[00:00:11] Speaker 01:
Your Honors, and may it please the Court, Randy Fiedler on behalf of Petitioner Appellant Tracy Hampton.

[00:00:16] Speaker 01:
With me at council table is Assistant Federal Public Defender Stacey Newman.

[00:00:20] Speaker 01:
I would like to reserve seven minutes for rebuttal.

[00:00:22] Speaker 00:
We'll try to help you, but keep your eye on the clock if you will.

[00:00:25] Speaker 01:
Thank you, Your Honor.

[00:00:27] Speaker 01:
I'm going to begin with the ineffective assistance of counsel during the guilt phase claim and then proceed to the Brady claim as it relates to George Ridley.

[00:00:34] Speaker 00:
Before you do that, may I ask you, as you know, the Court sent a focus notice to both parties

[00:00:40] Speaker 00:
And we're going to ask you to start with that.

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I know you have an order of things, but will you please, within the first few minutes, give your answer to the court about the focus order and whether these cases we cited have an impact, and if so, what it will be on this case?

[00:00:57] Speaker 01:
Well, they certainly have an impact, Your Honor.

[00:00:59] Speaker 01:
I will not deny that.

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And I'm going to take it, I'm going to focus on the three claims that I'm focusing on today.

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So the ineffective assistance during the guilt phase, the Brady claim, and the ineffective assistance during the penalty phase.

[00:01:11] Speaker 01:
As to the ineffective assistance claims, my focus today is primarily going to be on the claims as they were presented to the state post-conviction court.

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And so in so far as Shin, well Shin doesn't affect that portion of the claims.

[00:01:26] Speaker 01:
Obviously as to both those claims we raised arguments under Dickens v. Ryan and I will concede that shin Dramatically affects the path to relief for those arguments However, I want to emphasize that this is a case where we requested a Ryan stay from the district court and the district court denied that stay request and so I think it bears emphasizing that shin

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called great attention to the importance of exhaustion, to the importance of allowing state courts to hear claims in the first instance.

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And we were deprived of that opportunity, something which we raised as an uncertified issue, but also I think could be fairly encompassed within the certificate of appealability as to those claims.

[00:02:08] Speaker 00:
I think, if I recall correctly, the district court concluded that the claim that you wanted to stay in a bay for had absolutely no merit.

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Is that correct?

[00:02:19] Speaker 01:
Yes, we raised two claims as part of our state request.

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We raised Mr. Hampton's actual innocence and we raised Mr. Hampton's Brady claim.

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The difficulty, I think, with the district court's reasoning is that we only needed to show colorable merits in support of our Ryan's motion.

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And the district court found that both claims lacked any colorable merit.

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which obviously is a point we're disputing.

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As to the actual innocence claim, I appreciate that there are difficulties in raising a constitutional and effective assistance of trial counsel, or I'm sorry, a constitutional claim of actual innocence, but that claim also encompassed an ineffective assistance of trial counsel claim.

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And so I think the colorability of those claims still should have met the low bar raised by, required by Ryan's.

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But the Brady claim was based on, in part, at least, the PSI report for Ridley, correct?

[00:03:17] Speaker 03:
That's correct.

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And I thought the district court said, well, you had that, or not you, but the defense had that in their hands.

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And so that's why.

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And it wasn't presented to the state court.

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So therefore, it was barred.

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Do I have that correct?

[00:03:35] Speaker 01:
Yes.

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And I apologize.

[00:03:37] Speaker 01:
I don't think there's a way to make this simple.

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And my colleagues told me to try to simplify, so I'll do my best.

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I think there are two separate questions here.

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There is the question of diligence under 2254E2.

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And yes, state post-conviction counsel had a copy of the PSI.

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However, the challenge with state post-conviction counsel

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in trying to raise a Brady claim at the point that state post-confinition proceedings started is that his Brady claim would have already been procedurally defaulted under Arizona law.

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And bear with me, I'm going to talk about the Arizona Rules of Criminal Procedure for just a couple minutes.

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Under Arizona Rule of Criminal Procedure 24.1, a defendant can file a motion for

[00:04:25] Speaker 01:
I'm going to get this confused.

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I think a motion for a new trial, which can raise as a basis prosecutorial misconduct.

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But the deadline for that motion is 10 days.

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The PSI in this case did not get filed until 15 days after the guilt verdict in the case.

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And so that motion would have been precluded under the timeline for 24.1 motions.

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So they did not have the PSI when Ridley was testifying?

[00:04:53] Speaker 01:
They did not have the PSI when Ridley testified during the guilt phase.

[00:04:57] Speaker 01:
Well, to be fair, they also did not have it at the time that Ridley testified during the penalty phase.

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The material difference between the two different times that Mr. Ridley testified is that 15 days after the guilt verdict in this case, the PSI was filed in Mr. Ridley's case.

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And as far as I understand, at that point, anyone could access the PSI as a public record, as appears to be the case for post-conviction counsel.

[00:05:23] Speaker 00:
uh... correct me if I'm wrong and I may be struggling with the same thing my colleague is I thought I know that there were three council at least in the penalty phase and I thought that the senior council did have the PSI on a timely basis is that wrong the record does not bear that out your honor uh... and both testified to that effect he just didn't think it was important and the second and tier didn't know about it and you are making a point of that but am I wrong that the senior council

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did have it?

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My reading of the record is that senior counsel did not have it.

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Now, there is a... But the post-conviction counsel did.

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Post-conviction counsel did have it.

[00:06:02] Speaker 04:
I think maybe that's the... Because he's the one who said he didn't think it mattered, right?

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Or at some point, or he apparently didn't think it mattered because he had it and didn't use it.

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So I want to clarify, I think, between different buckets of evidence.

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There is a large amount of evidence in support of the third-party defense that the senior counsel had access to

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and failed to turn over to the junior counsel, who was the one in charge of presenting the third party defense.

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This is at the penalty phase?

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This is at the guilt phase.

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Separate from that is the Ridley pre-sentence investigation.

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As far as we know, neither trial counsel ever accessed the pre-sentence investigation.

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And that is borne out by the declarations that we

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received from both trial counsel that said basically, we never got this.

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We believe it was Brady.

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If we had it, we would have used it during trial.

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And then there's sort of the third separate question of post-conviction counsel had a copy of the pre-sentence investigation in his file.

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However, he did not know he had it in his file.

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And so in his declaration, he indicated, had I known it was in my file, I would have used it.

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I think that this would support a Brady claim.

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He did not know it was in his file and so never presented it to the court.

[00:07:17] Speaker 04:
Oh, I remembered that wrong then.

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So he thinks that it was apparently in his file, but he's saying he didn't know that.

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But it sort of doesn't matter because the problem, I think, is that it wasn't the failure to disclose that prevented the PCR council from using it.

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To the extent there needs to have been some failure to disclose that actually is the cause of it not getting used.

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for Brady to be of claim.

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It wasn't the cause of it not being used because he had it.

[00:07:50] Speaker 01:
Correct.

[00:07:51] Speaker 01:
But I think the cause even goes back farther in time because, and this is where the 2254 E and diligence gets complicated, trial counsel could have accessed this report after it was filed, post-guilt verdict, but before the penalty phase verdict.

[00:08:07] Speaker 01:
And after the penalty phase verdict,

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counsel could have filed a motion to vacate judgment that would have been timely and allowed the Brady claim to be considered by the Arizona courts.

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But because trial counsel failed to do that, it was that the Brady claim was already procedurally defaulted when state post-conviction counsel started the case.

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And so here we have a situation where post-conviction counsel is, we can't attribute lack of diligence to post-conviction counsel because the claim is already procedurally defaulted.

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And then trial counsel's lack of diligence is not attributable to Mr. Hampton because

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Trial counsel is constitutionally mandated counsel in as distinct from state post-conviction who is not constitutional.

[00:08:51] Speaker 03:
So at the end of the day, and I'm interested that you don't have to tell us why, but I would have thought you would have focused more on the Napuhi claim than the Brady claim, but you seem to be focused on the Brady claim.

[00:09:01] Speaker 03:
But in any event, doesn't this all roll into materiality?

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And the district court ultimately said this wasn't material because

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whatever additional impeachment could have been done, there was impeachment of Ridley.

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He was not, I mean, he was not a star witness.

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I mean, he was a main witness, but he wasn't exactly like an unimpeachable witness.

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And the jury apparently had questions about him, in part because of the cross-examination that had been done.

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And so this just wouldn't have made a difference in the trial.

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Isn't that ultimately what the district court said?

[00:09:39] Speaker 01:
That is ultimately what the district court said.

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And I don't want to let my lack of emphasis on the Napuhi claim suggest.

[00:09:46] Speaker 03:
You don't have faith in it.

[00:09:47] Speaker 01:
Yeah, it's a very strong claim.

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I was just choosing the claims that I thought might garner the most interest from the court.

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But Your Honor's recitation of the district court's ruling is correct.

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However, in this instance, the district court erred because the district court read the pre-sentence investigation as cumulative evidence.

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and that because Ridley had been so impeached, the additional impeachment wouldn't have mattered here.

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But the district court, I think, over-reads this court's cases, and specifically in the cases where this court has held that Brady evidence is cumulative,

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what it tends to look like is evidence that is actually duplicative or almost duplicative.

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And here, the pre-sentence investigation provides an additional motive that Ridley had for lying on the stand, specifically that he had this obsessive need to continue stalking his ex-wife.

[00:10:39] Speaker 00:
You know, with respect, you're a very good lawyer, obviously, and you're doing your job, but

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I like this witness.

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I mean, he was impeached up one side, down the other.

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It's hard for me to imagine that the jury would have believed anything that he said, based on the impeachment that did occur.

[00:10:57] Speaker 00:
Why was the district court, I mean, the trial judge, wrong in concluding that what was in the PSI really didn't matter?

[00:11:06] Speaker 00:
It didn't add anything in terms of the credibility of that witness?

[00:11:10] Speaker 00:
What's your response to that?

[00:11:13] Speaker 01:
My response is that knowing, I think there are sort of two different things going on with Mr. Ridley.

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There is what he was actually impeached about, which is essentially that he's getting the steel and he's kind of like every jailhouse informant has the problems that a jailhouse informant has.

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And then on the other hand is this obsessive need he has ostensibly to continue pursuing and victimizing his ex-wife.

[00:11:34] Speaker 03:
But what does that have to do with this case or his testimony?

[00:11:37] Speaker 01:
Well, it's motive testimony for his reason for falsely testifying against Mr. Hampton.

[00:11:42] Speaker 04:
It's just hard because everyone has a motive to get out, right?

[00:11:46] Speaker 04:
And so it's an additional motive to get out.

[00:11:48] Speaker 04:
But people have all kinds of motives why they would rather be free than in prison.

[00:11:54] Speaker 04:
I think it's a challenging argument to say that that piece made a big difference.

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I mean, it also had the information about everyone saying that he lies about everything and he knows how to work the system.

[00:12:02] Speaker 04:
That part seems maybe more compelling as additional evidence to me personally than the additional motive to want to be out.

[00:12:09] Speaker 01:
I agree, Your Honor, and I think it's a package and trial counsel, if they had this report, as they were constitutionally entitled to have, they could have cross-examined Mr. Ridley on all of these matters.

[00:12:20] Speaker 01:
And I think, too, I understand the point that he was cross-examined a fair amount during trial.

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But I think we have to look at how the trial actually played out and how the state emphasized its case during closing arguments.

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And I think it's very difficult to deny that the state viewed Mr. Ridley as one of its most important witnesses.

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But with respect, I think my colleague's reference to materiality is what really, for me, is important here.

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A good lawyer, such as yourself, can pull out of a PSI all kinds of things, all kinds of things.

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But the reality is our case law does not require that every single thing that's in there that could conceivably have been used to impeach the witness be used.

[00:13:04] Speaker 00:
And in this case, as I look back on it and see what you're referring to, I don't see what difference it would have made.

[00:13:12] Speaker 00:
And if I put myself in the status of the state trial judge, I can see why the judge would say, this isn't really material.

[00:13:21] Speaker 00:
It doesn't really help anybody.

[00:13:23] Speaker 00:
What am I missing?

[00:13:27] Speaker 01:
Well, I just want to make sure we're on the same page.

[00:13:30] Speaker 01:
The state court never ruled on this claim.

[00:13:33] Speaker 01:
But I understand the point to be, what about materiality?

[00:13:37] Speaker 01:
And I think that because this was not a strong case to begin with, even setting aside the Brady evidence, you had Missy Ross, who, defense counsel, not subtly accused of being under the influence of methamphetamines at the time that she was testifying.

[00:13:51] Speaker 00:
Everybody seemed to be on meth in this case, were they not?

[00:13:54] Speaker 01:
There, there are a lot of witnesses who perpetrators.

[00:13:58] Speaker 00:
It's a meth haven.

[00:14:00] Speaker 01:
There, there seems to be, have been a lot of methamphetamines in this case, your honor.

[00:14:03] Speaker 01:
Um, in addition to her drug use, uh, her testimony was inconsistent with a key piece of forensic evidence, namely where Mr. Finley's body was in relation to the couches at the crime scene.

[00:14:16] Speaker 00:
Um, but, but, but with respect counsel, again, you know, your client, there were all kinds of physical evidence.

[00:14:25] Speaker 00:
blood, there was all kinds of other things independently that showed his involvement, was there not?

[00:14:34] Speaker 01:
No, Your Honor.

[00:14:35] Speaker 01:
There was no forensic or physical evidence tying Mr. Hampton to these crimes.

[00:14:39] Speaker 01:
The two witnesses that connected him to the crimes were Misty Ross and George Ridley.

[00:14:44] Speaker 01:
Right.

[00:14:45] Speaker 04:
Can I, so we've taken you almost half your time on the claim that is not the claim you wanted to start with, and I think your strongest claim is IAC during the guilt phase, so that's where you tried to start.

[00:14:56] Speaker 04:
I think you're kind of getting there now, that the evidence, there's no physical evidence, there's only these two witnesses who are both very impeached.

[00:15:03] Speaker 04:
Can you talk about why you think, I think you want to say that the third party guilt evidence really should have come in, because it's such a weak case.

[00:15:10] Speaker 04:
Is that where you would have started if we hadn't derailed you?

[00:15:12] Speaker 01:
Yes, although I'm happy to have talked about Shin early.

[00:15:17] Speaker 01:
So I want to focus on what the jury did not hear.

[00:15:21] Speaker 01:
Timothy Wallace was the biggest meth cook in the Phoenix Valley.

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He was Chuck Finley's supplier.

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And Mr. Finley was in trouble.

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His criminal aspirations were failing.

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He owed Mr. Wallace a lot of money.

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He had been twice arrested for his identity and check fraud scheme, and both times he had not been charged.

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And shortly after the second time he had been arrested without being charged, Mr. Wallace was arrested coincidentally at the same time that he had a large amount of freshly cooked methamphetamines.

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After that happens, Mr. Finley's two arrests without charges suddenly look very suspicious.

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And Mr. Wallace starts going around saying that he knows that Mr. Finley is a snitch, and that once he proves that Mr. Finley is a snitch, that he's going to smash him.

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And then after the murders in this case, Mr. Wallace confessed to shooting Mr. Finley and Ms.

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Ramsdell for being snitches.

[00:16:18] Speaker 01:
Three people heard Mr. Wallace confess, but the jury only heard from one of those people and the jury did not hear any of the background evidence that would have corroborated Mr. Wallace having made the confession or Mr. Wallace's motive for shooting Mr. Finley and Ms.

[00:16:35] Speaker 01:
Ramsdell.

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And as Your Honor alluded to, and this is a case where the two state's witnesses were heavily impeached and the case was not strong.

[00:16:45] Speaker 01:
Counsel was deficient in failing to present this additional evidence, which showed that not only did Wallace confess, not only did one person here Wallace confess, two additional people hurt him, not only did he confess, he had motive for committing these homicides, and not only did he have motive, his motive was corroborated

[00:17:02] Speaker 01:
by the circumstances of Mr. Finley's and his arrest.

[00:17:06] Speaker 03:
So how does this relate to your ineffective assistance counsel claim?

[00:17:10] Speaker 03:
Because I thought your ineffective assistance counsel claim focused on failure to get mental health evidence in.

[00:17:18] Speaker 03:
And I guess there's additional evidence of Wallace's involvement.

[00:17:22] Speaker 03:
What exactly are you saying they didn't put in to evidence about his involvement?

[00:17:28] Speaker 03:
Because the jury did hear some of that.

[00:17:30] Speaker 01:
Yeah, and I just want to clarify, we also have the ineffective assistance of penalty phase counsel claim, which is all the mental health evidence that your honor just alluded to.

[00:17:36] Speaker 03:
So this is not related to that?

[00:17:38] Speaker 01:
This is not related to that.

[00:17:39] Speaker 01:
So specifically, the specific evidence that they should have put in, the two additional witnesses who heard Mr. Wallace confess, and then

[00:17:50] Speaker 01:
The evidence supporting that Mr. Finley had twice been arrested without being charged and Mr. Wallace's arrest, which the state post-convention council suggested could have come in from the officers who made those arrests.

[00:18:03] Speaker 01:
There were also witnesses who were not called who could have corroborated that it was well known in the community that Mr. Finley owed Mr. Wallace money and that Mr. Wallace was Mr. Finley's supplier.

[00:18:14] Speaker 01:
So that is the category of evidence that we're talking about.

[00:18:18] Speaker 04:
I was not totally sure whether your argument was that council knew about all of this and the ineffective the deficient performance was not presenting it or whether the deficient performance was not investigating enough or whether you're saying both.

[00:18:34] Speaker 01:
A little bit of both your honor because

[00:18:37] Speaker 01:
Part of the deficient performance here was this dynamic between the senior attorney on the case and the junior attorney on the case.

[00:18:43] Speaker 01:
The junior attorney on this case, Maria Schaeffer, was the one who was in charge of the third party defense.

[00:18:48] Speaker 01:
And she testified during the state post-conviction hearing that she was unaware of all of this evidence, that there was no strategic decision to not present this evidence, and that if she had known about the evidence, she would have presented it.

[00:19:02] Speaker 00:
In a different- How do we deal with that, though?

[00:19:05] Speaker 00:
I think there were three lawyers altogether involved.

[00:19:07] Speaker 00:
But if you have the lead lawyer who has it, doesn't think it's that important, doesn't deal with it.

[00:19:13] Speaker 00:
The second lawyer said, well, we'd have done something different.

[00:19:18] Speaker 00:
under Strickland and its progeny, how do we deal with that?

[00:19:22] Speaker 00:
Do all the lawyers have to be in agreement?

[00:19:25] Speaker 00:
What happens if they disagree with each other about whether it would have been used or not?

[00:19:30] Speaker 01:
Well, and I think Mr. Logan's, Mr. Logan being the senior attorney, and forgive me counsel, or forgive me your honor, I'm only aware of the two counsel, Maria Schaeffler and James Logan.

[00:19:38] Speaker 00:
Perhaps I misread it.

[00:19:40] Speaker 01:
There was an earlier counsel, but that counsel had a conflict.

[00:19:43] Speaker 00:
Oh, two people, they seem to disagree with one another.

[00:19:46] Speaker 00:
So under Strickland,

[00:19:48] Speaker 00:
You've got two-part burden.

[00:19:50] Speaker 00:
On the first part, how do you determine whether there was performance that's so far below the standard required that you've got the first prong satisfied?

[00:20:05] Speaker 00:
What do we do in this case?

[00:20:06] Speaker 01:
So I think an important point of clarification is the testimony did not reflect disagreement between the two lawyers.

[00:20:14] Speaker 01:
What the testimony reflected was Mrs. Schaeffer's view that there was no strategic decision.

[00:20:18] Speaker 01:
This information was never given to her.

[00:20:21] Speaker 01:
And then Mr. Logan could not recall.

[00:20:23] Speaker 01:
He did not remember.

[00:20:24] Speaker 00:
And the- Okay, so taking that then, how do you satisfy the first prong of Strickland?

[00:20:32] Speaker 00:
What is so deficient

[00:20:34] Speaker 00:
in what you just recited, that it meets that first problem?

[00:20:39] Speaker 01:
So I think the first thing is this court has recognized that when the defense chooses to present a particular defense, they are charged with presenting that defense effectively.

[00:20:49] Speaker 01:
Clearly in this case, they were interested in third party defense because they presented Mr. Sandin's testimony.

[00:20:55] Speaker 01:
But then to not present any of the other evidence that would have supported this, and for the person in charge of that defense to not even know about this evidence,

[00:21:03] Speaker 01:
That is deficient.

[00:21:04] Speaker 00:
Let me ask you this.

[00:21:06] Speaker 00:
If I recall correctly, Mr. Logan had like 30 years experience as a capital defense lawyer.

[00:21:13] Speaker 00:
The second chair lawyer had a lot.

[00:21:18] Speaker 00:
She was a specialist as well.

[00:21:20] Speaker 00:
These are not inexperienced people that had no idea what they're doing.

[00:21:25] Speaker 00:
So even if they didn't present it and one didn't even know about it, how does that meet this standard for the first prong of Strickland?

[00:21:32] Speaker 00:
My understanding is it's a pretty difficult standard to meet.

[00:21:36] Speaker 00:
You've got to show these are really dumb-dumps.

[00:21:39] Speaker 00:
They really don't do their job.

[00:21:42] Speaker 00:
And had they done their job, everybody would know that they'd blown it in this case.

[00:21:48] Speaker 00:
I don't see that.

[00:21:49] Speaker 01:
What am I missing?

[00:21:53] Speaker 01:
Two answers here.

[00:21:54] Speaker 01:
First, although Ms.

[00:21:56] Speaker 01:
Schaeffer, the more junior counsel, had some experience under her belt, this was her first time doing a capital case.

[00:22:02] Speaker 01:
It was also her first time working with co-counsel.

[00:22:04] Speaker 01:
And Mr. Logan, although he had a fair amount of experience, he also had a significant amount of administrative duties.

[00:22:11] Speaker 01:
And so I would gently push back that experience alone suggests strategy in this particular case.

[00:22:17] Speaker 01:
To answer the... Forgive me.

[00:22:20] Speaker 00:
Even if we don't say strategy, let's put that to the side.

[00:22:23] Speaker 00:
As I understand it, to meet the first prong of Strickland, you've got to show that really, if you take the whole community of lawyers that would handle these kind of cases, everyone would just, their jaw would drop at what these people did.

[00:22:37] Speaker 00:
I'm not seeing that.

[00:22:39] Speaker 00:
What am I missing?

[00:22:40] Speaker 01:
So I think two things.

[00:22:41] Speaker 01:
Respectfully, I think most defense lawyers' jaws would drop.

[00:22:45] Speaker 01:
And I think, I wouldn't go so far as to say that your honor's missing something, but I think what I would call your honor's attention, too, is the confession that was presented was essentially a somewhat random person saying, I was kind of randomly in this room where this other guy who I had just met, Timothy Wallace, confessed.

[00:23:01] Speaker 01:
And he said he did it because Mr. Finley and Ms.

[00:23:04] Speaker 01:
Ramsdell were rats.

[00:23:06] Speaker 01:
No other evidence to make that a believable confession.

[00:23:09] Speaker 01:
The evidence that's missing is Chuck Finley owed this individual money.

[00:23:15] Speaker 01:
Chuck Finley had been arrested two times without being charged.

[00:23:17] Speaker 01:
And so this idea that Mr. Wallace believed that

[00:23:21] Speaker 01:
Finley and Ramsdale were informants is extremely believable in light of that timeline and that evidence.

[00:23:27] Speaker 04:
And the two other confessions I guess I think those are the more it's like if he confesses to three different people I know there's some question about whether the other two are the same incident or more than one incident because there's different accounts of where that happened I guess but it seems like there's at least three confessions.

[00:23:42] Speaker 01:
Yes, and that's right.

[00:23:44] Speaker 01:
And the other two witnesses would have, in addition to the confession, been able to provide a fair amount of the background contacts related to Mr. Finley's relationship with Mr. Wallace.

[00:23:54] Speaker 01:
And I say I'm past my time, so I... Do you want to save the rest of your time?

[00:23:58] Speaker 01:
I would like to, Your Honor.

[00:23:59] Speaker 00:
Very well.

[00:23:59] Speaker 01:
Thank you.

[00:24:00] Speaker 00:
All right.

[00:24:01] Speaker 00:
We'll hear from Mr. Lewis from the State.

[00:24:05] Speaker 00:
Thank you, Your Honor.

[00:24:06] Speaker 00:
It may be please.

[00:24:11] Speaker 02:
Forgive me.

[00:24:12] Speaker 02:
I'll try my best not to have that happen again.

[00:24:15] Speaker 02:
If I could start with... What is that?

[00:24:19] Speaker 04:
I've never had that happen before.

[00:24:21] Speaker 00:
Kelly, we're hearing some noises at the lectern.

[00:24:25] Speaker 02:
Wait, it might be radioactive.

[00:24:29] Speaker 00:
Kelly, can you hear me?

[00:24:32] Speaker 00:
He's talking to one of our tech people to find out.

[00:24:35] Speaker 00:
That was the voice from above that we heard earlier.

[00:24:39] Speaker 03:
Why don't you go on, Steve?

[00:24:40] Speaker 02:
Sure thing.

[00:24:41] Speaker 02:
Um, yeah, so if we can start with, uh, Ramirez, McLaughlin, and Lee, and that, you know, as the court most recently signaled to the parties, uh, those three cases and their application here, um, do quite a bit of work.

[00:24:56] Speaker 02:
Uh, the first one would be Ramirez from the Supreme Court, and that really defined, I think, where we are now with 2254E2 and how difficult that standard is to meet.

[00:25:10] Speaker 02:
You know, I can walk through the claims and how E2 affects those claims.

[00:25:15] Speaker 02:
For the Brady claim, E2 affects, I think, the consideration of the PSR at all.

[00:25:23] Speaker 02:
Because, of course, we've got Strickler and we've got Bank Speed RepKey, and we've got this concept that a Brady violation can serve as cause to overcome procedural default.

[00:25:34] Speaker 02:
But as the court noted earlier, PCR counsel had that pre-sentence report.

[00:25:41] Speaker 02:
But PCR counsel didn't raise the claim.

[00:25:43] Speaker 02:
Then we're more squarely.

[00:25:44] Speaker 03:
Can you clarify, do you have anything to add on the timing?

[00:25:48] Speaker 03:
Because I think at least I came in a little bit confused on it.

[00:25:51] Speaker 03:
And do you agree with opposing counsel's rendition of when those were in the possession

[00:25:59] Speaker 02:
Yeah, no, I think I agree for the most part, you know, the pre-sentence report is a court record.

[00:26:05] Speaker 02:
It is ordered by the court.

[00:26:07] Speaker 02:
It is created by a probation officer who works for the court.

[00:26:10] Speaker 02:
It's publicly available after it's filed.

[00:26:12] Speaker 02:
That's all clear.

[00:26:13] Speaker 03:
It wasn't filed.

[00:26:14] Speaker 03:
When was it actually filed?

[00:26:15] Speaker 02:
I believe May 15th of 2002, so after the guilt-faced testimony had concluded.

[00:26:21] Speaker 02:
You know, just something collateral.

[00:26:24] Speaker 03:
But before the penalty phase?

[00:26:26] Speaker 02:
Yes, before the penalty phase, it was filed in George Ridley's case.

[00:26:30] Speaker 02:
I mean, you know, if you can back up and think about trial counsel's awareness of George Ridley, they were very aware of George Ridley.

[00:26:36] Speaker 02:
He was a key prosecution witness in the case.

[00:26:39] Speaker 02:
They knew about him, they knew about his priors, and they knew about the people involved with the priors.

[00:26:44] Speaker 02:
Trial counsel could have made that investigation to perhaps talk to the victim in the stalking offenses.

[00:26:49] Speaker 02:
That didn't happen.

[00:26:51] Speaker 02:
We don't know why that claim wasn't raised.

[00:26:54] Speaker 02:
But it's questionable whether or not that victim could have come up and said, don't listen to George.

[00:26:59] Speaker 02:
He's my ex-husband.

[00:27:00] Speaker 02:
He stalked me.

[00:27:00] Speaker 02:
He did these violent things to me.

[00:27:03] Speaker 02:
Maybe she could have gotten up and said.

[00:27:04] Speaker 03:
Those convictions would have been public record.

[00:27:08] Speaker 03:
Is that right?

[00:27:08] Speaker 02:
Well, they would have been disclosed.

[00:27:09] Speaker 02:
And there's no dispute here that they were disclosed to trial counsel.

[00:27:13] Speaker 02:
So they had George Ridley's criminal history and knew the basis of those convictions.

[00:27:18] Speaker 02:
And as the court noted, George Ridley was pretty thoroughly impeached.

[00:27:23] Speaker 02:
And one thing I wanted, and as I was reviewing this case to prepare for today, there's sort of a delineation in the type of impeachment.

[00:27:33] Speaker 02:
So in the guilt phase, George Ridley is impeached with his motive for testifying, okay, you're in jail garb, he's cuffed at the witness stand, so the jury's already aware something's going on with this witness.

[00:27:46] Speaker 02:
But then he testifies, yeah, I've got these charges.

[00:27:49] Speaker 02:
I'm facing a lot of time.

[00:27:51] Speaker 02:
I'm testifying because the state's going to make a favorable recommendation in my case pursuant to a plea agreement that they're giving me to testify under.

[00:27:59] Speaker 02:
So the jury's got all that information.

[00:28:01] Speaker 02:
They know he's a felon.

[00:28:02] Speaker 02:
They've got every reason in the world not to trust him.

[00:28:05] Speaker 02:
And so this goes to the cumulative nature of what's in the pre-sentence report, this sort of concept of this

[00:28:12] Speaker 02:
additional motive to fabricate testimony just doesn't carry a lot of water.

[00:28:18] Speaker 02:
He had all the motive in the world to fabricate testimony and the jury could have thought about that.

[00:28:23] Speaker 02:
He wanted to get out of jail and he wanted to avoid prison and that was thoroughly discussed with trial counsel.

[00:28:34] Speaker 04:
That I agree with you that you could have a good argument that it was cumulative, but this leads to the next problem with the case.

[00:28:42] Speaker 04:
So it's very odd to have the state basically saying, we had two witnesses.

[00:28:45] Speaker 04:
There's no physical evidence.

[00:28:47] Speaker 04:
One of them is completely on drugs, and the other one is completely impeached.

[00:28:50] Speaker 04:
And so the evidence that this guy who is going to get the death penalty committed this crime is two witnesses who are totally not credible.

[00:28:57] Speaker 04:
And you're basically admitting that in your briefs.

[00:28:59] Speaker 04:
And so then that leads me to the IAC of the guilt phase claim, because if you've got a case with so little evidence, I really don't understand how it's not deficient performance to admit a third party's confessions to the crime at question, because there's not that much evidence about petitioner doing the crime.

[00:29:17] Speaker 02:
I understand the way you're characterizing it.

[00:29:20] Speaker 02:
You know, it is a compelling argument, but I'd like to push back a little bit respectfully on Miss Ross's testimony because I went back and I read her trial transcript and her use of methamphetamine was explored during her testimony.

[00:29:34] Speaker 02:
And trial counsel, this is what you would try to do, right?

[00:29:37] Speaker 02:
You would try to say, well, you were on drugs.

[00:29:38] Speaker 02:
You don't remember what you saw.

[00:29:39] Speaker 02:
Maybe you hallucinated it.

[00:29:41] Speaker 02:
Maybe you saw something else.

[00:29:43] Speaker 02:
And she was unequivocal in saying that something like that sobers you up.

[00:29:49] Speaker 02:
She was absolutely certain about what she saw that day.

[00:29:53] Speaker 04:
But then why don't you present Dorr who says she said to Dorr she doesn't know who did it?

[00:29:59] Speaker 02:
I think what we're dealing with here is that we do have the witness that was presented, right, for this Tim Wallace third-party culpability theory.

[00:30:05] Speaker 04:
But that person didn't impeach Ross, and Dorr could have, and I don't understand why they didn't present Dorr.

[00:30:12] Speaker 02:
I think, so as counsel noted, the person who testified this was Sandin was sort of on the periphery, not involved in this group of people that were constantly doing drugs together and committing various crimes.

[00:30:24] Speaker 02:
And this person was this person's supplier and all these things, all of this drama that's happening in this group.

[00:30:30] Speaker 02:
Trial counsel made a reasonable strategic choice not to present people that had that kind of baggage.

[00:30:35] Speaker 02:
Sandin didn't have any of that.

[00:30:37] Speaker 02:
There was nothing to impeach that person about because they were on the periphery.

[00:30:40] Speaker 04:
But because of that, they're also weak.

[00:30:42] Speaker 04:
I mean, the people who really knew all of these people and knew what was going on, I mean, at least two of them say it was Wallace.

[00:30:49] Speaker 02:
Yeah, I understand your point, Your Honor.

[00:30:52] Speaker 02:
I just think it was a reasonable strategic choice to present the person without this sort of baggage, like Kiva Armijo, like witness.

[00:30:59] Speaker 02:
I mean, this person didn't want to testify under their true name because of all of the things that could have been brought up.

[00:31:05] Speaker 02:
There's a lot going on here, and I think it was a reasonable choice to only present this witness who didn't have any of that baggage.

[00:31:13] Speaker 02:
But to pull you back even more.

[00:31:15] Speaker 03:
Does that go, help me understand how we analyze this, because does this go to cumulative?

[00:31:20] Speaker 03:
I mean, is it part of the argument that some of this evidence was presented?

[00:31:25] Speaker 03:
Yeah, there might have been more evidence, but just because you didn't put in three witnesses and you put in the best witness may have been the best witness.

[00:31:32] Speaker 03:
I mean, you have to make decisions all the time about who's going to be the best witness.

[00:31:36] Speaker 03:
Is that the basis that the state is suggesting we should

[00:31:41] Speaker 03:
Analyze this under and say this is cumulative.

[00:31:44] Speaker 03:
So that's why it wasn't ineffective or Right.

[00:31:47] Speaker 02:
So, you know that it was cumulative, but also that trial counsel had reasonable choices about which witnesses to present based on the problems that their testimony would have had.

[00:31:59] Speaker 02:
and based on the way the state would have challenged their testimony.

[00:32:03] Speaker 02:
I mean, you know, counsel is always thinking in the background that they have to maintain credibility with the jury.

[00:32:08] Speaker 02:
And so if you have a real shot of convincing the jury that Tim Wallace or some other third party is the actual responsible person for this, in the face of eyewitness testimony from somebody who testifies clear-eyed that, yeah, I was doing drugs, but that sobers you up quick,

[00:32:24] Speaker 02:
That's reasonable.

[00:32:25] Speaker 02:
And if I can pull you back on the IAC claims, we're looking at this under subsection D. And we have to talk about whether or not the PCR court unreasonably applied than existing Supreme Court precedent.

[00:32:36] Speaker 02:
And that didn't happen here.

[00:32:38] Speaker 00:
Can I ask you this, following up on my colleague's question about Wallace?

[00:32:44] Speaker 00:
You do have these three people that say that it's a confession that he did it.

[00:32:48] Speaker 00:
What evidence, if any, was presented to the jury

[00:32:54] Speaker 00:
from those people about Wallace's alleged confession to the murder.

[00:33:00] Speaker 02:
I think it was just the Sandin witness.

[00:33:02] Speaker 02:
It was the one witness who testified about not knowing Wallace, hearing him talk about committing these killings, and then trying to find out who he was.

[00:33:13] Speaker 02:
I think he said he went out to the parking lot after Wallace left.

[00:33:16] Speaker 00:
One of the three people that claimed to have heard him confess

[00:33:20] Speaker 00:
did get that information to the jury.

[00:33:23] Speaker 02:
Yep.

[00:33:23] Speaker 04:
But it was from different incidents of confessions, right?

[00:33:26] Speaker 02:
I'm not sure, Your Honor, and if I could push back a little bit on calling this confession, Tim Wallace, by all accounts, is a criminal.

[00:33:35] Speaker 02:
He was a drug dealer.

[00:33:36] Speaker 02:
He was a violent person.

[00:33:38] Speaker 02:
I would call these statements to these third parties bragging rather than confessions.

[00:33:43] Speaker 02:
This wasn't Tim Wallace unburdening himself and trying to say, oh, I'm so wrecked because I committed these murders.

[00:33:51] Speaker 02:
He's saying, yeah, I did that stuff to those people.

[00:33:54] Speaker 02:
Don't mess with me.

[00:33:55] Speaker 02:
This is sort of in furtherance of what he's doing out there in the community.

[00:33:59] Speaker 02:
So I just have a little bit of an issue calling it a confession in the sense of that word.

[00:34:04] Speaker 03:
Was that presented to the jury, that theory right there, through cross-examination or something?

[00:34:09] Speaker 02:
I'm just trying to maybe give the court a little context to look at his statements to third parties.

[00:34:14] Speaker 04:
But the answer has to be no, because this is the whole point, is that it wasn't presented to the jury.

[00:34:18] Speaker 04:
These other people who said he said this weren't presented.

[00:34:21] Speaker 04:
The jury didn't know about them.

[00:34:22] Speaker 02:
Just through Sandin, and then I believe through his contemporaneous notes, trial counsel James Logan, during the evidentiary hearing, it was clear that he was aware of those witnesses, Kiva Armijo and I think one other, and he chose not to call them.

[00:34:41] Speaker 04:
And again, if you- And the two people who heard the confessions were both women.

[00:34:45] Speaker 04:
I'm not sure it's that plausible that he was like,

[00:34:47] Speaker 04:
Don't mess with me.

[00:34:48] Speaker 04:
I don't know.

[00:34:49] Speaker 04:
The setting you just hypothesized doesn't sound that realistic for who these witnesses were.

[00:34:53] Speaker 04:
And they were both kind of friends with him, weren't they?

[00:34:55] Speaker 02:
I mean, one of the victims in this case was a pregnant woman.

[00:34:57] Speaker 02:
And so that's kind of the world we're dealing with here, that people would commit violence against women and pregnant women, which is a sad aspect.

[00:35:04] Speaker 04:
Well, Wallace was.

[00:35:05] Speaker 04:
That's the point, though.

[00:35:06] Speaker 04:
Wallace, you're trying to say.

[00:35:07] Speaker 04:
I don't know.

[00:35:08] Speaker 04:
I mean, we don't have any reason to think that Wallace was threatened by Ross or Miho, right?

[00:35:15] Speaker 02:
By Misty Ross?

[00:35:17] Speaker 04:
I'm sorry door door.

[00:35:19] Speaker 02:
Sorry.

[00:35:19] Speaker 04:
I didn't mean Ross.

[00:35:19] Speaker 02:
I meant door

[00:35:21] Speaker 02:
I'm not sure, Your Honor, but I mean, I understand your line of questioning, and I understand, you know, what you're dealing with here and wondering why these, why not present more, right?

[00:35:33] Speaker 02:
But my best answer for that is the witness that was presented was the one that could be presented with the least baggage, and that was trial counsel's strategic choice.

[00:35:41] Speaker 00:
Procedurally, what is the state's response to the point made by my colleague that

[00:35:48] Speaker 00:
Here you have kind of weak evidence tying the Mr. Hampton to the murder.

[00:35:56] Speaker 00:
You've got three people said that Wallace, in quotes, confessed to it, whether you characterize it as a bragging or not.

[00:36:03] Speaker 00:
Under EDPA, what is the state's best defense to the fact that that was not presented in a lot of ways to the jury?

[00:36:13] Speaker 00:
You said it was just the one.

[00:36:15] Speaker 02:
Uh, well, you know, I think we we shift back.

[00:36:18] Speaker 02:
So again, these two IC claims, the claims are presented, so they're exhausted.

[00:36:22] Speaker 02:
Um, but I believe there's some new evidence that's been used to bolster those claims in these proceedings.

[00:36:28] Speaker 02:
Um, I think the Jennifer Doe testimony, please don't hold me to anything.

[00:36:32] Speaker 02:
I'm new to this case, so I'm not totally clear on the line between what was presented in state court and what was presented in federal in state court.

[00:36:39] Speaker 04:
My understanding is there's two things in the door testimony, but in state court it was presented

[00:36:44] Speaker 04:
that she heard Ross say, I don't know who committed these crimes.

[00:36:50] Speaker 04:
I think you may be right that Dorr hearing Wallace wasn't presented, I think, but they could correct us.

[00:36:57] Speaker 04:
But there's at least the idea that Ross, I mean, so if you get rid of the jailhouse informant, who's totally not credible, you've got Ross on drugs and now Ross is telling Dorr, I actually don't know who did it.

[00:37:10] Speaker 04:
And Ross is the one who's the only evidence at that point.

[00:37:13] Speaker 04:
So that seems pretty important.

[00:37:14] Speaker 04:
And that was presented to the PCR court.

[00:37:17] Speaker 02:
Yeah And so then you just have to determine whether or not that was unreasonable under under Strickland and under Cullen v. Penn holster and and I think that level of deference, you know compels That the the state PCR court got it right and can't lead to relief under EDPA I guess that's what

[00:37:39] Speaker 00:
I wrote pinholster for our court, so I have a particular sensitivity to that.

[00:37:44] Speaker 00:
I still think the court was wrong, but they controlled.

[00:37:48] Speaker 00:
But that's what I struggle with here, is what showed up in the federal court that didn't show up in the state court, can we consider?

[00:38:02] Speaker 02:
I think post Ramirez, we can't.

[00:38:05] Speaker 02:
You have to meet the strict requirements of 2254E2, and Hampton hasn't done that here.

[00:38:12] Speaker 04:
Yeah, I don't understand there.

[00:38:13] Speaker 04:
I mean, they do have some additional things they want to talk about, and it's in the actual innocence, other part of their claim.

[00:38:19] Speaker 04:
But as to this, it was presented in state court, and we have the evidence in state court.

[00:38:23] Speaker 04:
I think they're making an argument that given the evidence in state court, this was not

[00:38:27] Speaker 04:
reasonable performance and it's hugely prejudicial because this case had no evidence and I'm really struggling with how we Like what how do you think?

[00:38:36] Speaker 04:
Oh, this is fine.

[00:38:37] Speaker 04:
This guy's gonna get the death penalty and he really did it What is the evidence that he really did it?

[00:38:40] Speaker 04:
Can you list it?

[00:38:41] Speaker 02:
I think that the evidence is miss you Ross's eyewitness testimony and I understand that she made statements later on to other people like door But I think she was tested through the crucible of cross-examination and she didn't waver She explained she but she wasn't cross-examined with statements that she made apparently saying I actually don't know what happened and

[00:39:04] Speaker 02:
I'm not clear if that's pretrial or post trial from door Which could make a difference in in this calculus it might have been pretrial if we're talking about I think it was I Think it was 2001, but I'm not positive.

[00:39:16] Speaker 04:
I remember that right Which would have been pretrial I think they would have been able to have this if they'd wanted it.

[00:39:21] Speaker 04:
That's the deficient performance, right?

[00:39:22] Speaker 02:
Yeah, no, you're right.

[00:39:23] Speaker 02:
Your honor.

[00:39:24] Speaker 02:
I apologize for that

[00:39:25] Speaker 02:
And and I think we're just gonna disagree on this but I think misty Ross even had she be confronted with these inconsistent statements because The one statement we're talking about from door is that mr. Ross didn't know who did it There could be a lot of reasons for that But it's not because she fabricated what she saw Tracy Hampton do and that's just my view of the evidence your honor but from the perspective of mr. Hampton that's deficient performance and

[00:39:52] Speaker 00:
under Strickland.

[00:39:53] Speaker 00:
What's your analysis of that?

[00:39:56] Speaker 00:
How should we view that?

[00:39:59] Speaker 02:
First, I think that the state PCR court reasonably applied Strickland as well as Colin V. Penholster, and I understand the background on that, Your Honor.

[00:40:10] Speaker 02:
I think when the Supreme Court took that case and issued the opinion that they did, they adopted Judge Kaczynski's dissent.

[00:40:17] Speaker 02:
And in Judge Kaczynski's dissent, he focuses, he pulls from the objective reasonableness standard in Strickland and says that under this standard, you need to entertain the range of choices counsel could reasonably make under the circumstances.

[00:40:37] Speaker 02:
Um, and so I, I don't think that it, it was unreasonable for the state court to rely on that standard because it was reserved for some other, you know, level of double or triple deference.

[00:40:49] Speaker 02:
I think that's the Supreme Court's extension of what objective reasonableness means under Strickland.

[00:40:55] Speaker 00:
So from your perspective, because we're reviewing this case under EDPA, the very legitimate point that my colleague has brought up,

[00:41:04] Speaker 00:
doesn't change the result because we really can't go back and rewrite the script at the state court level.

[00:41:11] Speaker 00:
Enough was done to meet the Strickland standard under the first problem.

[00:41:14] Speaker 00:
Is that right?

[00:41:15] Speaker 02:
Right, your honor.

[00:41:16] Speaker 02:
And as far as deficient performance goes, I mean, it's true.

[00:41:20] Speaker 02:
James Logan had 29 years of trial experience.

[00:41:25] Speaker 02:
He was running the Office of the Legal Advocate.

[00:41:27] Speaker 02:
He was probably their most experienced capital defense counsel.

[00:41:32] Speaker 02:
He was not, you know,

[00:41:35] Speaker 02:
fresh lawyer, Maria Schaeffer was new to capital cases, but I believe from her testimony in the trial court or in the PCR court, she had 10 years of experience at that point.

[00:41:47] Speaker 02:
But in his testimony at the evidentiary hearing, Logan was clear, I was lead counsel, it was my call.

[00:41:53] Speaker 02:
And when you entertain the range of choices that counsel could reasonably make, it was reasonable for him

[00:42:02] Speaker 02:
to decline to call these people who had so much baggage and would not have been credible witnesses for the jury to consider.

[00:42:09] Speaker 00:
So in other words, from your perspective, notwithstanding the weakness of the evidence tying Mr. Hampton, except for these two people, both of whom have real problems, one of whom Ross said basically to another setting, she didn't know, that nonetheless, what was presented was presented

[00:42:30] Speaker 00:
the Council were not deficient in failing to get the other two to bring on the comment that Mr. Wallace had confessed to the wedding.

[00:42:43] Speaker 00:
I mean, the murders, right?

[00:42:45] Speaker 02:
You're right, Your Honor.

[00:42:46] Speaker 02:
The record is set.

[00:42:47] Speaker 02:
It's the state court record before this court, and it's consideration when looking under subsection D has to be limited to the state court.

[00:42:54] Speaker 04:
So I struggle a bit here in thinking about how to separate the deficient performance from the prejudice, because it seems to me it kind of bleeds together in my head, because what counts as reasonable performance may partly depend on what other evidence is there.

[00:43:10] Speaker 04:
And in this case, where the evidence is really weak.

[00:43:13] Speaker 04:
And I mean, you just said there's only evidence is Ross, who was on drugs and contradicted herself.

[00:43:20] Speaker 04:
Why doesn't it seem like in that context, you don't worry as much about whether one of the witnesses was also on drugs or also knew the person because there's so little evidence you might as well put in that the one witness contradicted herself.

[00:43:36] Speaker 04:
The weakness of the evidence, which is usually the prejudice, whether it would make a difference is usually a prejudice part, but it feels to me like it bleeds into whether this was a reasonable strategy.

[00:43:46] Speaker 02:
See what you're saying your honor and but that's not what Strickland endorses Strickland doesn't say Well, if you could have done it and it really wouldn't hurt you might as well have done it It looks at whether or not council's actions were objectively reasonable And then that's that's kind of the end of it.

[00:44:04] Speaker 04:
It's not like well you might as well yeah, I mean I guess my question is though why is it objectively reasonable to worry about whether

[00:44:12] Speaker 04:
the two witnesses who could have really undermined the one witness who was the case had some credibility problems themselves.

[00:44:20] Speaker 04:
I mean, yes, maybe they had some credibility problems.

[00:44:23] Speaker 04:
And so that would be a reason if you had 50 other witnesses to put on some of the other 50.

[00:44:26] Speaker 04:
But in a case with almost no evidence, why don't you put on what you have?

[00:44:30] Speaker 04:
I don't understand it.

[00:44:31] Speaker 02:
It's a good question, actually, your honor, and it makes me think of something.

[00:44:34] Speaker 02:
The background at the trial was that trial counsel was doing everything he could to keep the jury from learning that Tracy Hampton was affiliated with the Aryan Brotherhood.

[00:44:45] Speaker 02:
trial counsel in pursuit of that goal, which may have been the singular most important goal in the guilt phase, had to make a decision on whether or not to risk putting on other witnesses who could testify about his involvement or association with the Aryan Brotherhood.

[00:45:01] Speaker 04:
I think that's reasonable.

[00:45:03] Speaker 04:
I don't remember them having that in their transcripts.

[00:45:09] Speaker 02:
They could have I'm saying this was an issue.

[00:45:11] Speaker 02:
There's a mistrial motion when when George Ridley gets into some of that area.

[00:45:18] Speaker 02:
and there's discussion in the court crafts, but I'm saying this is in the background and this is why trial counsel, I believe, or at least it was objectively reasonable for trial counsel to limit the witnesses being presented in favor of Hampton.

[00:45:31] Speaker 02:
I think that's objectively reasonable for trial counsel to try to keep that sort of collateral damage to a minimum.

[00:45:38] Speaker 04:
And so the more people- I'm sorry, can you just, I'm not sure I understand this.

[00:45:43] Speaker 04:
I know there was an issue about this in the penalty phase, but you're saying the Aryan Brotherhood issue was a big issue in the guilt phase?

[00:45:50] Speaker 04:
Why?

[00:45:50] Speaker 02:
There were motions in limiting beforehand to limit or to preclude that type of testimony.

[00:45:55] Speaker 02:
He didn't want his client to be prejudiced in the face of the jury for his association.

[00:45:59] Speaker 02:
And in his view, his free exercise, his First Amendment right to associate with this, he wanted to keep it out.

[00:46:06] Speaker 02:
And he worked really hard to do that.

[00:46:08] Speaker 02:
And so if you start introducing witnesses

[00:46:11] Speaker 02:
that are from Tracy Hampton's world.

[00:46:13] Speaker 02:
It's the risk of that happening goes up with every new witness that you present.

[00:46:19] Speaker 02:
And you also risk putting in front of the jury a lot of other prejudicial things that they might testify about regarding Tracy Hampton.

[00:46:25] Speaker 02:
I mean, I just think it's objectively reasonable for trial counsel to minimize that risk.

[00:46:30] Speaker 02:
the risk of prejudice that the jury could convict the client based on something other than the evidence presented by the state.

[00:46:40] Speaker 02:
I think that's an objectively reasonable.

[00:46:42] Speaker 02:
I just want that to sort of leave before the court for context, too, because it's through that lens that trial counsel operated and made the decisions that he made.

[00:46:52] Speaker 00:
So you're saying you're worried we're trying this by hindsight or looking back and saying, okay, well, you look at what actually happened here.

[00:47:00] Speaker 00:
Look at what Ms.

[00:47:01] Speaker 00:
Ross said, her confusion on it and so on, the number of weak witnesses that now it seems perfectly clear that they should have done something different.

[00:47:11] Speaker 00:
But at the time they presented the, made the decisions at the trial level, what they did was

[00:47:19] Speaker 00:
appropriate and certainly within the level of performance to meet the first prong of Strickland, is that right?

[00:47:27] Speaker 02:
That's right, Your Honor, and I mean, that's specifically what Strickland tells review in courts not to do.

[00:47:34] Speaker 02:
You know, there's a lot of different choices that could have been made, but under the objective reasonableness standard, what counsel did was objectively reasonable.

[00:47:43] Speaker 03:
How much of this claim relies on Logan's experience?

[00:47:47] Speaker 03:
I mean, we're dealing with Strickland, obviously, which already gives deference.

[00:47:53] Speaker 03:
Is there something to this idea that we have a 28-year attorney?

[00:47:59] Speaker 03:
Does that require us to give more deference to these decisions, or do we look into it the same as whether it would have been a new attorney?

[00:48:07] Speaker 02:
I mean, a review in court can't just say, this is the most experienced capital defense counsel in the country.

[00:48:13] Speaker 02:
There's no way they could be deficient.

[00:48:16] Speaker 02:
Strickland talks about even the most experienced attorneys can render deficient performance.

[00:48:21] Speaker 02:
And even the newest attorneys can deliver constitutionally effective performance.

[00:48:29] Speaker 02:
That's not what really matters at the end of the thing.

[00:48:31] Speaker 02:
But you can consider his experience when you're looking at the decisions he made and why he made them.

[00:48:37] Speaker 02:
When you're looking at how he structured the case and why maybe Maria Schaeffer's statements about not knowing about certain information and if she would have known about it, she would have presented it.

[00:48:48] Speaker 02:
When you've got the dynamic of a very experienced first chair and a new, relatively new second chair counsel, I think that dynamic is important when Logan says,

[00:48:58] Speaker 02:
or the evidence shows that he knew about something and chose not to present it.

[00:49:02] Speaker 02:
I think that's where the experience comes in.

[00:49:04] Speaker 00:
Is there anything in the record that suggests that either counsel had focused on the disclaimer of Ross's knowledge and the, end quote, confession by Wallace and decided not to present it?

[00:49:25] Speaker 00:
you ask again judge I don't think I'm what I want to know is is there anything in the record that suggests either of the lawyers whether they specifically focused on the fact that Ross had disclaimed that she knew who had done this at one point and secondly that you had these three people who had allegedly heard Wallace claim that he did it

[00:49:52] Speaker 00:
Was there anything in the record that suggests that they knew of these things and decided not to present testimony?

[00:49:59] Speaker 02:
Yeah, so there's two witnesses, I believe, regarding the Tim Wallace evidence.

[00:50:05] Speaker 02:
I think that's Kiva Armijo, and I think that's the other one that was listed as witness.

[00:50:13] Speaker 02:
The evidence going to that is there's contemporaneous memoranda from trial counsel regarding contacts.

[00:50:19] Speaker 02:
Trial counsel, I mean, he's done a lot of cases, and maybe this is where you can consider the experience.

[00:50:23] Speaker 02:
this trial was kind of a drop in the ocean of his experience as a capital defense attorney so he didn't have specific memories of talking to these people but there are documents that were admitted in the state court showing that he did talk to them so we can I think the answer is no right like so we have documents that the senior counsel

[00:50:42] Speaker 04:
had about witnesses, about Armijo and witness talking.

[00:50:47] Speaker 04:
But there's nothing where senior counsel says the reasons I didn't present them are X, Y, and Z. He says he doesn't remember.

[00:50:53] Speaker 04:
And then the junior counsel says she didn't even know about them.

[00:50:56] Speaker 04:
Right?

[00:50:56] Speaker 04:
Is that correct?

[00:50:57] Speaker 02:
I think that's correct.

[00:50:58] Speaker 02:
And I think that it doesn't matter at the end of the day because Strickland is an objective standard.

[00:51:03] Speaker 02:
And so what the reviewing court would look at is, OK, was the investigation done?

[00:51:09] Speaker 02:
Well, apparently it was done because these documents show counsel contacted these potential witnesses in some way.

[00:51:17] Speaker 02:
And then the court has to entertain the range of possible choices counsel could have made to not call those witnesses.

[00:51:23] Speaker 02:
And that's what the state court did.

[00:51:25] Speaker 02:
And that was reasonable under

[00:51:26] Speaker 00:
So the fact that the lead counsel was aware of all these things, the three confessions, in quotes, and Ms.

[00:51:34] Speaker 00:
Ross's disclaimer is sufficient, even though there may have not been an articulate decision strategically not to present it.

[00:51:45] Speaker 00:
The fact that it wasn't presented, they're shielded under Strickland, is that correct?

[00:51:51] Speaker 02:
Uh, certainly, you know, EDPA and then Strickland, I mean, this is... Well, EDPA is the real catch here, from your perspective.

[00:51:57] Speaker 02:
I think so, because, you know, finding that the state court unreasonably applied Strickland is a tough bar to surmount, and I don't think it can happen here.

[00:52:05] Speaker 04:
In your argument about the reason was probably about the Aryan Brotherhood.

[00:52:10] Speaker 04:
I'm looking at my notes on Armijo, Witness, and Doar.

[00:52:12] Speaker 04:
I don't see anything about them knowing that.

[00:52:14] Speaker 02:
No, I just want the court to have that context for what was happening during the trial.

[00:52:20] Speaker 02:
And so if you go through the trial and you look at the mistrial motion made during George Ridley's testimony, if you look at the motion in Lemony to preclude that type of testimony, I think it gives context for why counsel made the decisions that he made.

[00:52:32] Speaker 04:
But you're just speculating that Witness or Dorr or Armijo might have said he had some affiliation with the Aryan Brotherhood.

[00:52:39] Speaker 02:
I think it's a reasonable strategic choice not to present people from this world because the prejudice of them saying something against your client, whether it's Aryan Brotherhood testimony, whether it's testimony about other violent conduct or drug use, the prejudice you risk from that is too much in terms of what you actually get from that witness.

[00:53:00] Speaker 02:
I think that's a reasonable strategic choice.

[00:53:02] Speaker 02:
I just bring that up now to give the court context for what the trial was like and the issues that trial counsel was dealing with.

[00:53:10] Speaker 00:
You're getting close to the end of your time.

[00:53:12] Speaker 00:
What do you want to wind up with?

[00:53:13] Speaker 00:
What do you want us to have in mind from the state's perspective?

[00:53:18] Speaker 02:
So I think post Ramirez, and as the Ninth Circuit has applied Ramirez and McLaughlin and Lee, 2254E2 prevents consideration of the new evidence to support the procedurally defaulted claims.

[00:53:33] Speaker 02:
I mean, the Brady claim is procedurally defaulted.

[00:53:35] Speaker 02:
I'm going to say it wrong, the NAPU claim.

[00:53:37] Speaker 02:
I can't help it.

[00:53:38] Speaker 02:
The NAPU claim is procedurally defaulted.

[00:53:40] Speaker 02:
Um, cause and prejudice doesn't exist to excuse the default of those claims.

[00:53:45] Speaker 02:
Um, the state PCR court reasonably applied Strickland and Colon v. Pinholster in denying Hampton relief on the two IAC claims that are before this court.

[00:53:54] Speaker 02:
And the third IAC claim concerning George Ridley's pre-sentence report is procedurally defaulted without excuse.

[00:54:01] Speaker 02:
And under Ramirez, this court can't consider the statements from PCR counsel in, in applying Martinez to find cause and prejudice to excuse the default.

[00:54:11] Speaker 02:
If there are no further questions.

[00:54:14] Speaker 00:
Thank you very much for your presentation.

[00:54:18] Speaker 00:
Thank you, Your Honor.

[00:54:19] Speaker 00:
All right, Mr. Fiedler, you have some time to rebut.

[00:54:24] Speaker 01:
Thank you, Your Honor.

[00:54:34] Speaker 01:
There's about five points I'm going to try to get through acknowledging.

[00:54:36] Speaker 01:
I may not get through all of them.

[00:54:38] Speaker 01:
First and foremost, I want to clarify the ineffective assistance of guilt phase claim and all of the evidence that we have been discussing this entire time.

[00:54:46] Speaker 01:
None of it is barred by Shin.

[00:54:49] Speaker 01:
Granted, Mr. Hampton did present new evidence in federal court.

[00:54:52] Speaker 01:
That is not the evidence we've been talking about today.

[00:54:54] Speaker 01:
So Shin has no effect on the material facts related to the ineffective assistance during the guilt phase claim.

[00:55:02] Speaker 03:
And this is going to the additional witnesses, Doerr and Armijo.

[00:55:08] Speaker 01:
Sorry if I have that wrong.

[00:55:09] Speaker 01:
Yes.

[00:55:10] Speaker 01:
And so Armijo

[00:55:11] Speaker 01:
the witness who chose to keep her identity anonymous.

[00:55:17] Speaker 01:
And I just want to note that the reason she wanted to keep her identity anonymous is because she was afraid of Tim Wallace and Sean Blue Geislin, the person who... Doesn't this go to the whole... I mean, it seems like there's layers that go into here.

[00:55:30] Speaker 03:
First of all, we have a 28-year

[00:55:32] Speaker 03:
a veteran, if you will.

[00:55:35] Speaker 03:
And again, that doesn't mean that these claims can't have merit, but they did investigate this, right?

[00:55:42] Speaker 03:
I mean, they investigated, they knew about this stuff, or at least Logan said he knew about this stuff.

[00:55:48] Speaker 03:
And so really what we're at is, why didn't they call them?

[00:55:52] Speaker 03:
And it seems to me that there's, and I'd like to hear your response to each of these.

[00:55:57] Speaker 03:
Number one, these witnesses did not seem exactly forthcoming and willing to testify.

[00:56:03] Speaker 03:
In fact, witness fled, right?

[00:56:05] Speaker 03:
So, I mean, doesn't that suggest she wasn't willing to testify at all?

[00:56:10] Speaker 03:
So I'd like to hear that.

[00:56:13] Speaker 03:
And then secondly, the strategic decisions not to call them.

[00:56:17] Speaker 03:
And I think that does go to Logan's experience where he should be able to evaluate these things.

[00:56:25] Speaker 03:
And there were some written notes that he didn't think that they might be credible.

[00:56:30] Speaker 03:
So maybe you could take those two things in order.

[00:56:34] Speaker 01:
So I'll start with the question of whether the witnesses seemed forthcoming or the concern that the witness disappeared.

[00:56:42] Speaker 01:
Logan, during his testimony during the PCR, he referenced the fact that you can always compel a witness to come.

[00:56:48] Speaker 01:
And I think the answer here has to be this witness who heard a confession that could corroborate another confession and could corroborate that Timothy Wallace committed this offense is somebody who they should have found and compelled to appear.

[00:57:02] Speaker 01:
What if they couldn't find it?

[00:57:04] Speaker 01:
Excuse me.

[00:57:05] Speaker 01:
What if they couldn't find it?

[00:57:06] Speaker 01:
Then they seek a continuance.

[00:57:08] Speaker 01:
But the evidence does not reflect that they were looking for this witness.

[00:57:11] Speaker 01:
The record does not reflect that they made a strategic choice about witness.

[00:57:16] Speaker 01:
And so there's correspondingly no record that they made a choice to give up on looking for her because they couldn't find her.

[00:57:25] Speaker 03:
But I guess you're right that they could compel them, but the willingness to testify, can that be taken in to counsels?

[00:57:35] Speaker 03:
His experience is, yeah, maybe I can compel them to testify, but if they're not willing to testify, that just adds to the problems that I'm going to face with them as a persuasive witness.

[00:57:48] Speaker 01:
So I'm going to say yes, but yes, but the problem with applying that reasoning in this case is Logan's testimony wasn't that he did engage in that reasoning.

[00:57:58] Speaker 01:
His testimony was that in general, that's one of the things he would consider.

[00:58:01] Speaker 01:
Maria Schaeffer was unequivocal that she would have presented these witnesses.

[00:58:06] Speaker 01:
And so we have Mr. Logan, who doesn't really remember what happened, but offered two general

[00:58:10] Speaker 01:
generic observations about what he would normally do, who I would emphasize, again, was very busy with administrative duties and other cases.

[00:58:17] Speaker 01:
And then we have the testimony from Maria Schaeffer about, actually, there was no strategic cause.

[00:58:22] Speaker 01:
We have affirmative evidence on the one hand, and we have sort of this noncommittal, I don't remember, but here are my general concerns.

[00:58:28] Speaker 04:
And were there contemporary notes, contemporaneous notes from Logan?

[00:58:32] Speaker 01:
There were.

[00:58:33] Speaker 01:
I don't recall them expressing concern about these witnesses.

[00:58:39] Speaker 04:
I didn't remember that either.

[00:58:40] Speaker 03:
But my memory is they just I thought he wrote at one point.

[00:58:43] Speaker 03:
I was just looking for it.

[00:58:44] Speaker 03:
I thought he wrote, you know, drug you drug use and concern about credibility or something like that.

[00:58:53] Speaker 01:
It would not surprise me if drug use were noted as to the witnesses.

[00:58:59] Speaker 03:
So the oh, as to our major, he noted halfway house has warrants.

[00:59:06] Speaker 03:
I mean, I don't know what you draw from that, but that suggests that

[00:59:10] Speaker 03:
That was indicative of his idea that, at least as to Armijo, that he might have discounted his testimony because of credibility issues.

[00:59:20] Speaker 01:
Yes, but an equally plausible reading of that is that he was just noting what a potential state impeachment would be.

[00:59:26] Speaker 01:
And I think the problem is, because we don't have testimony from him about what his actual thinking was, he may have not made any decision.

[00:59:34] Speaker 03:
Oh, right.

[00:59:34] Speaker 03:
But doesn't that, I mean, that seems to fold back into the Strickland hurdle that you have, which is, I mean, we look at the full range here.

[00:59:43] Speaker 03:
I mean, let me ask you this, too.

[00:59:45] Speaker 03:
How much direct knowledge, I mean, we're acting like, oh, wow, these guys said,

[00:59:50] Speaker 03:
These guys were willing to testify that he directly told him that he killed him, that he owed money.

[00:59:54] Speaker 03:
How much of this was based on actual knowledge?

[00:59:56] Speaker 03:
Perhaps that the confession was direct knowledge, but as far as who owed who, it seemed like there were some ambiguous statements that Findlay owed money to someone who was in the house.

[01:00:14] Speaker 01:
I want to make the big picture point that I think is most important, which I haven't gotten to in answer to your question.

[01:00:19] Speaker 01:
First is Strickland does not contemplate post hoc reasoning.

[01:00:22] Speaker 01:
That's Rampilla.

[01:00:24] Speaker 01:
Richter acknowledged that point.

[01:00:25] Speaker 01:
And so a lot of the exercise that we're going in, I don't think is countenance by Strickland, which said if you don't post hoc engage in rationalization of what trial counsel did.

[01:00:37] Speaker 01:
We have Logan's testimony that he doesn't really remember, and we have Schaeffer's testimony that there was no strategic decision.

[01:00:41] Speaker 00:
Now, your time is up, but let me ask my colleagues, do you have additional questions?

[01:00:45] Speaker 00:
We could talk about this case forever and ever, but do either of my colleagues have additional questions?

[01:00:50] Speaker 00:
No, other than what I just asked.

[01:00:51] Speaker 00:
Do you need an additional response on that?

[01:00:53] Speaker 03:
Well, I can't remember where we ended it, but I thought you were in the process of answering a question.

[01:01:01] Speaker 01:
I was.

[01:01:02] Speaker 01:
Your honor asked the big picture question, and then I lost thread on what I had a specific fact to answer.

[01:01:09] Speaker 01:
Oh, direct knowledge.

[01:01:11] Speaker 01:
So the confessions, obviously, there's direct knowledge.

[01:01:14] Speaker 01:
I mean, I think the record reflects that people heard Wallace saying, Finley owes me money.

[01:01:24] Speaker 01:
I think Finley is a snitch.

[01:01:26] Speaker 01:
And so I would view that as direct evidence.

[01:01:30] Speaker 01:
Admittedly, some of it was akin to reputation evidence of what was going on between the individuals.

[01:01:35] Speaker 01:
But I think enough of it was direct evidence that it would be admissible.

[01:01:42] Speaker 00:
Very well.

[01:01:43] Speaker 00:
Thanks to both counsel for your argument.

[01:01:45] Speaker 00:
We appreciate it.

[01:01:46] Speaker 00:
The case of Hampton versus Shin is submitted and the court stands adjourned.

[01:01:53] Speaker 00:
All rise.

[01:02:06] Speaker 00:
This court for this session stands adjourned.