00:08:17] Speaker 01:
That's the only way that you know that he's not going to kill again.

[00:08:20] Speaker 01:
Although the warden testified that, I think Dr. Colesimo also said that your client was less stressed when he was in a custodial situation and was pretty manageable as far as that goes.

[00:08:36] Speaker 01:
And so basically what the jury, it's pretty obvious if you execute someone and if you kill them, they're not going to kill someone else.

[00:08:49] Speaker 01:
I don't think anyone could really argue with that proposition.

[00:08:53] Speaker 01:
I don't know if there's anyone alive that really thinks that people can't actually get out of custody under any circumstances, because you grow up reading the news, and cases are reversed, and there's any number of things.

[00:09:07] Speaker 01:
And the jury didn't, you know, I just don't see that there was any confusion about anything here.

[00:09:13] Speaker 01:
And I think that's why counsel didn't object.

[00:09:16] Speaker 01:
And then you didn't really raise that.

[00:09:19] Speaker 01:
And now you want to say you've exhausted that.

[00:09:22] Speaker 04:
Well, Your Honor, yes.

[00:09:23] Speaker 04:
The problem here is that the instruction was wrong.

[00:09:27] Speaker 04:
It said that he could be paroled in 10 years, and it was really 20 years.

[00:09:31] Speaker 04:
So it was incorrect on that basis.

[00:09:33] Speaker 04:
And it also invited the jury to speculate on parole.

[00:09:38] Speaker 04:
And what we have here, the prosecution argued parole over and over again.

[00:09:42] Speaker 04:
He argued parole six times repeatedly that he tied the argument for a death sentence to Sterling's having committed the murder while on parole.

[00:09:52] Speaker 04:
And this is at 2ER444, 450, 453, 458, 473, 479.

[00:10:00] Speaker 04:
The prosecutor also argued that he was released on parole for only two and a half months before the murder.

[00:10:05] Speaker 04:
He also stressed that he did poorly on parole.

[00:10:08] Speaker 01:
Okay, let's say we let you get past the exhaustion.

[00:10:12] Speaker 01:
Let's say hypothetically that we say you've exhausted it and we confront it.

[00:10:17] Speaker 01:
What have you put before us now to tell us to show us how your client wins at this point?

[00:10:22] Speaker 01:
What does your client have to do at that point?

[00:10:24] Speaker 04:
Well, what we have to do, Your Honor, is show that the instruction was constitutionally impermissibly suggestive under Caldwell versus Mississippi and Simmons.

[00:10:39] Speaker 04:
This is the clearly established federal law under 2254D1 that the state court didn't examine.

[00:10:49] Speaker 04:
So what we have here is this repeated emphasis on parole, which

[00:10:56] Speaker 04:
misled the jury to believe that Mr. Atkins could be out on parole in 10 years.

[00:11:01] Speaker 04:
He was 21 years old at the time of the trial.

[00:11:03] Speaker 04:
The jury thought he could be released at age 31.

[00:11:06] Speaker 04:
That's prejudicial.

[00:11:07] Speaker 04:
And in the reality, he could not have been released for at least 20 years.

[00:11:12] Speaker 04:
And he was ineligible because of the conditions of the prior 245.

[00:11:19] Speaker 04:
Yes.

[00:11:21] Speaker 04:
Nevada Revised Statute 213.1095.4 holds that someone sentenced to life with parole cannot be released for 20 years and has a history of various things.

[00:11:34] Speaker 04:
He would not have been eligible under those things because he was on parole when this was committed.

[00:11:40] Speaker 04:
So what we have here is I think the state is trying to argue that we're hiding that we're this is all about pardons and They do that because the correct statute relating to parole 1099.4 in effect at the time of Atkins trial flatly Precluded parole of certain conditions of plot.

[00:12:00] Speaker 04:
So the jury was misled basically we have

[00:12:05] Speaker 04:
that, and the state's argument that this is self-executing, it's not.

[00:12:11] Speaker 04:
We're saying here that, basically, under Caldwell and Simmons, that this was prejudicially misleading here.

[00:12:20] Speaker 01:
Well, it seems, though, like, OK, so clearly, in the trial court, the jury instruction wasn't challenged, but there was

[00:12:31] Speaker 01:
Coutorial misconduct in cross-examination and and then Atkins argues in front of the Nevada Supreme Court that the issue is addressed when it addressed the related IAC of Appellate Council claim, but What about Rose v. Paul Mattier that seems that that doesn't help your case I'm sorry your honor Rose versus

[00:13:01] Speaker 01:
It's a 2005 case.

[00:13:05] Speaker 01:
And the legal arguments available to challenge the jury instruction were available to Atkins at the time that the state court post-conviction proceedings were going on.

[00:13:17] Speaker 01:
And he doesn't argue cause based on a case decided after his post-conviction petitions.

[00:13:24] Speaker 01:
So I'm struggling with, I'm just struggling how we get to where you want us to get here.

[00:13:31] Speaker 04:
Well, I think we get there by looking at its Caldwell error, its plain and simple Caldwell error and Simmons error.

[00:13:40] Speaker 04:
Caldwell was cited in the state habeas brief.

[00:13:44] Speaker 04:
It was not addressed by the Nevada Supreme Court.

[00:13:49] Speaker 04:
The prejudice here is that basically

[00:13:58] Speaker 04:
This misled the jury, basically.

[00:14:00] Speaker 04:
We have a jury that's being told time and time again that Mr. Atkins is dangerous.

[00:14:06] Speaker 04:
He should not be released on parole.

[00:14:08] Speaker 04:
And the only alternative sentence is death.

[00:14:12] Speaker 04:
And what we have here is that this was not possible.

[00:14:17] Speaker 04:
It was not possible for him to be released on parole.

[00:14:19] Speaker 02:
I just want to clarify, because it seems that you're

[00:14:25] Speaker 02:
relying primarily on the challenge to the jury instruction now.

[00:14:33] Speaker 02:
Was there either a direct substantive claim in his habeas, either his direct appeal or his first habeas petition challenging the jury instruction or an ineffective assistance counsel claim based specifically on the failure to object to the jury instruction?

[00:14:54] Speaker 04:
Well, yes, the state habeas claim was that basically this instruction was faulty and that it involved the objection that the defense counsel made at

[00:15:14] Speaker 04:
at trial was improperly overruled.

[00:15:18] Speaker 04:
So it brought in parole.

[00:15:22] Speaker 04:
Parole was mentioned both in the state habeas petition, and in the jury instruction, and in the prosecutor's argument.

[00:15:30] Speaker 04:
So I don't see how this is not exhausted.

[00:15:33] Speaker 01:
OK, but do you ever anywhere in there I'm looking argue that

[00:15:40] Speaker 01:
any cause and prejudice to excuse the procedural default in this claim?

[00:15:46] Speaker 04:
Well, I'm not sure there is any procedural default, Your Honor.

[00:15:51] Speaker 04:
What we have here is that it's basically IAC for failure to raise it on appeal.

[00:15:58] Speaker 04:
So it was not raised on appeal.

[00:16:01] Speaker 04:
But what we're saying here is that the Nevada Supreme Court addressed that and addressed the underlying claim on the merits.

[00:16:08] Speaker 04:
And they did it on the merits by holding that the instruction was proper, but only as departments.

[00:16:17] Speaker 01:
But exhaustion and procedural default are two different issues.

[00:16:22] Speaker 01:
Yes.

[00:16:23] Speaker 01:
The first is, because it was claim 13, right, that you're talking about.

[00:16:27] Speaker 01:
Yes.

[00:16:27] Speaker 01:
And if that's unexhausted, then we would look at procedural default and see whether claim 13 would be procedurally barred by Nevada state law and whether it can relate back to the broad appellate IAC claim that you raised in the state post-conviction proceedings.

[00:16:48] Speaker 01:
then when you go through procedural default, then at some point you've got to argue cause and prejudice.

[00:16:56] Speaker 01:
And I don't see any cause and prejudice argued on the procedural default.

[00:17:01] Speaker 01:
So I'm trying to give you every

[00:17:04] Speaker 01:
every exit where you can go.

[00:17:07] Speaker 04:
Well, the problem here is not that the claim was different, I think, as the state says, but that the claim included.

[00:17:16] Speaker 04:
We have here two claims.

[00:17:18] Speaker 04:
We have both the underlying substantive claim that the... We had 10 and 13, right?

[00:17:23] Speaker 01:
Yes, exactly.

[00:17:24] Speaker 04:
In that area.

[00:17:28] Speaker 04:
The correct statute relating to parole, 1099.4, 213.109994, was in effect.

[00:17:35] Speaker 04:
And it flatly precluded parole if certain conditions apply.

[00:17:39] Speaker 04:
So we have parole being mentioned here, both in the instruction itself

[00:17:45] Speaker 04:
10 years, which was incorrect.

[00:17:49] Speaker 04:
It was 20 years.

[00:17:50] Speaker 04:
He was not to be eligible.

[00:17:51] Speaker 04:
You had it in the prosecutor's argument, and you had it in the state habeas.

[00:17:57] Speaker 04:
So I don't see that there's a really an exhaustion problem here.

[00:18:05] Speaker 04:
At the time of Atkins' trial, he would be flatly precluded from parole if some of these conditions apply, which I alluded to earlier, basically one of them being that he was on parole when this was committed.

[00:18:21] Speaker 04:
So the whole parole thing here was a red herring for the jury.

[00:18:30] Speaker 04:
The states, again here, the states relying on California versus Ramos.

[00:18:34] Speaker 04:
In Ramos, the instruction was both accurate and relevant to a legitimate state interest.

[00:18:39] Speaker 04:
Whereas here, it was neither.

[00:18:41] Speaker 04:
It was inaccurate.

[00:18:43] Speaker 04:
It was prejudicially misleading.

[00:18:45] Speaker 04:
And it did not relate to any state interest.

[00:18:47] Speaker 01:
OK, if you can show, if we get to a prejudice analysis here, what do you have to show to overcome

[00:18:58] Speaker 01:
Obviously, I think we're all familiar with what the facts are here.

[00:19:03] Speaker 01:
And in many ways,

[00:19:07] Speaker 01:
And we know what the evidence was that was put on.

[00:19:11] Speaker 01:
We know what the aggravating factors were that were argued and the mitigating factors in terms of his bad childhood, limited.

[00:19:20] Speaker 01:
He had some mental issues, not a terribly high IQ.

[00:19:25] Speaker 01:
He had that it would be difficult for him to control himself in many ways.

[00:19:35] Speaker 01:
I'm just wondering, but his defense at trial was that he was there, but the other people were the ones that did it.

[00:19:48] Speaker 01:
Obviously, he had a little bit of a sticky problem because they had three different footprints on the victim's body, as far as, and I think his brother testified against him, right, in the trial?

[00:20:02] Speaker 01:
Yes, Your Honor.

[00:20:03] Speaker 01:
Did he, you know, and then there were some other people that overheard conversations that

[00:20:08] Speaker 01:
said certain things, but they'd made prior inconsistent statements, so the jury heard all of that.

[00:20:13] Speaker 01:
Did your client ever make a comment?

[00:20:17] Speaker 01:
Did he ever talk to the police, and was that comment introduced in trial?

[00:20:23] Speaker 04:
No, Your Honor, there was nothing about his police comments that was introduced at trial, but

[00:20:27] Speaker 01:
OK, so in the guilt phase, nothing was about his.

[00:20:32] Speaker 01:
So in the guilt phase, the people that were the prosecutor basically put on against him had to do with the physical evidence.

[00:20:41] Speaker 01:
His brother became state witness.

[00:20:44] Speaker 01:
Then there were a couple of people that overheard conversations between what's it, Doyle, his brother, and your client.

[00:20:52] Speaker 01:
Yes.

[00:20:53] Speaker 01:
And those were subject to some sort of impeachment.

[00:20:56] Speaker 01:
And then we did not have Dr. Colesimo in the case, in the guilt phase, right?

[00:21:02] Speaker 01:
But we did have him in the... Right.

[00:21:04] Speaker 04:
Well, I think those facts are really indicative of this being a fundamental miscarriage of justice.

[00:21:13] Speaker 04:
And the two Atkins brothers were together.

[00:21:15] Speaker 04:
The victim comes over to their house.

[00:21:18] Speaker 04:
She has consensual sex with both Atkins brothers.

[00:21:22] Speaker 04:
She refuses to have sex with Doyle.

[00:21:24] Speaker 04:
Doyle is obviously both humiliated and annoyed at this, pissed off if you want.

[00:21:32] Speaker 04:
And he has the motive to do things.

[00:21:34] Speaker 04:
They go out and Doyle is driving the truck.

[00:21:38] Speaker 04:
They think they're headed towards downtown.

[00:21:40] Speaker 04:
They go off into the desert.

[00:21:42] Speaker 04:
way that Mr. Atkins, Sterling Atkins, could know that this was going to happen.

[00:21:47] Speaker 04:
How did they get a kidnapping on him?

[00:21:49] Speaker 04:
I don't know.

[00:21:50] Speaker 01:
He's in the back.

[00:21:51] Speaker 01:
Well, okay, I think, but there is evidence, and the jury has to decide what they believe or not, but there is evidence that your client sees

[00:22:01] Speaker 01:
sees Mason trying to make a phone call.

[00:22:07] Speaker 01:
And he talks her out of it.

[00:22:08] Speaker 01:
And there is evidence from these people that overheard conversations that what they thought was going on, that Mason was going to report Doyle for rape.

[00:22:19] Speaker 01:
And they wanted to prevent that from happening.

[00:22:22] Speaker 01:
And there is evidence that the jury heard that there's a decision that she's got to go.

[00:22:29] Speaker 01:
And then you've got the physical evidence of three different footprints on her body.

[00:22:36] Speaker 01:
Terrible injuries.

[00:22:37] Speaker 01:
You've got the testimony of her brother.

[00:22:39] Speaker 01:
You've got, and then I guess the Nevada Supreme Court overturned the sexual part of it because she had some foreign object in her rectum that was found there.

[00:22:52] Speaker 01:
So you have terrible facts.

[00:22:53] Speaker 01:
I mean, she's really beat up badly.

[00:22:55] Speaker 01:
She's got all sorts of broken ribs, her head.

[00:22:58] Speaker 01:
She's got like a handle upper.

[00:23:02] Speaker 01:
And she's left in the desert.

[00:23:06] Speaker 01:
I think there's a good argument that I don't think that these three people, the jury would have thought these three people woke up that day to

[00:23:16] Speaker 01:
to murder this woman, but there's a lot of testimony that the jury hears about how this day evolved, some perhaps consensual sex, some perhaps not consensual, going in the car.

[00:23:30] Speaker 01:
I think, isn't your client in the bed of the pickup with Mason?

[00:23:34] Speaker 04:
Yes, Your Honor, with the victim.

[00:23:36] Speaker 01:
And there's three sets of footprints on Mason's body, right?

[00:23:40] Speaker 04:
Well, yes, Sean Atkins, the brother, testified that it was not an offensive blow.

[00:23:48] Speaker 04:
It was to see if she was still alive.

[00:23:51] Speaker 04:
But the salient facts here are that Mr. Atkins had no motive to do this.

[00:23:56] Speaker 04:
He did not know they were going to head out to the desert.

[00:23:58] Speaker 04:
He thought they were going downtown.

[00:24:00] Speaker 04:
He had no motive.

[00:24:02] Speaker 01:
I think Judge Gold's trying to state something here.

[00:24:06] Speaker 03:
I have a question.

[00:24:09] Speaker 03:
Wasn't there a place in the record where one of the government's witnesses testified that Atkins had made a comment that we murdered this woman?

[00:24:24] Speaker 04:
Made a comment?

[00:24:24] Speaker 04:
I'm sorry.

[00:24:25] Speaker 01:
That we murdered this woman.

[00:24:27] Speaker 04:
I don't recall that, but maybe even if there was such a comment, it doesn't really go to they were together.

[00:24:36] Speaker 04:
This thing that happened when they were together, that's not in dispute.

[00:24:41] Speaker 04:
But I just do not see how this, Doyle's driving this truck.

[00:24:45] Speaker 04:
How could there be a kidnapping?

[00:24:48] Speaker 04:
Mr. Atkins had no reason to sexually assault this victim.

[00:24:52] Speaker 04:
They had just had consensual sex.

[00:24:54] Speaker 01:
Doyle was the one... But those are... You're sort of arguing factual things, and that we're not in that land here as far as... If we're assessing prejudice, we have to think of everything that the jury heard.

[00:25:06] Speaker 01:
And they may not, and when you argue the case in a trial court, of course you argue it the way that's best for your client, the prosecutor argues it a different way, and then the jury makes a determination.

[00:25:16] Speaker 01:
But I think here, when we're assessing prejudice, we have to, just because the jury didn't see it your way, there's other ways they could have seen it.

[00:25:24] Speaker 04:
Yes, I understand.

[00:25:24] Speaker 04:
Your Honor, I want to reserve five minutes.

[00:25:26] Speaker 01:
Five minutes?

[00:25:27] Speaker 01:
Okay.

[00:25:27] Speaker 04:
Thank you.

[00:25:34] Speaker 01:
Good afternoon.

[00:25:35] Speaker 00:
Good afternoon, Your Honor.

[00:25:37] Speaker 00:
Good afternoon.

[00:25:37] Speaker 00:
My name is Heather Proctor, and I have the honor of representing the respondent's appellees in this matter.

[00:25:42] Speaker 00:
I'd like to address the questions regarding the claim regarding the jury instructions.

[00:25:47] Speaker 00:
This claim was not exhausted.

[00:25:49] Speaker 00:
The claim that was presented in the state courts was limited to a claim of prosecutorial misconduct for the cross-examination of the one witness.

[00:25:56] Speaker 00:
There was never a substantive claim that was presented to the state courts regarding the jury instructions, and the Nevada Supreme Court did not address the substantive claim of the jury instructions at any point.

[00:26:07] Speaker 00:
They did talk about the pardons board, but they did not talk about the clemency instruction itself.

[00:26:12] Speaker 00:
This claim remains unexhausted and, excuse me, it is now technically exhausted but procedurally barred as determined by the district court.

[00:26:24] Speaker 01:
I'm just trying to go every on-ramp, you know, just push this through in terms of if his argument is obviously because it was this very broad claim that somehow it encompassed that.

[00:26:38] Speaker 01:
If we just take it to the next level, he said it's not procedurally defaulted.

[00:26:42] Speaker 01:
Why do you say it is?

[00:26:45] Speaker 00:
I say it's technically exhausted but procedurally barred because it was never presented in the state courts, either on direct appeal or in the first state habeas petition, as a substantive claim regarding the jury instruction.

[00:26:57] Speaker 01:
Does Atkins have any way then to go into a cause and prejudice argument from there?

[00:27:07] Speaker 00:
No.

[00:27:08] Speaker 00:
The only way he might be able to do it is if he could have done an ineffective assistance of direct appeal counsel claim, but he didn't raise that, and he didn't exhaust that claim itself under Edwards versus Carpenter.

[00:27:19] Speaker 00:
And therefore, he could not use that as cause under Murray versus Carrier.

[00:27:24] Speaker 00:
And so he has the burden to show cause and prejudice to overcome that bar, and he simply has not done so.

[00:27:30] Speaker 02:
He's arguing cause for the change in law, right?

[00:27:35] Speaker 02:
For the change in the law?

[00:27:38] Speaker 02:
I think relying on Seacrest.

[00:27:39] Speaker 00:
Seacrest.

[00:27:40] Speaker 00:
So Seacrest was not a change in the law.

[00:27:42] Speaker 00:
What Seacrest did is it recognized Valerio, which I believe is a 1985 case.

[00:27:47] Speaker 00:
And in that case, they determined that the procedural bar of Nevada revised statute 34.810, which is the bar that requires a claim to be raised for the first time on direct appeal, if it's a substantive claim, that decision said that for direct appeal cases, excuse me,

[00:28:08] Speaker 00:
death penalty cases, the 34810 would not apply, and it was not a proper bar.

[00:28:15] Speaker 00:
Sechrest simply recognized that Valerio case, which existed a decade before Atkins direct appeal.

[00:28:22] Speaker 00:
That does not stop, though, because there are other procedural bars that would be applied that are not in that same context.

[00:28:29] Speaker 00:
First of all, there would be the statute of limitations bar, which is Nevada revised statute 34.726.

[00:28:35] Speaker 00:
That gave him one year from the direct appeal in order to raise his claim, which he obviously did not do.

[00:28:41] Speaker 00:
There's a second bar, which is the latches bar under Nevada Revised Statute 34.800, that the claim has to be raised within five years of the direct appeal or there's a presumption of prejudice.

[00:28:53] Speaker 02:
Well, that's why his claim is procedurally barred.

[00:28:56] Speaker 02:
in state court, right?

[00:28:57] Speaker 02:
So he can't exhaust it now, is your position.

[00:29:00] Speaker 02:
Correct.

[00:29:00] Speaker 02:
Right.

[00:29:01] Speaker 02:
And I think he's relying on Seacrest more for the, as a change in law, the substance of the claim on the jury instructions.

[00:29:08] Speaker 02:
Of the underlying claim itself.

[00:29:09] Speaker 02:
I believe so.

[00:29:10] Speaker 02:
And that's my understanding of his argument on cause for failure to exhaust.

[00:29:16] Speaker 00:
I understand that.

[00:29:17] Speaker 00:
And if you look at the state cases on this particular jury instruction, there's cases in 1995 called Sonner versus State.

[00:29:26] Speaker 00:
I believe that was cited.

[00:29:27] Speaker 00:
If not, I will be happy to do a 28-J letter to bring that citation to the court's attention.

[00:29:32] Speaker 00:
In 1985, what Sonner did is it recognized the creation of a statute, Nevada Revised Statute 213.085, which stated that a pardons board could not commute a sentence of either death or life without the possibility of parole to a sentence that included parole.

[00:29:51] Speaker 00:
However, that statute only applied to individuals who were convicted on or after July 1, 1995, and Atkins was convicted in April of 1995.

[00:30:01] Speaker 00:
So that new statute would not apply.

[00:30:04] Speaker 00:
In addition, it did address the parole board statute of Nevada Revised Statute 213.1099, which is whether an individual could be paroled once a sentence was commuted.

[00:30:18] Speaker 00:
That statute had been in existence well before Atkins' trial.

[00:30:23] Speaker 01:
Well, there was some sort of error, I think, because the fact that he had been convicted of the assault with a deadly weapon

[00:30:31] Speaker 01:
Would have put him in a different category and that wasn't really talked about here, right?

[00:30:36] Speaker 00:
So there secrets does talk about that parole board statute, which is the two one three point one zero nine nine First of all, it is a permissive statute.

[00:30:44] Speaker 00:
This is the parole board may consider May not consider a person eligible if they had been commuted if they meet certain criteria it is not mandate that the parole board cannot consider this individual and

[00:30:56] Speaker 02:
In addition, the question here is not... Has that been interpreted that way, that it just becomes discretionary?

[00:31:03] Speaker 02:
I mean, it may not seem a little bit more mandatory than may.

[00:31:08] Speaker 00:
It's stronger, but it is still a permissive statute.

[00:31:11] Speaker 00:
And there are not any... Excuse me, I don't believe there are any advice in court cases that address that particular issue.

[00:31:17] Speaker 02:
So you're saying that it's arguable that the parole could, even if someone

[00:31:25] Speaker 02:
committed the crime while they're in parole would still be eligible for conversion from life without parole to life with parole.

[00:31:35] Speaker 00:
So that's the parole board, the pardons board.

[00:31:40] Speaker 00:
My argument was that the question regarding clemency is a question regarding the pardons board, and that's where it starts.

[00:31:47] Speaker 00:
And actually, the statutes in Nevada, the Nevada Constitution actually prohibited the individual from being

[00:31:57] Speaker 00:
the parole board from commuting a person who is serving a death or life without the possibility of parole sentence to a sentence of parole.

[00:32:06] Speaker 00:
And that Nevada constitutional amendment had been in place since 1981.

[00:32:10] Speaker 00:
However, the clemency

[00:32:12] Speaker 00:
jury instruction was not that specific.

[00:32:15] Speaker 00:
The clemency jury instruction was very broad, where it said there were circumstances under which the clemency board could alter a sentence, but the jury was not permitted to consider that.

[00:32:28] Speaker 00:
And so it was not misleading.

[00:32:30] Speaker 00:
It did not say that if he were to be commuted to a sentence of life without the possibility of parole, for instance, that he could not be released on parole.

[00:32:40] Speaker 00:
That statute, that jury instruction was not that specific.

[00:32:43] Speaker 00:
Rather, the statute was very specific.

[00:32:45] Speaker 00:
If he was given life without, that meant life without.

[00:32:49] Speaker 00:
If he was given LWOP, that meant LWOP.

[00:32:51] Speaker 00:
If he was given death, then you have to assume that is going to be executed.

[00:32:55] Speaker 00:
Otherwise, they were told under certain circumstances.

[00:33:00] Speaker 00:
The board may alter a sentence, but you can't consider that.

[00:33:04] Speaker 03:
Counsel, I have a question for you.

[00:33:07] Speaker 03:
I want to ask you the same question I asked the Pellants' Council.

[00:33:13] Speaker 03:
Is there anywhere in the record where one of the trial witnesses testified that Atkins had made a statement, Sterling Atkins had made a statement, that we killed a woman?

[00:33:31] Speaker 00:
Yes, I believe that was the statement that he made to Jerry Anderson that he stated things got out of hand and that they killed Mason the night before.

[00:33:45] Speaker 03:
Okay, and how did that come into evidence?

[00:33:50] Speaker 00:
That came into evidence because Anderson testified during the kill phase.

[00:33:57] Speaker 01:
So during the guilt face.

[00:33:59] Speaker 03:
Yes.

[00:34:00] Speaker 03:
Okay, so Anderson testified to that.

[00:34:03] Speaker 03:
Yes, your honor to that being said to him.

[00:34:05] Speaker 03:
Yes, your honor, and it would be An admission Yes, your honor.

[00:34:10] Speaker 03:
It would of Atkins, so there's no tears a bar, right?

[00:34:17] Speaker 00:
I would agree your honor.

[00:34:19] Speaker 03:
Okay.

[00:34:19] Speaker 03:
Thank you

[00:34:21] Speaker 01:
So since I understand your position to be firmly that this was not exhausted, but just bear with me on what would an exhausted claim look like here?

[00:34:36] Speaker 01:
My understanding of the record is counsel did not object to the instruction.

[00:34:41] Speaker 01:
There was no object to the instruction.

[00:34:43] Speaker 01:
There was no objection to arguments that when it was argued in closing argument by the prosecutor, correct?

[00:34:50] Speaker 01:
None of that occurred.

[00:34:50] Speaker 00:
You're correct.

[00:34:52] Speaker 01:
All right.

[00:34:57] Speaker 01:
But what should have been presented in your view to present an exhausted claim here?

[00:35:02] Speaker 00:
Rather than presenting it as a substantive claim, he could have alleged that trial counsel was ineffective for failing to object to the jury instruction and failing to object to the prosecutor's arguments in closing argument.

[00:35:15] Speaker 00:
That would have been the proper way to exhaust this claim.

[00:35:19] Speaker 00:
And that was not done.

[00:35:22] Speaker 01:
So going to the other claims that obviously, if I think the certified claim won and there's different

[00:35:30] Speaker 01:
There's different off-ramps on a lot of this, whether you find something exhausted, or then you get into the Martinez analysis, and whether there's cause and prejudice.

[00:35:39] Speaker 01:
Are there any areas where you think it gets into Martinez, but prejudice isn't shown?

[00:35:49] Speaker 01:
With, like, say, for example, Colosseum, or not presenting more evidence of his terrible childhood.

[00:36:00] Speaker 00:
Your Honor, we would certainly be of the position that if he was able to find cause on any of those or ineffective assistance counsel on any of those, he was not able to show prejudice on any of them.

[00:36:09] Speaker 01:
Is there anything that was presented previously?

[00:36:13] Speaker 01:
Because sometimes when you say that there are, when on a habeas you see where that there were errors and it would have had a different result.

[00:36:24] Speaker 01:
There are affidavits from another expert that sees the defendant and says,

[00:36:32] Speaker 01:
I would have testified to X, Y, and Z, or other people opine on how you could have presented other instances of abuse or whatever.

[00:36:48] Speaker 01:
And I think it ended up in this way that they said, yeah, you could have put on more evidence, but it would have been cumulative, and it wouldn't have made a difference in the end.

[00:37:00] Speaker 01:
Atkins put on anything saying, this is my offer of proof, and this is why it would have made a difference.

[00:37:07] Speaker 00:
Regarding the expert testimony?

[00:37:08] Speaker 01:
Yeah.

[00:37:09] Speaker 01:
Not to my knowledge.

[00:37:11] Speaker 01:
And Colosimo, my understanding is

[00:37:15] Speaker 01:
OK.

[00:37:15] Speaker 01:
The murder happened in 1994.

[00:37:18] Speaker 01:
Colosimo testified in 1996.

[00:37:21] Speaker 01:
95.

[00:37:21] Speaker 01:
95.

[00:37:25] Speaker 01:
OK.

[00:37:26] Speaker 01:
And then have there been any other experts that have been proffered that would show a difference?

[00:37:34] Speaker 00:
Not to my knowledge.

[00:37:36] Speaker 01:
I think there were, in all of this, there were allegations that Colosimo should have testified on the guilt phase, not just the penalty phase.

[00:37:46] Speaker 01:
Yes, Your Honor.

[00:37:48] Speaker 01:
And what's your response to analyzing that claim?

[00:37:53] Speaker 00:
Certainly, Your Honor.

[00:37:55] Speaker 00:
The issue with that claim is, number one, Dr. Colosimo's testimony in the guilt phase was that Castillo, excuse me,

[00:38:04] Speaker 00:
Atkins was entirely competent, that he knew right from wrong, that because of the disorders he suffered from, he tended to do the wrong thing instead of the right thing, but he understood that it was right and wrong and that he could be punished for it.

[00:38:17] Speaker 00:
So it was evidence that he was competent and that he would not survive a challenge based on insanity.

[00:38:27] Speaker 00:
He just didn't meet the criteria.

[00:38:28] Speaker 00:
The other problem with that is if he had been presented during the guilt phase and there was time to present him, he would have had to testify regarding all of these disorders and psychoses that he diagnosed Atkins with, both in his testimony and in his report.

[00:38:47] Speaker 00:
It would have also gone into his 1999-92 conviction for the assault with a deadly weapon, which was part of the basis for his determinations.

[00:38:57] Speaker 00:
It would have gone into all of this other evidence that would not be necessary, would be ineffective to present in a guilt phase.

[00:39:05] Speaker 01:
So was the assault with the deadly weapon presented in the guilt phase?

[00:39:10] Speaker 01:
Or did it just come in the penalty phase?

[00:39:12] Speaker 00:
I believe it was only in the penalty phase.

[00:39:13] Speaker 01:
But if Colisemo would have testified in the guilt phase, it would have necessarily come out because it would have been part of the information that he based his conclusion on.

[00:39:24] Speaker 01:
Correct.

[00:39:24] Speaker 01:
So is there somewhere in the record that this was a strategic decision by counsel not to or

[00:39:31] Speaker 00:
Your Honor, we can only presume that it was a strategic decision.

[00:39:35] Speaker 00:
First, the basis for the whole notion to have Dr. Kalismu appear in the guilt phase or that there was a question regarding competency was never a question as to whether he was competent to stand trial.

[00:39:48] Speaker 00:
The only question regarding competency was if he was competent to consider the plea negotiations because in counsel's opinion he rejected a non-death option immediately without reservation, he didn't want to talk to his attorneys about it because he was under a misunderstanding of the law.

[00:40:05] Speaker 00:
that his co-defendant Doyle had been convicted and sentenced to death two months earlier.

[00:40:11] Speaker 00:
And Atkins believed because one person had already been sentenced to death, they could not sentence a second person to death for the same murder.

[00:40:18] Speaker 00:
That's a misunderstanding of the law.

[00:40:20] Speaker 00:
That's not a demonstration that he didn't understand the plea negotiations.

[00:40:24] Speaker 00:
And that was the basis for the competency hearing request in the first place.

[00:40:28] Speaker 00:
But they withdrew it, didn't they?

[00:40:29] Speaker 00:
Yes, Your Honor, and that's what I was going to mention was they entered a written argument motion for the competency hearing, and it was argued the next day.

[00:40:41] Speaker 00:
The day after that, it was withdrawn by counsel for the defense, and they agreed that they would only present him in the penalty phase.

[00:40:49] Speaker 00:
So that certainly suggests that counsel had a strategic reason for doing so, and they determined that it was not appropriate to show him in the guilt phase.

[00:40:57] Speaker 01:
What is defendant's best argument that had more mitigating evidence been presented, it would have made a difference in the outcome of the case?

[00:41:08] Speaker 00:
Your Honor, I don't believe defense has a good argument regarding that.

[00:41:13] Speaker 01:
We don't agree with the argument, but what would be the best argument?

[00:41:16] Speaker 01:
There could have been more people.

[00:41:18] Speaker 01:
Or what did the other people say that Sterling Senior didn't say, or that the stepsister didn't say?

[00:41:25] Speaker 00:
Yeah, they would have to produce evidence that was different than the type of evidence that was presented at the mitigation phase.

[00:41:33] Speaker 00:
And it's our position that they haven't been able to do that.

[00:41:36] Speaker 00:
And so they would have to present evidence that they haven't yet produced yet of something entirely different.

[00:41:44] Speaker 01:
So what offer proof have they made about what should have been presented?

[00:41:48] Speaker 00:
Sure, they offered quite a bit of declarations, which it's even questionable whether the court can consider those declarations under Ramirez.

[00:41:56] Speaker 00:
But beyond that, the additional information that they seek to introduce was that the father was even worse than he testified to himself, that he did all these horrible, awful things to his children, to his wife, and very cumulative of what was already presented.

[00:42:13] Speaker 00:
Particularly, he himself testified that he did all these horrible, awful things.

[00:42:19] Speaker 00:
Stephanie, the stepsister, corroborated a lot of that information saying that he was a horrible, awful father and beat everybody.

[00:42:27] Speaker 00:
They had alcoholism.

[00:42:28] Speaker 00:
They had drugs in the home.

[00:42:30] Speaker 00:
There was domestic violence.

[00:42:31] Speaker 00:
And then Dr. Colissimo also corroborated all of that evidence.

[00:42:35] Speaker 00:
from his interview with Atkins who also said how horrible and awful this was.

[00:42:40] Speaker 00:
They produced some additional facts, but none of that would have tipped the scales to a sentence other than death, particularly when you consider the six very strong aggravators in this case.

[00:42:53] Speaker 00:
He simply would not have done it.

[00:42:54] Speaker 01:
So in determining the inefficient

[00:42:57] Speaker 01:
The ineffective assistance of trial counsel, what weight should be given to Ms.

[00:43:02] Speaker 01:
Malia's declaration that she was deficient in failing to pursue Mr. Atkin's cognitive defects?

[00:43:09] Speaker 00:
Your Honor, first of all, that is hindsight, and that is prohibited under Strickland.

[00:43:13] Speaker 00:
Of course, coming 20 years after the fact, it'd be easy to say, well, I should have done this or that.

[00:43:20] Speaker 00:
In addition, it was actually co-counsel Kozel, who was the one that was responsible for preparing the expert.

[00:43:27] Speaker 00:
He had been on the case for several months, and he came in and replaced Ms.

[00:43:31] Speaker 00:
Malia.

[00:43:32] Speaker 00:
He was the one responsible for communicating with the doctor.

[00:43:35] Speaker 00:
He was the one that examined the doctor.

[00:43:37] Speaker 00:
and he did a very good job of bringing out all of the information from the doctor's report.

[00:43:43] Speaker 00:
And so Ms.

[00:43:43] Speaker 00:
Malia may have had some regrets later on in life, but it doesn't demonstrate that the counsel was ineffective anyway.

[00:43:50] Speaker 00:
And also, that declaration itself is subject to question whether this court can consider it under Ramirez, because it came in in 2016.

[00:43:59] Speaker 00:
The crimes in this matter occurred in 1994 and were tried in 1995.

[00:44:05] Speaker 01:
So in your view, because this is under EDPA and the deferential standard that it's got to be against clearly established law or an unreasonable application of the facts, where does the EDPA standard come into play here where you think it makes a difference?

[00:44:22] Speaker 00:
The EPA standard would not apply to a majority of these claims because they are procedurally barred.

[00:44:29] Speaker 00:
It does come into play with the guilt phase question as to presenting Dr. Calisimo in the guilt phase.

[00:44:35] Speaker 00:
The Nevada Supreme Court did address that on the merits.

[00:44:38] Speaker 00:
The Nevada Supreme Court did not have an opportunity to address the rest of these claims on the merits.

[00:44:42] Speaker 00:
addressed some aspects of them, and certainly to the extent that Nevada Supreme Court did address it on the merits, that would be entitled to epideference.

[00:44:52] Speaker 00:
But the majority of these claims, they simply did not have an opportunity to do so.

[00:44:56] Speaker 03:
Counsel, I have a question, if I may.

[00:44:59] Speaker 03:
Could you summarize, from the state's point of view, what were the aggravating factors?

[00:45:10] Speaker 03:
Certainly.

[00:45:10] Speaker 03:
That the jury could consider to outweigh any mitigating factors.

[00:45:17] Speaker 00:
Certainly, Your Honor.

[00:45:18] Speaker 00:
There were six aggravating factors in this case.

[00:45:21] Speaker 00:
Two were based on Atkins' prior conviction in 1992 for aggravated assault, excuse me, assault with the use of a deadly weapon.

[00:45:29] Speaker 00:
And the facts of that were pretty heinous.

[00:45:31] Speaker 00:
He pounded on a gentleman's door demanding to see Robert,

[00:45:36] Speaker 00:
The resident had no idea what he was talking about.

[00:45:38] Speaker 00:
Atkins would not stop banging on the door.

[00:45:41] Speaker 00:
He opened the door and his cat ran out.

[00:45:43] Speaker 00:
Atkins said, I'm going to go kill the cat.

[00:45:45] Speaker 00:
And he took off.

[00:45:46] Speaker 00:
The resident then was concerned.

[00:45:48] Speaker 00:
He left his apartment looking for security.

[00:45:51] Speaker 00:
Atkins jumped out from some bushes and stabbed him in the back with a three and a half inch knife.

[00:45:56] Speaker 00:
That occurred two years before the murder in this case and he was convicted and sentenced to three years.

[00:46:03] Speaker 00:
He was released exactly two months to the day before the murder in this matter.

[00:46:09] Speaker 00:
That conviction served for two aggravators.

[00:46:13] Speaker 00:
One was a prior conviction for a violent offense and two was the fact that he was still on parole for that matter at the time he murdered Ebony Mason.

[00:46:23] Speaker 00:
The third aggravator was in order to avoid a lawful arrest and once again that was because she threatened to report not only Doyle but all three men for rape.

[00:46:33] Speaker 00:
Yeah, because there was some sexual contact earlier in the night with Sean and Atkins, but not with Doyle.

[00:46:41] Speaker 00:
And that was what was frustrating Doyle.

[00:46:43] Speaker 00:
The fourth was torture and mutilation, and that was due to the extensive injuries to the body.

[00:46:50] Speaker 00:
The nine broken ribs.

[00:46:53] Speaker 00:
the extensive injuries to the head from being struck by a rock or a brick, the footwear impressions that were left on the body, and that was the fourth aggravator.

[00:47:04] Speaker 00:
The fifth was the first degree, the murder was conducted in the course of a first degree kidnapping, and the sixth was that it occurred during a sexual assault.

[00:47:15] Speaker 00:
And so all of those aggravators were extremely strong.

[00:47:19] Speaker 00:
They presented quite a bit of evidence regarding all of them, both in the guilt phase and the penalty phase.

[00:47:25] Speaker 00:
And none of the proposed mitigation evidence tips the scales on reweighing to where they would not have been.

[00:47:32] Speaker 01:
Well, the sixth one got overturned by the Nevada Supreme Court against both Doyle and

[00:47:36] Speaker 00:
Atkins right to clarify the sexual assault conviction was overturned But in because they didn't know whether she was alive or dead correct your honor when they inserted the stick But the claim on first state habeas was counsel was also ineffective for failing to challenge the aggravator and the Nevada Supreme Court actually upheld the aggravator in the first state habeas proceedings and

[00:48:01] Speaker 00:
saying it didn't matter whether she was alive or dead at the time for the aggravator.

[00:48:06] Speaker 00:
What mattered for the aggravator was that there was a sexual component to the murder.

[00:48:10] Speaker 00:
And so that sixth aggravator actually remains.

[00:48:14] Speaker 01:
So then the mitigators, they weren't necessarily by number, but it was his childhood and Dr. Colesimo's analysis of his mental capacity.

[00:48:29] Speaker 01:
And I think there was discussions of six to get so effective, paranoid, various.

[00:48:37] Speaker 00:
As well as he did well in a more structured setting.

[00:48:43] Speaker 01:
Now, the instruction on that, aren't the jurists specifically told you don't just count them up?

[00:48:50] Speaker 01:
You can count them up, but I mean, one mitigator could outweigh six aggravators, right?

[00:48:56] Speaker 01:
Absolutely.

[00:48:58] Speaker 01:
The jury just didn't find that here.

[00:49:00] Speaker 00:
Correct.

[00:49:00] Speaker 00:
The jury was instructed under Nevada law that they had to find one aggravator, at least one aggravator, unanimously.

[00:49:07] Speaker 00:
And then they could consider and find their own mitigators.

[00:49:11] Speaker 00:
And then they were tasked with determining whether those aggravators were outweighed by the mitigators.

[00:49:19] Speaker 00:
And even if they find that under Nevada law, they do not have to impose a death sentence.

[00:49:24] Speaker 00:
It simply makes it available as one of the sentences that they can impose.

[00:49:29] Speaker 01:
Were there specific findings as true of those six aggravators by the jury?

[00:49:35] Speaker 00:
There is a verdict that says the jury found all six aggravators.

[00:49:41] Speaker 03:
Counsel, I have a fact question, which may or may not be important in the total scheme here.

[00:49:50] Speaker 03:
But you urged there were several footprints on the body of the victim.

[00:49:58] Speaker 03:
And my question is, was one of those sets of footprints linked to Sterling Atkins by evidence that was admitted?

[00:50:13] Speaker 00:
Not directly, Your Honor.

[00:50:14] Speaker 00:
The only individual that was ever specifically connected to one of the footprints was Doyle.

[00:50:21] Speaker 00:
And that was when they recovered Adidas shoes that several witnesses stated Doyle was the only one who wore those shoes.

[00:50:28] Speaker 03:
So then, are the footprints relevant to the state's conviction of Adkins here?

[00:50:38] Speaker 00:
Your Honor, I think it enhances the state's conviction.

[00:50:43] Speaker 00:
The testimony was very clear.

[00:50:44] Speaker 00:
There were only four people out there at the day of the murder, Atkins, his brother Sean Doyle, and Ebony Mason.

[00:50:52] Speaker 00:
And they quickly determined that Ebony Mason's shoes, which were located at the death scene, were not one of the shoe prints that they found either around the body or on the body.

[00:51:04] Speaker 00:
So the other shoe prints could only belong to those three individuals.

[00:51:09] Speaker 01:
Was there testimony that there were three distinct footprints, though?

[00:51:12] Speaker 00:
Yes, Your Honor.

[00:51:13] Speaker 01:
But the closest link was as to Doyle because they had his Adidas shoes.

[00:51:18] Speaker 01:
Correct.

[00:51:19] Speaker 01:
So my understanding of the relevance would be that because his defense was he was there, but he didn't participate in it, that even though you can't show that it's his shoe and his foot,

[00:51:37] Speaker 01:
But there are three footprints on her.

[00:51:39] Speaker 01:
Correct.

[00:51:40] Speaker 00:
That is absolutely correct.

[00:51:42] Speaker 01:
So you take it from there, whatever that means.

[00:51:46] Speaker 00:
Absolutely, Your Honor.

[00:51:46] Speaker 00:
It certainly does enhance and enforce that Atkins was one of those three.

[00:51:58] Speaker 01:
You know, I guess from the standpoint that after he's convicted,

[00:52:06] Speaker 01:
that if he doesn't prevail on any of the instances that have to do with the guilt phase, is it's just what more could have been said about him that could have convinced the jury that he shouldn't get the death penalty, right?

[00:52:24] Speaker 01:
Yes.

[00:52:30] Speaker 01:
Kind of break down to me exactly what

[00:52:33] Speaker 01:
was said, I know that once it sort of stuck out to me, as the father said, he put his children's hands on the stove, he admitted that, and that the kids were taken away from him.

[00:52:45] Speaker 01:
And he talked about, but tell me specifically how grave a picture of abuse was portrayed by the witnesses or how not so.

[00:52:55] Speaker 00:
Your Honor, I would note that the district court in addressing this matter mentioned that this was a nightmarish.

[00:53:04] Speaker 00:
The three witnesses painted a nightmarish abuse, neglect, and dysfunction in the family.

[00:53:12] Speaker 00:
And that was the type of evidence that was presented.

[00:53:15] Speaker 00:
There is evidence by Mr. Sterling, Sr.

[00:53:17] Speaker 00:
that he repeatedly beat his children, particularly Atkins First.

[00:53:22] Speaker 00:
He did not care for his children at all.

[00:53:25] Speaker 00:
There was domestic violence where they would see him repeatedly beating their mother.

[00:53:31] Speaker 00:
Both parents were extreme alcoholics.

[00:53:34] Speaker 00:
Both parents were using drugs.

[00:53:36] Speaker 00:
Stephanie reinforced all of that as well as portraying the mother who was unable to function because she was such an extreme

[00:53:45] Speaker 00:
drug-dependent that Stephanie had to basically take over for these individuals.

[00:53:50] Speaker 00:
These children were in and out of foster care even though Atkins kept asking to be returned to the home.

[00:53:56] Speaker 01:
And then you have Dr. Kalisamo who... Did they have any food or housing insecurity?

[00:54:02] Speaker 00:
There were no specific instances where they talked about extreme poverty, but the children did talk about where they would have to sometimes fend for themselves because their parents would not feed them.

[00:54:16] Speaker 01:
I don't know the answer to this, and I don't know if it matters.

[00:54:19] Speaker 01:
In California, for example, the trial judge says the 13th juror, and even though a jury recommends death, the trial judge still has the option of saying, overruling that.

[00:54:33] Speaker 01:
What's the law in Nevada?

[00:54:35] Speaker 00:
The law in Nevada is if the jury imposes a death sentence, then that is the sentence that is imposed.

[00:54:42] Speaker 01:
Can the court review it for sufficiency of the evidence?

[00:54:45] Speaker 00:
No, but the Nevada Supreme Court does review all death sentences for various underlying... But the judge has to impose it?

[00:54:55] Speaker 00:
Yes, Your Honor.

[00:54:56] Speaker 00:
Okay.

[00:54:56] Speaker 00:
Thank you.

[00:54:58] Speaker 00:
Unless there are any further questions, I would submit.

[00:55:00] Speaker 00:
Thank you.

[00:55:01] Speaker 03:
Thanks, Council.

[00:55:06] Speaker 03:
We'll hear a rebuttal.

[00:55:10] Speaker 03:
And like Stacey, make the clock five minutes here.

[00:55:16] Speaker 03:
Okay, so give you your full five minutes of planned rebuttal.

[00:55:21] Speaker 04:
Thank you, Your Honor.

[00:55:23] Speaker 04:
Just to recap what counsel said, Yeltsin versus Nunnamaker has held that reaching the merits exhausts the claim, and our position is that the Nevada Supreme Court on the jury instruction claim did reach the merits.

[00:55:40] Speaker 04:
And there was no default here.

[00:55:44] Speaker 04:
The district court held

[00:55:46] Speaker 04:
that the substantive claim was defaulted.

[00:55:50] Speaker 04:
We would disagree with that.

[00:55:52] Speaker 04:
We've briefed that, that that was wrong.

[00:55:56] Speaker 04:
But the IAC Appellate Council claim was denied on the merits.

[00:56:00] Speaker 04:
So we have here basically a situation where, as I said before, that this was prejudicially misleading under clearly established federal law of Caldwell and Simmons.

[00:56:15] Speaker 02:
Tell me where, in the Nevada Supreme Court opinion, you think they reached the merits on your jury instruction challenge?

[00:56:22] Speaker 04:
Yes, they did.

[00:56:23] Speaker 02:
On the Petrocelli instruction.

[00:56:25] Speaker 02:
That's your argument?

[00:56:27] Speaker 04:
Yes.

[00:56:27] Speaker 04:
Yes.

[00:56:27] Speaker 04:
They did reach the merits as to the Board of Pardons.

[00:56:31] Speaker 04:
They didn't examine it on parole.

[00:56:34] Speaker 04:
But they did reach, they said that basically it was a correct instruction on pardons.

[00:56:41] Speaker 04:
But even if it was, even if this

[00:56:44] Speaker 04:
instruction was correct, it's still prejudicially misleading.

[00:56:48] Speaker 04:
That's our point here, that basically you have a situation where the jury was told time and time again that Mr. Atkins could be released on parole.

[00:57:04] Speaker 04:
And that testimony was definitely in their minds.

[00:57:10] Speaker 04:
The prosecutor stressed he did poorly on parole.

[00:57:16] Speaker 04:
He argued incorrectly that life with parole meant he would be eligible for parole in about 10 years, that Ebony Mason's life was worth a heck of a lot more than 10 years.

[00:57:26] Speaker 04:
And he asked the jury, will a sentence of death prevent this defendant from once again being paroled and committing another murder?

[00:57:34] Speaker 04:
You bet it will.

[00:57:35] Speaker 04:
That's at 2ER 453.

[00:57:37] Speaker 04:
And argued that life without parole can become life with parole.

[00:57:42] Speaker 04:
This is all incorrect.

[00:57:44] Speaker 04:
The pardons board was also mentioned in the argument.

[00:57:47] Speaker 04:
Basically, the sentiment in the jury's mind was that this guy could get out maybe in 10 years.

[00:57:57] Speaker 04:
And the only reason the prosecutor said to prevent this, the only way to prevent this was to give him a death sentence.

[00:58:05] Speaker 04:
Basically, we have the state habeas brief, which did cite Caldwell versus Mississippi, and cited Malia's objection at trial.

[00:58:15] Speaker 04:
Malia did not object to the instruction itself, as Judge Callahan has mentioned, but she did object during the prosecutor's argument.

[00:58:24] Speaker 04:
And she stated that parole pardon is not parole, but he's talking about parole.

[00:58:29] Speaker 04:
So the state habeas claim also mentioned the prosecutor's argument that a life sentence with parole, you have the hope for a release on parole.

[00:58:38] Speaker 04:
And if an individual is sentenced to life imprisonment without the possibility of parole, can that pardons board commute that sentence from life without to life with?

[00:58:47] Speaker 04:
So these references in state habeas were sufficient to put the parole question squarely before the state's courts.

[00:58:54] Speaker 04:
Now, there's also been some argument by counsel here that Colesimo's testimony would have been, if he was presented at the guilt phase, that it would have been damaging.

[00:59:06] Speaker 04:
But the damaging elements of that testimony would have been irrelevant to guilt.

[00:59:14] Speaker 04:
And it could have been objected to, and the objections would have been sustained.

[00:59:21] Speaker 01:
But I think those of us that have done trial work know pretty much once you open the door, the barn door flies open, and he's going to be subject to cross-examination.

[00:59:30] Speaker 01:
And everything that he considered to form his opinion is going to come in.

[00:59:36] Speaker 01:
And you can give limiting instructions, but I think certainly

[00:59:41] Speaker 01:
there's an argument that you wouldn't want people to know about.

[00:59:46] Speaker 01:
And if he said, oh yeah, I considered the assault with the deadly weapon, but then a good cross examiner is going to go into all the details, which Miss Proctor just mentioned, and who would want the, you know, it's

[01:00:01] Speaker 01:
I think you know, and I think most attorneys know, that sometimes having a bad life and having things wrong with you is a double-edged sword.

[01:00:10] Speaker 01:
Sometimes it works, but sometimes jurors think, well, this person is so bad that they're therefore bad on the guilt part of it.

[01:00:21] Speaker 01:
And then when you introduce it at the penalty phase, they think they're so bad that they can't be saved.

[01:00:27] Speaker 01:
So it's double-edged.

[01:00:28] Speaker 04:
Yes, Your Honor.

[01:00:30] Speaker 04:
But our point is that those damaging things would have been totally irrelevant as to guilt.

[01:00:36] Speaker 04:
And the helpful things... To you.

[01:00:39] Speaker 01:
But if the jury heard them...

[01:00:41] Speaker 01:
a lawyer, you have to think about how's it going to affect the jury?

[01:00:45] Speaker 04:
We're saying the jury wouldn't have heard them because they would have been excluded as irrelevant, objection irrelevant.

[01:00:52] Speaker 01:
But how does he give his opinions without saying what the basis of his opinions are and all of those things would come in?

[01:00:59] Speaker 01:
I'm not understanding your evidentiary ruling here.

[01:01:03] Speaker 04:
They came in because of the ineffective assistance of Mr. Kozol, who prepared this witness.

[01:01:09] Speaker 04:
He allowed all this stuff to come in.

[01:01:10] Speaker 04:
He didn't prepare Colissimo.

[01:01:14] Speaker 04:
This damaging stuff came in at penalty phase.

[01:01:18] Speaker 04:
But we're saying that if he's testifying, for instance, as to

[01:01:23] Speaker 04:
Various things that were damaging here that there's not it's not relevant to guilt.

[01:01:28] Speaker 04:
They would have been relevant to punishment, but not to guilt I mean, you know it has it just wouldn't have it would have been the objections would have been So are you speculating what a court would have done had he testified?

[01:01:43] Speaker 01:
Yes, I am all right.

[01:01:44] Speaker 01:
Okay, so if you are a

[01:01:47] Speaker 01:
Ms.

[01:01:48] Speaker 01:
Malia at that point, not knowing what the judge is going to do, and I'm here telling you the other side of what the judge might be looking at, couldn't a lawyer make a strategic decision that it might be a little bit risky?

[01:02:01] Speaker 04:
Your Honor, I don't think strategic decisions, which was the basis of the state court's ruling here, come into play at all, because there was no strategy.

[01:02:10] Speaker 01:
The state court said what?

[01:02:11] Speaker 01:
That it was strategic?

[01:02:12] Speaker 04:
Strategic, Your Honor, yes.

[01:02:14] Speaker 01:
So is that subject to EDPA review?

[01:02:17] Speaker 04:
Possibly but it's it's It was wrong because there could be no strategy here because he wasn't even ready by the time of the of the guilt phase He wasn't prepared.

[01:02:28] Speaker 04:
He wasn't he didn't have his report in that's why they didn't present him at guilt So there could be no strategy in not being prepared counsel

[01:02:37] Speaker 03:
I'm sorry to interject, but you're more than two minutes over.

[01:02:43] Speaker 03:
You're already extended time.

[01:02:46] Speaker 03:
I'm not going to cut you off in mid-sentence like I've seen Supreme Court justices do, but

[01:02:54] Speaker 03:
Rather, why don't you finish your argument with the next.

[01:02:59] Speaker 01:
I won't interrupt you anymore.

[01:03:01] Speaker 01:
I promise.

[01:03:02] Speaker 01:
Thank you, Your Honor.

[01:03:03] Speaker 04:
The time is yours.

[01:03:04] Speaker 04:
And I was just going to add here that the four aggravators, kidnapping, torture, sexual assault, and trying to prevent an arrest here, those would have been basically nullified by Sean Adkins' testimony, had he been allowed to testify.

[01:03:23] Speaker 04:
The other remaining priors prior offense are on parole.

[01:03:27] Speaker 04:
Those are duplicative.

[01:03:29] Speaker 04:
And so we really, I think, would have only one aggravator to deal with here.

[01:03:34] Speaker 04:
So unless there's any further questions.

[01:03:39] Speaker 03:
What's the aggravator that you say we have to deal with?

[01:03:45] Speaker 04:
Well, I would say that there's two agri-prior offense and was on parole at the time, but I'm also saying that those are duplicative and I think they have been in later Nevada law.

[01:03:58] Speaker 04:
We could have had the

[01:04:00] Speaker 04:
defense been properly prepared they could have presented testimony to negate kidnapping to torture the sexual assault and to the to this was done to prevent arrest under Sean Atkins testimony he said the only person with a motive to do to do these things the only person

[01:04:18] Speaker 04:
who had the ability to do it, kidnapping especially, was Mr. Doyle.

[01:04:23] Speaker 04:
So we have, we could have eliminated four of the aggravators here with- That jury would have had to believe him.

[01:04:31] Speaker 02:
Yeah.

[01:04:33] Speaker 04:
Thank you, Your Honor.

[01:04:34] Speaker 04:
We respectfully ask that this court grant relief to Mr. Actons.

[01:04:37] Speaker 03:
Thank you, counsel.

[01:04:38] Speaker 03:
Thank you.

[01:04:38] Speaker 03:
I want to thank both counsel for their spirited and very helpful advocacy.

[01:04:48] Speaker 03:
This case shall now be submitted, and the parties will hear from the court in due course.

[01:05:01] Speaker 03:
Thank you.

[01:05:03] Speaker 03:
So.