[00:00:01] Speaker 05:
All right, the last case of this morning is the case of Martinez versus Quick, 23-6-0-0-1, and we'll hear from Mr. Van Winkle.

[00:00:20] Speaker 03:
My name is Brendan Van Winkle.

[00:00:22] Speaker 03:
My boss and my roles is at council table, and with the Federal Public Defender's Office, we represent Mr. Martinez.

[00:00:32] Speaker 03:
When the state seeks the death penalty, trial counsel have a duty to investigate all reasonably available mitigating evidence.

[00:00:40] Speaker 03:
Counsel are also required to follow up on leads that are readily identifiable.

[00:00:45] Speaker 03:
As this court has recognized, investigating the family is the starting point for most investigation.

[00:00:53] Speaker 03:
But Martinez's counsel did not make it past that starting point, and they failed to adequately investigate Mr. Martinez's mother, Roberta,

[00:01:02] Speaker 03:
Grandfather Marty and Uncle Richard.

[00:01:04] Speaker 05:
Should the scope of the investigation include members of the defense team, including Miss Villanova and Mr. Millis?

[00:01:18] Speaker 03:
I think a lot of the time we could probably assume that what the defense team does, trial counsel is aware of.

[00:01:25] Speaker 03:
But I think in this particular case, it's clear that they were not aware of it.

[00:01:29] Speaker 03:
And I think we get that directly from the child transcript.

[00:01:33] Speaker 03:
And I want to be clear that we're raising a failure to investigate claim, and the evidence of that failure to investigate is obvious from the transcript.

[00:01:43] Speaker 05:
Now, why do you think that Defense Counsel was unaware, he was certainly aware when Ms.

[00:01:51] Speaker 05:
Villanova

[00:01:52] Speaker 05:
testified about her conversations with 12 people, including when your co-counsel, you know, cross-examined Ms.

[00:02:01] Speaker 05:
Villanova, I think, on page 46 about the particular 12 people that she included, which included Marty and Roberta.

[00:02:09] Speaker 05:
And you know that at least

[00:02:14] Speaker 05:
Ms.

[00:02:15] Speaker 05:
Villanova had talked also to the uncle, Richard, and these are the only three individuals you referred to, because your own affidavit, Exhibit 5, referred to Richard saying that he had gotten a call from Norma, which is obviously Norma Villanova.

[00:02:31] Speaker 05:
So why do you think we should rely on your statement

[00:02:35] Speaker 05:
that defense counsel was unaware of these memos in the file about the conversations or what his own expert witness, Ms.

[00:02:45] Speaker 05:
Villanova, had said about our conversations with all three of those individuals.

[00:02:51] Speaker 03:
Well, I think it's based on the transcript.

[00:02:53] Speaker 03:
And what trial counsel did is they presented intoxication offense

[00:02:58] Speaker 03:
a defense that's not very sympathetic to jurors.

[00:03:02] Speaker 03:
And so they made the decision to present it in absolute terms.

[00:03:06] Speaker 03:
This guy's been a drunk for half his life.

[00:03:08] Speaker 03:
He's drank nearly every day since he was 13.

[00:03:12] Speaker 03:
And in the face of the family witnesses getting ready to come on, and those family witnesses would testify to something far below that, which both of them are incorrect in that situation.

[00:03:24] Speaker 03:
But basically,

[00:03:26] Speaker 03:
Child council, they either read the investigative memos and then presented this voluntary intoxication defense absolutely every day, half his life, and they did that in the face of these witnesses who they knew were going to come on, who had been on the state's witness list for two years, had described what they were going to testify to.

[00:03:47] Speaker 03:
So either they chose to just go the opposite of what the state's witnesses were going to do,

[00:03:53] Speaker 03:
or they hadn't read it, and they presented the voluntary intoxication offense.

[00:03:58] Speaker 03:
And I think it's most likely the former, and I think we see this, because once trial counsel were essentially caught, they get up in front of the jury, and they say, well, take it or leave it, maybe not.

[00:04:11] Speaker 03:
And I think if you just.

[00:04:12] Speaker 05:
Well, that's not what they said.

[00:04:13] Speaker 05:
Take it or leave it, maybe not.

[00:04:16] Speaker 03:
That's not exactly what they said, but I think from the transcript, you get the feeling of what happened in the courtroom.

[00:04:25] Speaker 03:
So counsel, an opening statement, they said from about the age of 13, Marquinos is an alcoholic and that he continued drinking from the age of 13 until this case.

[00:04:35] Speaker 03:
Dr. Price, the first expert said, Mr. Martinez started at a young age and he drank a lot and drank to intoxication most every day for over 15 years.

[00:04:46] Speaker 05:
That's exactly what Mr. Martinez told Dr. Price.

[00:04:49] Speaker 03:
Well, we know from Rompia, you have to do more than just accept what your client says.

[00:04:54] Speaker 03:
And Dr. Price, not only did he tell him that, but Dr. Price did neuropsych testing and that came back with mental impairments.

[00:05:01] Speaker 03:
in auditory processing, memory, and executive functioning.

[00:05:07] Speaker 03:
And, you know, he's an alcoholic.

[00:05:10] Speaker 03:
They're not great witnesses for themselves.

[00:05:12] Speaker 03:
And that's why Ron Pia tells us, you got to do more than just listen to your client.

[00:05:17] Speaker 03:
You got to go out and talk to the family.

[00:05:19] Speaker 03:
And this, I know the brief spends, you know, 20 pages about the ABA guidelines and the importance of the family.

[00:05:26] Speaker 03:
This court and Cole did it in about two sentences.

[00:05:30] Speaker 03:
The family is important.

[00:05:31] Speaker 03:
You've got to talk to them.

[00:05:32] Speaker 05:
Well, the ABA guidelines also specifically says that a defense counsel in a capital case should rely on his team of his or her team of investigators, doesn't it?

[00:05:42] Speaker 05:
It does, but we don't think they did that.

[00:05:44] Speaker 05:
Well, we know that you did it.

[00:05:47] Speaker 05:
I mean, we know that John Millis talked to two of the individuals.

[00:05:53] Speaker 05:
We know that Norma Villanova talked to all three.

[00:05:56] Speaker 05:
Millis talked to Marty twice, talked to Roberta, got all of the information from Kathy Sova, et cetera, about Roberta dropping off the child, et cetera.

[00:06:07] Speaker 05:
We know that defense counsel complied with the ABA guidelines and were relying on the team.

[00:06:13] Speaker 05:
I think what you're trying to tell us is that the defense lawyer didn't do a very good job of presenting witnesses consistent with the information that he had gleaned from the investigation.

[00:06:28] Speaker 05:
Is that fair?

[00:06:29] Speaker 03:
Well, I think it's both.

[00:06:30] Speaker 03:
I think from the investigative memos, you can see that some people, I talked to them,

[00:06:36] Speaker 03:
But I think from the trial presentation, it's clear that trial counsel were unaware of this.

[00:06:42] Speaker 02:
So you said that a couple times, that it was obvious that the trial defense counsel did not even know their investigator, their mitigation specialist had interviewed these witnesses.

[00:06:53] Speaker 02:
You said, well, it's obvious from the transcript, but there's an affidavit from trial defense counsel Perry Hudson.

[00:06:58] Speaker 02:
I don't recall him saying that in the affidavit.

[00:07:00] Speaker 02:
Is there any evidence that we have in this record that tells us that it's, again, obvious or clear that the lawyers didn't even know

[00:07:09] Speaker 02:
that the investigator and their mitigation specials had spoken to these witnesses?

[00:07:14] Speaker 03:
Well, maybe I ever spoke there.

[00:07:15] Speaker 03:
I think they could maybe know they had done it, but the substance of it, they clearly were not aware of the substance of what they had said, because they presented it in such opposite terms.

[00:07:28] Speaker 03:
And just to continue on with earlier, the second expert, Mr. Martinez, drinking very heavily and continuously from the ages of 15 through 29, he had no doubt

[00:07:40] Speaker 03:
And then the third expert, Villanova, she doesn't even agree with that.

[00:07:46] Speaker 03:
Martinez had a drinking problem, but was not drinking every day in high school.

[00:07:50] Speaker 03:
And this is just from their own three experts.

[00:07:53] Speaker 03:
They should have realized that this defense was more nuanced.

[00:07:56] Speaker 03:
But still, they presented it in absolute terms and made it very easy for the state to undermine it.

[00:08:02] Speaker 03:
Did you present any of this argument in your OCCA application?

[00:08:06] Speaker 03:
The argument presented to the OCC was the IAC Strickland with the family, those four members.

[00:08:12] Speaker 03:
Now we have three, but they're the same.

[00:08:13] Speaker 05:
But you didn't, is it fair to say you did not say one word in your post-conviction application to the OCCA about the implosion in the alcoholism defense or the inconsistency between what Dr. Littman and Dr. Price said versus what Ms.

[00:08:31] Speaker 05:
Villanova had said?

[00:08:33] Speaker 05:
anything about the premature reliance on the testimony by Dr. Lippman and Dr. Price when it was going to be contradicted by Marty and Kathy Sova, et cetera.

[00:08:45] Speaker 05:
Is there anything that I overlooked when I read your OCC application that intimated any of those arguments?

[00:08:53] Speaker 03:
Yes.

[00:08:55] Speaker 05:
Well, I've got it, so point me to it.

[00:08:58] Speaker 03:
Well, I don't have it directly in front of me, but there's a point in there where they say, had, they said, trial counsel presented an intoxication offense and they said, had this been properly investigated, it would have been reasonable.

[00:09:12] Speaker 03:
Had they properly investigated the voluntary intoxication offense,

[00:09:16] Speaker 03:
It would have been reasonable.

[00:09:18] Speaker 03:
That's a sentence in there.

[00:09:19] Speaker 03:
And the application, it goes through and it talks about the relative from the lay witnesses to the expert witnesses.

[00:09:27] Speaker 03:
It says had they investigated them, this would have been more accurate.

[00:09:30] Speaker 01:
I just want to- Are you saying it wouldn't have been reasonable for them to present that defense?

[00:09:35] Speaker 01:
Isn't that your argument?

[00:09:36] Speaker 01:
That had they investigated these particular witnesses, it would not have been reasonable to present that intoxication defense?

[00:09:46] Speaker 03:
Our argument is based on the failure to investigate.

[00:09:50] Speaker 03:
And then what was said in the OCA application, the state pleading, was that had they done this investigation, a presentation that was informed and honest would have been reasonable.

[00:10:06] Speaker 03:
So if there was a strategic decision based on knowing all the information, then it would have been reasonable, because then we're up against strategy.

[00:10:16] Speaker 03:
The Council...

[00:10:18] Speaker 02:
Let's say we agree that, and I think it's obvious, that their primary theory of defense was he was someone who had chronic alcohol abuse issues.

[00:10:28] Speaker 02:
And at the merits, they saw a voluntary intoxication instruction until they didn't, and they abandoned that.

[00:10:34] Speaker 02:
They sort of jumped off that horse halfway through the race.

[00:10:37] Speaker 02:
But they did more than that in sentencing.

[00:10:39] Speaker 02:
They did focus a lot on and presented evidence about alcoholism even when

[00:10:46] Speaker 02:
family members seem to contradict that in the state's case.

[00:10:49] Speaker 02:
But they did present, of course, the testimony of Dr. Villanueva, and she, in Defendants Exhibit 2, goes through these ego maps that presents a social history of Mr. Martinez that is

[00:11:02] Speaker 02:
expands on topics well beyond just alcohol abuse.

[00:11:05] Speaker 02:
So when we compare not just that presentation, but also in conjunction with the other evidence that they presented that was to their primary theory of alcoholism, why isn't that sufficient for us to conclude that if they looked at the evidence that had been gathered in mitigation,

[00:11:23] Speaker 02:
Even if I may not have agreed and gone with their primary theory of defense, but at least they still presented an alternative theory of defense, which was more of a traditional mitigation defense in a capital case.

[00:11:36] Speaker 03:
Well, I think the problem with it is the traditional case was presented after the voluntary intoxication, and that essentially comes together when it's incorporated.

[00:11:47] Speaker 03:
So we're essentially dealing with one big sentencing phase.

[00:11:50] Speaker 03:
And once you present to the history of alcoholism testimony, and you blow your credibility like that.

[00:11:58] Speaker 03:
And I have the trial counsel, they told the jury, we presented intoxication because frankly, we don't understand what happened that night.

[00:12:07] Speaker 03:
Maybe it's intoxication explains it, maybe it doesn't.

[00:12:11] Speaker 03:
And then you have the state picking up on it.

[00:12:13] Speaker 03:
Now you heard Luis Martinez get in here and he says, you know what?

[00:12:17] Speaker 03:
He doesn't allow drinking.

[00:12:19] Speaker 03:
And then even to the judge, outside the presence of the jury, when the defense dropped the voluntary intoxication defense, the judge says, for the record, the fact that you're not requesting a voluntary intoxication, I believe I'm not trying to put words in the state's mouth, but I believe both Mr. Valdez and Mr. Stoneman had ample arguments, which they believe you have not been entitled to it.

[00:12:42] Speaker 03:
And the state picks up on it again.

[00:12:44] Speaker 03:
I find it interesting when counsel has to take up for their experts.

[00:12:47] Speaker 03:
That's the first thing that comes out of the prosecutor's mouth and their second closing argument.

[00:12:53] Speaker 03:
And so what happens with this implosion of evidence, you undermine their credibility.

[00:12:59] Speaker 03:
And then they go into the second, the later half with the more traditional mitigating evidence.

[00:13:05] Speaker 03:
And they present it largely through one expert.

[00:13:08] Speaker 03:
And this is, so it's after all this, but it's also after,

[00:13:11] Speaker 03:
defense counsel told the jury, hey, we know our guard is a liar because he had said two statements initially that were outlandish.

[00:13:24] Speaker 03:
I don't know if I have it directly in front of anybody, but he says these are the two most outlandish statements I've ever heard a client say.

[00:13:33] Speaker 05:
The prosecutor.

[00:13:34] Speaker 03:
This is the defense counsel.

[00:13:36] Speaker 03:
The prosecutor said, yeah, Mr. Martinez, he had these two statements put in the blame elsewhere.

[00:13:42] Speaker 03:
That was a lie or outlandish.

[00:13:47] Speaker 03:
defense attorney gets up there and says, yeah, these are the two most outlandish statements I've ever heard a client say.

[00:13:52] Speaker 03:
Then they present a voluntary intoxication, which is relied on entirely by the client.

[00:13:59] Speaker 03:
The client tells the first expert, and the second expert doesn't even talk to the client.

[00:14:06] Speaker 03:
And so he relies on Dr. Price's affidavit.

[00:14:10] Speaker 03:
And then we also learn about these mental impairments, which this court has said is strong, mitigating evidence.

[00:14:17] Speaker 03:
And so once we get to the point of the third expert with the traditional mitigating evidence, they've suffered some major blows to their credibility.

[00:14:31] Speaker 03:
They then present this argument fully or near fully through one expert.

[00:14:38] Speaker 03:
And the state picks up on it again.

[00:14:41] Speaker 03:
The state asks them, are you aware of this testimony that the mother of his children had said he's a casual drinker and so on?

[00:14:52] Speaker 03:
Who'd you talk to?

[00:14:53] Speaker 03:
And they say this.

[00:14:55] Speaker 03:
They tell the jury this isn't Martinez's defense.

[00:14:58] Speaker 03:
This is Villanova's defense.

[00:15:00] Speaker 03:
This is not based in reality.

[00:15:03] Speaker 05:
But in your reply brief, I thought you were arguing something

[00:15:08] Speaker 05:
quite a bit different.

[00:15:09] Speaker 05:
And that is, if there had been greater investigation, if Mr. Hudson had talked personally, say, to Kathy Solvo, or had a better handle, despite Mr. Millis's two conversations with Marty, if Mr. Hudson had a better grasp of what the witnesses were going to say, he could have not

[00:15:33] Speaker 05:
abdicated his alcoholism defense, but he could have presented an alcoholism defense that was more grounded in reality, that could have maybe softened Dr. Price's perspective and presented maybe a more modest but more internally consistent alcoholism defense.

[00:15:53] Speaker 03:
Yes, that's the argument.

[00:15:55] Speaker 03:
I'm sorry if I confused you on just what I said.

[00:15:58] Speaker 05:
So there's nothing necessarily ineffective in him presenting an alcoholism defense.

[00:16:04] Speaker 03:
You're not arguing that.

[00:16:05] Speaker 03:
Well, once they choose that defense, they have it all.

[00:16:08] Speaker 03:
Generally, we know from the ABA guidelines, they have a duty to investigate the family.

[00:16:13] Speaker 03:
And then this court, Hooper versus Mullen, we know that once you choose a defense, there's more emphasis on investigating it.

[00:16:23] Speaker 03:
So had they investigated it, it would have essentially looked like from the beginning.

[00:16:29] Speaker 03:
what happened at trial, they abandoned it, and it essentially turned into a mitigating circumstance.

[00:16:35] Speaker 05:
Why do you say they abandoned it?

[00:16:37] Speaker 05:
He abandoned the instruction, but he was very specific.

[00:16:41] Speaker 05:
Mr. Hudson was very specific, and in fact, the OCCA specifically found that it was not ineffective with Mr. Hudson's really extended colloquy to explain, I'm not abdicating my alcoholism defense, but on the first stage, that I am withdrawing

[00:16:59] Speaker 05:
And it's my proposal for an instruction because the instruction is going to make it sound of these 12 jurors that I have the burden as defense counsel to prove alcoholism is is is going to preclude a finding of malice and forethought.

[00:17:15] Speaker 05:
And Madison forethought is obviously under the judge's instructions is going to be something that the prosecution has to prove beyond a reasonable doubt.

[00:17:23] Speaker 05:
So it seemed a pretty cogent explanation for why Mr. Hudson was withdrawing his request for an instruction that would have appeared to put the onus on him, the burden on him on alcoholism.

[00:17:38] Speaker 05:
So I didn't see anything to suggest that he was midway saying, oh, it imploded.

[00:17:42] Speaker 05:
I'm not arguing alcoholism anymore.

[00:17:45] Speaker 03:
Well, this is what we think they tell the jury in the closing argument.

[00:17:49] Speaker 03:
We presented intoxication, frankly, because we don't understand what happened that night.

[00:17:53] Speaker 03:
And I don't mean to say that, you know, they admitted.

[00:17:56] Speaker 05:
He didn't know why he broke into, you know, you know, went into this home and got with Sean and, you know, had sex with his elderly woman and killed, you know, brutally killed these people where he apparently was set out in the morning to go hog hunting.

[00:18:11] Speaker 05:
You know, what was, that seems like a pretty reasonable thing for a defense counsel to say, in order to agenda credibility with the jury, how in the world could he get up with a straight face and say, I know why he did this?

[00:18:26] Speaker 03:
It was alcoholism.

[00:18:28] Speaker 03:
He definitely can't do it after having not done the investigation.

[00:18:31] Speaker 03:
The performance aspect of it is you gotta investigate him.

[00:18:36] Speaker 03:
And that's more or less true regardless.

[00:18:38] Speaker 03:
Go talk to him.

[00:18:40] Speaker 03:
And then what happened with

[00:18:41] Speaker 03:
And what I mean by, you know, he kind of gave it up, is that it started with such absolute terms, voluntary intoxication, it really ran with it.

[00:18:54] Speaker 03:
And then at the end of it, when they're talking to the jury, they're saying, maybe so, maybe not.

[00:19:00] Speaker 03:
And then I think from the record, once you read it, it's clear, everyone in that courtroom had realized that this presentation had imploded.

[00:19:10] Speaker 03:
I think it's clear from what defense says in the closing argument.

[00:19:14] Speaker 03:
I think it's clear from the state.

[00:19:15] Speaker 03:
They picked up on this pretty clearly.

[00:19:18] Speaker 03:
And the state essentially did what was expected out of defense counsel.

[00:19:23] Speaker 03:
The state got these expert reports that said voluntary intoxication, drink every day since he was 13.

[00:19:29] Speaker 03:
The state went out and talked to the family.

[00:19:31] Speaker 03:
And then they put the family on.

[00:19:33] Speaker 03:
They put it in their witness list.

[00:19:35] Speaker 03:
And then defense counsel.

[00:19:37] Speaker 03:
And in the face of that, they still walked forward and presented this all or nothing defense.

[00:19:43] Speaker 01:
Which all points a bit to strategy, doesn't it?

[00:19:47] Speaker 01:
Well, strategy has.

[00:19:48] Speaker 01:
They had these witnesses.

[00:19:51] Speaker 01:
They knew that they have memos from the investigator saying that the family members have different impressions.

[00:19:57] Speaker 01:
They list these witnesses as potential witnesses.

[00:20:00] Speaker 01:
They're thinking about it.

[00:20:05] Speaker 01:
They had awareness about these witnesses and what they would testify.

[00:20:10] Speaker 01:
Don't we have to presume that that was strategy?

[00:20:15] Speaker 01:
You want us to presume that despite all this information that they had, it was just a huge error.

[00:20:24] Speaker 01:
It was just a huge performance issue rather than strategy.

[00:20:29] Speaker 01:
Some reason that they didn't.

[00:20:31] Speaker 01:
put these family members on?

[00:20:33] Speaker 03:
Well, the strategy must be based off a reasonable investigation.

[00:20:37] Speaker 03:
And that's why Strickland requires us to look at the investigation, which the state court did not do here.

[00:20:44] Speaker 03:
They referenced one line.

[00:20:45] Speaker 03:
But I think what's most telling is, yes, there's documents in their possession.

[00:20:51] Speaker 03:
But I think when you read the transcript, it's clear that they didn't know this was a more nuanced defense.

[00:20:58] Speaker 03:
This was a mitigating circumstance.

[00:21:00] Speaker 03:
This wasn't a voluntary intoxication.

[00:21:05] Speaker 05:
At first stage, was there any other defense other than voluntary intoxication to rebut one of the elements of the prosecution's burden of proof?

[00:21:18] Speaker 05:
He admitted that he committed the two killings.

[00:21:22] Speaker 05:
The only element that anybody has alluded to in any of the briefing or so far in the arguments is on malice of forethought.

[00:21:30] Speaker 05:
Mr. Hudson then decided at first stage to question the prosecution's ability to prove malice aforethought by arguing that he was voluntarily intoxicated and therefore couldn't formulate malice aforethought.

[00:21:45] Speaker 05:
Only at that point was that an ineffective or deficient performance under Strickland to rely on an alcoholism defense at first stage.

[00:21:55] Speaker 05:
And if the answer is yes, what else could the prosecutor have done other than just say, we're going to admit all the elements of first stage and proceed directly to second stage?

[00:22:08] Speaker 03:
Well, I think its performance is deficient once they go to trial with a known defense and they present something contrary to it without having done the investigation.

[00:22:19] Speaker 03:
But the first stage wasn't completely alcoholism or the history of it.

[00:22:25] Speaker 03:
They also mentioned his mental impairments, which this court has said is strong mitigating evidence, some of the strongest.

[00:22:31] Speaker 03:
It mentions his executive functioning is impaired, no brakes on the car.

[00:22:36] Speaker 03:
And it talks about his memories impaired.

[00:22:40] Speaker 03:
And so.

[00:22:40] Speaker 05:
Now, were those elements relevant at first stage or second stage?

[00:22:44] Speaker 03:
I think what you would do at first stage in this context is you front load the mitigation.

[00:22:50] Speaker 03:
This is professional practice as you prepare the jury.

[00:22:55] Speaker 05:
Let's say the judge says, okay, counsel, I understand why you want to do it.

[00:22:59] Speaker 05:
Maybe everybody likes to do that.

[00:23:01] Speaker 05:
Why is this relevant on the elements of the murder?

[00:23:08] Speaker 05:
And you say, well, I want to front load my mitigation.

[00:23:14] Speaker 05:
What's your answer on why is it relevant to the elements of the problem of facial burden on whether or not he committed first degree murder?

[00:23:23] Speaker 03:
The mental impairments.

[00:23:24] Speaker 03:
But we're not saying that this voluntary intoxication offense, the prejudice or the difference just would have been absent.

[00:23:32] Speaker 03:
We're saying they could have presented an informed defense

[00:23:35] Speaker 03:
The state in closing argument, I forget which phase, but they say, yeah, it probably was drugged this night.

[00:23:44] Speaker 03:
And so they still had evidence for malice.

[00:23:47] Speaker 03:
I mean, their argument was essentially would have been the same.

[00:23:50] Speaker 03:
The only problem is they jacked it up to 11, probably because jurors are unsympathetic for the defense.

[00:24:00] Speaker 02:
Council, but whatever decisions they made,

[00:24:02] Speaker 02:
to pursue a theory of defense on the merits is not before us.

[00:24:06] Speaker 02:
Your IEC claim rests entirely on they were ineffective in the penalty phase.

[00:24:12] Speaker 02:
And so I want to ask you about the decisions that were made regarding these three witnesses, because of course your certificate of repealability is cabined by these three witnesses.

[00:24:23] Speaker 02:
And I hear your argument, and I think I understand it, about the failure to properly investigate these family members and how that then leads to decisions that were made by counsel that were not informed, so they can't be deemed reasonable.

[00:24:39] Speaker 02:
But the information about Mr. Martinez's, again, social history, some trauma he suffered as a child, the big family secret being revealed later that his biological mother

[00:24:52] Speaker 02:
Or his sister was actually a biological mother.

[00:24:54] Speaker 02:
All that went before the jury.

[00:24:56] Speaker 02:
Again, through Dr. Villanueva.

[00:24:59] Speaker 02:
And the district court here in the federal proceeding, of course, makes findings about the reasonableness of why they would not have called Luis Martinez.

[00:25:10] Speaker 02:
who, by the way, the jury, of course, had met already, and defense counsel had seen at the trial, and also made findings about biological mother, Ms.

[00:25:19] Speaker 02:
Lopez, and why there could have been real valid reasons not to call her, and then also made findings about the brother who had just redeployed from Afghanistan, and how his testimony would have been cumulated with the sister Kathy.

[00:25:33] Speaker 02:
Why can't we just rely upon all of that to make a conclusion here that, you know, counsel's decisions that were made, again, may not have been the best choice, but they were at least informed by what they observed at the trial, what they knew before trial, and at sentencing, all the information essentially still got before the jury.

[00:25:55] Speaker 03:
Just to be clear on this one aspect, the guilt phase was incorporated into the punishment phase.

[00:26:01] Speaker 03:
We're essentially looking at one big punishment phase.

[00:26:03] Speaker 03:
That was for the state and the defense.

[00:26:06] Speaker 02:
Well, they incorporate certain witnesses.

[00:26:08] Speaker 02:
And of course, the jury instructions are told about how they can interpret that evidence.

[00:26:14] Speaker 02:
And I understand, of course, it's the same jury.

[00:26:16] Speaker 02:
And they set through the trial.

[00:26:17] Speaker 02:
And of course, they're going to take with them what they are from the merit stage.

[00:26:22] Speaker 02:
I understand that.

[00:26:23] Speaker 02:
But I'm focusing on their strategy of sentencing, not their strategy on the merits.

[00:26:28] Speaker 03:
Yeah, and so I just have to, one informs the other in my argument.

[00:26:33] Speaker 03:
But what happened at?

[00:26:37] Speaker 03:
the guilt phase, once they lost all that credibility, they paid a major price in that.

[00:26:43] Speaker 03:
And then so when they presented the mitigation phase in the latter half, they presented it in a shadow of what had just happened.

[00:26:53] Speaker 03:
And that shadow is Mr. Martinez, he embellishes sometimes, these experts, they only talk to Mr. Martinez, and the experts, they don't agree with the family.

[00:27:06] Speaker 03:
And then they go up and then they present an expert who does the near majority of the near, absolutely all the testimony or a lot of it.

[00:27:18] Speaker 03:
And then they have the, his sons and his sister.

[00:27:23] Speaker 03:
But you know, the problem with this, I think you can juxtapose this to what they did with the future dangerousness testimony.

[00:27:31] Speaker 03:
You know, they presented people to have laid eyes on Mr. Martinez every day.

[00:27:36] Speaker 03:
And they got up there and they testified to it.

[00:27:37] Speaker 03:
And that's how you're supposed to maintain credibility with the jury.

[00:27:42] Speaker 03:
I would just like to reserve the balance of my time.

[00:27:44] Speaker 05:
Robert, stop his clock.

[00:27:48] Speaker 05:
So we're not punishing you on your rebuttal.

[00:27:52] Speaker 05:
Yeah, go ahead.

[00:27:55] Speaker 05:
You're not taking away time.

[00:27:58] Speaker 02:
Can I ask you also about the remedy that you're seeking?

[00:28:03] Speaker 02:
You had requested several times, both before the state proceedings and at district court, an evidentiary hearing on the IAC claim.

[00:28:14] Speaker 02:
The evidence, the documentary evidence that supported the claim at OCCA, I believe there were three affidavits, obviously there was a lot more presented in federal court.

[00:28:23] Speaker 02:
Can you help me understand, what is your best argument for why this court should grant a remand, and I don't mean necessarily like why it's ineffective, but what is it specifically that a remand would do for the district court to develop a factual record to make findings that it hasn't already had before it?

[00:28:43] Speaker 03:
I think there's three kinds of systemic ways that the District Court messed up, is that the District Court didn't consider all the evidence before it.

[00:28:53] Speaker 03:
I think what the District Court did is it essentially thought Penholds were applied to the prejudiced evidence

[00:28:59] Speaker 03:
And it didn't say a word of it.

[00:29:02] Speaker 03:
And Penholster doesn't bar that.

[00:29:03] Speaker 03:
2454-D2 doesn't bar that.

[00:29:06] Speaker 05:
And neither does... Could you just repeat what you just said?

[00:29:10] Speaker 05:
Because I just missed part of what you just said.

[00:29:13] Speaker 03:
So the district court, the evidence we presented in federal court of prejudice, it didn't consider that evidence.

[00:29:19] Speaker 03:
I think it didn't consider it likely because it thought this wasn't presented in state court.

[00:29:25] Speaker 03:
And a lot of it wasn't.

[00:29:26] Speaker 03:
But we're not under E2, because as Judge Federica said, you know, they tried.

[00:29:32] Speaker 03:
They did all they could in state court to get a hearing.

[00:29:35] Speaker 03:
They went out and investigated it.

[00:29:37] Speaker 03:
They got affidavits.

[00:29:38] Speaker 03:
They presented them.

[00:29:39] Speaker 03:
State court said no, no hearing for you.

[00:29:42] Speaker 03:
And then... On the prejudice element, not deficiency.

[00:29:48] Speaker 03:
All together.

[00:29:48] Speaker 03:
There's no hearing in state court.

[00:29:50] Speaker 03:
How does that happen?

[00:29:50] Speaker 05:
No, I know that.

[00:29:51] Speaker 05:
But on deficiency, you're... I mean, you've got a briefing, Cullen versus Pinholster,

[00:29:56] Speaker 05:
precludes you from having an evidence you're hearing irrespective of your diligence.

[00:30:02] Speaker 05:
If we apply ADBA on the deficiency prong.

[00:30:05] Speaker 03:
Yeah, so on the performance prong, that has to satisfy EDPA.

[00:30:12] Speaker 03:
And that has to satisfy EDPA with what was presented to the state court.

[00:30:16] Speaker 03:
But once that is satisfied, we are able to present evidence like in Harris v. Sharp.

[00:30:22] Speaker 03:
And what we see in this

[00:30:23] Speaker 03:
Trial, you know, I'm sitting here saying it seemed like trial counsel just went ahead and wasn't informed.

[00:30:30] Speaker 03:
That's what happened.

[00:30:31] Speaker 03:
You know, if you get over it and you look at the affidavits, that's what happened.

[00:30:36] Speaker 03:
But then my other point on the prejudice is that, so it didn't consider this evidence.

[00:30:42] Speaker 03:
We think it considered evidence it shouldn't have.

[00:30:45] Speaker 03:
It looked at post-conditions application that trial counsel was unaware of.

[00:30:52] Speaker 03:
And basically it did a prejudiced analysis to determine performance.

[00:30:58] Speaker 03:
It said bad witnesses, don't worry about them, but they still had to investigate them.

[00:31:05] Speaker 03:
And also the Wilson versus Sellars argument.

[00:31:10] Speaker 03:
I think this comes directly from 2254D.

[00:31:13] Speaker 03:
We're talking about what the state court knew what was in front of it and what the district court did is it came up with its own reasons.

[00:31:20] Speaker 03:
They said these are bad witnesses.

[00:31:22] Speaker 03:
We don't have to investigate them.

[00:31:24] Speaker 03:
The state court never said a single thing about the quality of these witnesses.

[00:31:27] Speaker 03:
It never had said, you know, it used this presumption to say, well, presume

[00:31:33] Speaker 03:
that they found it, but then it ignored all the evidence.

[00:31:36] Speaker 05:
What do you say to Ms.

[00:31:36] Speaker 05:
Crabb, who responds to your Wilson versus Sellers argument and says that you have completely misunderstood Wilson versus Sellers?

[00:31:44] Speaker 05:
Wilson versus Sellers was talking about the look-through principle.

[00:31:47] Speaker 05:
When there's a summary disposition by the OCCA or another state's highest court in a criminal proceeding, and there is an extended discussion by an intermediate appellate court or by a trial court,

[00:31:59] Speaker 05:
then just like we do in social security cases or immigration cases, we apply a sensible look-through principle that we can look through the summary disposition.

[00:32:11] Speaker 05:
We'd say, you know, basically a prime example would be, you know, we affirm for the reasons stated by the trial court or the intermediate appellate court.

[00:32:21] Speaker 05:
And so you can look through to the next highest court, maybe the trial court, and then

[00:32:28] Speaker 05:
Infer that the trial court or the intermediate appellate courts more reasoned decision must be what the Oklahoma Court of Criminal Appeals relied on.

[00:32:36] Speaker 05:
That's what she interprets Wilson versus Sellers as saying and frankly, that's what it seems to me.

[00:32:42] Speaker 05:
We all have all of these opinions that say at Oklahoma Court of Criminal Appeals

[00:32:46] Speaker 05:
opinion triggers AEDPA deference, even if it just has a sentence saying we affirm or we deny a post-conviction relief.

[00:32:55] Speaker 05:
What's your response to that?

[00:32:57] Speaker 03:
I think generally it's right on Wilson, but I think the basic premise of EDPA is what did the state court know, what did it say?

[00:33:07] Speaker 03:
So Richter says if they said nothing, make something up.

[00:33:11] Speaker 03:
Essentially, and Johnson says you presume that it was adjudicated

[00:33:15] Speaker 03:
And then what Wilson says, it has this look through principle, but it says at the beginning, you train your attention on what the state court did, because that's what makes it unreasonable.

[00:33:27] Speaker 03:
And this is often the problem that petitioners have.

[00:33:32] Speaker 03:
You want to present all this evidence, what did the state court know?

[00:33:35] Speaker 03:
And so we're asking if the state court was unreasonable, what did it say?

[00:33:40] Speaker 05:
Well, that's where she says, OK, well, you said that in your brief.

[00:33:45] Speaker 05:
And so what she says in her response brief is that's exactly what the Supreme Court condemned the Ninth Circuit for doing in Sexton versus Boudreau, where the Ninth Circuit had said, yeah, we the Ninth Circuit are going to constrain the state's appellate court to what they have said.

[00:34:02] Speaker 05:
And unless there was affirmative explanation that would support that decision, we're not going to subject the state appellate court decision to deference instead of doing

[00:34:15] Speaker 05:
what Richter requires, and that is looking for any reasonable explanation for what the argument had done, which I think Stexton versus Boudreaux adds is completely counterintuitive because you're condemning the state appellate court for not giving explanations that were never even made to the state appellate court, which is precisely what she's saying in this case, that the implosion of the alcoholism defense frankly to a large degree, your arguments about the investigation,

[00:34:45] Speaker 05:
that these are arguments that you have very effectively put to us, but arguably, or not on pages 10 to 18 of the OCCA opinion, and you're doing exactly what Sexton v. Boudreau had condemned the Ninth Circuit for doing.

[00:35:03] Speaker 03:
What's your response to that?

[00:35:04] Speaker 03:
I think on the first part,

[00:35:06] Speaker 03:
You were mentioning Wilson, and then essentially exhaustion.

[00:35:09] Speaker 03:
And just on the Wilson thing, it says if you have an opinion, it's not a summary dismissal.

[00:35:15] Speaker 03:
If they give you an opinion, look at it.

[00:35:17] Speaker 03:
That's what reclaiming Wilson stands for.

[00:35:19] Speaker 03:
And then it goes on to say, well, if they didn't, and then the lower court did, look through.

[00:35:23] Speaker 03:
And then on exhaustion, I think the state practice and procedure informs our opinion on exhaustion.

[00:35:30] Speaker 03:
I think it's important to note what happened here is they turned in a state habeas application

[00:35:36] Speaker 03:
And they turned that in about a year before they got a direct appeal opinion.

[00:35:40] Speaker 03:
They turned it in.

[00:35:42] Speaker 03:
Oka said, you know, you lose.

[00:35:44] Speaker 03:
There was no response, no reply, no hearing.

[00:35:47] Speaker 03:
Typically, I came from South Carolina.

[00:35:50] Speaker 03:
It's like this in many places.

[00:35:52] Speaker 03:
You turn an application into a state court.

[00:35:55] Speaker 03:
You get a pleading.

[00:35:56] Speaker 03:
You get a hearing.

[00:35:57] Speaker 03:
They're mandatory in South Carolina and many states.

[00:36:00] Speaker 03:
Is there a contestant of facts?

[00:36:02] Speaker 03:
You go to a hearing.

[00:36:03] Speaker 03:
You put all this on.

[00:36:04] Speaker 03:
And then you have an appeal.

[00:36:06] Speaker 03:
There's just so much opportunity to develop these cases.

[00:36:11] Speaker 03:
And then once they get to federal court, I mean, you'd really love it.

[00:36:14] Speaker 03:
They're crisp.

[00:36:15] Speaker 03:
They're laid out and everything.

[00:36:18] Speaker 03:
But here we just, we don't get any of that.

[00:36:20] Speaker 05:
And that's... Yeah, and I'm totally sympathetic to that.

[00:36:23] Speaker 05:
But, you know, we're not King Solomon.

[00:36:24] Speaker 05:
I mean, we have to follow the Supreme Court precedent.

[00:36:27] Speaker 05:
And we have to follow our own precedent.

[00:36:29] Speaker 05:
But it sounds like, if I could make sure that I'm understanding, it sounds like you're agreeing at least with the principle that if the OCCA opinion doesn't address all of the arguments

[00:36:46] Speaker 05:
that it's still gonna be subjected to the AEDBA deference.

[00:36:51] Speaker 03:
I agree that, so, prejudice de novo.

[00:36:56] Speaker 03:
And that's from Rompia, and that's from Bromfield versus Kane, which is after Richter.

[00:37:01] Speaker 03:
And I agree that- On the deficiency problem, that's what we're talking about.

[00:37:04] Speaker 03:
And on deficiency, EDPA applies, but the only part about what Will said is once we have EDPA, and once we have an opinion, we train on the four corners,

[00:37:14] Speaker 03:
we can't say that they were reasonable for something else.

[00:37:18] Speaker 05:
Even if you're faulting under Wilson v. Sellers, the OCCA for failing to address an argument that you had not presented to the OCCA.

[00:37:30] Speaker 05:
We claim we did present it.

[00:37:33] Speaker 05:
Let me put it in a hypothetical way, because this sounds like exactly what Sexton v. Boudreau says.

[00:37:39] Speaker 05:
Hypothetically, if those six paragraphs of the OCCA opinion

[00:37:44] Speaker 05:
on the deficiency prom did not include, say, two of your arguments to us, are you saying that we cannot apply ADVA deference 2254D1 to those two arguments because the OCCA, to its infamy, failed to address these two arguments

[00:38:11] Speaker 05:
even if you had not presented, hypothetically, if you had not presented.

[00:38:15] Speaker 05:
So you would agree that we would only evaluate reasonableness if you had fairly presented those theories to the OCCA.

[00:38:24] Speaker 05:
That's all I'm trying to ask.

[00:38:25] Speaker 03:
Yeah, I apologize if I was confused.

[00:38:27] Speaker 03:
We denote our EDPA deference, double deference, all of performance.

[00:38:34] Speaker 03:
Every bit of it, we agree to that.

[00:38:38] Speaker 05:
And if the OCCA failed to consider two arguments, we really wouldn't say that was an unreasonable application of Strickland if hypothetically you had not presented those two theories to the OCCA.

[00:38:59] Speaker 01:
Do you agree that if you haven't presented those theories, if we decide you haven't presented those theories, you didn't exhaust?

[00:39:06] Speaker 03:
If you decide those were not presented to Oka, that would be a failure to exhaust.

[00:39:12] Speaker 01:
And your argument is that somewhere in this petition you think that we can find that you presented these theories.

[00:39:23] Speaker 01:
But it's implicit because it's not explicit.

[00:39:26] Speaker 03:
Well, I would just say at one point they say they went with intoxication, they should have presented it, and it's not a long document.

[00:39:37] Speaker 01:
It's loose and it's... When you come back, maybe you could point to the exact paragraph, I swear.

[00:39:44] Speaker 03:
Yes, thank you.

[00:39:45] Speaker 01:
Well, that's clear.

[00:39:51] Speaker 05:
Tell you what, do you have an objection if I give, he ended up with 230 if I give the petitioner a total of six minutes on rebuttal?

[00:40:03] Speaker 00:
I do not.

[00:40:03] Speaker 05:
Obviously, it's an extremely important case.

[00:40:05] Speaker 05:
Robert, on rebuttal, let's increase his time to six minutes.

[00:40:10] Speaker 00:
Good morning.

[00:40:11] Speaker 00:
May it please the court and Jennifer Crabb representing the warden, Christy Quick, in this case?

[00:40:16] Speaker 00:
I would like to start where the court left off, which is with the question of exhaustion and whether the first post-conviction application raised this claim.

[00:40:24] Speaker 00:
And I believe I know exactly the pages to which Mr. Van Winkle is referring.

[00:40:29] Speaker 00:
And that would be, it's pages 10 to 11 of the post-conviction application, or if you're looking at the record on appeal, it's volume one, pages 139 to 40.

[00:40:41] Speaker 00:
And what it says is that, and I'm just going to read it to make it very clear.

[00:40:47] Speaker 00:
In an attempt to save Mr. Martinez's life, defense counsel argued throughout trial that while too intoxicated to form the requisite intent for first degree malice or thought murder, Mr. Martinez was, in fact, responsible for the homicides and the assault and battery with the dangerous weapon, and he should not be sentenced to death, period.

[00:41:07] Speaker 00:
As such, Mr. Martinez's case may fairly be called a second stage case.

[00:41:11] Speaker 00:
The only real question appeared to be what punishment was appropriate.

[00:41:15] Speaker 00:
And then this is the sentence.

[00:41:17] Speaker 00:
The defense's theme would have been reasonable and sound trial strategy if counsel had adequately investigated, developed, and fully presented mitigating evidence humanizing Mike Martinez.

[00:41:30] Speaker 00:
So the argument is not that something was wrong with the intoxication defense in and of itself.

[00:41:36] Speaker 00:
The argument was that these three witnesses

[00:41:40] Speaker 00:
could have provided traditional humanizing mitigating evidence.

[00:41:44] Speaker 00:
And so I would assert, based on that, that the claim that is now before this court is entirely unexhausted.

[00:41:51] Speaker 00:
It's transformed to the same extent as the claim in Tryon, which was decided last year.

[00:42:05] Speaker 00:
If the court, accepting that, I think there's a lot of procedural hurdles here, not only exhaustion, but I argued that the claim is very different as well from what was raised in the district court, and therefore waived, and also that it's beyond the scope of the certificate of appealability.

[00:42:23] Speaker 00:
But because you did spend a lot of time with Mr. Van Winkle on the actual claim of intoxication, what I would like to point out is that

[00:42:34] Speaker 00:
Even now, it's not clear at all what it is that counsel was supposed to do.

[00:42:43] Speaker 00:
So they had evidence, not only from these two experts who testified in the first stage, Dr. Littman, and, I'm sorry, his name escapes me right now.

[00:42:53] Speaker 00:
Thank you, Dr. Price.

[00:42:55] Speaker 00:
But also in the second stage, Kathy Sobo, Petitioner's Biological Aunt,

[00:43:02] Speaker 00:
testified that he started drinking heavily at the age of 18.

[00:43:06] Speaker 00:
So there was evidence, there were witnesses who would say that Petitioner began drinking very heavily and consistently at a young age.

[00:43:14] Speaker 00:
On the other hand, there are witnesses, the ones who were not called or questioned by counsel, Marty and Roberta, who would have said, and then there were some who were called by the state, Ms.

[00:43:26] Speaker 00:
Elam, the girlfriend, who said that he didn't drink that much.

[00:43:31] Speaker 00:
So what's the truth?

[00:43:33] Speaker 00:
The argument today seems to be that, well, the truth was what the state's witnesses were saying.

[00:43:40] Speaker 00:
And so counsel should have presented, I guess, a less full-throated intoxication defense.

[00:43:48] Speaker 05:
Well, is that fair?

[00:43:50] Speaker 05:
I mean, what he's arguing is, I think, is,

[00:43:56] Speaker 05:
on their own witnesses.

[00:43:59] Speaker 05:
I mean, especially the vast land between what the combination of Dr. Lippman and Dr. Price said versus what Ms.

[00:44:11] Speaker 05:
Villanota said.

[00:44:12] Speaker 05:
I mean, Dr. Price said that he started at age 15 when he was a teenager under Barney's roof, that he was drinking every day.

[00:44:22] Speaker 05:
Miss Villanova says, no, that's not true.

[00:44:26] Speaker 05:
I think she says that, well, it was when he got together with Teresa, who had addiction problems of her own, which is, you know, later in life, he's a full grown adult.

[00:44:35] Speaker 05:
Marty says, well, you know, I don't even allow a beer in my house, so he sure wasn't drinking, you know, as a 15 year old.

[00:44:43] Speaker 05:
I mean, if you just look at their face, these people were all over the map about when he started drinking.

[00:44:51] Speaker 05:
And that just really seems to be pretty starting on the wrong foot in terms of engendering your credibility on this alcoholism defense, which is great.

[00:45:03] Speaker 05:
It's half of his mitigation theory.

[00:45:06] Speaker 00:
Respectfully, I disagree with Your Honor's memory of the record.

[00:45:10] Speaker 00:
I believe it was Roberto Lopez in either the first or the second post-conviction application, his biological mother.

[00:45:17] Speaker 00:
who said that Petitioner did not start to drink heavily until he got together with Ms.

[00:45:21] Speaker 00:
Elam.

[00:45:22] Speaker 00:
What Dr. Villanueva testified to was that he began to use alcohol and marijuana at the age of 15.

[00:45:28] Speaker 00:
So she actually was much more consistent with the first stage experts.

[00:45:33] Speaker 00:
It's from the family members that we have this difference.

[00:45:37] Speaker 00:
And Dr. Villanueva helped to explain that, because what she testified to is that petitioner hid his alcohol use from Marty and from Kathy Sobo.

[00:45:48] Speaker 00:
And so it was all consistent, right?

[00:45:52] Speaker 00:
There's no evidence that presented to you today as to what it was, like what should the amount have been.

[00:46:02] Speaker 00:
What should the testimony have been?

[00:46:04] Speaker 00:
Counsel certainly couldn't have asked any of the witnesses to lie.

[00:46:06] Speaker 00:
They're testifying to their own personal recollections.

[00:46:09] Speaker 00:
And then that was explained through Dr. Villanueva.

[00:46:12] Speaker 00:
Well, sure.

[00:46:13] Speaker 00:
But it's not surprising that a 15-year-old who might be drinking in the home of his father who doesn't allow drinking would hide that from his father.

[00:46:23] Speaker 02:
Counsel, what I heard the petitioner say isn't that the decisions that were made about what to present in terms of evidence is part of it, but really, it's the investigation piece.

[00:46:36] Speaker 02:
And of course, not just the ABA guidelines, but a number of Supreme Court cases, our case has talked about the duty to investigate, particularly in a case where the death penalty is on the table.

[00:46:49] Speaker 02:
and to look at all reasonably available mitigation evidence.

[00:46:56] Speaker 02:
And then that informs the choices that counsel make in terms of what they present during the sentencing hearing.

[00:47:03] Speaker 02:
So the state's briefing focuses a lot on presentation and a little bit on the investigation.

[00:47:08] Speaker 02:
But I wondered if you, in the context actually of the procedural bar, because they raise an IAC claim and doesn't that sort of import the duty to investigate with just raising the correct legal standard itself and it's inherent then when they're talking about these decisions between humanizing the client and intoxication that all rises and falls on this duty to properly investigate so that reasonable informed choices can be made.

[00:47:37] Speaker 00:
Yes, of course.

[00:47:37] Speaker 00:
And the Court of Criminal Appeals recognized that his claim was that trial counsel did not conduct an adequate investigation.

[00:47:45] Speaker 00:
And they found, they made a specific factual finding that counsel did do an adequate investigation.

[00:47:51] Speaker 00:
And in terms of the scope of the claim that's properly before this court, there was simply no evidence presented to the Court of Criminal Appeals to the contrary.

[00:48:01] Speaker 00:
Because the evidence that was given to the Court of Criminal Appeals was from trial counsel's files.

[00:48:06] Speaker 00:
showing that trial counsel had done this investigation and was aware of these witnesses.

[00:48:12] Speaker 00:
And so there's no evidence before this court.

[00:48:15] Speaker 00:
Frankly, there's no evidence probably before this court, but I don't think that there's any evidence, even considering all of the evidence, that counsel didn't conduct a thorough investigation and talk to these people.

[00:48:25] Speaker 02:
Well, how do you respond to petitioners' argument that before the OCCA, they weren't really afforded an opportunity to develop a factual record?

[00:48:33] Speaker 02:
So if we're going to compare what is in the OCCA post-conviction record overall to what was presented later in the 2254 application, that

[00:48:45] Speaker 02:
I have two responses to that, Your Honor.

[00:48:55] Speaker 00:
The first is that I'm not aware of any law.

[00:49:03] Speaker 00:
to the exhaustion requirement of exhaustion would be futile, but I don't think that's the argument that petitioners are making.

[00:49:10] Speaker 00:
I'm not aware of any case law that says that you have to have a certain number of pages, or a certain length of time, or an evidentiary hearing in order to exhaust a claim.

[00:49:21] Speaker 00:
And secondly, that argument is squarely foreclosed by Fairchild versus Trammell, and then also a subsequent case called Finlayson

[00:49:32] Speaker 00:
which I do think I cited in my brief.

[00:49:35] Speaker 00:
And Finlayson says, unlike Introvino versus Thaler, an Oklahoma defendant's opportunity to develop evidence is more than just theoretical and is not at all impossible to use successfully.

[00:49:48] Speaker 00:
And so as a factual matter, this court has already rejected any argument that there is insufficient opportunity to develop an ineffective assistance of counsel claim.

[00:50:05] Speaker 00:
I'm happy to answer any other questions the court might have.

[00:50:08] Speaker 01:
So assuming that we do find that the claim was exhausted, obviously the OCCA did make that finding as you stated about investigation in general, but it said nothing about obviously the particular claim that's being made now here.

[00:50:26] Speaker 01:
So how do we interpret that?

[00:50:30] Speaker 00:
Assuming that you found it exhausted, I believe that under Johnson versus Williams, you would have to presume, and there's no rebuttal to that, that if it's exhausted, that the court of criminal appeals decided this claim and apply a DPA difference.

[00:50:45] Speaker 01:
That the general statement that they made about investigation applies to this argument that we assume was made.

[00:50:52] Speaker 01:
Yes, that's correct.

[00:50:54] Speaker 01:
Or that they knew was made.

[00:50:55] Speaker 01:
Correct, yes.

[00:50:58] Speaker 05:
So for example, on the implosion of the alcoholism defense,

[00:51:03] Speaker 05:
So if we decide that it was exhausted and that we do apply the AEDPA, what do we do with the argument that I think to some extent is what the petitioner is relying on the Wilson v. Sellers case to say, well, how can we say that the OCCA's adjudication of the implosion of the alcoholism defense was reasonable when the OCCA never mentioned that?

[00:51:33] Speaker 00:
is the problem with assuming the claim in this case is exhausted, because there's so much evidence that was not in front of the quarter molecules.

[00:51:41] Speaker 00:
In the Tryon case, in his first post-conviction application, Tryon had argued that counsel was ineffective for not adequately challenging evidence of a jail fight.

[00:51:53] Speaker 00:
In the second post-conviction application, the petitioner raised the same claim, but he added one piece of evidence that he

[00:52:00] Speaker 00:
said counsel should have used to challenge that fight.

[00:52:04] Speaker 00:
What this court said in trial is even with just that one piece of evidence,

[00:52:08] Speaker 00:
that that rendered the claim unexhausted.

[00:52:10] Speaker 00:
So here, there's so much evidence that it's not exhausted.

[00:52:15] Speaker 00:
However, yes, I definitely agree that under Sexton, that this court cannot consider all of this new evidence because the court of criminals didn't have the opportunity to rule on it.

[00:52:26] Speaker 05:
Well, I thought it was not in terms of evidence, but just because obviously we're circumscribed by a pinholster.

[00:52:34] Speaker 05:
But I thought it was arguments.

[00:52:37] Speaker 00:
Sure, that as well, Your Honor.

[00:52:38] Speaker 00:
And that was also an issue in Tryon, because although it wasn't exhausted in the state court, in the opening brief, Tryon argued that counsel should have also presented a witness to contextualize the jail fight, the conditions at the Oklahoma County jail.

[00:52:56] Speaker 00:
This is why this happened.

[00:52:58] Speaker 00:
And this court called that a...

[00:53:01] Speaker 00:
an aspect of the claim and said that it was un-exhausted and procedurally barred.

[00:53:07] Speaker 05:
Do you remember Wellman versus CDOC?

[00:53:10] Speaker 05:
Yes.

[00:53:10] Speaker 05:
Does Wellman apply?

[00:53:11] Speaker 00:
It does.

[00:53:12] Speaker 00:
It says that we do not expect state courts to address arguments that parties did not raise.

[00:53:22] Speaker 05:
Wellman versus CDOC would apply if we consider the claim fully exhausted.

[00:53:28] Speaker 05:
Correct.

[00:53:30] Speaker 05:
So in other words, if the petitioner, your argument I guess is if the petitioner survives exhaustion and procedural default, then we would apply the 2254D1 and we would determine that these six paragraphs in the OCCA opinion on deficiency

[00:53:48] Speaker 05:
was reasonable based on the arguments that had been presented.

[00:53:52] Speaker 00:
Based on the arguments and the evidence presented to the state court.

[00:53:59] Speaker 05:
Yes, that's correct.

[00:54:02] Speaker 05:
So I want to ask you about something that you said which surprised me.

[00:54:07] Speaker 05:
You said that the OCCA rejected the investigation defense or the investigation argument.

[00:54:16] Speaker 05:
I thought part of your argument in your red brief was not only the implosion of the alcoholism defense, but the fact that he failed to investigate, Mr. Hudson failed to personally investigate these other collateral family witnesses, Richard, Roberta, and Marty, that that had not been in the OCCA application.

[00:54:40] Speaker 00:
Sure, I can explain that.

[00:54:41] Speaker 00:
So the first post-conviction application

[00:54:44] Speaker 00:
nominally said counsel failed to investigate, prepare, present.

[00:54:49] Speaker 00:
And so the Court of Criminal Appeals took Petitioner at his word, said twice his claim is a lack of investigation plus presenting, and then said that counsel's investigation was reasonable.

[00:55:00] Speaker 00:
What changed between then and with each iteration of this claim is the extent to which the investigation became the focus of Petitioner's claim.

[00:55:09] Speaker 05:
And that was the second post, good picture.

[00:55:10] Speaker 00:
Yes, correct.

[00:55:12] Speaker 05:
Is that what you were talking about?

[00:55:14] Speaker 00:
Yes, that going on into the opening brief as well, yes.

[00:55:20] Speaker 05:
Okay, I know these questions are all over the place, but so one of the things that also surprised me about your brief was that you said, I thought, that Judge DiGiusti had failed, or that had not been presented, had been forfeited on this investigation theory on deficiency.

[00:55:42] Speaker 05:
And when I read the petition that was presented to Judge DiGiusti, it surprised me that you were arguing forfeiture.

[00:55:54] Speaker 00:
Here's why.

[00:55:55] Speaker 00:
Because petitioner's ground two was an ineffective assistance of counsel claim, but it was broken into two parts, two distinct subclaims.

[00:56:04] Speaker 00:
Subclaim two B was the claim that was raised in the first post-conviction application as to the three family members

[00:56:11] Speaker 00:
But it did add an affidavit from Roberta Martinez, an affidavit from Marty and his army records, and then some juror affidavits.

[00:56:25] Speaker 05:
And normas, right?

[00:56:27] Speaker 05:
Normas did- Oh, no, that was in the first one.

[00:56:30] Speaker 00:
That came in the second post-conviction application and in ground 2C.

[00:56:34] Speaker 05:
Okay.

[00:56:35] Speaker 00:
So ground 2B was essentially the post-conviction claim, but not really.

[00:56:39] Speaker 00:
Because it has these new affidavits and it changes the focus from he had a good childhood But he did have some things to overcome in that childhood to actually he was abused as a child And then it was in ground to see

[00:56:53] Speaker 00:
where the focus really shifted to the failure to conduct an entire exhaustive mitigation defense.

[00:57:03] Speaker 00:
And so my argument is that as to the claim that is properly exhausted, which was raised in Ground 2B, that the arguments the petitioner is making now are different and broader than those that he made in the district court.

[00:57:19] Speaker ?:
OK.

[00:57:24] Speaker 05:
I want to ask you about the N-word.

[00:57:26] Speaker 05:
Yes.

[00:57:26] Speaker 05:
On that issue.

[00:57:28] Speaker 05:
And in particular, I want to ask you about whether or not the OCCA adjudicated that claim.

[00:57:42] Speaker 05:
Give us your best argument for why the OCC adjudicated that claim, the Eighth Amendment claim.

[00:57:47] Speaker 00:
Okay, thank you, yes.

[00:57:48] Speaker 00:
Because they specifically acknowledged it, for one thing.

[00:57:51] Speaker 00:
They said that he was thought, that he argued that he was denied fair sentencing proceeding.

[00:57:56] Speaker 00:
And then yes, they specifically, let me actually, let me back up and start with the way it was briefed.

[00:58:00] Speaker 00:
The way it was briefed was fair sentencing proceeding was in the heading along with evidentiary harpoon and First Amendment.

[00:58:08] Speaker 00:
And then the entire argument was evidentiary harpoon and First Amendment with a tack-on sentence that said, and it violated his right to a fair sentencing proceeding.

[00:58:20] Speaker 00:
And then following that sentence, there was a footnote that cited Caldwell.

[00:58:24] Speaker 04:
Well, there was also a sentence in the text.

[00:58:27] Speaker 00:
Yeah, the one that, yes.

[00:58:28] Speaker 04:
About the Eighth Amendment.

[00:58:30] Speaker 00:
about the eighth, yes, that said, and he was denied a fair sentencing proceeding, and that's the sentence to which, yes, yes, correct, yes.

[00:58:37] Speaker 00:
Yeah, yeah, I'm not arguing that he didn't exhaust it as a federal right, right.

[00:58:43] Speaker 00:
And so then the Court of Criminal Appeals expressly recognized that, that he's arguing that he was denied a fair sentencing proceeding.

[00:58:49] Speaker 00:
And then they talked about, they focused on what Petitioner focused on, which was the evidentiary harpoon issue and the Dawson versus Delaware claim.

[00:58:58] Speaker 00:
And so under,

[00:59:00] Speaker 00:
much of this court's precedent and especially Johnson versus Williams, we know that they didn't just forget that he had raised that claim because they expressly acknowledged it.

[00:59:11] Speaker 00:
And while the Eighth Amendment claim wouldn't be entirely subsumed within the state law evidentiary claim, it's largely subsumed within that because, you know, was it properly

[00:59:24] Speaker 00:
not that it was properly admitted, but was it state law error or wasn't it state law error in the form of an evidentiary harpoon?

[00:59:30] Speaker 00:
And what the court said was that any error was cured.

[00:59:35] Speaker 00:
So that finding that any error was cured would certainly go not only to an evidentiary harpoon claim, but also to an eighth amendment claim.

[00:59:45] Speaker 05:
Well, it would apply to a fourteenth amendment claim.

[00:59:48] Speaker 05:
Yes.

[00:59:49] Speaker 05:
A due process claim.

[00:59:50] Speaker 00:
Correct.

[00:59:50] Speaker 00:
And yes, because Caldwell actually has no application here, then yes, although I guess you could say that because the crux of Caldwell is that the jury can't be misled here because the jury was properly instructed.

[01:00:11] Speaker 00:
Don't consider that.

[01:00:14] Speaker 00:
properly in Eighth Amendment claim under Caldwell, the court of criminal appeals addressed that when they said, no, the jury was properly instructed.

[01:00:22] Speaker 00:
They weren't misled as to their role.

[01:00:25] Speaker 05:
One of the things that the petitioner relied on was Judge Egan's opinion in White versus Graham.

[01:00:33] Speaker 05:
And as you know, that was reversed, but not on that ground.

[01:00:35] Speaker 05:
I mean, it was a different theory that the panel relied on.

[01:00:39] Speaker 05:
And Judge Egan, at least, did credit the petitioner's

[01:00:44] Speaker 05:
I think, hook, line, and sinker, this exact same argument.

[01:00:49] Speaker 05:
if a petitioner identifies the claim under the exprovision of the Constitution and then adjudicates, you know, and then explains what the decision is, maybe it was neglect, people are fallible, judges are fallible, and apparently the Oklahoma Court of Criminal Appeals failed to adjudicate the claim that they had already identified.

[01:01:13] Speaker 05:
So what's wrong with that is a rebuttal to the Johnson presumption.

[01:01:19] Speaker 00:
My memory, Your Honor, is that in this court's grand decision that you actually did overturn that finding under Johnson v. Williams because then you then went on to find that the Court of Criminal Appeals decision was reasonable under 2254.

[01:01:33] Speaker 05:
Well, we did that.

[01:01:37] Speaker 05:
but wasn't the rationale, it was the premise of the state claim was coterminous with the premise for the constitutional claim, which is a little bit of, and I'm just wondering if that's a distinction between our panel opinion and Graham versus what we have here.

[01:01:58] Speaker 00:
Yes, I think it is, but that's not the only ground upon which Johnson versus Williams applies.

[01:02:03] Speaker 00:
In fact, there's a presumption that it was decided

[01:02:06] Speaker 00:
And it's the petitioner's duty to actually present evidence that that's not the case.

[01:02:11] Speaker 00:
But even setting aside the presumption, Johnson versus Williams also recognizes that when the petitioner doesn't devote a whole lot of attention to a claim,

[01:02:19] Speaker 00:
It's reasonable for a busy state court to also not separately address it explicitly.

[01:02:25] Speaker 02:
Yeah.

[01:02:26] Speaker 02:
OK.

[01:02:27] Speaker 02:
Regarding this claim about the racial slur being interjected in the proceeding, the petitioner argues in the opening brief that the prosecutor essentially provoked the witness into using that.

[01:02:42] Speaker 02:
Isn't that a fair argument or reading of the record?

[01:02:49] Speaker 02:
What I couldn't figure out through the examination of Ms.

[01:02:53] Speaker 02:
Carruthers is why the race of those two individuals mattered at all, unless the purpose was to provoke her to say what she ultimately said.

[01:03:02] Speaker 00:
We have a two-part, excuse me, a two-part, I guess a three-part response to that.

[01:03:07] Speaker 00:
One is that that aspect of the claim was not raised in state court, and so it would be unexhausted.

[01:03:12] Speaker 00:
The second is that it's plainly rebutted by the state court record, wherein the trial court

[01:03:18] Speaker 00:
explicitly found based on the prosecutor's demeanor that the state was, quote, as a horde and shocked as much as anybody besides yourself.

[01:03:28] Speaker 00:
So we had that state court finding, which would be binding under 2254E1.

[01:03:33] Speaker 02:
You're talking about what Judge Smith found on the spot during a sidebar?

[01:03:37] Speaker 00:
Yes, correct.

[01:03:38] Speaker 00:
And then my third argument that goes more directly to your question is the relevance of, and this is absolutely setting aside the use of the racial epithet, but the relevance of the race of the victims of Mr. Martinez could potentially be relevant.

[01:03:56] Speaker 00:
Because this was an unprovoked attack.

[01:03:58] Speaker 00:
They're sitting in the drive-through lane in a car

[01:04:03] Speaker 00:
And these two individuals are walking.

[01:04:05] Speaker 00:
There's no provocation, no interaction whatsoever.

[01:04:08] Speaker 00:
Mr. Martinez jumps out of the car and chases them down.

[01:04:12] Speaker 00:
So were that a racially motivated attack, that is more aggravating, I would argue, than were it not.

[01:04:21] Speaker 00:
And that's why we have special laws against hate crimes.

[01:04:25] Speaker 05:
Does that include the use of the n-word?

[01:04:29] Speaker 00:
Most likely not, because of

[01:04:32] Speaker 00:
because of the special sensitivity to what the Supreme Court has recognized, that's abhorrent about the use of that word.

[01:04:40] Speaker 05:
Well, then why in the world did Mr. Valdez say, well, and then what did he say?

[01:04:46] Speaker 05:
He knows exactly what Martina said.

[01:04:54] Speaker 00:
Well, it's not clear, Your Honor, from the record that he does.

[01:04:57] Speaker 05:
We have the preamble.

[01:04:59] Speaker 00:
Oh sure, that's what she said at the trial.

[01:05:01] Speaker 00:
But we don't have any evidence that in pre-trial discussions... Oh, that he knew.

[01:05:06] Speaker 05:
That that word was... Yes, that's correct.

[01:05:08] Speaker 05:
All right, thank you.

[01:05:16] Speaker 00:
Thank you.

[01:05:27] Speaker 03:
May I please the court?

[01:05:30] Speaker 03:
To start, I just want to clarify one thing that we're doing.

[01:05:35] Speaker 03:
Our claim is a Strickland failure to investigate the three witnesses.

[01:05:41] Speaker 03:
And we're saying the evidence of that failure is partially based on the trial transcript.

[01:05:48] Speaker 03:
And one reason we have to do this is we have to meet OCA on its terms.

[01:05:52] Speaker 03:
Under 2254D, we look at that document, we're stuck with it, and that's the only thing we have.

[01:05:59] Speaker 03:
We have an application, we have a denial, we don't have a response from the state, we don't have an appeal, we don't want to have a hearing, and that's pretty detrimental to a Strickland claim.

[01:06:11] Speaker 03:
If you look at all the cases from the Supreme Court, Williams, Wiggins,

[01:06:20] Speaker 03:
Andres, the one thing they have in common is substantial state pleadings and big evidentiary hearings.

[01:06:29] Speaker 03:
And I think that knowledge, you can inform your decision on exhaustion.

[01:06:35] Speaker 03:
And I think O'Sullivan from the Supreme Court touches on that as does Trevino.

[01:06:41] Speaker 03:
And I think, at least in the actual briefing, there

[01:06:49] Speaker 03:
There is some language, and I'll go off 10, investigated their testimony and prepared their witnesses more thoroughly.

[01:06:55] Speaker 03:
They investigated, developed, and presented mitigating evidence, and these words like mitigation and humanizing, they are broad.

[01:07:07] Speaker 03:
But essentially what we're talking about in our opening brief is a mitigating circumstance of a history of alcoholism.

[01:07:17] Speaker 03:
And that's a mitigating circumstance that's well known.

[01:07:21] Speaker 03:
Courts deal with it all the time.

[01:07:24] Speaker 03:
And then this specific language of humanizing.

[01:07:26] Speaker 03:
I don't think there's much of a difference between humanizing and mitigating.

[01:07:32] Speaker 03:
But this is what the appellant, they're using the state court's opinions against them.

[01:07:38] Speaker 03:
Or not against them, but they're trying to help themselves with it.

[01:07:42] Speaker 03:
which is exactly what we did here.

[01:07:44] Speaker 03:
We essentially just did what little John and Wilson say.

[01:07:47] Speaker 03:
There's these three principles.

[01:07:49] Speaker 03:
We went through them, and that's the biggest difference between these two pleadings.

[01:07:54] Speaker 03:
That and that.

[01:07:55] Speaker 03:
Ours is significantly longer, and our office has significantly more people and more money.

[01:08:04] Speaker 02:
Council, can I ask a question?

[01:08:06] Speaker 02:
When you were before us moments ago, you mentioned something that I also noticed, which was that the first post-conviction application was filed before OCCA, before the direct appeal was finalized.

[01:08:20] Speaker 02:
Do you think that informs in any way how OCCA treated that application in terms of, again, providing an opportunity for the petitioner to develop a record?

[01:08:32] Speaker 02:
I might not be following the question.

[01:08:34] Speaker 02:
I apologize.

[01:08:34] Speaker 02:
Well, just the timing of filing a post-condition application before they've even decided the direct appeal.

[01:08:40] Speaker 02:
I mean, do I have that timing right?

[01:08:41] Speaker 02:
I think that it's filed in 2016.

[01:08:43] Speaker 02:
They don't get an opinion on direct appeal until 2017.

[01:08:47] Speaker 02:
I guess I'm asking, that seemed odd to me, and I wanted to know if you think that informed at all OCCA's review of that post-commission application in terms of what was going to allow the petitioner to do to develop a factual record, set a hearing, or were just decided at all when they did not yet have the direct appeal

[01:09:08] Speaker 02:
opinion issue filed.

[01:09:10] Speaker 03:
Yeah, I think that's a pretty big deal, and I think from the actual statute, what the exhaustion says, 2254 B and C, all it says is the question presented.

[01:09:24] Speaker 03:
I know we're a long ways from the statute when it comes to EDPA in this particular area, but once we're so far from the statute, what we're talking about is equity.

[01:09:34] Speaker 03:
Exhaustion and equity, they inform each other versus Florida,

[01:09:38] Speaker 03:
said, equity finds a comfortable home in a habeas corpus.

[01:09:42] Speaker 03:
And the state process, as the Supreme Court said in Trevino, the state process can inform our decisions on equity and exhaustion.

[01:09:52] Speaker 01:
Can I clarify or try to clarify one more time what your theory is here?

[01:09:58] Speaker 01:
Because I'm still really struggling with what you presented in your petition.

[01:10:04] Speaker 01:
And there are at least a couple of references

[01:10:08] Speaker 01:
to the failure to present additional family members and friends who would have been able to humanize Mr. Martinez.

[01:10:17] Speaker 01:
And it seems pretty clear you're talking there about humanizing him and you specifically say as mitigating evidence in the sentencing case, correct?

[01:10:29] Speaker 01:
But now you're suggesting that that should have been interpreted to say that these witnesses should have been presented in the guilt phase?

[01:10:41] Speaker 01:
Because you said because they weren't presented in the guilt phase, counsel lost all credibility in the guilt phase.

[01:10:49] Speaker 01:
That affected, whoops, excuse me, that affected, as you said, the second half of the sentencing where there was this shadow on the second half of the sentencing.

[01:10:59] Speaker 01:
That's how I understand your argument, but you're talking about two different phases.

[01:11:03] Speaker 01:
I don't know how that could have been interpreted to say now they should have been presented at the guilt phase.

[01:11:13] Speaker 03:
Which is what I think you're saying.

[01:11:16] Speaker 03:
We didn't necessarily mean they had to present them at the guilt phase.

[01:11:19] Speaker 03:
We're just saying at the guilt phase... That's what you're saying today.

[01:11:22] Speaker 01:
That's what you've been saying today.

[01:11:24] Speaker 03:
Well, my apologies.

[01:11:24] Speaker 03:
I mean to say that at the guilt phase, their presentation should have been informed by a reasonable investigation.

[01:11:34] Speaker 01:
Okay.

[01:11:35] Speaker 01:
So, and what would that have meant had it been informed?

[01:11:40] Speaker 03:
Then they would have presented a mitigating circumstance of the history of alcoholism.

[01:11:44] Speaker 03:
During the guilt phase.

[01:11:46] Speaker 03:
Yeah.

[01:11:47] Speaker 01:
So you're still talking about what they should have done during the guilt phase.

[01:11:53] Speaker 01:
The investigation should have resulted in presenting, not just investigating, but in presenting these witnesses.

[01:12:00] Speaker 03:
Well presenting a more informed

[01:12:03] Speaker 03:
present a presentation of the mitigating circumstance of a history of alcoholism.

[01:12:09] Speaker 01:
Through these three witnesses.

[01:12:11] Speaker 01:
Or just through their experts.

[01:12:12] Speaker 01:
In the first phase.

[01:12:13] Speaker 03:
Or just through their experts.

[01:12:15] Speaker 03:
The experts rely on none of them.

[01:12:18] Speaker 03:
And this is where the state really picks up.

[01:12:20] Speaker 03:
And the state says, how often do you ever do these types of investigations without talking to any family members?

[01:12:28] Speaker 03:
And the experts say, not often.

[01:12:32] Speaker 03:
I apologize, I'm not really sure what the clock means right now.

[01:12:36] Speaker 03:
Don't worry about the clock.

[01:12:40] Speaker 03:
If there are no further questions we ask.

[01:12:56] Speaker 05:
All right, thank you.

[01:12:57] Speaker 05:
This matter will be submitted.

[01:13:00] Speaker 05:
We do appreciate Mr. Van Winkle and Ms.

[01:13:03] Speaker 05:
Grav.

[01:13:03] Speaker 05:
As always, I think both of you did an excellent job in your briefing and your arguments.

[01:13:08] Speaker 05:
Obviously, there's no case that's more, all cases are important.

[01:13:13] Speaker 05:
very important, but none certainly more important than a capital case.

[01:13:17] Speaker 05:
And so we always are particularly grateful when we can always depend on the excellent work from the Western District of Oklahoma's Federal Public Defender's Office and certainly the State Attorney General's Office that has always did an excellent job.

[01:13:35] Speaker 05:
And we're appreciative of Mr. Byers for being present in the courtroom to witness the excellent advocacy of the staff.

[01:13:42] Speaker 05:
Court is in recess subject to recall.