[00:00:21] Speaker 01:
Good morning, honors.

[00:00:22] Speaker 01:
May it please the court.

[00:00:23] Speaker 01:
My name is Elsa Felgar.

[00:00:25] Speaker 01:
I'm a deputy attorney general for the state of Nevada, and I represent respondents in this matter.

[00:00:30] Speaker 04:
Counsel, can you make the microphone a little closer, please?

[00:00:34] Speaker 04:
Thank you.

[00:00:36] Speaker 01:
Is that better, your honor?

[00:00:37] Speaker 02:
They might be able to turn up the volume a little bit.

[00:00:47] Speaker 04:
Go ahead, we'll make it work.

[00:00:48] Speaker 01:
Thank you.

[00:00:49] Speaker 01:
And I can speak a little louder.

[00:00:50] Speaker 01:
I'd like to reserve three minutes for a rebuttal, but I will watch my own time.

[00:00:58] Speaker 01:
First, the federal district court failed to analyze the Nevada Court of Appeals decision

[00:01:04] Speaker 01:
that trial counsel was not deficient, and that Shoberg did not suffer prejudice under EDPA and failed to give EDPA deference to ground two in the federal habeas petition.

[00:01:18] Speaker 01:
Instead, the federal court subjectively decided that Shoberg was in a custodial interrogation by mistakenly substituting its own facts for those that should have been owed deference.

[00:01:33] Speaker 01:
Furthermore, it mistakenly found that Shoeberg's Miranda rights were improperly given, that Shoeberg would have gone to trial given that and that he would have gone to trial given that he pled guilty pursuant to Alford.

[00:01:50] Speaker 01:
The federal court then used those determinations in order to find that the Nevada Court of Appeals erred in two ways.

[00:01:58] Speaker 01:
First, that trial counsel's custodial interrogation analysis and determination was reasonable, and the Nevada Court of Appeals properly applied Strickland.

[00:02:11] Speaker 01:
In doing so, the federal court also incorrectly stated in its order that because it found EDPA deference is not owed to the Nevada Court of Appeals findings, deference is not owed to Showberg's Arraignment Council.

[00:02:25] Speaker 01:
However, pursuant to 2254E1,

[00:02:31] Speaker 01:
The finding that the appellate court misapplied Strickland does not eliminate the federal court's mandate to give deference to the state district court's factual findings.

[00:02:42] Speaker 04:
So there are two prongs, as I understand it, to your argument.

[00:02:48] Speaker 04:
there is the general Edpa deference prong, and second, even if for some reason Edpa deference weren't owed, the statute still requires us to respect the factual findings of the state courts.

[00:03:04] Speaker 04:
Am I correct in that?

[00:03:05] Speaker 04:
That's your argument?

[00:03:06] Speaker 01:
That's correct.

[00:03:08] Speaker 00:
Ms.

[00:03:08] Speaker 00:
Felder, can I ask, there are a number of state court decisions and it seems, I wanted to ask you about the look-through doctrine because it seems that the Nevada Court of Appeals most recent decision wasn't really directly addressing an earlier determination that there was no custodial interrogation.

[00:03:29] Speaker 00:
Are we permitted to go back several steps to the earlier district court's determination that it was non-custodial?

[00:03:36] Speaker 00:
Through the look through doctrine or or what do we do with with that?

[00:03:40] Speaker 01:
Yes, so in this case the Nevada Court of Appeals Did address the ineffective a sensitive counsel claim so that that is the most?

[00:03:51] Speaker 01:
recent decision that this court must look at for ground to however is

[00:03:56] Speaker 01:
There is a factual determination based upon the direct appeal claim.

[00:04:05] Speaker 00:
Yes, I think there was a district court factual finding about the custodial interrogation following the motion to withdraw

[00:04:16] Speaker 00:
Right from Council and which then went up to undirect appeal and then and then later on through habeas but it seems like that is the determination that the state court made are we permitted to look to that earlier determination to think about the external question.

[00:04:31] Speaker 01:
Yes, Your Honor, and that's a factual determination that would be presumed correct unless there's clear and convincing evidence to state otherwise.

[00:04:38] Speaker 04:
And the facts, as I understand them, and I apologize, what's the name of the trial court in Nevada?

[00:04:46] Speaker 04:
I apologize.

[00:04:47] Speaker 04:
uh... the state district court okay yes so uh... the state district court judge indicated that if i'm correct factually uh... there was not a custodial interrogation but also that there was a valid miranda waiver if there if there had been a my right

[00:05:09] Speaker 01:
So first I'd like to address the Nevada Court of Appeals findings and what should have been owed deference because those factual findings are all part of the record and they were able to be cited to like they are part of the state court record that the Nevada Court of Appeals used in order to make its factual determination.

[00:05:32] Speaker 01:
So first that trial counsel knew of Schoenberg cerebral palsy and hearing loss and

[00:05:36] Speaker 01:
Trial counsel took Showberg's cerebral palsy and hearing loss into consideration when determining whether or not he was in a custodial interrogation and whether the Miranda rights were proper.

[00:05:47] Speaker 01:
Counsel reviewed the video with Showberg while he was in jail.

[00:05:52] Speaker 01:
At that point, Showberg had never said anything about him not being able to hear Deputy Hawley.

[00:05:59] Speaker 01:
And I believe trial counsel stated, quote, that she talked to him about the usability of the video.

[00:06:07] Speaker 01:
She also stated that she spoke to Showberg's family, I believe it was his father, about Showberg's cerebral palsy and his hearing loss.

[00:06:19] Speaker 01:
Trial counsel also had no trouble communicating with Showberg.

[00:06:23] Speaker 01:
Again, at no point during her visits did Showberg ask for accommodations or

[00:06:29] Speaker 01:
She didn't feel like her conversations with Schoberg were inhibited by any hearing loss.

[00:06:38] Speaker 01:
Again, the Nevada Court of Appeals found that trial counsel watched the video with Schoberg.

[00:06:45] Speaker 01:
Schoberg never told her that he had any trouble hearing Deputy Hawley.

[00:06:50] Speaker 01:
Moreover, if the statements had been suppressed, Shulberg would have likely been convicted based upon the victim's testimony, and this is based upon.

[00:06:59] Speaker 00:
Let me ask this, Ms.

[00:07:00] Speaker 00:
Felger.

[00:07:01] Speaker 00:
So the district court said no reasonable jurors could disagree that this was a custodial interrogation, and I'm looking at ER 14 gave a whole series of factors for it, that he was taken to the police station in a police car,

[00:07:18] Speaker 00:
rather than arriving voluntarily, that he was in a custodial room with the door closed.

[00:07:24] Speaker 00:
And I'm trying to think of what other things came up, that deputy Hawley confronted him with his guilt, that it was a very aggressive interrogation, and that he said he didn't believe in numerous times.

[00:07:38] Speaker 00:
And if we look at it on an objectively reasonable basis, that no reasonable person would have believed that they could have just walked out.

[00:07:46] Speaker 00:
Earlier you said that the district court was substituting facts for what the state court found.

[00:07:52] Speaker 00:
What in particular are you relying on that are different facts that we should focus on?

[00:07:57] Speaker 01:
Yes.

[00:07:58] Speaker 01:
First, that Deputy Hawley allegedly indicated that he would have handcuffed Shulberg had he, if not for his physical disabilities, that was one of the findings from the federal court.

[00:08:09] Speaker 01:
The issue with that statement is that that is coming from Shulberg.

[00:08:13] Speaker 01:
And that was coming from his evidentiary hearing.

[00:08:15] Speaker 01:
But during that evidentiary hearing, the state district court, who had sat next to Shulberg, who listened to Shulberg, saw his demeanor, saw his body language, heard his tone of voice,

[00:08:24] Speaker 01:
found that Shilberg was not credible.

[00:08:26] Speaker 01:
So that credibility finding is of deference.

[00:08:28] Speaker 01:
So the federal district court relied on a statement that Shilberg made even though the district court found him not credible.

[00:08:36] Speaker 01:
Moreover, Deputy Hawley transported Shilberg in the back seat of his law enforcement vehicle like a criminal

[00:08:42] Speaker 01:
That statement makes it appear as though Deputy Hawley was at that point arresting Shoburg and he was put in the vehicle, the back of the car, as if he had already been arrested.

[00:08:57] Speaker 01:
And that's not the case at this point.

[00:08:59] Speaker 01:
He had not been arrested at that point.

[00:09:01] Speaker 01:
Moreover, the federal district court stated that Deputy Hawley sat on an adjacent side of the table so that he was between Shoberg and the door.

[00:09:12] Speaker 01:
But the video doesn't really show that Shoberg and, or that, excuse me, Deputy Hawley was between Shoberg and the door.

[00:09:18] Speaker 01:
Deputy Hawley, they enter the door on the left and Shoberg sits on the far, or excuse me, on the right, Shoberg.

[00:09:27] Speaker 01:
sits in front of the table on the far back side of the table, but Deputy Hawley sits on the left side, so he's not blocking the door.

[00:09:38] Speaker 01:
Another factual determination that is mistakenly substituted was Schoberg was not able to leave the police station unassisted because he didn't have transportation.

[00:09:50] Speaker 01:
While

[00:09:52] Speaker 01:
Schoberg was waiting for his wife at the time to pick him up from his place of work.

[00:09:59] Speaker 01:
Schoberg, when he is arrested, takes out his cell phone from his wallet, and that indicates that he was able to leave.

[00:10:10] Speaker 01:
He wasn't

[00:10:12] Speaker 01:
Unable to call anybody he wasn't unable to reach somebody he could have he had his cell phone with him and Another fact that deputy Hawley's tone of voice throughout the interview was hostile Deputy Hawley wasn't particularly friendly but hostile is a very harsh term and from the video

[00:10:37] Speaker 01:
deputy holly was simply asking shopper questions there was a report from his stepdaughter he understands that he takes that information understands that now he needs to go to shopper there's nothing to say that he is

[00:10:52] Speaker 01:
hostile.

[00:10:54] Speaker 01:
He's a police officer asking Schoper questions following some pretty... Let me ask this.

[00:10:59] Speaker 00:
If we were to agree that the state court's determination that this was not custodial is entitled to deference, is that the entire foundation for the habeas petition or are there other avenues that there might be some dispute over the legal questions?

[00:11:18] Speaker 01:
If this court finds that Edpa deference is owed,

[00:11:22] Speaker 00:
Then at that in other words and council I guess is not ineffective for for not filing a motion suppress.

[00:11:28] Speaker 01:
Yes, that's correct then Council would not be ineffective.

[00:11:31] Speaker 04:
That's correct Part of the state's argument as I understand it is if even theoretically council were That council should have filed a motion to suppress.

[00:11:42] Speaker 04:
There's still the prejudice aspect.

[00:11:44] Speaker 01:
That's correct.

[00:11:45] Speaker 01:
Yes, and turning to prejudices That

[00:11:52] Speaker 01:
Shoberg had a very favorable plea, and trial counsel during her evidentiary hearing testified to the work that she put in for a very favorable plea.

[00:12:03] Speaker 01:
I believe she went to the prosecution again to try to get a better outcome for him.

[00:12:08] Speaker 01:
And that ended up allowing Shoberg to plea guilty to one count,

[00:12:13] Speaker 01:
with the possibility of parole after 10 years after she had already determined that he was at a very low risk to re-offend.

[00:12:21] Speaker 01:
So for her that was a big point to recommending the plea.

[00:12:29] Speaker 01:
Ultimately it was his decision.

[00:12:30] Speaker 01:
She makes clear that that was his decision.

[00:12:33] Speaker 01:
But there's nothing in the record to show that Shoeberg, based upon the statements made during the

[00:12:43] Speaker 01:
interrogation between or to Deputy Hawley, those statements were so crucial to him that he would have gone to trial had they been suppressed.

[00:12:52] Speaker 01:
And that's really what the issue with the prejudice analysis is.

[00:12:55] Speaker 01:
It's based upon those statements.

[00:12:57] Speaker 01:
And again, Shilberg doesn't demonstrate that he would have gone to trial.

[00:13:05] Speaker 04:
Council, one of the things that I'm also going to ask your friend but I want you to tell me if I have this right, one of the things that I understood was potentially on the table and I think that Ms.

[00:13:16] Speaker 04:
Trotter testified about this at ER 767 that there was another potential victim I think sometimes referred to as the Carson City victim and that,

[00:13:31] Speaker 04:
If Schoberg had gone to trial, his defense was essentially, well, this was an accident.

[00:13:36] Speaker 04:
And that under whatever Nevada's version of rules 403 and 404 were, that the prosecution could have brought in the testimony of the Carson City victim to rebut the claim that this was mistake or accident.

[00:13:52] Speaker 04:
Do I have that right?

[00:13:53] Speaker 01:
I believe that the Carson City victim was the stepdaughter.

[00:13:58] Speaker 04:
Right.

[00:13:59] Speaker 01:
Right, yes.

[00:14:00] Speaker 01:
And so that was also a concern for trial counsel in Shelburne.

[00:14:05] Speaker 01:
And what would happen if the victim in this case testified and how that would impact the trial in terms of maybe

[00:14:13] Speaker 01:
Shoberg having to testify, although again, his decision, but it could have caused some issues with his trial that trial counsel was very aware of.

[00:14:25] Speaker 04:
Does Nevada have essentially a similar version to the federal rules of evidence, 403, 404, about prior bad acts coming in to potentially show plan or lack of mistake or accident?

[00:14:41] Speaker 01:
Yes.

[00:14:42] Speaker ?:
All right.

[00:14:43] Speaker 01:
And then I will reserve unless there are further questions from the court We've taken up a lot of your time with questions.

[00:14:50] Speaker 04:
We'll give you two minutes for rebuttal.

[00:14:52] Speaker 01:
Thank you.

[00:14:52] Speaker 03:
I appreciate Thank you.

[00:15:04] Speaker 03:
Good morning.

[00:15:05] Speaker 03:
My name is Richard Cornell.

[00:15:06] Speaker 03:
I represent you Apple II Thomas Schoenberg and

[00:15:10] Speaker 03:
We are here to review the decision of Judge Traum as she actually made it, as opposed to what she could have made.

[00:15:18] Speaker 03:
So we start with the findings of fact.

[00:15:22] Speaker 03:
Did she make them?

[00:15:23] Speaker 03:
Absolutely she made them.

[00:15:25] Speaker 03:
Were there any clear errors in the findings that she made?

[00:15:28] Speaker 04:
Are you saying we review what she did for clear error?

[00:15:31] Speaker 03:
Yeah, well there isn't any.

[00:15:32] Speaker 04:
No, but are you saying that we owe some deference to her determinations here?

[00:15:37] Speaker 04:
That we don't review this

[00:15:39] Speaker 04:
for example, her failure to afford ed-pedeference, we don't review that de novo?

[00:15:44] Speaker 03:
Well, I don't think that's a finding of fact.

[00:15:46] Speaker 03:
No, that gets reviewed de novo.

[00:15:48] Speaker 04:
When you say findings of fact, if she were required to afford ed-pedeference, then she has to defer in addition to the findings of fact of the statement.

[00:16:04] Speaker 04:
court.

[00:16:05] Speaker 04:
If she makes findings of fact that are different than the state court findings of fact, if we were required to defer to them, wouldn't that just be a legal error that she made by not deferring to the state court findings of fact?

[00:16:18] Speaker 03:
Well, I wouldn't concede that she made a legal error, but I'm talking about historical facts, the facts of the case that

[00:16:26] Speaker 04:
But you're talking about the facts of the interrogation, right?

[00:16:30] Speaker 04:
Right.

[00:16:31] Speaker 03:
That's what I mean.

[00:16:31] Speaker 04:
But the fact finder that I think we have to defer to the state court.

[00:16:37] Speaker 04:
So if the federal district court here looked at the historical record, there was no evidentiary hearing, right?

[00:16:46] Speaker 04:
not in front of Judge Traum.

[00:16:48] Speaker 03:
Right.

[00:16:48] Speaker 04:
So she's looking at the historical facts.

[00:16:51] Speaker 04:
She draws different conclusions from them than the state court.

[00:16:56] Speaker 04:
And I don't believe that her doing that is entitled to deferential review.

[00:17:01] Speaker 04:
I think we review what she did de novo.

[00:17:03] Speaker 03:
Right.

[00:17:04] Speaker 03:
I would agree with that.

[00:17:07] Speaker 03:
My point is that the historic facts that she found are not inconsistent with what the state court found.

[00:17:15] Speaker 02:
Yeah, well, that's a totally different thing from what Judge Bennett just said, though.

[00:17:19] Speaker 02:
That's totally different from what Judge Bennett just said.

[00:17:22] Speaker 02:
That's a totally different thing.

[00:17:24] Speaker 03:
OK.

[00:17:28] Speaker 03:
What she did do that the state courts did not do

[00:17:34] Speaker 03:
which she applied the tests of Howe and Yarborough to the case.

[00:17:39] Speaker 03:
You don't, in the decisions by the Nevada Court of Appeals, you don't see any reference to Howe, Yarborough, Stanbury, or any of that authority.

[00:17:51] Speaker 03:
You see the Court of Appeals focusing strictly on two facts.

[00:17:56] Speaker 04:
Well, before you get to the facts, I'm looking at the April 10, 2020 decision.

[00:18:05] Speaker 04:
And it says, to prove ineffective assistance of counsel, a petitioner must demonstrate counsel's performance was deficient and that it fell below an objective standard of reasonableness and resulting prejudice, citing Strickland and a Nevada Supreme Court decision adopting, obviously, the test in Strickland.

[00:18:29] Speaker 04:
So the Court of Appeals recited the correct legal standard, right?

[00:18:35] Speaker 04:
that standard is correct yes and your review is that the trial court in the court of appeals applied the standard incorrectly correct correct because why aren't they entitled to ed deference basically because

[00:18:54] Speaker 03:
When you look at Howe and Yarbrough, it's a multi-factor test factually to determine whether it's custodial interrogation or not.

[00:19:05] Speaker 03:
And the Court of Appeals didn't look at any of that.

[00:19:08] Speaker 03:
They focused on two factors.

[00:19:10] Speaker 03:
Number one, that he wasn't in handcuffs when he was brought in from the car.

[00:19:15] Speaker 03:
From the police car to the interrogation room and number two his answers track the questions Number two, I don't think is material at all to the question of custody and number one While it's true is is sandwiched between factors that all tack towards custody for example Where's the location of the interrogation?

[00:19:42] Speaker 03:
It's in the Lyon County Jail

[00:19:45] Speaker 03:
Where, how did he get there?

[00:19:49] Speaker 03:
They drove him there without his knowledge of why he was going there.

[00:19:53] Speaker 04:
That's what he said.

[00:19:55] Speaker 03:
Well, is there any evidence to rebut it?

[00:19:58] Speaker 04:
Well, I'm sorry, go ahead.

[00:20:01] Speaker 00:
Well, I mean, no, you go ahead.

[00:20:06] Speaker 04:
The Nevada trial court found your client's testimony in several hearings, I believe, not credible and incredible.

[00:20:18] Speaker 04:
So aren't we required to defer to the determinations of a lack of credibility?

[00:20:26] Speaker 03:
Yes, you are, if it's on something else material.

[00:20:31] Speaker 03:
The question of how they moved him from his place of work to the jail, there's nothing in his testimony on that point that's contradicted.

[00:20:45] Speaker 03:
I think Judge Traum had every right to rely on it to that extent.

[00:20:49] Speaker 03:
We do know he did not just walk into the jail and say, here I am.

[00:20:53] Speaker 03:
I understand you want to ask.

[00:20:54] Speaker 03:
I agree.

[00:20:54] Speaker 04:
We know that he was transported in a police car.

[00:20:57] Speaker 03:
We do know that.

[00:20:58] Speaker 03:
I mean, how else did he get there?

[00:21:00] Speaker 03:
We know that.

[00:21:01] Speaker 03:
There isn't any dispute.

[00:21:03] Speaker 00:
This is why I was asking about the look-through doctrine, because the original State District Court decision said that he voluntarily went to the substation with Deputy Hawley.

[00:21:14] Speaker 00:
He was not formally under arrest.

[00:21:16] Speaker 00:
His movement was not restricted in the interview room and was free to leave.

[00:21:19] Speaker 00:
He voluntarily answered Deputy Hawley's questions, and he was not arrested until after the interview.

[00:21:26] Speaker 00:
I'm not sure that Yarborough helps you because Yarborough similarly found a mixed record, right?

[00:21:36] Speaker 00:
That there are things on the one hand that could suggest that it is a custodial interrogation and there are things on the other hand that suggest it could not.

[00:21:43] Speaker 00:
and the Supreme Court said, in that circumstance, the state decision was entitled to Edput deference.

[00:21:49] Speaker 00:
And I see something very similar here.

[00:21:51] Speaker 00:
I mean, I see factors that one could argue are custodial in nature than other ones that are not.

[00:21:56] Speaker 00:
And so what is different about this case than Yarborough in that sense?

[00:22:01] Speaker 03:
Several things.

[00:22:02] Speaker 03:
Number one, Yarborough got to walk away.

[00:22:06] Speaker 03:
Yarborough was told he was free to leave.

[00:22:13] Speaker 03:
Yarborough showed up with support group, his parents.

[00:22:18] Speaker 00:
But you're just reciting to me the aspects of Yarborough that the court agreed could suggest being custodial.

[00:22:24] Speaker 00:
There's an entire other slate of factors that the court found suggested that it was voluntary.

[00:22:30] Speaker 00:
So my question is more, you know, if Yarborough tells us that when there are these mixed balancing of things, the state court decision is entitled to ed put deference.

[00:22:40] Speaker 03:
Yes.

[00:22:41] Speaker 03:
And I mean, I acknowledge that.

[00:22:46] Speaker 03:
And I acknowledge Yarborough was a 5 to 4 opinion.

[00:22:49] Speaker 03:
And that's what the majority of the Supreme Court held.

[00:22:52] Speaker 03:
It's just that in this case, the only fact that I see the court relying on to

[00:22:59] Speaker 03:
Conclude that is that he wasn't in handcuffs But I have to push back on that council.

[00:23:05] Speaker 04:
I mean I think we all watched the video and I saw on the video that he pushed back on the questions that he was getting from detective Paulie he provided explanations for what he did he talked about how when he had done something

[00:23:26] Speaker 04:
potentially improper that it was an accident.

[00:23:31] Speaker 04:
He wasn't restrained.

[00:23:34] Speaker 04:
And yes, the detective suggested that he was lying.

[00:23:41] Speaker 04:
But when I looked at the video, it didn't look to me so overtly coercive that

[00:23:48] Speaker 04:
that I would have to conclude that the district court, I mean that the Nevada trial court made an entirely unreasonable finding about custody and I think we've all watched it and whether we might or might not have made a different decision than the trial court judge isn't the standard.

[00:24:10] Speaker 00:
In fact, I think when he was being arrested he thanked Deputy Hawley and

[00:24:15] Speaker 00:
shook his hand and I think even gave him a pat on the shoulder at the end of the video.

[00:24:21] Speaker 00:
So it's just, it's hard to overcome the state court's determination and it seems to me that this was a coercive environment.

[00:24:30] Speaker 03:
Well, don't forget, too, that this interrogation's in two parts.

[00:24:35] Speaker 03:
There's the first part where, as soon as Deputy Hawley hears something that sounds incriminating, he gives him the Miranda warnings.

[00:24:46] Speaker 03:
Then there's the rest of it.

[00:24:48] Speaker 03:
And here's the issue I have with that.

[00:24:54] Speaker 03:
The fact that he is deaf, the fact that he has cerebral palsy, the fact that he has an IQ of 82, the fact that he is very agreeable in agreeing with what authority may say and is easily intimidated,

[00:25:12] Speaker 03:
may not have a whole lot of relevance for the custody issue, but it has a lot of relevance in terms of whether he voluntarily, intelligently, and knowingly waved his Miranda rights with a mere nod of the head.

[00:25:26] Speaker 03:
We don't know what the mere nod of the head meant.

[00:25:29] Speaker 03:
And the real incriminating statements came after that.

[00:25:33] Speaker 04:
But hasn't the Supreme Court told us that you don't need an affirmative waiver

[00:25:40] Speaker 04:
Once the Miranda rights are given, you look at the facts, including whether the person continued to answer questions and whether there is evidence that the person didn't understand his rights.

[00:25:54] Speaker 04:
And the trial court made findings contrary to your argument, right?

[00:26:00] Speaker 03:
And yes, and is that entitled to deference?

[00:26:05] Speaker 03:
I don't think so, because all of those facts really do not establish a knowing, voluntary, and intelligent waiver by this particular defendant.

[00:26:16] Speaker 03:
I don't see how they can.

[00:26:17] Speaker 02:
You know, counsel, I've had a lot of experience with this ODIPA.

[00:26:23] Speaker 02:
You know, I was around when it came around.

[00:26:27] Speaker 02:
The whole purpose of it in large measure was to preclude federal district courts from essentially refinding and reweighing the evidence to compel the district court to take the well-reasoned evidence and to

[00:26:54] Speaker 02:
apply it unless there is something in the evidence that is clearly and unmistakably contradicted.

[00:27:04] Speaker 02:
And what you would suggest is that the district court had every right to just simply disregard what the district, the state district judge did on the basis that it didn't fit.

[00:27:22] Speaker 03:
My position is, quite frankly, that the Court of Appeals did not well reason this.

[00:27:28] Speaker 03:
And when that happens, the Court is free not to give deference.

[00:27:33] Speaker 02:
I'm talking about the State District, Judge.

[00:27:36] Speaker 03:
Yeah, I understand.

[00:27:38] Speaker 03:
I understand.

[00:27:41] Speaker 03:
Let me also say this on prejudice.

[00:27:44] Speaker 03:
Is this Primo v. Moore case, or is it a Lee v. United States case?

[00:27:50] Speaker 03:
In Primo,

[00:27:52] Speaker 03:
The defendant made two confessions, and the suppression motion was aimed only at one.

[00:27:58] Speaker 03:
In other words, had it been made and had it been granted, he still had to deal with another confession.

[00:28:05] Speaker 03:
Plus, the record in front of the Supreme Court in primo was good enough to where they could look and say, you got a very substantial bargain in this case.

[00:28:16] Speaker 03:
The counsel wasn't ineffective in waiving the suppression motion to get this bargain.

[00:28:21] Speaker 03:
In our case,

[00:28:23] Speaker 03:
The record is so bare, we just don't know.

[00:28:25] Speaker 04:
So I'm missing that, counsel.

[00:28:29] Speaker 04:
My understanding is that what he was charged with, and theoretically if they had added the Carson City victim or potential victim, but regardless, what he was charged with, if he had been convicted of everything, if he had gone to trial, the mandatory minimum would have been much greater than what the mandatory minimum he got was.

[00:28:50] Speaker 04:
Do I have that wrong?

[00:28:52] Speaker 03:
You don't have that wrong, but you're assuming that there was evidence of sexual penetration in Lyon County, Nevada, and I don't know that there is at all.

[00:29:04] Speaker 04:
But even on what he was charged with, if he had been convicted on all counts that he was charged with, he would have faced a higher mandatory minimum, right?

[00:29:13] Speaker 04:
That's true.

[00:29:14] Speaker 04:
And one of the things Miss Trotter said was, I mean she said she didn't think the statements he actually made in the interview were all that incriminating, but putting that aside, she said that she was really concerned that the prosecution could withdraw its offer at any time and that she talked, which I found unusual, she talked not only to the victim,

[00:29:37] Speaker 04:
but with a parent there, and she assessed the credibility of the victim, and she said, I think this victim is going to make a real good witness, and I'm afraid he's going to be convicted if we go to trial here and get a much higher mandatory minimum.

[00:29:51] Speaker 04:
What about that analysis was unreasonable?

[00:29:55] Speaker 03:
Had there been an interview only of the victim with the mother not there, because Mr. Showberg's position has been that the mother put this kid up to it,

[00:30:05] Speaker 03:
then I would agree.

[00:30:06] Speaker 03:
The problem is the mother was there.

[00:30:09] Speaker 03:
We don't know what the mother did or didn't do in this interview.

[00:30:14] Speaker 03:
I mean, I have seen the interview of the mother and the daughter with Deputy Hawley, but it's not in the record, so I can't comment on it.

[00:30:23] Speaker 03:
But we know there was no preliminary hearing.

[00:30:26] Speaker 03:
So we don't know what this child would have testified to and how she would have fared on cross-examination.

[00:30:34] Speaker 00:
But I'm not sure how that gets to Judge Bennett's question because our inquiry is did counsel's performance fall below

[00:30:42] Speaker 00:
reasonable standard of care, of performance, and here Ms.

[00:30:49] Speaker 00:
Trotter is saying there's a huge exposure of a greater sentence and you have a credible victim who would testify versus the plea that's before me.

[00:31:00] Speaker 00:
It's not clear how prejudice is established, even if we got past the whole custody issue where a motion to suppress would have really reasonably altered the outcome.

[00:31:12] Speaker 03:
because i would just say this had they had a preliminary hearing and and the child faired as well as miss trotter thought under cross-examination then i'd be in a much tougher position but miss trotter again correct me if i'm wrong miss trotter was faced with

[00:31:31] Speaker 04:
at any time the prosecution could withdraw the offer and if she hadn't taken the plea when she did and you went to the PI and it required the testimony of the girl and she did a good job, no reason to believe, Ms.

[00:31:51] Speaker 04:
Trotter, I had no reason to believe the offer was still going to be on the table.

[00:31:54] Speaker 04:
I mean, isn't that the way negotiations normally work in serious criminal cases?

[00:32:00] Speaker 03:
Well, it's the way they can work, certainly.

[00:32:03] Speaker 03:
Also, the way they can work is she files a motion for a psychological evaluation of the child that's granted.

[00:32:10] Speaker 03:
The DA comes back and says, ooh, we don't want to go through that.

[00:32:15] Speaker 03:
We'll give you a sweeter deal.

[00:32:18] Speaker 03:
I mean, it can work that way, too.

[00:32:20] Speaker 03:
The problem is we have a record that's so bare, the only thing that we can say is we got a defendant who pled Alfred, not guilty, moved to withdraw his plea almost as soon as he made it, and claims he is innocent and wants his name cleared.

[00:32:37] Speaker 03:
That's that's what we really know at the end of the day So you have a concluding statement counsel you're over your time, but we've taken over you you over your time with your with our questions I'll submit it and With my position my position is judge trauma was not incorrect and

[00:32:57] Speaker 03:
Judge Traum had every right to make the findings and conclusions that she made.

[00:33:01] Speaker 03:
The Court of Appeals decision did not track how or Yarborough or Stanbury at all, and she was free to do the right thing and make the decision and grant the habeas.

[00:33:14] Speaker 03:
Thank you.

[00:33:14] Speaker 04:
Thank you, counsel.

[00:33:28] Speaker 01:
First, Your Honors, the Nevada Court of Appeals didn't need to cite Yarborough.

[00:33:38] Speaker 01:
That's from Earl Evie Packard, that it doesn't have to cite the United States Supreme Court decision.

[00:33:43] Speaker 01:
It just cannot run afoul of that decision.

[00:33:46] Speaker 01:
Second, there was mention by my friend on the other side about the two factors that the court relied upon to determine a custodial interrogation.

[00:33:58] Speaker 01:
that he was not in handcuffs and that he was free to move around.

[00:34:01] Speaker 01:
Those were some of the statements that were made by trial counsel as to her determination for custodial interrogation.

[00:34:09] Speaker 01:
But that is in line with California v. Beeler, which states that in that case, the court stated that the ultimate inquiry is merely whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.

[00:34:26] Speaker 01:
So those statements are in line

[00:34:28] Speaker 01:
with United States Supreme Court precedent.

[00:34:31] Speaker 01:
Moreover, there was also a mention about his IQ and hearing disability.

[00:34:40] Speaker 01:
The psychologist that reviewed Schoberg and spoke to him and created a report based upon his interactions with Schoberg

[00:34:48] Speaker 01:
stated that it was borderline for intellectual disability.

[00:34:53] Speaker 01:
And in the record, there's no clear understanding of the extent of his hearing deficiency.

[00:34:59] Speaker 04:
That's Dr. Young?

[00:35:00] Speaker 01:
Yes, Your Honor, sorry.

[00:35:03] Speaker 01:
His extent to his hearing disability, although respondents do acknowledge that there would be some form of hearing disability to some extent, the record isn't clear as to, or Schoenberg hasn't shown what the extent of his

[00:35:17] Speaker 01:
hearing disability is at one point he withdrew his motion for an interpreter because he doesn't sign and then there's portions of the record where he has the hearing aid and where he doesn't well he was responding to detective holly though i mean they were having a conversation and he understood i mean obviously

[00:35:37] Speaker 01:
That's correct.

[00:35:38] Speaker 01:
Exactly.

[00:35:39] Speaker 01:
And he was responding to the questions and re-asking the questions that were already asked by Deputy Hawley to indicate that he did understand what was being asked.

[00:35:48] Speaker 04:
Counsel, you're over time.

[00:35:49] Speaker 04:
Do you have a concluding remark?

[00:35:51] Speaker 01:
Yes, Your Honors.

[00:35:52] Speaker 01:
Respondents ask that this court reverse the Federal District Court's decision with instructions to deny federal habeas relief.

[00:35:59] Speaker 01:
Thank you.

[00:35:59] Speaker 04:
All right.

[00:36:00] Speaker 04:
We thank counsel for their arguments.

[00:36:02] Speaker 04:
The case just argued is submitted.

[00:36:04] Speaker 04:
And with that, we are adjourned for the day.