yes ma'am my name is nell brown from the federal defenders in portland for the petitioner and i would like to reserve two minutes of my time for a good morning good morning trial counsel in this case failed to raise challenge to the state's expert testimony that vouched for the alleged victim's credibility in a case that boiled down to a he said she said credibility contest this case is about council's failure to research and know the law a political to his client's case when the prevailing professional norm all over the state of oregon at the time of trial was to challenge the same type of expert testimony in sexual abuse cases until the oregon supreme court took up this issue but at the time there wasn't cases essentially supporting the fact that these kind of experts could be admitted the court of appeals had ruled that they were admissible but not on the facts of this case sanchez cruz was the court of appeals last decision in the in that case was pro defense in that it found that this type of evidence was scientific evidence which the court of appeals had previously not found and that case involved different set of facts there the court found so essentially  saying that that defense counsel had to make arguments that were sufficiently foreshadowed in the existing law and what's your best ninth circuit cases that support your position well i actually don't think it's just that it was foreshadowed here we have record evidence that attorneys around the state were making these arguments there's a motion in the record from another two thousand and six trial where another attorney raised these issues he raised them under the supreme court of organs case in brown mill here attorney susan reese submitted an affidavit which is in the record neither of which were discussed by the post conviction court that's an excerpt of record page for seventy six to eighty two judge fisher and the sample motion in limine a is found in the excerpt of record at page four forty nine to fifty five and that motion in limine a involved similar facts as here the key difference between sanchez crews in this case is that there was no physical evidence to corroborate the expert's opinion sanchez cruz ruled squarely that where there's physical evidence that's consistent with the report of the alleged victim yes that expert testimony is admissible but after sanchez cruz we can see that attorneys all around the state were using that case to their benefit they said this is scientific evidence the state has to show a foundation and in this case where there is no physical evidence attorneys would have argued and did argue in other cases that there was no scientific validity to that diagnosis it was not only one of the things though that you don't discuss this it does not appear that you discussed in your briefs the double deference review required by and given that our court is bound by that standard how do we find that there is no reasonable argument that trial counsel here is satisfied strickland this case falls outside of deference here because the post conviction court in this case failed to address the record evidence of the prevailing professional we're not saying it wasn't but it's controlled by it how are you getting it after ed ok but it's outside of because one the post conviction court's analysis failing to grapple with the evidence in the record here of the prevailing professional norm is contrary to strickland which says an attorney's conduct is judged according to whether it's reasonable under the prevailing professional norm the post conviction court was contrary to strickland when it failed to address how this attorney's conduct squared with the prevailing for a full norm in addition we don't agree with you  i'm sorry but the prevailing professional norm was that everybody else was challenging this i don't i mean you're requiring that every attorney has to be at the leading edge of challenging what the current law is or they're ineffective well that's the thing here it's not the leading edge attorneys all over the state not every attorney obviously we wouldn't be here if every attorney was raising it but competent tourney's competent attorneys who did their research would look at sanchez cruz and see that is obviously distinguished and it would be incompetent to accept  state of the law at the time was that this was admissible and therefore he didn't challenge it that that's the level of incompetence and narrow view of the law at the time oregon supreme court is the highest court of the state the supreme court in oregon had ruled very keller makes it clear right but all right but those people that were making the arguments we're proactively they want winning they were just perceiving the issue well the holy was the one that put the nail in the coffin right where they were making the our talk leading up to our printing little were people that were objecting before a planned day on the supreme court but a print day was the one that made certain so you're saying attorneys were raising it and that's how we got apprentice these are already for reading it based on keller they were raising it based on i mean all right all right but if we want to have a good good discussion on this i understand what your perspective this but we're asking you to brest so with if not every attorney was racing it is that is the standard under no reasonable it was unreasonable for the attorney in this case what he said is i didn't think it was objectionable i didn't think there was an objection available had he researched the law had he read keller had he read sanchez cruz he would have seen very clearly that he could have written a motion just like the motion that's in the excerpt of record at page four forty nine but  people that were writing those motions then were they winning or they all are serving the issue they were preserving the issue and had mr hall's counsel in this case done that exact thing he would have received relief when southard was decided because his case would have still been pending on appeal and he would've had to preserve issue raised by his appellate attorney that's so i'm not i'm not entirely crazy when i'm saying that southward and lapel pollie clarified all of  this i would say they clarified that the supreme court meant what it said earlier in keller and other cases there's a very long clear line of oregon supreme court cases addressing evidence just like this saying that an expert cannot testify to the credibility of another witness so your position is not that he would have raised the issue necessarily one but that he failed to preserve the jackson you know as a as a child court judge i really i get who file objections all the time to challenge in one circuit standard saying and i'm circuit hasn't got it right and you need to revisit this they're not going to win because i have to follow precedent but they preserve the objection i can't understand the idea that i would find that any other counsel who did not raise that objection which was going to be a loser on its face would be incompetent or inefficient or unreasonable by not having raised an objection that's contrary to the law that that doesn't seem to fall to you can say you can after response and if she needs additional answers from me allow that thank you forseeable arguments because the eleventh circuit has held in pits that that to satisfy the standard of reasonable in this counsel do not need to raise a batson challenge even at a time when other federal circuits are outside the jurisdiction of that  trial had already recognized about some challenge the supreme court had in a denial of cert said we intend to address this issue in the future and many council just like the council whose affidavits were submitted in the record here had been raising those arguments i mean i guess in making her best argument she presents a number of attorney affidavits indicating that the prevailing professional norm amongst the arkan defense bar at the time was to challenge this sort of testimony and the intermediate court case that you cite sanchez and wilson were widely viewed as inconsistent with state supreme court precedents so how do you reconcile this evidence with your claim that trial counsel was reasonably acting  counsel could say the court of appeals got it wrong because a court of appeals had addressed the very cases that petitioner contends required a different result so in that way it was binding because the trial court had no no authority to reach a different conclusion and so then next step would have been to seek discretionary review from the organ supreme court and to expect a trial counsel to do that seems not consistent with what we expect reasonable counsel to do because at the at the end of a trial counsel is looking to win a trial it in fact if they had lodged this objection and had appealed it to the court of appeals pre sale other they would have lost and then if they tried to raise that argument post conviction that claim would be barred because they had already read it already been resolved on the merits and so in a lot of ways i feel like i feel as though this argument would lead to sort of a perverse result where petitioner gets a worse result of his counsel raises the objection and pursue then somebody who's counsel doesn't raise it and waits you know however long it just a way to hear until after solid was decided and tries to take advantage of it later later later in the day  and they were able to file their claim in a timely fashion it is my understanding that souter would allow would allow relief well i should i should take that back yard because because that that that's a claim a trial court or that you can't raise in post conviction so the only way the only way could arise is if somebody had a trial that happened in the in the time between between when so if someone had a trial before s was decided and then took an appeal up after said it was decided and in that way yes it would be retroactive i think that if they hope that answers your question your it stick strictly doesn't require anticipating changes in the law to answer more directly your question your honor would it be a different case it would i think that under this is the this is clearly this case clearly requires a firm and if it were not under and i still think that reasonable counsel should not be required to anticipate changes in the law but i do believe that results are as could disagree on that point you know the counsel points to some cases from out of the circuit i think this one from indiana from the seventh circuit where where where reasonably forseeable change the law were held to be that the court held that recent counsel should have forseen that of course we have the eleventh circuit saying exactly the opposite so under double deference reasonable jurors can disagree in response to police questioning but rather public petitioner silence or rather failure to deny the allegations when he talked his family are in jail telephone calls that was that was the evidence that the state had presented and was relying upon at a minimum it was a close question as counsel stated in his deposition that he viewed this is close in his view it seemed more and more akin to silence when talking to a friend as opposed to compelled silence in the in the form of custody and in that situation where it's a close call and put in a position a closing argument of making a decision at that time because because honestly the only time you can make an objection is at that time trial counsel can reasonably conclude that it's not his client's best interest to raise an objection during closing argument especially when the available relief will not be a mistrial because i think it's clear there is other evidence to suggest that mr did deny it doesn't matter the defendant testified correct correct in trial i believe that's correct didn't the defendant take that issue on didn't the defendant talk about the call and he was said these are my jail calls and with worried about making bail so is that a factor to consider and whether call's i do not remember your honor but regardless in our view because there was ample evidence that petitioner had denied these allegations this sort of if this if the argument was improper at most it required to report a curative instruction it would not have supported a mistrial and counsel made clear that he was not interested in a curative instruction and in that case there's really no reason for him to object all right thank you ok i'll give you two minutes thank you honor the first point i'd like to make is that the issue here was obviously forseeable because attorneys were for seeing it the record evidence is that attorneys were raising challenges to evidence in cases like this that involved no physical evidence to corroborate the experts diagnosis or opinion testimony so it was for seeable attorneys foresaw this whether it was foretold in the law or just obvious because there were conflicts in the cases the attorneys knew this was a fruitful area for challenges and the attorney in this case simply didn't do his research the supreme court has said one of trial counsel's obligations you know he didn't do it i mean maybe he did look at it and hide it it was not something he wanted to take on that's not supported by the record the attorney in this case testified at length there's over one hundred pages of his testimony and what he says is he didn't believe there was an objection available he clearly wanted to keep this evidence out he says that his priority number one for his defense theory was to limit these experts testimony and he didn't think he could keep it out so he wasn't aware of the legal challenges so he was going to do what he called pounding and hard cross examination it's very clear from his testimony that had he been able to keep this stuff out he would have of course your honor said the trial court would have let this in under this under the oregon court of appeals precedent i think there's a way to distinguish sanchez crew so there could have been an argument that the trial court wouldn't have done that or that the court of appeals would have on the facts of this case said no sanchez cruz's distinguishable in this case the evidence should not have come in but part of your argument was that he could have been the case if he had objected and preserved his objection he might have been the case that they reviewed and i could see a little more weight to your argument obviously if the case was or if parallel case was already pending in the court of appeals and it was under consideration that you might be more inclined to find than an attorney in that circumstance should make sure he's preserving the appeal because the matter squarely already before the reviewing court but on the expectation that it might be taken up and it might be reverse again i think you're setting an awfully hard high bar for counsel for what's just a question of competent performance in this case the record evidence is that attorneys believe the supreme court would take the issue up they believe that the merrington and the organ court of appeals decisions were so stark and so clear and it is obvious if you read those cases you see those distinctions very clearly and the so the attorneys say in the affidavits that were put in for the martinez issue as well as the citations that i gave judge fisher for the stuff that was in this record before the state court where the attorneys say we knew the supreme court would eventually take this up to clarify this area because it was causing a lot of consternation in the lower court all right i've given you additional time but i want to make sure worse i disagree mr sprague who is the gentleman whose motion is in the record his attorney preserve the issue with the pretrial in limon a motion making the arguments about these cases and when he was on appeal his case was contemporaneous with mr hall's it was they were both two thousand and seven trials and when the case went on to appeal his case was held for the south or decision and  ended up getting relief in the form of a new contract with b s he was on direct appeal mr hall was to their cases were on the same trajectory mr hall's case would not have required any retroactivity his case had his attorney preserved it and it been raised by direct appellate counsel as a preserve issue there is no doubt that his case would have been decided under southard it would have he would have had appellate relief in the form of a new trial just like mr sprague whose motion is in the record that that  really is virtually impossible to dispute based on the timing of this case so there's no retroactivity problem that co counsel opposing counsel mention so would it be a correct statement that not everyone would get relief just because it was purser but there is