[00:00:02] Speaker 00:
Good afternoon, your honors and may it please this court.

[00:00:05] Speaker 00:
My name is Stacey Newman and I represent the appellant Mr. William Castillo.

[00:00:09] Speaker 00:
I'd like to reserve six minutes for rebuttal and I'll keep an eye on my time.

[00:00:12] Speaker 00:
All right, counsel.

[00:00:14] Speaker 00:
Although Mr. Castillo faces the most severe sentence there is, death, no court has reviewed the majority of his claims on the merits due to the district court's erroneous dismissal of his claims as untimely and procedurally defaulted.

[00:00:27] Speaker 00:
The court did so for over 20 claims.

[00:00:30] Speaker 00:
Today, I'd like to start with discussing why a remand is necessary for the district court to address these claims in the first instance, first by discussing the timeliness issues and then the district court's errors under Martinez versus Ryan.

[00:00:42] Speaker 00:
Then time permitting, I'd like to touch upon the certified ineffective assistance of trial counsel claim.

[00:00:47] Speaker 00:
Unless the court would prefer to start elsewhere, beginning with those timely issues and specifically equitable tolling.

[00:00:54] Speaker 04:
Counsel, you said that no court has reviewed the claims on the merits.

[00:00:59] Speaker 04:
Would you be amenable to this court addressing the claims on the merits?

[00:01:04] Speaker 00:
So your honor, in the cases where this court has found Martina's error, in all of those cases the court has remanded for the district court to consider those claims in the first instance.

[00:01:13] Speaker 00:
After first assessing whether the claims are with or without, wholly without merit is the language that Claiborne uses.

[00:01:19] Speaker 04:
So is it your argument that we do not have the authority to address the claims on the merits?

[00:01:25] Speaker 00:
No your honor that's not our argument just that it has seems to be the pattern and practice of this court when finding Martinez error that the district court is given the first opportunity to do that first pass of the claims on the merits where it has not yet occurred.

[00:01:37] Speaker 00:
Understood.

[00:01:41] Speaker 00:
Your Honor, in turning to equitable tolling, one of the arguments Mr. Castillo made regarding his untimely amended petition was that he was entitled to contextfully counsel to pursue claims of egregious attorney misconduct while warranting equitable tolling.

[00:01:55] Speaker 00:
Mr. Castillo advanced this argument in the opposition to the state's motion to dismiss.

[00:01:59] Speaker 00:
He raised it in an evidentiary hearing motion.

[00:02:02] Speaker 00:
We also raised it in 59E briefing before the District Court.

[00:02:05] Speaker 00:
The District Court addressed only the first attempt to raise this argument and held that it would not appoint conflict-free counsel because counsel for Mr. Castillo did not adequately explain their own egregious misconduct.

[00:02:17] Speaker 00:
That is contrary to United States Supreme Court authority in Christensen v. Roper.

[00:02:22] Speaker 00:
And Christensen v. Roper has two holdings that I think are important here.

[00:02:26] Speaker 02:
The first is that... Can I ask you something about... I just want to make sure I understand.

[00:02:30] Speaker 02:
On this equitable tolling issue, Mr. Castillo and his counsel had at least four months after mail was decided before the expiration of the EDPA statute of limitations in the case.

[00:02:48] Speaker 02:
What evidence is there that Mr. Castillo acted diligently during that period of time?

[00:02:54] Speaker 00:
The court has never reached the question of diligence, and the reason why conflict-free counsel being appointed is important is that diligence can only be assessed in light of what the unreasonable circumstances were.

[00:03:05] Speaker 00:
Here, the district court never got there because it denied conflict-free counsel finding that counsel did not explain those extraordinary circumstances.

[00:03:13] Speaker 00:
But if conflict-free counsel were to be appointed, that counsel could develop these facts, establish what the extraordinary circumstances are, and then Mr. Castillo's diligence would be assessed in light of those extraordinary circumstances.

[00:03:25] Speaker 02:
I see.

[00:03:25] Speaker 02:
All right.

[00:03:26] Speaker 02:
Thank you.

[00:03:27] Speaker 00:
And that's also in line with this court's authority in Spitson v. Moore.

[00:03:29] Speaker 00:
There the district court or sorry there this court found equitable tolling was warranted but then remanded to the district court on the question of diligence because the record was not clear and here the record is also not clear.

[00:03:44] Speaker 00:
When going back to the two holdings that I think are really key from Christensen versus Roper, the first is that requests for conflict counsel in capital cases are to be judged under an interest of justice standard, and that stems from three factors from the court's early authority in Martel versus Claire, and that is the timeliness of the motion,

[00:04:02] Speaker 00:
the adequacy of the district court's inquiry into the conflict and the nature of the conflict.

[00:04:07] Speaker 00:
Here, the district court did not assess any of those factors.

[00:04:10] Speaker 00:
Again, it just faulted Mr. Castillo's counsel for failing to establish the egregious facts that would give rise to the tolling.

[00:04:17] Speaker 00:
The second important holding from Christensen versus Roper is related to that.

[00:04:21] Speaker 00:
It held that counsel cannot be expected to advance their own claims of egregious misconduct when a petitioner is including equitable tolling on that ground.

[00:04:29] Speaker 00:
And the court pointed out that it necessarily forces counsel to denigrate their own professional performance, which counsel cannot be expected to do.

[00:04:36] Speaker 00:
So your honor, as we submit under straightforward application of Christensen versus Roper, this case should be remanded for appointment of conflict-free counsel to proceed these claims of equitable tolling.

[00:04:49] Speaker 00:
I think in comparing the cases too, there's a couple key points to draw out.

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One is that Mr. Castillo raised his argument far earlier than the petitioner did in Christensen versus Roper.

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In that case, this issue didn't come up until seven years after Mr. Christensen failed before the Eighth Circuit and when he had an execution date already scheduled.

[00:05:08] Speaker 00:
So the timeliness of the motion here establishes that Mr. Castillo did raise this at the earliest opportunity and continued to raise this.

[00:05:16] Speaker 00:
And any concern that this court may have that this might drag on proceedings unnecessarily.

[00:05:20] Speaker 00:
As the Christensen court pointed out, you know, it considered this and it rejected it, finding that the outside counsel was only asking for 90 days.

[00:05:29] Speaker 00:
And in the case that Mr. Castillo cited to where a Nevada district court did appoint conflict free counsel to investigate equitable tolling, that only took 120 days.

[00:05:39] Speaker 00:
So this idea that if this might drag on things for years and years, it's just not supported by Christensen or this other district court who has done just what we are asking.

[00:05:50] Speaker 00:
So again, Mr. Cascio asked this court to apply Christensen versus Roper and remanded the district court with instructions to appoint conflict free counsel to pursue these claims.

[00:06:02] Speaker 00:
If there's no other questions on that timeliness argument, I thought I'd get to relation back.

[00:06:06] Speaker 02:
Can you address the IAEA psychological defense argument?

[00:06:15] Speaker 02:
I guess I'm struggling to find out why that wasn't just a strategic decision by the attorney and why you think that this was an effective assistance of counsel.

[00:06:28] Speaker 00:
So there's a couple of answers to that, Your Honor, depending on whether we're looking at the Nevada Supreme Court adjudicated version of the claim, which is a much smaller universe, or the fundamentally altered version of the claim.

[00:06:39] Speaker 00:
In the pared down Nevada Supreme Court adjudicated version of this claim, we're arguing that trial counsel was ineffective for failing to apprehend that the Dr. Etkoff report it had well before trial did support a basis for arguing a second-degree murder, essentially.

[00:06:56] Speaker 02:
Well, but that was a decision that was made by the attorney that, based on their judgment, that was not going to be effective.

[00:07:04] Speaker 02:
Why was that wrong?

[00:07:06] Speaker 02:
Why is it ineffective for them to make a decision, a tactical decision, not to present that evidence or that defense?

[00:07:14] Speaker 00:
Yeah, a couple of points, Your Honor.

[00:07:15] Speaker 00:
Strickland does not allow courts to just

[00:07:19] Speaker 00:
simply credit trial counsel's testimony needs to depend on the totality of circumstances.

[00:07:24] Speaker 00:
And I think an analogy to Rompia versus Beard is appropriate.

[00:07:28] Speaker 00:
Granted, that was ICA penalty phase, but what the Supreme Court held was that it was not enough that trial counsel just looked at a file and didn't think anything was there.

[00:07:37] Speaker 00:
The Supreme Court didn't stop there and say, okay, well, that was strategic, so we're not going any further.

[00:07:42] Speaker 00:
The court looked at the totality of circumstances and found that reasonable counsel reading that file

[00:07:47] Speaker 00:
would have realized that it should lead to more investigation, more leads, things like that.

[00:07:53] Speaker 00:
Similarly here, just to credit trial counsel's conclusion that it wasn't helpful without more

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It's not what Strickland's test.

[00:08:00] Speaker 00:
Strickland looks at everything.

[00:08:01] Speaker 00:
And reasonably effective counsel in reading Dr. Etkhoff's report would have realized that there are references in there to support a guilt-based offence.

[00:08:09] Speaker 00:
This is even more key in a case where there was no defence presented whatsoever.

[00:08:12] Speaker 00:
This was not a case where one defence was strategically chosen over another.

[00:08:17] Speaker 00:
This is a case where no defence was chosen.

[00:08:24] Speaker 00:
And then in turning to the prejudice prong, I think it's important to note that the jury found this exact same evidence from Dr. Atkoff in the penalty phase.

[00:08:32] Speaker 00:
They found that this established a mitigating circumstance that Mr. Castillo committed the offense under extreme emotional disturbance, emotional or mental disturbance.

[00:08:42] Speaker 00:
So, Your Honors, we believe that that is kind of the heart of both versions of the ineffective assistance of trial counsel claim.

[00:08:55] Speaker 03:
address the merits, just going back to Judge Ronson's questions.

[00:08:59] Speaker 03:
Which one, I know you presented a lot of claims, which one do you think is your strongest one?

[00:09:04] Speaker 03:
And a related one, I mean, is there a reason, I know it's traditional practice, is to remand it back to the district court.

[00:09:10] Speaker 03:
Are there some advantages?

[00:09:11] Speaker 03:
I mean, obviously district court probably is more familiar with the record, but is there a, other than kind of tradition, a compelling reason for the district court to address the merits of these claims?

[00:09:22] Speaker 00:
yes sir honor um... this court's jurisprudence is replete with the idea that district courts are better suited to address claims in the first instance just in general and in here uh... you know the

[00:09:32] Speaker 00:
Petitioner was constrained by page limits on appeal.

[00:09:35] Speaker 00:
On remand, there could be more fulsome briefing.

[00:09:38] Speaker 00:
And I'd also point out that the related Shin versus Ramirez claims could also be briefed on remand.

[00:09:44] Speaker 00:
On appeal, we have the state raising Ramirez in the context of a couple pieces of evidence, but we really don't have the kind of detailed briefing detailing which claims does it believe are subject to Ramirez, which claims rely on just evidence from the first post-conviction proceeding,

[00:10:01] Speaker 00:
So a remand would allow the district court to consider the Martinez claims, the Ramirez arguments, assess whether the evidence your hearing is warranted, all these things.

[00:10:10] Speaker 03:
And which one do you think are the strongest ones for you?

[00:10:13] Speaker 03:
Because some of them, there are a lot.

[00:10:15] Speaker 03:
And frankly, a lot of them seem fairly weak.

[00:10:18] Speaker 03:
There may be some that have more substance.

[00:10:20] Speaker 03:
I'm trying to see which one you think has more substance.

[00:10:24] Speaker 00:
Yes, and I apologize.

[00:10:25] Speaker 00:
I didn't answer that when you asked it before.

[00:10:27] Speaker 00:
Claim 2A, the ineffective assistance of trial counsel in failing to

[00:10:31] Speaker 00:
develop and present all the mitigating evidence that was available.

[00:10:36] Speaker 04:
So counsel, specifically what mitigating evidence do you think would have made a difference in the outcome?

[00:10:42] Speaker 00:
Yes, so when you look at what was presented to Mr. Castillo's... During the sentencing phase?

[00:10:47] Speaker 00:
Yes, during the sentencing phase.

[00:10:48] Speaker 00:
When you look at what was presented before Mr. Castillo's jury, there was only four witnesses, they barely scratched the surface of his life, and there was limited testimony from Dr. Etkoff, who notably did not complete neuropsychological testing, even though trial counsel got funding for him to do so.

[00:11:04] Speaker 00:
But had trial counsel investigated all the available mitigating evidence, which was readily available, given Mr. Castillo's extensive history in both

[00:11:11] Speaker 00:
the juvenile justice system and foster care.

[00:11:14] Speaker 00:
There was thousands of pages of records out there for counsel to access.

[00:11:18] Speaker 00:
And had counsel looked at those records, it would have found extensive detail of Mr. Castillo's truly abhorrent childhood.

[00:11:24] Speaker 00:
He had been shuttled around to foster care, to juvenile facilities at his trial phase.

[00:11:31] Speaker 00:
There was testimony that his mother tried her best but was a caring mother.

[00:11:36] Speaker 00:
However, those foster care records indicated

[00:11:39] Speaker 00:
quite the contrary.

[00:11:40] Speaker 00:
He indicated that his mother was checked out, was not interested in parenting him, and would routinely leave him whenever things got a little inconvenient.

[00:11:49] Speaker 04:
Do you think those mitigating circumstances would outweigh the aggravating circumstances?

[00:11:57] Speaker 00:
Yes, sir.

[00:11:57] Speaker 00:
And I think it's also important to note that two of the aggravators have since been struck under Nevada Supreme Court authority in McConnell V state.

[00:12:05] Speaker 00:
So given the two remaining aggravating circumstances and this wealth of mitigating evidence, again, I go back to Rompia versus Beard.

[00:12:11] Speaker 00:
In that case, the United States Supreme Court acknowledged the aggravating circumstances, but found that all of this knowledge of this truly nightmarish childhood could have prompted at least one juror to vote for a sentence of less than death.

[00:12:31] Speaker 00:
And I can continue more about the Mitigating Evidence Act trial.

[00:12:34] Speaker 04:
I'm satisfied.

[00:12:39] Speaker 00:
If I could, just to get back to the uncertified relation back argument, I just wanted to point out that although if this court is inclined to remand on the conflict free counsel to pursue equitable tolling argument, that would cover all of Mr. Castillo's defaulted claims.

[00:12:57] Speaker 00:
If the court were not inclined to do that, I did want to have the opportunity to argue that a smaller universe of claims relate back under this court's authority and Ross v. Williams.

[00:13:07] Speaker 00:
Ross v. Williams issued after Mr. Castillo had filed his notice of appeal, and it was the subject of a limited remand before the district court.

[00:13:15] Speaker 00:
Upon that limited remand, the district court declined to find that any additional claims related back due to an erroneous application of Ross.

[00:13:23] Speaker 00:
The district court aired because it was looking for a match between the legal claim of an amended petition and the legal claim in the original petition.

[00:13:30] Speaker 00:
Indeed, the court's language repeatedly refers to the fact that there was not a claim raised in the original petition that matched.

[00:13:37] Speaker 00:
But what Ross V. Williams made clear is that the key question is whether there is a common core of operative fact.

[00:13:43] Speaker 00:
And Ross also made clear that those facts need not be in the four corners of the petition and that those facts can be found in any written instruments attached to the petition, like briefs and orders.

[00:13:54] Speaker 00:
So if the district court were to have applied the proper test under Ross, we submit that seven additional claims would have related back.

[00:14:02] Speaker 00:
And that was claim 12A.

[00:14:04] Speaker 00:
which is the ineffective assistance at the penalty phase claim that we were just discussing.

[00:14:08] Speaker 00:
Claim one to be the ineffective assistance of counsel to object to vouching.

[00:14:12] Speaker 00:
There are three jury instruction errors, trial counsel was ineffective in litigating.

[00:14:18] Speaker 00:
And then claims four and five, which concerned improper juvenile evidence and trial counsel's failure to keep that out.

[00:14:26] Speaker 00:
So we ask that this court certify this issue and with the benefit of supplemental briefing and argument from the state, hold that under the proper application of Rossi Williams, these seven claims relate back.

[00:14:38] Speaker 02:
How do you, on the Martinez issue, how would you respond to the state's argument that the Nevada statutory scheme falls outside the concerns addressed in Martinez?

[00:14:48] Speaker 02:
How would you respond to that argument?

[00:14:51] Speaker 00:
few responses.

[00:14:52] Speaker 00:
I just start off by saying that Martin has established a very clear four-part test that this court and other courts have continued to rely upon since it issued, and none of those elements turn on the

[00:15:07] Speaker 00:
on whether this analog exists.

[00:15:10] Speaker 00:
And I think that's really demonstrated in this court's authority in Cooper v. Nevin.

[00:15:16] Speaker 00:
In that case, the court acknowledged that a petitioner could overcome a default in state court via prosecutorial misconduct, but it held that that did not prevent the petitioner from using that same basis to overcome

[00:15:28] Speaker 00:
a procedural default in federal court.

[00:15:30] Speaker 00:
So this idea that if an analog under state law exists, you all of a sudden don't get Martinez, I think is dispelled by Cooper versus Devin.

[00:15:38] Speaker 00:
And that makes sense because this is all questions of federal law.

[00:15:42] Speaker 00:
And federal law, you apply your own rules and they do not depend on the state court procedure, at least for Martinez.

[00:15:50] Speaker 00:
And I was thinking about this more and I think kind of what's going on.

[00:15:54] Speaker 00:
is that the state is trying to graft a diligence requirement onto Martinez that does not exist.

[00:16:00] Speaker 00:
The Martinez test is a very straightforward four-part test.

[00:16:05] Speaker 00:
Mr. Cascio can meet that test.

[00:16:06] Speaker 00:
And he cited to numerous authority of this court applying that four-part test and subsequent district court decisions in Nevada that rejected the kind of reasoning that the district court used here.

[00:16:19] Speaker 00:
And again, our main argument is that the Martinez error

[00:16:22] Speaker 00:
There was three Martinez errors the court committed.

[00:16:24] Speaker 00:
Two of them, we believe, were addressed by this court in Hogan versus Bean, which we filed a 28-J letter with this court flagging that decision.

[00:16:31] Speaker 00:
In that decision, the court found that two similar errors were reversible, and the court did remand for further consideration of those Martinez questions.

[00:16:42] Speaker 00:
And the two errors that Hogan found were reversible were that the district court erred by finding that NRS 34.726 could not be overcome by via Martinez period, court held that was error.

[00:16:54] Speaker 00:
And then the other error was that the district court

[00:16:56] Speaker 00:
could not require a quote unquote nexus test, which a panel of this court found was more like a proximate cause tort standard than a but for legal causation.

[00:17:07] Speaker 00:
And so the Hogan court found that this was error and reversed on that basis too.

[00:17:12] Speaker 00:
I think it's worth noting that the district court did go even one step further than the court did in Hogan, and it said, you know, as a basis of these other two assessments, I'm just going to find, as a matter of equity, that Martinez does not apply.

[00:17:26] Speaker 00:
But this, of course, is foreclosed by a United States Supreme Court precedent in Lashner v. Thomas, which reversed a lower court for making the same mistake, saying you can't just fashion your own freestanding tests of equity

[00:17:39] Speaker 00:
You have to apply binding precedent, the relevant statutes, and the relevant habeas corpus rules.

[00:17:45] Speaker 00:
So, Your Honor, we submit that all of these errors warrant a Martinez remand in this case.

[00:17:50] Speaker 00:
All right.

[00:17:50] Speaker 00:
Thank you, Counsel.

[00:17:54] Speaker 00:
I'm just going to check.

[00:18:02] Speaker 00:
I think I hit on everything I wanted to hit, but I don't want to sit down too prematurely if there's any more questions on the issues.

[00:18:09] Speaker 00:
No, it appears not.

[00:18:12] Speaker 00:
OK, thank you, Your Honor.

[00:18:13] Speaker 00:
I'll reserve the remaining of my time on rebuttal.

[00:18:15] Speaker 00:
Absolutely.

[00:18:18] Speaker 04:
We'll hear from the state.

[00:18:34] Speaker 01:
Good afternoon and may please the court.

[00:18:36] Speaker 01:
My name is Heather Proctor.

[00:18:37] Speaker 01:
I'm a chief deputy with the Nevada Attorney General's Office.

[00:18:40] Speaker 01:
I have the honor of representing the respondents in this matter.

[00:18:43] Speaker 01:
As noted, there are four certified issues and I would also like to start with the equitable tolling argument because the district court found that while there were many claims barred by, procedurally barred,

[00:18:56] Speaker 01:
and that petitioner could not satisfy Martinez, the court found that all but two of those claims were also untimely and did not relate back to the original federal habeas petition and that he could not satisfy equitable tolling.

[00:19:12] Speaker 01:
And so Castillo really must satisfy both equitable tolling and Martinez in order to prevail on this appeal.

[00:19:20] Speaker 01:
And for that reason, I'd like to start with the equitable tolling arguments.

[00:19:23] Speaker 01:
As far as counsel's performance, Christensen can be distinguished in this case.

[00:19:31] Speaker 01:
In Christensen, the attorneys did not contact their client until six weeks after the statute of limitations had expired.

[00:19:41] Speaker 01:
The court found that there was a significant conflict of interest where counsel's interest of avoiding damage of their own reputation was at odds with counsel's strongest argument that the attorneys abandoned him.

[00:19:55] Speaker 01:
The court did find that abandonment was not beside the point because the conflict of interest was so strong in that case.

[00:20:04] Speaker 01:
In addition, the court evaluated the district court's

[00:20:09] Speaker 01:
order declining to appoint new counsel, not temporary counsel, in order to strictly evaluate the equitable tolling argument.

[00:20:22] Speaker 01:
In this case, the petitioner does not demonstrate that their errors in this case, if there were any errors, are anything beyond garden variety negligence.

[00:20:33] Speaker 01:
As this court found in Doyle, which was a very similar case where

[00:20:37] Speaker 01:
The petitioner had actually waited three years after mail was decided to file their amended federal petition, albeit their statute of limitations had expired prior to mail versus Castillo where he still had four months, but he still waited three years to file his amended petition.

[00:20:57] Speaker 01:
The court found that counsel displayed garden variety neglect in the form of inattention to developments in the law governing relation back, but not egregious misconduct.

[00:21:07] Speaker 01:
The petitioner just hasn't demonstrated any type of egregious misconduct.

[00:21:12] Speaker 01:
Their primary argument is that, well, Castillo still had four months left on his statute of limitations.

[00:21:18] Speaker 01:
But he doesn't demonstrate or cite any authority which states that because there was still time on the epiclock, that because counsel did not file an amended petition within that four months after mail, that that is egregious misconduct.

[00:21:36] Speaker ?:
Why?

[00:21:36] Speaker 02:
Those four months go by, he loses out based upon EDPA.

[00:21:43] Speaker 02:
Why isn't that egregious?

[00:21:45] Speaker 01:
Your Honor, egregious misconduct is something similar to what was found in Christensen, where they completely abandoned their client.

[00:21:53] Speaker 01:
The other part of this is that in Christensen versus Roper,

[00:22:01] Speaker 01:
Attorneys at first said we miscalculated this was our fault but in subsequent proceedings the court The attorneys came back and said well actually no we have legal and ethical reasons for overcoming these proceedings that's where the court was finding the severe conflict of interest and

[00:22:18] Speaker 01:
And the court was finding that abandonment was not necessary because of the severe conflict.

[00:22:25] Speaker 01:
And where the court was found that the damage to the attorney's reputation was at risk because the attorneys had actually changed their position on this.

[00:22:39] Speaker 01:
In terms of why it is not egregious misconduct,

[00:22:46] Speaker 01:
There was still time to, certainly, to file proceedings, but the petitioner was continuing to conduct discovery.

[00:22:55] Speaker 01:
They did not file their discovery motion until several months after mail was decided.

[00:23:02] Speaker 01:
They simply chose to continue litigating this case and they chose to further develop the case in federal court before even returning back to state court for their second state post-conviction proceedings.

[00:23:16] Speaker 01:
Agregious misconduct is severe miscalculation.

[00:23:19] Speaker 02:
Well, that was a strategic decision?

[00:23:22] Speaker 02:
How could it be a strategic decision other than egregiously dumb?

[00:23:28] Speaker 01:
Your Honor, it could be just a miscalculation.

[00:23:30] Speaker 01:
It could be that they didn't realize that Castillo was one of those that actually still had time left on us at Putt Clock.

[00:23:38] Speaker 01:
We don't know, but it simply does not reach the level of egregious misconduct that the other courts have found.

[00:23:49] Speaker 01:
Emily and spits and that is also distinguishable because in that case the court had actually stayed the proceedings in order for the case to go back for competency determinations and The attorney was confused somewhat by that order the court found that yes, there was some Demonstration that there were competency concerns there was a

[00:24:15] Speaker 01:
order staying the proceedings.

[00:24:17] Speaker 01:
Unlike in this case, there was no order staying the proceedings.

[00:24:22] Speaker 01:
Mail was decided, and he knew at that time that the time was running, and he simply chose not to file the amended petition within that certain period of time.

[00:24:35] Speaker 01:
That may be a miscalculation of the statute of limitations, but it doesn't reach egregious misconduct, warranting relief under Holland v. Florida.

[00:24:46] Speaker 02:
And your argument is that they need to satisfy both the tolling and the Martinez issues.

[00:24:53] Speaker 02:
Could you get to the Martinez issues?

[00:24:55] Speaker 01:
Certainly.

[00:24:56] Speaker 01:
Regarding the Martinez issues, there are two claims that were raised under Martinez that are not subject to the equitable tolling timeliness, if far.

[00:25:05] Speaker 01:
The first is claim 11, in which the petitioner argues that counsel failed to challenge the deadly weapon enhancement statute.

[00:25:15] Speaker 01:
We briefed that issue as far as the state court case law actually supported what the district court did in this case.

[00:25:24] Speaker 01:
But more fundamentally, the only count on which a deadly weapon enhancement was found was the first-degree murder conviction.

[00:25:32] Speaker 01:
And of course, the defendant was not sentenced under the deadly weapon enhancement.

[00:25:37] Speaker 01:
He was sentenced to death instead.

[00:25:39] Speaker 01:
So it really doesn't apply in this particular case, and it's not a substantial claim.

[00:25:44] Speaker 01:
The second claim is claim 82A in which they allege that the counsel failed to object to the victim's daughter's testimony in which she talked about her mother's mental health as well as physical health.

[00:26:01] Speaker 01:
That particular case, that is, we can go straight to prejudice on that case because the facts of this case were so egregious, so horrendous that he brought

[00:26:14] Speaker 01:
He had a tire iron with him even though he had a key.

[00:26:19] Speaker 01:
He was fumbling around in the room where this individual was sleeping and looking for something to steal.

[00:26:27] Speaker 01:
And when the co-defendant made a noise,

[00:26:31] Speaker 01:
immediately started striking the victim with the fists and with the tire iron and when she was starting to gurgle on her own blood smother her to death.

[00:26:42] Speaker 01:
Those facts were so horrific that the statements by the victim's daughter regarding her mother's health and mental well-being simply were not going to make a difference in this case and certainly were not going to lead to a second-degree murder conviction.

[00:26:58] Speaker 01:
Those are the two Martinez claims that survive, that were not subject to the equitable tolling and the timeliness issues.

[00:27:07] Speaker 01:
As far as the Martinez claims themselves, it is our position that under Hogan, Hogan needs to be distinguished from this case.

[00:27:18] Speaker 01:
How?

[00:27:20] Speaker 01:
With Hogan, it addresses a time period well before the Castillo case, well before the Crump decision in 1997.

[00:27:29] Speaker 01:
And Hogan even went so far as to say, look, in order to satisfy Martinez, there must be some logical connection between first post-conviction counsel's ineffective assistance and the procedural default.

[00:27:43] Speaker 01:
The court found that, based on Nevada law as it existed for Hogan,

[00:27:48] Speaker 01:
that even if second post-conviction counsel did raise the arguments, they could not argue ineffective assistance of first post-conviction counsel because they were not entitled to effective assistance at that time.

[00:28:05] Speaker 01:
And the court in the footnote noted, we do not make any kind of

[00:28:10] Speaker 01:
a notation that this may not apply in cases where they actually do recognize Martina's exception in state court proceedings.

[00:28:20] Speaker 01:
That goes into why the Martinez simply does not apply to death row inmates in Nevada.

[00:28:28] Speaker 01:
If the purpose of Martinez was quite clear, Martinez addressed the issue that in most courts, the courts would actually channel claims

[00:28:39] Speaker 01:
away from direct appeal if they were, excuse me, IAC claims, away from direct appeal where petitioner was entitled to effective assistance of counsel.

[00:28:48] Speaker 02:
Counsel, I guess I, has any court ever said what you just said that Martinez doesn't apply to death penalty cases or I think that's what I heard you say.

[00:28:59] Speaker 01:
Yes, in Nevada, based on our statutory framework, that is correct.

[00:29:04] Speaker 01:
I'm not aware of any courts that have that similar framework for capital dependence.

[00:29:12] Speaker 04:
So are you saying there's a Nevada case that says that Martinez doesn't apply to death penalty cases?

[00:29:20] Speaker 01:
No.

[00:29:21] Speaker 04:
What case says that?

[00:29:23] Speaker 01:
Nevada does not recognize Martinez in state law.

[00:29:28] Speaker 04:
Okay, so I don't understand your point that Martinez doesn't apply it so it's a federal requirement and so

[00:29:37] Speaker 01:
It is.

[00:29:38] Speaker 01:
The question is, what test is to be applied or what standard is to be applied?

[00:29:44] Speaker 01:
Martinez addresses the state procedural framework and is entirely based on a state procedural framework.

[00:29:52] Speaker 01:
How does the state deal with ineffective assistance?

[00:29:55] Speaker 02:
They require the council for their first post-conviction appeal to raise those issues.

[00:30:02] Speaker 02:
And if they don't raise all those issues,

[00:30:05] Speaker 02:
as allegedly they haven't, then wouldn't Martinez apply here?

[00:30:10] Speaker 01:
Not necessarily, Your Honor, because the main concern was if they do not have the right to effective assistance counsel in those first post-conviction proceedings, then Martinez specifically states there is a possibility that the individual will never have their trial counsel claims addressed due to ineffective assistance of post-conviction counsel, and therefore they need a second bite at the apple.

[00:30:35] Speaker 01:
They need an opportunity to address these claims

[00:30:38] Speaker 01:
in case of ineffective assistance of post-conviction counsel.

[00:30:42] Speaker 01:
In Nevada, we have a statutory framework, and again, Martinez is based on state procedural law, that provides very similar protections that if a... What the question is, do they have a right to an attorney at the first post-conviction proceeding?

[00:31:01] Speaker 01:
Correct.

[00:31:02] Speaker 01:
And in Nevada, they do.

[00:31:03] Speaker 04:
They do.

[00:31:04] Speaker 01:
In Nevada, under CROMP, so there is a statutory right to appointment of counsel for capital defendants, and we're strictly limiting this to capital defendants.

[00:31:14] Speaker 01:
And under CROMP, they have a right to effective assistance of first post-conviction counsel.

[00:31:19] Speaker 01:
So they actually have a statutory right to effective assistance of counsel.

[00:31:23] Speaker 01:
So if they raise these arguments in a second state petition that is timely filed,

[00:31:28] Speaker 01:
They do have an opportunity to address whether first post-conviction counsel wasn't effective and if they succeed, can reach the merits of their trial counsel claims.

[00:31:39] Speaker 03:
Wasn't this issue, was this issue addressed in Hogan, Fee Bean, because that's from Nevada, was a death penalty too, right?

[00:31:46] Speaker 01:
It was a death penalty case.

[00:31:48] Speaker 01:
However, Hogan occurred before Crump was decided.

[00:31:52] Speaker 01:
All of the state proceedings occurred prior to Crump.

[00:31:55] Speaker 01:
So the petitioner did not have that right to effective assistance of counsel under Crump.

[00:32:02] Speaker 01:
And instead, Crump, as I mentioned, left open the question that if there is a Martinez exception recognized in state law, that may change our proceedings and our decision, because our decision is based on the fact that under Nevada law, if these claims are raised for the first time in a second post-conviction,

[00:32:23] Speaker 01:
post-conviction counsel in that second proceeding cannot challenge the effective assistance of first post-conviction counsel.

[00:32:31] Speaker 02:
Let's say we disagree with you on that.

[00:32:35] Speaker 02:
Not saying that we do, but let's just say that we do and determine that Martina's defense was potentially available.

[00:32:41] Speaker 02:
What should the appropriate course of action be here?

[00:32:45] Speaker 01:
Your honor, the court can certainly remand these proceedings.

[00:32:50] Speaker 01:
However, the court also has the ability to evaluate these claims under Martinez to determine if they are substantial and also to determine if first-pulse conviction counsel was effective.

[00:33:03] Speaker 02:
Thank you.

[00:33:04] Speaker 04:
Counsel, so I'm looking at page 303.

[00:33:09] Speaker 04:
Crump is that the language you talk go ahead if you want to get you It says we conclude that Crump was entitled to effective assistance of counsel for his October 26 1986 petition for post-conviction relief is that the language you're relying upon?

[00:33:27] Speaker 01:
For Crump, as far as effective assistance to counsel?

[00:33:30] Speaker 01:
Yes.

[00:33:32] Speaker 01:
Yes.

[00:33:32] Speaker 01:
Nevada has adopted and has repeatedly reinforced the Crump determination that because there is a statutory right to appointment of counsel, there's a right to effective assistance of first post-conviction counsel in death penalty cases only.

[00:33:48] Speaker 01:
if those claims are raised in a second state petition and can be used as cause to overcome the state statutory bars.

[00:34:06] Speaker 02:
Okay, so I understand what you just said, but I want to make sure that I, how does that relate to then your position that their argument fails here, I guess.

[00:34:18] Speaker 02:
I just want to make sure I understand that point.

[00:34:21] Speaker 01:
The district court.

[00:34:37] Speaker 01:
and five years after the first post-conviction proceeding in order to file their second state petition.

[00:34:43] Speaker 01:
The court further found that had the petitioner raised a timely second state habeas petition, he could have raised this first post-conviction proceeding argument.

[00:34:54] Speaker 02:
And the... What do you say to the argument that the council raised which is that's sort of a made up, this equity argument is sort of a made up factor that the district court judge considered and not necessarily... Your Honor, I respectfully disagree.

[00:35:11] Speaker 01:
I believe what the court was doing was referencing the equitable remedy that was available in Martinez, not creating a brand new test that was applied for the first time.

[00:35:22] Speaker 04:
So, counsel, if I understand your argument, it is that because the Nevada statutes provide for the right to counsel at the first post-conviction proceeding, the second counsel could have addressed the ineffective assistance of counsel at the first post-conviction proceeding.

[00:35:47] Speaker 04:
Therefore, Martinez is not triggered.

[00:35:50] Speaker 04:
Is that your argument?

[00:35:52] Speaker 01:
Let me state that a little differently.

[00:35:54] Speaker 01:
I think we're on the same page.

[00:35:55] Speaker 04:
Because I'm trying to understand what your argument is.

[00:35:58] Speaker 01:
Under CROMP, if in the second state habeas petition, which was subject to procedural bars, the counsel in the second state petition argued that first post-conviction counsel was ineffective for not raising these trial counsel claims, that can be served as cause to overcome the state procedural bars in Nevada.

[00:36:20] Speaker 04:
So how does that relate to Martinez?

[00:36:23] Speaker 04:
So that's what I'm trying to get the connection.

[00:36:27] Speaker 04:
So you said, okay, this is how Nevada operates.

[00:36:31] Speaker 04:
Why does that preclude Martinez from being applied?

[00:36:35] Speaker 01:
Because Martinez is an equitable remedy.

[00:36:40] Speaker 01:
There's no constitutional right to first post-eviction counsel.

[00:36:44] Speaker 01:
And the way that it is applied, it is based on the state procedural framework.

[00:36:50] Speaker 01:
In Nevada, Nevada provides very similar protections.

[00:36:54] Speaker 04:
When you say very similar protections, to me, that's kind of a hedge to say that we don't quite meet Martina's requirements, but we have something close.

[00:37:04] Speaker 04:
That's why I'm asking you to explain precisely why Martina's bars.

[00:37:13] Speaker 01:
So in both situations, counsel can use first ineffective assistance of post-conviction counsel as a basis to overcome the state procedural bars.

[00:37:24] Speaker 01:
Correct.

[00:37:24] Speaker 01:
So because of the Nevada framework, it allows the same protections that were envisioned in Martinez in order to get that second bite at the apple.

[00:37:34] Speaker 01:
in Nevada for capital defendants, that second bite of the apple occurs in the state proceedings for death row inmates.

[00:37:44] Speaker 01:
Now, the question of cause and prejudice remains a question of federal law.

[00:37:50] Speaker 01:
Because of the state procedural framework, what would occur is petitioner would now have to satisfy the standard for cause and prejudice to overcome the bar based on Murray versus Carrier and Coleman versus Thompson because this equitable remedy available through Martinez would not be available because of this equivalent in state court.

[00:38:16] Speaker 01:
And under Coleman versus Thompson, ineffective assistance of first post-conviction counsel would not serve as cause.

[00:38:31] Speaker 02:
So essentially you're saying they should have, they should have, they had this opportunity in the state proceedings.

[00:38:37] Speaker 02:
They chose not to for whatever reason.

[00:38:40] Speaker 02:
do that so they don't have the ability to use Martinez at this stage.

[00:38:45] Speaker 02:
Is that your position?

[00:38:46] Speaker 02:
It is.

[00:38:47] Speaker 02:
Okay.

[00:38:47] Speaker 02:
Just want to make sure I understand it.

[00:38:49] Speaker 04:
Thank you.

[00:38:51] Speaker 04:
Unless the court has... So here's the language in Martinez.

[00:38:54] Speaker 04:
It says, where under state law claims of ineffective assistance of trial counsel must be raised in an initial review collateral proceeding

[00:39:05] Speaker 04:
A procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

[00:39:24] Speaker 04:
So tell me why this doesn't apply.

[00:39:28] Speaker 04:
This whole thing doesn't apply here.

[00:39:32] Speaker 04:
I'm not getting why.

[00:39:35] Speaker 04:
So, yeah, I'm not getting why.

[00:39:38] Speaker 02:
That language doesn't say, but if in the state proceeding they have this procedure, then they would not be eligible.

[00:39:48] Speaker 02:
So it doesn't say that in Martinez.

[00:39:51] Speaker 01:
And I understand that, Your Honor, and that is because this was not the situation addressed in Martinez.

[00:39:57] Speaker 01:
The same with Trevino.

[00:39:59] Speaker 01:
Neither of those cases are situations where there was actually the right to effective assistance of first post-conviction counsel to serve as cause to overcome the state procedural bars.

[00:40:17] Speaker 04:
OK.

[00:40:18] Speaker 04:
We understand your argument, counsel.

[00:40:20] Speaker 04:
So if we disagree with you on that argument and we think that under Hogan the procedural bar does not prevent review on the merits, do you think it would be appropriate for us to decide the merits of the case?

[00:40:41] Speaker 01:
Your honor, I do think it would be appropriate.

[00:40:43] Speaker 01:
It certainly could be remanded for further evaluation by the federal district court.

[00:40:48] Speaker 01:
But this court has the record before it, and the parties briefed the issues.

[00:40:54] Speaker 01:
So the court could address the merits of the claims.

[00:40:57] Speaker 01:
I would agree with my colleague that in most circumstances, the court has remanded.

[00:41:01] Speaker 04:
I thought usually on remand, we would have the district court to determine whether or not the Martinez

[00:41:09] Speaker 04:
exception to the procedural bar was triggered?

[00:41:15] Speaker 04:
Is that usually what the remand was for or was it for the merit?

[00:41:19] Speaker 01:
It's for, I have seen both circumstances.

[00:41:23] Speaker 01:
If the court finds that Martinez has been satisfied, then it has remanded for marriage determination.

[00:41:29] Speaker 01:
In fewer cases, I have seen that it has been remanded for the initial determination of whether Martinez applies in the first place as to each claim.

[00:41:38] Speaker 01:
Again, I think this court is certainly able to address those issues, these issues as,

[00:41:45] Speaker 03:
Noted earlier some of these issues are not that complex Can we assume Martina has been satisfied and then just go into the merits or do we actually have to analyze the Martinez issue I?

[00:42:01] Speaker 01:
Think the court would have to determine if Martinez was met before it could address the merits of the issues why couldn't we assume well and decide you know on the merits and

[00:42:11] Speaker 01:
The court, well, the court could certainly address whether the claims were substantial and if the court assumes if the issues, Martinez was satisfied, it could, potentially it could determine that if we assume that Martinez has met the claims are,

[00:42:40] Speaker 01:
I'm sorry.

[00:42:41] Speaker 01:
I'm trying to think under 2254.

[00:42:43] Speaker 01:
I know that there are prohibitions against granting relief But I believe that's limited to exhaustion issues.

[00:42:51] Speaker 04:
So I'm trying to think of the We're not saying that we were just asking you the question at least I'm just asking you the question I'm not saying that that's the proper procedure.

[00:42:59] Speaker 04:
I'm just asking I

[00:43:00] Speaker 01:
I think the court could certainly address whether the Martinez is satisfied if it gets to the merits of the claims.

[00:43:08] Speaker 01:
I mean, the court can certainly do what it wishes and it does have the record in front of it.

[00:43:13] Speaker 04:
This case has been around a long time and I'm thinking if we send it back and then the parties are dissatisfied, it will come back again and that's going to be a time period.

[00:43:24] Speaker 04:
There is some interest in resolving this case in terms of finality.

[00:43:28] Speaker 04:
Of course, we want to give,

[00:43:30] Speaker 04:
all of the process that is due, but it has been lingering for a long time.

[00:43:35] Speaker 01:
It has, Your Honor.

[00:43:38] Speaker 01:
In addressing the claim that Castillo's counsel addressed regarding mitigation evidence, if you look at the cases that were addressed by the US Supreme Court in which the court has found ineffective assistance of counsel, those are situations in which the

[00:44:01] Speaker 01:
The defense attorney presented a mitigation evidence that was very different from the evidence that was discovered during post-conviction proceedings.

[00:44:11] Speaker 01:
Here, the evidence that is presented in the matter of the declarations of the family members, of the doctor's reports, if the court deems that it can reach those claims through the Ramirez gateway,

[00:44:27] Speaker 01:
It simply is additional evidence similar to what was presented in the mitigation.

[00:44:36] Speaker 01:
Council mentioned that he had been in juvenile facilities, that he had been in and out of foster care, that the mother had no interest in parenting him.

[00:44:47] Speaker 01:
But all of that evidence was actually presented either through the mother or through Dr. Epcoff.

[00:44:53] Speaker 02:
So the evidence that they are... I remember reading that in the material that was presented.

[00:44:58] Speaker 01:
Yes, and so certainly the two doctors that they have presented have a different diagnosis of PTSD, but the evidence for the most part was very similar.

[00:45:13] Speaker 01:
He presented mental health issues, he presented a

[00:45:18] Speaker 01:
whole cacophony of details regarding his upbringing both through dr. F cough as well as mother and one of the other witnesses This is not the situation such as rumpia where council Discovered evidence that was never presented at all that council made no attempt to attempt

[00:45:44] Speaker 01:
present any of this evidence.

[00:45:47] Speaker 01:
The evidence in this case simply is not of the kind of caliber that would warrant relief because counsel did present an expert on defense and did present all of this information regarding the upbringing that counsel obtained both from juvenile reports as well as Castillo sharing information and counsel found that

[00:46:13] Speaker 01:
the information Castillo shared.

[00:46:16] Speaker 02:
Is there an argument that they didn't present that it wasn't as detailed as it could have?

[00:46:21] Speaker 02:
I guess I'm trying to sort of put together the comments earlier and you know the record better than I do.

[00:46:30] Speaker 01:
That is certainly how we have interpreted it, that it is not as detailed, that there were several additional episodes of issues with the upbringing, that there were certain events that happened while he was three or four, events that happened to the mother prior to Castillo's birth, as well as the expert reports.

[00:46:58] Speaker 01:
There is case law in this circuit, Fairbanks versus Ayers, that says if an expert does not diagnose the same issues that another expert, that's not ineffective assistance of counsel.

[00:47:13] Speaker 01:
That is simply that the doctor made a determination based on the evidence he was provided and there's no evidence in the record

[00:47:20] Speaker 01:
that Dr. Etkhoff requested additional information from counsel.

[00:47:25] Speaker 01:
Dr. Etkhoff presented the majority of this evidence into the jury and the jury rejected the evidence and ultimately determined that the death sentence was appropriate.

[00:47:42] Speaker 01:
Very briefly the claim regarding that the Nevada Supreme Court rejected and addressing the guilt phase issue The issue with that is dr. Adkoff actually testified that there was no

[00:47:57] Speaker 01:
mental issues or any evidence that Castillo was unable to form the intent to kill.

[00:48:05] Speaker 01:
And more importantly, there was an abundance of evidence that Dr. Etkhoff testified to in the penalty phase that would have been extremely detrimental to the defense.

[00:48:15] Speaker 01:
including a final quote, Mr. Castillo even today is a very dangerous individual who absolutely must be incarcerated so that society is protected from this basically uncontrolled and very angry man and stated that he should never be released from the streets.

[00:48:32] Speaker 01:
That kind of evidence was extremely detrimental and would have been subject to cross-examination had counsel put on Dr. Eckhoff during the guilt phase.

[00:48:45] Speaker 01:
With that, is there further questions?

[00:48:47] Speaker 04:
It appears not.

[00:48:49] Speaker 01:
Thank you, Council.

[00:48:49] Speaker 01:
Thank you.

[00:48:50] Speaker 01:
Rebuttal?

[00:49:04] Speaker 00:
I'm just going to hit a few points with regard to the equitable tolling arguments my colleague was advancing.

[00:49:10] Speaker 00:
Christensen did not require an ongoing abandonment.

[00:49:12] Speaker 00:
In fact, the court in Christensen expressly rejected that complete abandonment or disabling contract of interest was required.

[00:49:19] Speaker 00:
And also the state's comments that Christensen's counsel did assert they had a legal basis for missing the deadline.

[00:49:27] Speaker 00:
So here too, Mr. Castillo's counsel said that, you know, based on the standard scheduling orders, they also advanced a legal basis for missing the deadline.

[00:49:35] Speaker 00:
So really the cases are quite similar in that regard.

[00:49:39] Speaker 03:
As far as the Martinez arguments... Sorry, before we go to the equitable tolling argument, do you agree with your friend on the other side?

[00:49:46] Speaker 03:
She says that if there's no equitable tolling, there are only two claims left.

[00:49:50] Speaker 03:
Do you agree with that characterization?

[00:49:53] Speaker 00:
Not quite, just because I do agree that there are two Martinez claims that were found to be timely, absolutely.

[00:50:00] Speaker 00:
I would also point out, though, that we have the additional relation back arguments if this court were not inclined to reverse on the equitable tolling grounds.

[00:50:06] Speaker 03:
Thank you.

[00:50:07] Speaker 00:
And then as far as the Martinez arguments, you know, Judge Mendoza took the words right out of my mouth.

[00:50:12] Speaker 00:
Martinez could have required that it only applied in cases where counsel was not appointed pursuant to statute in the first instance.

[00:50:21] Speaker 00:
Martinez did not hold that.

[00:50:22] Speaker 00:
Set forth a very simple test which Mr. Castillo can meet in this case.

[00:50:28] Speaker 02:
I want to ask you about the idea that should we address the merits of this case?

[00:50:35] Speaker 02:
Let's say we agree that Martinez, with you on the Martinez issue and then therefore we would consider the merits.

[00:50:46] Speaker 02:
How, given the facts in this case, I mean I guess I'm trying to find your strongest arguments why you think that you would be successful on those, on the merits of this case.

[00:50:56] Speaker 00:
Yes, your honor.

[00:50:57] Speaker 00:
And again, going back to that ineffective instances of mitigation council claim that we've been discussing, I know my colleagues stated that much of the same evidence that was subsequently uncovered just reiterated topics that were covered at the penalty phase.

[00:51:11] Speaker 00:
But Wiggins and Rompio made clear that a cursory mitigation presentation does not meet constitutional muster.

[00:51:18] Speaker 00:
Trial counsel has a duty to uncover all relevant mitigating evidence.

[00:51:22] Speaker 00:
And the fact that council presented some does not absolve it of ineffective assistance of council.

[00:51:27] Speaker 02:
What was missing?

[00:51:27] Speaker 02:
I guess, because again, as I mentioned to your friend on the other side, I had read the fact that those issues were presented at the mitigation stage.

[00:51:37] Speaker 02:
What additional, what was missing?

[00:51:39] Speaker 02:
What was not presented, I guess, is my question.

[00:51:43] Speaker 00:
Again, I want to point out the fact that, you know, there was testimony that Mr. Castillo's mother was just a good mom who was trying her best.

[00:51:50] Speaker 00:
The wealth of mitigating evidence that was subsequently uncovered revealed the extent of the neglect and deprivation that Mr. Castillo suffered.

[00:51:57] Speaker 00:
The amount of times he was dropped off in foster care.

[00:52:01] Speaker 00:
Also, one piece of evidence that trial counsel didn't uncover was from one of his foster families, Mary Knowles.

[00:52:06] Speaker 00:
She provided counsel with a declaration stating that when Mr. Castillo arrived at her home, he was wearing a girl shirt that was cropped at the waist.

[00:52:14] Speaker 00:
He had pants with crotches ripped out.

[00:52:16] Speaker 00:
He didn't have shoes that fit.

[00:52:18] Speaker 00:
His toes were curling under.

[00:52:19] Speaker 00:
So this is the type of evidence that would have really altered the sentencing profile.

[00:52:23] Speaker 00:
Instead of the jury just walking away thinking, okay, you know, some things happened, but this was a, you know, a caring mother.

[00:52:30] Speaker 00:
That kind of evidence would have really altered the sentencing juries.

[00:52:34] Speaker 00:
conception of what Mr. Castillo's childhood really was like.

[00:52:41] Speaker 00:
And in addition, the expert evidence as well.

[00:52:43] Speaker 00:
Dr. Atkoff just conducted a personality test.

[00:52:47] Speaker 00:
The subsequent experts that we were able to uncover administered 28 tests, and they found a cognitive order not otherwise specified.

[00:52:56] Speaker 00:
They found complex PTSD, both in childhood and persisting into adulthood.

[00:53:01] Speaker 00:
These kinds of things are what sentencing juries should be considering when they're considering a total picture of someone's life when deciding whether to sentence them to death.

[00:53:09] Speaker 00:
Here, Mr. Castillo's jury simply did not have all of these relevant pieces of information.

[00:53:17] Speaker 00:
And also, turning to

[00:53:20] Speaker 00:
A statement my colleague made that Dr. Edkoff did not request any additional information.

[00:53:25] Speaker 00:
On the face of his report, there are many areas where he notes that further interviews with family members would be helpful, and trial counsel made no effort to follow up on that.

[00:53:34] Speaker 00:
So I just wanted to correct the record on that one.

[00:53:39] Speaker 00:
And lastly, Your Honor, this idea that any evidence regarding the defense presentation at the guilt phase, any evidence from Dr. Etkoff would have been damaging.

[00:53:50] Speaker 00:
Again, this is not a case where defense counsel chose one defense over the other.

[00:53:55] Speaker 00:
and made a strategic decision not to present one here, no guilt phase defense was presented.

[00:54:01] Speaker 00:
So it's hard to imagine what could have been worse or more damaging.

[00:54:04] Speaker 00:
This was the worst case scenario.

[00:54:05] Speaker 00:
Mr. Castillo was found guilty on all counts.

[00:54:07] Speaker 00:
So it doesn't really make sense to think that some defense presentation would have been damaging when no defense presentation existed.

[00:54:19] Speaker 00:
And with that, Your Honors, we would ask that if this Court is not inclined to grant relief on ineffective assistance of trial counsel claim,

[00:54:25] Speaker 00:
We would ask for a remand with instructions to the district court to appoint conflict-free counsel, and then after determining what claims are timely, to then move on to the Martinez analysis.

[00:54:34] Speaker 00:
And again, at that point, whether an evidentiary hearing is warranted could be briefed, and the district court could pass upon whether these claims are appropriate for relief in the first instance, because again, because the court determined that Martinez did not apply at all, it did not make any such determination.

[00:54:48] Speaker 04:
Council, could you address opposing counsel's reliance on the Nevada statutory scheme?

[00:54:55] Speaker 00:
Yes, your honor.

[00:54:56] Speaker 00:
I think it really just goes back to the fact that Martina set forth the test.

[00:55:01] Speaker 00:
They could have set forth that as an aspect of the test, you know, looking at the type of post-conviction regime the state court had.

[00:55:08] Speaker 00:
It did not.

[00:55:09] Speaker 00:
It just said if claims have to be brought, if ineffective assistance of trial counsel claims have to be brought in first state post-conviction proceedings, then this is a way to overcome default.

[00:55:18] Speaker 04:
And that's the circumstance that exists in this case.

[00:55:22] Speaker 00:
Yes, Your Honor, absolutely.

[00:55:23] Speaker 00:
I don't think there's any question that Nevada requires that ineffective assistive trial counsel claims cannot be brought in direct appeal.

[00:55:30] Speaker 00:
They must be brought in first post-conviction proceedings.

[00:55:33] Speaker 00:
And then the other point is that I just go back to Cooper v. Nevin, where a panel at this court held that

[00:55:40] Speaker 00:
Even though the state petitioner had a route to overcome default, that was exactly the same as the route in federal court.

[00:55:47] Speaker 00:
That did not stop the federal court from finding that procedural default could be overcome.

[00:55:51] Speaker 00:
In that case, it was prosecutorial misconduct.

[00:55:53] Speaker 00:
Here, it's an effective assistance of trial counsel, but I think the logic is the same.

[00:56:02] Speaker 00:
And if there are no further questions, Your Honor, we'll close with that.

[00:56:04] Speaker 04:
It appears not.

[00:56:05] Speaker 04:
Thank you.

[00:56:06] Speaker 04:
Thank you.

[00:56:07] Speaker 04:
Thank you to both counsel.

[00:56:08] Speaker 04:
for your helpful arguments.

[00:56:09] Speaker 04:
The case is argued is submitted for decision by the court.

[00:56:12] Speaker 04:
We are adjourned.