[00:00:00] Speaker 01: Moore versus White, 23-6133. [00:00:03] Speaker 01: Counsel, will you make your appearance and proceed? [00:00:15] Speaker 04: Please, the court. [00:00:16] Speaker 04: Good morning. [00:00:17] Speaker 04: I'm Tessa Henry from the Oklahoma Attorney General's Office on behalf of the appellant respondent, Tamika White. [00:00:25] Speaker 04: In this case, Moore has never carried her burden to show that it is more likely than not that no reasonable and properly instructed juror would have convicted her in light of her new evidence. [00:00:38] Speaker 04: As such, by finding that Moore passed through the Shloop Actual Innocence Gateway, the district court erred. [00:00:45] Speaker 04: And also, by later finding Strickland Prejudice based upon the same evidence, the district court erred. [00:00:51] Speaker 03: Council, could we talk about the firm waiver problem that appears in this case? [00:00:56] Speaker 00: Yes. [00:00:58] Speaker 03: I'm having trouble understanding how the state hasn't weighed the challenge to the district court's actual innocence determination under our firm waiver rule jurisprudence when you affirmatively elected not to object to the 2019 report and recommendation. [00:01:15] Speaker 04: So we did in 2011, following that initial timeliness, [00:01:21] Speaker 04: actual innocence finding did strenuously object and timely object. [00:01:26] Speaker 04: In 2019, we had made some fairly novel arguments with respect to actual innocence and procedural bar. [00:01:36] Speaker 04: And the magistrate judge in that 2019 report and recommendation rejected those arguments and recommended that we respond on the merits. [00:01:45] Speaker 04: At that point, [00:01:47] Speaker 04: we elected to not proceed with their procedural bar arguments as to actual innocence and felt that our challenge to the timeliness actual innocence finding was preserved. [00:02:00] Speaker 04: The 2011 challenge? [00:02:01] Speaker 03: Yes. [00:02:02] Speaker 03: But didn't you re-argue it in 2019? [00:02:05] Speaker 03: What does briefly mean? [00:02:07] Speaker 03: I understand what you changed sort of course, you had a procedural point, but you did argue. [00:02:13] Speaker 03: You made arguments to challenge timeliness. [00:02:17] Speaker 03: I thought pretty robustly. [00:02:20] Speaker 04: Yes. [00:02:20] Speaker 04: There was no really new evidence. [00:02:26] Speaker 04: It was based upon the same evidence as the previous actual innocence findings. [00:02:30] Speaker 04: It was simply just kind of re-urging it. [00:02:34] Speaker 04: But in my opinion, us not objecting to that second report and recommendation didn't somehow undo our objection to the original report and recommendation. [00:02:46] Speaker 03: And is that based on Greer? [00:02:48] Speaker 03: Yes. [00:02:49] Speaker 03: Is that based on your reading of Greer? [00:02:50] Speaker 03: Yes. [00:02:51] Speaker 03: Can you speak to that a little bit? [00:02:53] Speaker 04: Yes. [00:02:57] Speaker 04: In Greer, it dealt with two report and recommendations with respect to summary judgment motions. [00:03:05] Speaker 04: And so the petitioner did object to the first report and recommendation, but not the second one. [00:03:13] Speaker 04: And this court found that the objections as to the first report and recommendation were preserved, but anything to do with the second report and recommendation was not. [00:03:27] Speaker 03: But there was only one complaint in that case, and here we have a different operator pleading, right? [00:03:32] Speaker 03: Does that make a difference? [00:03:33] Speaker 04: Not in my opinion, Your Honor. [00:03:35] Speaker 04: Really, it boils down to no matter what petition we're dealing with, it was untimely. [00:03:42] Speaker 04: Moore was untimely in her claims by about 358 days in this case. [00:03:50] Speaker 01: Does it matter that you preserve, well, [00:03:55] Speaker 01: that you objected to the 2011 findings on actual innocence. [00:04:00] Speaker 01: Yes. [00:04:00] Speaker 01: Okay. [00:04:02] Speaker 01: In the context of the 2019 determination that those findings of 2011 were being used to essentially establish definitively the actual innocence determination after her trip to the state court, right? [00:04:18] Speaker 01: Yes. [00:04:19] Speaker 01: Okay. [00:04:20] Speaker 01: Does it matter that those 2011 findings were being used in a different context in 2021 as it relates to a ultimate determination of prejudice for the ineffective assistance of counsel claim? [00:04:37] Speaker 01: In other words, tracing this out, you object in 2011 to this stuff, this substance of findings as it relates to actual innocence. [00:04:49] Speaker 01: Correct. [00:04:49] Speaker 01: Fast forward to 2021 and that stuff has been repurposed for a different purpose of showing that there was prejudice under Strickland and effective assistance. [00:05:02] Speaker 01: Does that matter for purposes of determining whether the objection that you made in 2011 can carry forward and preserve in 2021? [00:05:12] Speaker 04: Okay, as to prejudice, [00:05:18] Speaker 04: I would say the moment at which we preserved the challenge to prejudice would be in the 2019-21 era. [00:05:25] Speaker 01: I get that, but it's at least my understanding that what is being the contention of waiver here is that because you did not object in 2019 to the actual innocence determination that in 2021, [00:05:47] Speaker 01: you have already not preserved this portion that is now being used as the basis for Strickland prejudice. [00:05:59] Speaker 01: And so what I'm asking you is, if you have an objection in 2011, and we're just talking about the underlying findings now. [00:06:08] Speaker 01: We're not talking about the legal glaze that goes over that. [00:06:12] Speaker 01: The underlying findings upon which Judge Bacharach determined [00:06:15] Speaker 01: actual innocence. [00:06:17] Speaker 01: They're now taken, and in 2021, we say, based upon these same findings, we determine there is Strickland prejudice. [00:06:26] Speaker 01: As long as you object it in 2011, what I'm trying to understand is, does the repurposing effect matter? [00:06:43] Speaker 04: Potentially. [00:06:44] Speaker 04: Well, I think it's better for you. [00:06:48] Speaker 04: Yes. [00:06:52] Speaker 04: And I'm not sure if this will 100% answer your question. [00:06:56] Speaker 04: But we strenuously objected in 2011, as you noted. [00:07:01] Speaker 04: And I think for purposes of judicial economy, to have us have to object every time that we revisit [00:07:10] Speaker 04: Those same findings, nothing about those findings changed. [00:07:16] Speaker 04: It would be a waste of judicial economy, essentially asking the district court over and over again. [00:07:22] Speaker 03: But didn't you ask the court to revisit the findings? [00:07:25] Speaker 04: Mainly as to procedural bar, yes. [00:07:30] Speaker 01: As to procedural bar, which is the legal, again, that is the legal construct in which findings are reviewed. [00:07:37] Speaker 01: I guess what I'm trying to tease out is this. [00:07:40] Speaker 01: Does it not matter whether what we're talking about is the underlying findings upon which a legal determination is made? [00:07:49] Speaker 01: 2011, I object to the legal determination and I object to the findings the court made in making that determination. [00:07:57] Speaker 01: Okay. [00:07:58] Speaker 01: 2021, we're talking about a different [00:08:04] Speaker 01: legal determination. [00:08:06] Speaker 01: We're not talking now. [00:08:07] Speaker 01: I mean, I'm sure you'll fight to the dying day on the notion of whether actual innocence was shown and whether this is timely. [00:08:15] Speaker 01: But in 2021, what was at play was not that. [00:08:21] Speaker 01: That had happened in 2019. [00:08:23] Speaker 01: What was at play in 2021 was taking those findings from 2011 and saying, they show Strickland prejudice. [00:08:32] Speaker 01: Right? [00:08:32] Speaker 04: Yes. [00:08:33] Speaker 01: Okay. [00:08:36] Speaker 04: And I would say that even if this court does find that we waived the actual innocence challenge, we certainly did preserve [00:08:45] Speaker 04: Strickland prejudice, again, by objecting to those factual findings in 2011, and then, again, challenging Moore's arguments with respect to prejudice in responding on the merits to the Second Amendment petition, and then objecting to the report and recommendation on the basis of prejudice. [00:09:03] Speaker 03: I think you have a much better case for your preservation case on prejudice. [00:09:07] Speaker 03: Absolutely. [00:09:07] Speaker 03: But my question is, [00:09:09] Speaker 03: Isn't the analysis co-extensive? [00:09:13] Speaker 03: In other words, I'm trying to understand why you don't develop a prejudice argument on appeal. [00:09:17] Speaker 03: You've preserved it, I think, but I don't think you've developed it on appeal. [00:09:21] Speaker 03: So how have you not waived your prejudice argument on appeal? [00:09:25] Speaker 03: The way I'm trying to answer my own question is, well, you must think that actual innocence and prejudice, in this case, are coextensive analytically. [00:09:33] Speaker 03: But they're not. [00:09:34] Speaker 03: They're subject to different legal standards. [00:09:36] Speaker 03: And I just don't see an argument developed in the briefing on prejudice that is separate from your objections and argument on actual innocence. [00:09:45] Speaker 03: Why isn't that a problem for you? [00:09:48] Speaker 04: Well, I respectfully disagree, Your Honor. [00:09:51] Speaker 04: I do think that we did flesh out the prejudice. [00:09:54] Speaker 04: Again, in this case, as you said, they're very coextensive. [00:09:58] Speaker 04: I do realize, you know, the prejudice standard is a lower standard than actual innocence. [00:10:06] Speaker 04: But we believe that prejudice hasn't even been met here. [00:10:09] Speaker 04: And we repeatedly reference Strickland in our opening brief and point this court to the Strickland standard. [00:10:19] Speaker 03: But you don't grapple with the district court's determination on prejudice. [00:10:25] Speaker 04: Well, the district court's determination on prejudice was essentially [00:10:29] Speaker 04: Actual innocence has already been found. [00:10:31] Speaker 04: In my opinion, that was the district court's... And wasn't it your burden to explain why that's wrong? [00:10:37] Speaker 03: That reasoning that informed that conclusion is wrong? [00:10:40] Speaker 03: Yes. [00:10:41] Speaker 03: And you've done that here you think? [00:10:43] Speaker 04: Yes. [00:10:49] Speaker 04: Um, and I quickly just with respect to prejudice and the actual innocence question, I do want to note, um, that this case essentially boils down to a battle of the experts. [00:11:02] Speaker 04: So which expert do we want to believe? [00:11:05] Speaker 04: And in this case, the district court really substituted its judgment for that of a reasonable and properly instructed jury. [00:11:12] Speaker 04: And I will point this court to Parnell versus White, which is actually a COA that was denied last week. [00:11:19] Speaker 04: And that case involved very similar facts. [00:11:22] Speaker 04: It's case number 23-5103. [00:11:23] Speaker 04: In this court... You said it was last week. [00:11:27] Speaker 01: Yes. [00:11:29] Speaker 01: Have you submitted a supplemental authority letter on that? [00:11:32] Speaker 04: Not yet. [00:11:33] Speaker 01: If you'll do that after this... Absolutely. [00:11:35] Speaker 04: In that case, this court noted that conflicting evidence, even conflicts between experts, is for a jury to resolve, and we cannot say that a reasonable jury would credit only one of the witnesses. [00:11:47] Speaker 04: And this actually dealt with the shaken baby syndrome and abusive head trauma issue, where you had an expert come forward in habeas that said, well, this injury was likely accidental and would have taken days to develop. [00:12:03] Speaker 04: whereas the state's experts opined that this injury was acute. [00:12:08] Speaker 04: So it's very similar to this case. [00:12:11] Speaker 01: But this is not just a battle of experts, is it? [00:12:14] Speaker 01: Because, I mean, you have the people [00:12:16] Speaker 01: who talk about, who provided daycare services for the child, who talked about the child being lethargic and all of the stories regarding the child hitting its head on the bathtub and the pattern of flipping backward and hitting its head. [00:12:32] Speaker 01: So it's not just a question of people coming and looking at cold records and talking about what they think, is it? [00:12:38] Speaker 01: I mean, there's more here than that. [00:12:41] Speaker 04: There is more here than just simply a battle of the experts. [00:12:45] Speaker 04: I will note that a lot of that evidence does come from interested witnesses who are family and friends of Moore. [00:12:51] Speaker 04: I will also note that the trial evidence showed that on the day that Avery collapsed, he was acting normally. [00:12:59] Speaker 04: And Moore herself even testified at trial that he was acting normally. [00:13:02] Speaker 04: He got up and he ate breakfast. [00:13:05] Speaker 04: He played Hot Wheels with his father. [00:13:06] Speaker 04: He watched a movie. [00:13:08] Speaker 04: He ate a big lunch of spaghetti. [00:13:10] Speaker 04: So if he was truly dying of some latent head injury or some existing disease, he would not have been able to do all of that. [00:13:18] Speaker 01: Where is there evidence for that? [00:13:19] Speaker 01: I mean, that sounds like we're talking about what commonsensically would be the case. [00:13:25] Speaker 01: I mean, who said that? [00:13:26] Speaker 04: Dr. Griggs did testify at trial that Avery would have shown some symptoms, so a reduced level of consciousness. [00:13:39] Speaker 04: inability to walk properly, confusion, vomiting, things of that nature. [00:13:46] Speaker 01: He really would be doing that all the time because there was a pattern of him not acting a matter that was normal, end quote, air quotes. [00:13:53] Speaker 01: I mean, so I mean, so I mean, is Dr. Gregg saying he would have to be doing that all the time? [00:14:00] Speaker 04: Not necessarily, but Dr. Griggs did explain that he was asking more in Mr. Snyder specifically about kind of the past 24 hours because he was looking for those symptoms and kind of how Avery was acting to explain the sudden collapse. [00:14:17] Speaker 04: And so it would have been in the more recent past, so about the past, the previous 24 hours before his collapse. [00:14:25] Speaker 01: Before you sit down, let me ask you a question about [00:14:28] Speaker 01: the substantial contributing factor alternative theory is the only, well, are the only citations upon which you rest a claim of preservation in the district court, the ones that you offered in your reply brief. [00:14:45] Speaker 01: I mean, is there anything beyond that? [00:14:46] Speaker 01: I mean, I noted in your reply brief, I think page seven, note three, you offered some citations as to where you preserved that in the district court. [00:14:55] Speaker 01: Is that it? [00:14:57] Speaker 04: For the appendix, I have pages 2392, 2400 through 01 and 2407. [00:15:05] Speaker 04: And I will note if I have this court's permission to continue my answer. [00:15:14] Speaker 01: You can, but is that what was in the reply brief is what I'm getting? [00:15:17] Speaker 01: Yes, Your Honor. [00:15:18] Speaker 04: And I will note quickly that it was kind of unforeseeable, that argument, because [00:15:24] Speaker 02: It was kind of like what? [00:15:25] Speaker 02: I didn't hear that word. [00:15:26] Speaker 02: Unforeseeable. [00:15:27] Speaker 04: The findings of fact and conclusions of law essentially embraced an entirely new theory of the case that it still could have been child abuse, but it wasn't Moore's child abuse that killed Avery. [00:15:39] Speaker 04: So at that point, that argument was right. [00:15:41] Speaker 01: The findings of fact in the district court's 2021 decision, are you saying? [00:15:48] Speaker 04: No, in the 2011. [00:15:50] Speaker 01: All right. [00:15:52] Speaker 01: But we're talking about then the proceedings as they played out in 2021, and whether you advanced a theory of substantial contributing factor, right? [00:16:01] Speaker 01: That's what's at issue here. [00:16:03] Speaker 01: And how does that relate to what went on in 2011? [00:16:09] Speaker 04: That was when we first preserved the argument. [00:16:10] Speaker 04: I'm sorry, I misunderstood your honor's question. [00:16:13] Speaker 04: We did raise it in the... [00:16:19] Speaker 04: I believe the request to stay in the district court. [00:16:24] Speaker 01: Well, I mean, that theory works to, if it works at all, it works to your benefit. [00:16:29] Speaker 01: So on a matter of preservation, you shouldn't have had to have been surprised, would you? [00:16:33] Speaker 01: I mean, that would have been something that you should have argued. [00:16:37] Speaker 04: Surprise as to the 2011 findings. [00:16:40] Speaker 01: Well, I mean, 2011 findings, when it gets you. [00:16:43] Speaker 01: But I mean, once you contemplate that and making your affirmative case, right? [00:16:48] Speaker 04: Yes. [00:16:49] Speaker 01: Okay. [00:16:50] Speaker 01: And if necessary, we can give you a little rebuttal. [00:16:52] Speaker 01: Okay. [00:16:53] Speaker 01: Please just sit down. [00:16:54] Speaker 01: Thank you. [00:16:55] Speaker 01: Appreciate it, Council. [00:17:09] Speaker 05: Good morning. [00:17:09] Speaker 05: May it please the Court? [00:17:11] Speaker 05: I am Andrea DiGiglio-Miller, and along with my co-counsel, Christine Cave, we represent Ms. [00:17:16] Speaker 05: Beverly Moore, [00:17:17] Speaker 05: who is also in attendance in court today. [00:17:23] Speaker 05: In the 13 minutes that Ms. [00:17:24] Speaker 05: Moore was alone with A.S. [00:17:27] Speaker 05: on January 13, 2004, the state of Oklahoma continues to maintain that Ms. [00:17:34] Speaker 05: Moore shook A.S. [00:17:36] Speaker 05: so violently and hit his head against a carpeted floor that it caused his death. [00:17:44] Speaker 05: Medical science does not [00:17:46] Speaker 05: generally support that theory. [00:17:49] Speaker 05: And when I talk about that theory, I am specifically talking about the theory on timeliness, because that is all that is before the court at this stage of the proceedings, whether or not he would have presented to the hospital after those 13 minutes with the kind of symptoms that he had. [00:18:07] Speaker 02: And would he have presented with those symptoms if he had been previously assaulted on the head, he's had traumas on the head? [00:18:16] Speaker 02: But it hadn't yet come to the point of death. [00:18:22] Speaker 02: And then this was kind of the final straw. [00:18:29] Speaker 05: Yes, Your Honor. [00:18:30] Speaker 05: Although it's possible that they weren't injuries in terms of inflicted injury, but rather accidental injuries. [00:18:36] Speaker 00: So I want to be clear about the use of the word injury. [00:18:38] Speaker 05: But yes, Your Honor. [00:18:40] Speaker 05: And that is really the case of innocence that has been presented to the court since 2013. [00:18:46] Speaker 05: 10, if you will, that most of the injuries, everybody agrees across the board, the state's witnesses at trial, the new witnesses all agree that the mechanism of death was significant brain swelling. [00:19:01] Speaker 05: That brain swelling could not have occurred in the time period that they say they can pinpoint his injuries were inflicted because that's really what her conviction is based on. [00:19:11] Speaker 05: that in that 13 minutes they can say that. [00:19:14] Speaker 02: If there had been prior trauma that has caused the brain swelling, it's like in a football concussion, they have to stay out for a while until that concussion recedes. [00:19:24] Speaker 02: If that waiting period had not yet occurred here, at least in football, you stay out, I assume that you're more vulnerable at that point. [00:19:36] Speaker 05: Yes, Your Honor. [00:19:37] Speaker 05: And that is what is typically referred to as a lucid interval. [00:19:42] Speaker 05: today, which was something that in 2005 many witnesses testifying on behalf of the state denied existed, but that's exactly right. [00:19:51] Speaker 05: And he, contrary to what the state maintains, he actually had a series of head injuries. [00:19:59] Speaker 05: There wasn't just one. [00:20:00] Speaker 05: There was a head injury in November. [00:20:02] Speaker 02: The briefs make that clear. [00:20:04] Speaker 01: Yes. [00:20:04] Speaker 01: Well, let me be clear. [00:20:06] Speaker 01: When you're talking about timing and specifically [00:20:09] Speaker 01: at least as I understand it, it's the state's theory, and that's what we're grappling with. [00:20:15] Speaker 01: It's the state's theory that whatever Ms. [00:20:18] Speaker 01: Moore did on, I think, January 13th, [00:20:21] Speaker 01: killed the child. [00:20:23] Speaker 01: In other words, those were the injuries that killed the child. [00:20:26] Speaker 01: Irrespective of whether she shook the child or not, irrespective of whatever she did to the child, the question is really whether what she did on that day had caused the death, right? [00:20:39] Speaker 05: Your Honor, it's a little bit more refined than that. [00:20:42] Speaker 05: The state's theory is that she was the only one who had done anything to have caused AS to present to the hospital [00:20:51] Speaker 05: with the symptoms he had that day. [00:20:53] Speaker 05: They were very clear. [00:20:55] Speaker 05: They were very clear at trial. [00:20:56] Speaker 05: They were very clear during the course of our five years or six years back in state court at their request during the evidentiary hearing that their theory was she was the only one who had done anything abusive and the only one who was responsible for these injuries. [00:21:11] Speaker 02: In the charging documents does it say that? [00:21:13] Speaker 02: In the charging documents does it say the only [00:21:16] Speaker 02: event that caused this death was such-and-such. [00:21:19] Speaker 05: She is charged solely, so she was not charged in conjunction with others. [00:21:25] Speaker 02: I know, but the charging document might imply that there was leading up injuries and this was the precipitating event. [00:21:34] Speaker 02: What does the charging document say about whether there was any contribution or whether this was out of the blue? [00:21:39] Speaker 05: The charging document specifically says, on or about January 13, 2004, [00:21:46] Speaker 05: Beverly Moore used unreasonable force against AS, resulting in his death. [00:21:51] Speaker 02: But that's ambiguous. [00:21:53] Speaker 02: That doesn't address whether the child was vulnerable or not. [00:21:56] Speaker 02: Go ahead with your other argument. [00:21:58] Speaker 01: Well, I need to be clear here, because the question of whether anyone else hurt the child [00:22:05] Speaker 01: As I understand it, it's really not what the fight is about. [00:22:10] Speaker 01: The fight is about whether the injuries took place on January 13th or whether the death of the child as a result of this trauma could have resulted from things that occurred earlier. [00:22:21] Speaker 01: Isn't that what we're talking about? [00:22:23] Speaker 05: Yes, Your Honor. [00:22:23] Speaker 05: Before this court is solely the issue of the timing of the [00:22:28] Speaker 05: injuries that resulted in his death. [00:22:30] Speaker 01: Okay, well then, whatever went on before January 13th, I don't really care whether it was Ms. [00:22:35] Speaker 01: Moore or somebody else. [00:22:36] Speaker 01: Is there any reason I should care about that? [00:22:38] Speaker 05: Well, the state doesn't care about that either, so you are consistent with what their theory has always been as to conviction. [00:22:43] Speaker 05: That's what we're here about. [00:22:44] Speaker 01: Yes, Your Honor, you should care. [00:22:48] Speaker 01: Why should I care about that? [00:22:50] Speaker 01: What I should care about is what she did on January 13th, right? [00:22:54] Speaker 05: Your Honor, strictly speaking, that is what she is charged with. [00:22:58] Speaker 05: So yes, you should care about that. [00:23:00] Speaker 05: But taking a look at not only where the theory of abusive head trauma sits today, but the newly discovered evidence that's been presented, it matters what happened before January 13th, and it matters significantly because we know now, and they knew at the time of trial, [00:23:23] Speaker 05: that the injuries that were observed at autopsy and then later on the new experts who actually did objective testing on microscopic tissue slides that reflected objectively that there are signs that these injuries were older. [00:23:40] Speaker 05: And so the fact that it's older is significant. [00:23:42] Speaker 02: All it showed was that all those new pieces of evidence showed were that that child had had serious trauma to the head before. [00:23:52] Speaker 02: but not that those traumas were inevitably leading to death or leading to death on that day. [00:23:59] Speaker 02: Isn't that correct? [00:24:01] Speaker 02: I mean, it shows there has been significant trauma to the head. [00:24:05] Speaker 02: And so then we have the potential of a vulnerable or fragile victim here. [00:24:16] Speaker 02: And yet, the testimony may be that the [00:24:22] Speaker 02: What tipped it from potential death to actual death was that day. [00:24:30] Speaker 05: Your honor, yes. [00:24:31] Speaker 05: But what your honor has just summarized essentially is the second impact theory that up until recently, the state of Oklahoma has rejected soundly. [00:24:41] Speaker 05: That is not what Ms. [00:24:42] Speaker 05: Moore is convicted on. [00:24:44] Speaker 05: That wasn't the state's theory until we got to this court. [00:24:47] Speaker 02: Did the state negate it? [00:24:48] Speaker 02: I thought the state was ambiguous about that. [00:24:50] Speaker 02: The state just said what she did [00:24:52] Speaker 02: on that day, resulted in the death to A.S. [00:24:59] Speaker 05: So that's a broad charging period. [00:25:04] Speaker 05: The charging period is simply January 13th. [00:25:06] Speaker 05: Their allegations have always been, and what her jury convicted her of, was that what she did on January 13th accounted for everything that all the medical experts have seen, the brain swelling, [00:25:21] Speaker 02: Was there anything in the indictment that said this child presented on January 13th with no prior injuries and she administered all the injuries that killed the child? [00:25:29] Speaker 02: I thought that the charging document was simply ambiguous on that. [00:25:33] Speaker 02: Didn't address that issue. [00:25:35] Speaker 05: The charging document solely charges her. [00:25:38] Speaker 02: And it says that what she did that day [00:25:42] Speaker 02: resulted in the death. [00:25:43] Speaker 02: And that could pick up a tipping point event, or it could be alleging an event that starts with a clean slate. [00:25:53] Speaker 05: It could, Your Honor, potentially. [00:25:54] Speaker 05: That is not what happened in this case, however, because the state has firmly maintained for all of these years that it was solely Ms. [00:26:03] Speaker 05: Moore who was responsible for his death, not based on a second impact theory. [00:26:08] Speaker 05: The state [00:26:08] Speaker 05: specifically disclaim second impact until this case. [00:26:14] Speaker 03: I'm surprised to hear your argument today focusing not on waiver. [00:26:20] Speaker 03: Not on what? [00:26:21] Speaker 03: I'm sorry. [00:26:21] Speaker 03: On waiver, on the state's waiver. [00:26:24] Speaker 03: Because certainly it suggests to me from what you're arguing that you don't think the state has a waiver problem. [00:26:30] Speaker 05: Your Honor, I do. [00:26:31] Speaker 05: I was simply trying to get into [00:26:33] Speaker 05: the factual basis of the case before addressing waiver, but I'd be happy to address waiver now because it first and foremost is the argument we first present in our briefing. [00:26:44] Speaker 05: I think it's clear that in this case, the state, the appellant has waived the argument on the schloop finding. [00:26:52] Speaker 05: And they did so. [00:26:53] Speaker 05: And in the reply brief, they specifically say it was a strategic choice because they saw the writing was on the wall, meaning they weren't going to prevail in it. [00:27:01] Speaker 03: How do you respond to the state's contention that they did preserve because they disaggregated their argument into a challenge to the procedural bar and a challenge to the epitimeliness? [00:27:13] Speaker 03: Do you think there's any traction there? [00:27:15] Speaker 05: No, Your Honor, I don't. [00:27:19] Speaker 05: And I think that that even contradicts the approach they've taken in this appeal, because the only issue they have raised on appeal was challenging the district court's finding of factual innocence for the purpose of overcoming the AEDPA time bar. [00:27:35] Speaker 05: There's a reason why they're doing that, because if they do that, they win out. [00:27:39] Speaker 05: So they have not actually, and as your honor pointed out during Appellant's argument, [00:27:46] Speaker 05: They don't even really flesh out an argument about prejudice on appeal. [00:27:51] Speaker 05: They mention it, but they certainly don't lucidate any argument about what's wrong with the district court's prejudice finding, other than they disagree with it because they felt like it disregarded their arguments, which we disagree that it disregarded their arguments. [00:28:05] Speaker 01: You're telling me that they're not making a Strickland argument on appeal and saying that the district court was wrong in 2021? [00:28:12] Speaker 01: in saying that there was prejudice for Strickland purposes, and therefore a grant of habeas relief was appropriate. [00:28:19] Speaker 01: That was my understanding of what we're talking about here. [00:28:22] Speaker 05: Your Honor, there is one ground of relief alleged in their appellate brief. [00:28:26] Speaker 05: And that ground of relief is that the district court erred in finding the Schlup gateway in our favor. [00:28:34] Speaker 05: And there are sub-propositions to that, but the sub-propositions relate to Schlup. [00:28:38] Speaker 05: They mentioned prejudice, and they mentioned that they believe they have preserved prejudice. [00:28:42] Speaker 05: But the approach that Your Honor asked them about during their argument isn't borne out by the pleadings. [00:28:50] Speaker 05: They say they purposely didn't file an objection the one time they are required to file an objection, which was to the 2019 report and recommendation finding schloop. [00:29:04] Speaker 05: They try to save it in the objection to the supplemental report and recommendation on Strickland, and then they [00:29:12] Speaker 05: take exception to the district court's finding of prejudice. [00:29:18] Speaker 05: But again, they don't go into depth about actually challenging the prejudice finding. [00:29:22] Speaker 05: They just maintain that the district court's finding was wrong. [00:29:26] Speaker 03: If you agree, or do you agree that there is some co-extension here with the actual innocence, the analysis that goes into deciding whether the Schlupp gateway is satisfied and the prejudice determination? [00:29:38] Speaker 03: This is just one of those cases where the evidence is the same, right? [00:29:41] Speaker 05: Strictly speaking, yes, the two inquiries are the same, although it's clear from House versus Bell that the finding of prejudice is actually a lower bar than the Schlup gateway findings. [00:29:54] Speaker 05: So while technically they might be correct that they're separate and distinct, really once the Schlup finding has been found, prejudice is established because it is a lower bar. [00:30:05] Speaker 03: So if we were to conclude that there is a waiver on the actual innocence component of the state's argument, what is left to their appeal in your view? [00:30:14] Speaker 05: Nothing, Your Honor, because again, a simple review of their brief in chief makes it clear they have only challenged the Schluke finding as it relates to the factual innocence claim used to overcome the procedural bar. [00:30:30] Speaker 05: And I'm about to run out of time. [00:30:33] Speaker 05: I would like to actually get into the substance of the issue of waiver because they don't mention and they don't address the fact that after state court, and again, we were in state court for six years on their request to exhaust these claims. [00:30:49] Speaker 05: It goes back into federal court. [00:30:51] Speaker 05: A second amended habeas petition was filed. [00:30:56] Speaker 05: They argued in response to the second amended habeas petition [00:31:00] Speaker 05: that we were now presenting new facts and new arguments that were unexhausted. [00:31:05] Speaker 05: So it's unclear how, if that was their argument in response to the second amended habeas petition, how any objection to the 2011 report and recommendation of the magistrate finding the Schlupp standard could preserve anything for this Court's review [00:31:25] Speaker 01: on appeal. [00:31:25] Speaker 01: In 2021, and later the decision that is ultimately before us now, was the court ruling on actual innocence or whether at that point was the theory whittled down to the point where all that was at issue was Strickland? [00:31:43] Speaker 01: In other words, the order that forms the predicate for this appeal was a question of whether you prevail in Strickland or not, right? [00:31:51] Speaker 05: Yes, Your Honor, but that's because [00:31:53] Speaker 05: Following the filing of the second amended habeas petition, they asked the magistrate judge to revisit the innocence finding and made arguments that the innocence findings, based on the new state court record that was developed, was either unexhausted or hadn't been proven. [00:32:13] Speaker 05: That is where they failed to file an objection. [00:32:17] Speaker 01: That gets us to 2019. [00:32:21] Speaker 01: Yes. [00:32:22] Speaker 01: And then after 2019, when the order, the specific order that is before us now, at least in theory, what we're called upon to rule on is whether the district court erred in finding ineffective assistance of counsel and specifically prejudice, right? [00:32:39] Speaker 05: Yes, Your Honor, but that is not an issue in this appeal. [00:32:41] Speaker 05: What is an issue in this appeal is the district court's [00:32:44] Speaker 05: determination on the Shloop gateway claim. [00:32:46] Speaker 01: And it's not an issue because of their briefing? [00:32:48] Speaker 01: Is that what you're saying? [00:32:49] Speaker 05: Yes, it's in their proposition heading. [00:32:51] Speaker 05: It is the only proposition that is contained in that brief. [00:32:54] Speaker 05: And I would also like to address Greer briefly, if the court will give me... You've got a minute. [00:32:59] Speaker 01: Go ahead. [00:33:01] Speaker 05: The Greer case only requires a straightforward application to establish that the Shloop gateway finding challenge has been waived in this case. [00:33:11] Speaker 05: And their reading of Greer would be an unprecedented application of not only Greer, but the firm waiver rule this court established and recognized. [00:33:22] Speaker 05: And it is so firmly established, it applies even to pro se litigants. [00:33:27] Speaker 05: And they have made no, they've given this court no grounds to excuse their waiver, only that they made the strategic choice and that should be okay because of judicial economy. [00:33:39] Speaker 05: And so for the reasons articulated in our answer brief to the court, we ask that the court affirm the district court's order finding Schlup Innocence Gateway has been met and that Ms. [00:33:57] Speaker 05: Moore received gross ineffective assistance of counsel in this case, both because counsel was deficient and because the deficiency prejudiced our client. [00:34:07] Speaker 05: Thank you. [00:34:08] Speaker 05: Thank you, counsel. [00:34:09] Speaker 05: You have a minute. [00:34:17] Speaker 04: Thank you, Your Honor. [00:34:18] Speaker 04: I just want to point out that we have briefed Strickland in our opening brief. [00:34:25] Speaker 04: We extensively cited Strickland just because we didn't put it in our proposition heading. [00:34:31] Speaker 04: shouldn't mean that it is waived. [00:34:33] Speaker 04: We extensively discussed it. [00:34:34] Speaker 04: And again, the Strickland project. [00:34:37] Speaker 03: Where in your opening brief do you challenge the district court's finding on Strickland prejudice? [00:34:43] Speaker 03: Do you want page numbers? [00:34:47] Speaker 03: Because I just didn't see it. [00:34:48] Speaker 03: I saw lots of references to Strickland and assertions about prejudice. [00:34:54] Speaker 03: But our standards require the appellant to develop an argument. [00:34:58] Speaker 03: And I didn't see that argument developed, but I could have missed it. [00:35:03] Speaker 04: And that would be, again, when we were referencing Strickland. [00:35:08] Speaker 04: And again, I would just note that the actual innocence finding in Strickland are wrapped up in each other. [00:35:15] Speaker 04: And so by discussing one, you're discussing the other. [00:35:19] Speaker 03: Not irrespective of the different standards that apply? [00:35:22] Speaker 04: The Strickland standard is lower, yes. [00:35:24] Speaker 04: I do indicate that in the brief and here, [00:35:29] Speaker 04: But again, it is our opinion here that Moore has not even met Strickland's prejudice prong. [00:35:38] Speaker 04: And so we would respectfully request reversal. [00:35:41] Speaker 04: Thank you. [00:35:42] Speaker 01: Thank you, counsel. [00:35:44] Speaker 01: Case is submitted. [00:35:45] Speaker 01: Thank you for the fine arguments, counsel.