arms and i mis represent mr americas with the court's indulgence i would like to address two claims in particular today first in athens claim in regard to the martinez claim it's very important to remember that respondents have admitted that post can fiction council performed efficiently therefore the only question left before this court is whether the underlying i see claim has some merit now some merit is meant to be a very low bar but yet the district court denied any factual development in an opinion that has serious flaws on both the deficient performance and the prejudice prong has always been very confusing to me when you're going in notion is that has to have some merit but but the but there's still a prejudice there's still a  development then it should be a lower bar when you're judging the actual merits of the claim with a fully developed factual record than it would be to novo review under strickland but i think when the question is not  right that doesn't that's not the merits the or is it the ineffective assistance of tribal council it but it wraps in the barents to some degree i think this is a question are all struggling in the wake of martina's well yeah that's why with very helpful you get to say it's all right because it's not easy i think for me of the distinction is when you're looking at should does the claim have some merit enough that it should go forward to factual development and the hearing now after since they've conceded deficient performance for p c r counsel i think the only question left at the hearing would be the underlying claim because in essence if you prove the underlying claim you've proven prejudice from post conviction coun performance which gets made to i think a similar similar concern i look at at the district court's decision and all apologized to both of you now for my voice the weather doesn't  help the district court was aware of the some merit standard the order recites it but the disc and the conclusion of the discords order says the default is not excused under martin but everything in between appears to be a noble review he doesn't apply this the some merit standard and recites at one point that both sides for different reasons urged the court to reach the merits so do we read his order as being an ultimate decision on the merits of be it without an evidentiary hearing or should we simply take it as being something that speaks only to the procedural bar when they want to have what i see happening is if we decide some merit is a lower standard so send it back we're going to get exactly the same order right back from the district court because the district court things are decided on the merits i think the problem is is it decided on the merits without the opportunity for factual development and that's where the real problem in its analysis lies  there was enough merit to this claim that it should have been allowed to go forward and what would the factual development be there what is it the could be added to the record at this point that we could look at well child counsel has not testified in any proceeding  signed a declaration which indicates that she admits deficient performance she admits that she would've allowed all this evidence and it would be up to the state i guess whether or not they felt they needed the opportunity for factual development or whether we can decide to scase on the factual record as it stands because it is true that many of the facts supporting prejudice have already been heard at back and hearing it would be more a question of the deficient performance problem and whether the state feels they need to have a hearing on that or we can decide that on the record now the district court found that there were no material facts pending about defense counsel's performance  and in finding that it essentially ignored defense counsel's own declaration and her investigator's declaration which stated that their knowledge in their investigation of the mitigation available was very limited and that they would have done more and they should have done it wasn't comparing blue limited to other cases we've seen i mean the real question is whether it was deficient in some independently critical way even though it she wasn't sitting on her hands right the supreme court has clearly stated in cases like sears and williams v taylor that you don't in the inquiry just because counsel did present some limited mitigating evidence the fact is his life history is so rich with mitigation she was able to superficially present a few facts but as serious talks about you have to compare what could have been presented with what was presented was it substantially incomplete i don't think it's fair to say that leaving out brain damage and intellectually disability and myriad facts in his background about this traumatic childhood that that's not a substantially incomplete mitigation when you compare what was known and what we now know it's simply too different to different worlds the district court found for instance that the new evidence of brain damage would have little prejudicial effect given the state courts finding that he wasn't intellectually disabled to me that makes little sense because brain damage has independent significance in and of itself in both sears and porter the defendants were brain damage they did not have intellectual disability but the brain damage was something the supreme court said was had a prejudicial effect in arizona in the pre martinez opinion the district court itself acknowledged that at the time an arizona someone with a low i q and with brain damage would have significant effect on mitigation because it could be connected to the crime and we know how important that was in arizona at the time if you look at cases like state v roque his i q was eighty it wasn't intellectually disabled but the supreme court reduced his sentence to life on independent view because they said that i q of eighty likely had an impact on his behavior and that's precisely what the expert report on brain damage says in this case e r seven five three it talks about the areas mr ramirez his brain that are damaged directly affect his ability to function in  life they manifest itself in poor judgment and then impulse control and inability to plan and organize his behavior and evidence of mental impairments expression of the brain damage is the sort of mitigation that  inspires sympathy because it does diminish its moral culpability for the crime it was well established at the time since the one thousand early one nine hundred eighty s the council had a duty to investigate organic brain damage if you look at the porter case that case was tried in one nine hundred eighty eight was tried in one thousand nine hundred eighty nine and the court faulted counsel in that case for not investigating brain damage in serious case it was also tried fairly early on and brain damage was also needed to be investigated i what's important to recognize here the key to our claim is that when you have a mental health expert you have a duty to provide them with background information you cannot expect an accurate mental health evaluation unless you provide them with the information that they need a doctor mcmahon has specifically stated had he seen those childhood i q scores on the whisk and nine hundred sixty seven and one nine hundred sixty nine that he would not have given the pv v t and he would have never rolled out mental retardation he would have given him a more comprehensive q test and he would have looked into adaptive behavior so even given the limited information the trial counsel had that school records showing those i q score she did not give it to the expert which led test we know now and was also actually an outdated version of the test the later version that he should have been given at the time did not purport to return an i q score because it's it shouldn't be used that way  d terms of the intellectual disability finding of the state court on the martinez claim this court is not bound by that in fact the the factual finding is quite different the question is quite  doesn't matter for the reasons you just said in other words a technical add can intellectual disability determination and the mitigation of having a  being at least not of well below average intellectual ability are not the same thing correct and the fact actually that the judge state court judge found it required to take the flynn effect into account for marriage had proven all trying to argue that you're not balanced on the martinez question and the reason you're not bound is because the standards aren't the same correct i don't know whether i would agree or not bound because you could do it all over again anyway but in any event the standards aren't say yes the question basically under if you just were looking at intellectual disability not all the other mitigation was did ramirez present enough credible information on intellectual disability that a reasonable fact finder could find that he was intellectually disabled it doesn't matter when even have to find that it was from an intellectually disabled for it to be a mitigating factor correct right so it's not the same  all in regard to the deficient performance problem i think i alluded to this earlier that the court basically ignored counsel's own statements the investigator statements he said that  although she had those school records that she didn't give to dr mcmahon it was ok for her to rely on his conclusion that the client was not intellectually disabled ignore her statement that she had no strategic reason for not presenting all this information and dr mcmahon reports he listed all the documents he received from counsel and includes absolutely no social history documents other than prior criminal records the entirety of the additional background information he got came from her marriage himself which he actually commented at the time was not a good situation and he wished that his background information would have been more complete i would like to go ahead and move on to the claim and this court has asked me to address the recent shoot the heel opinion so the sixth circuit clearly erred in relying under d one so heavily on more because it wasn't clearly established at the subprime time the state court was looking at the id claim which was in two thousand and four what they didn't say was whether or not he could still get  relief under d two and that's a question that's still open and and we know the answer to that question because of broomfield versus cain broomfield wasn't the case decided under the d two prong and the supreme court  found d two was met because they pointed out how how the state court findings were so clearly at odds with the science of intellectual disability on both i q prong and the adaptive behavior problem so are you conceding th want to i think i would have to concede that we would need to prevail under d to but i think its expression appropriate in this case because of arizona statute which is actually good in one respect it talks about the necessity of following current clinical standards the lower court acknowledge that it must follow current clinical standards it was provided with the user's guide from the a m r the diagnostic manual all the experts acknowledged at the trial court acknowledged i must follow this and finding current clinical practice it then chose simply to ignore clinical practice and that's why it's so unreasonable because it  know you know since from age nine to forty eight mr roomers has been given five valid test of intelligence intelligence each of these scores qualities qualifies him for the diagnosis of intellectual disability can  d which says that the statute begins to run on the day in which the factual predicate of the claim could have been discovered with due diligence now mr ramirez was evaluated shortly before akon on june eighteenth two thousand two it was then shortly after but that he became refusing legal built legal visits because of his cognitive deficiencies he could not grasp the fact that we needed to have more mental health evaluations he was hostile to having more mental health evaluation if you look at the actions case he so told every single psychologist who saw him i'm not mental it was important for him not to be seen as intellectually disabled it took time and trust to be able to get him to agree to another evaluation that evaluation happened in july two thousand and four as soon as he came back with a score within the range we immediately  you would immediately know on the date the supreme court issued its opinion whether or not your client qualified for relief act and it's not that easy an expression here when you have a client that's refusing legal visits that's you know not amenable to another mental health evaluation for quite a while and you have the trial expert purporting to you're not reporting to he ruled out intellectual disability now we know that that was faulty but at t the early days following actions we did not know that in support of your martino's claim you point to a number of things which should have alerted trial counsel all of which were still there and known years later so  hear your argument i guess i'm more interested i'm less interested in the within one year part and more interested in equitable tolling or even a relation back because i got to say it seemed like a hard sell to say that there wasn't enough to be on alert within a one year to do something well before something was actually filed well in terms of equitable tolling i think i cite two cases on this yes we were and it's also must be remembered you can't say someone is intellectually disabled based on i q alone you have to have adapted behavior portion also but in those two cases they said you know counsel it was not facially unreasonable to rely on these prior i q scores to think that they didn't have a viable acton's claim we did not just rest on our laurels but it was mr america's cognitive deficiencies that were preventing him from understanding why he needed to have more mental health evaluations those legal visit refusals came right on the heels of his first visit with dr weinstein but wasn't there so what's the was a fair amount a year a year and a half yes you know it makes me a little uncomfortable discussing these facts because obviously there's some attorney client privilege involved here but if you look at maurice equals  declaration she had the same problems that we were having getting him to understand the peril he was in and just you know because of its cognitive to deficiencies he wasn't understanding the importance of what medication meant and why mental health evaluations were so important you know about thirty to forty percent of the intellectually disabled go undiagnosed so this court should be disabused of any notion that  as a lawyer i would meeting with him you know whether or not he was intellectually disabled there's something called the cloak of confidence which even respondents expert admitted was involved in this case it was very important for him not to be labeled intellectually disabled and that's counterintuitive for us knowing that that means he would be relieved of his death sentence it's more important for him not to be seen as intellectually disabled i have a sort of out of the box question somewhat claim about whether exactly about whether the death penalty can be imposed ok so i'm just wondering about exactly how the at the time even appl another words and the answer may be that because because for example when you have a mental health if somebody is claiming that there they have and the insanity reason for not being executed that i assume doesn't arise until it's time to execute i mean big because you can change that the difference may be that this theoretically doesn't change but i still but it's still a claim about whether he can be executed because of his condition not really whether he can be sentenced to death as such i see what you're saying and that is an interesting look at it i hadn't thought of it that way but it makes it worse is very interesting extended until the state is actually seeking to take his life and therefore that's why i'm wondering it would become ripe only then whether or not he was intellectually disabled and i think a lot of courts you know they've allowed actions claims to be filed ten years fifteen years because i think everyone recognizes when someone has an intellectual disability it's ineligible for the death penalty procedural rules need to be relaxed and fact the federal courts have a policy of this  civil cases and the lake the arnold case i cited that procedural rules and statute of limitations should be relaxed when we're talking about the intellectually disabled and the case of simon versus your drive this court for a determination on equable tolling about intellectual disability and his the court ended up pulling five and a half years because of intellectual disability and obviously that was a play at the end in this case we could not get him to understand why he needed to have another mental health yes i believe that's true because the court can make a decision on relation back on the record and i think it's important to remember that male the felix did not address the unique situation that claims presents it makes sense to have a stricter relation back analysis for legal claims and facts that have always been there since trial but akon simply doesn't present that situation he could not of resists in his after the initial amended complaint is filed so i think you were just saying that also the component that says onset before age eighteen doesn't suggest that adkins addresses the deteriorating condition i've never sat on but i've seen or read about the kind of post death warrant claims what is the person's condition now and adkins is before that so i'm not sure how much change there really is that has to be taken into account if if if part of the requirement is it is before age eighteen right it's a developmental disability but it's life long so he would have those problems throughout his life so if you've proved intellectual disability it would be a matter of proving how it affected his ability to work with his attorney first but at that can't be relevant to the feelings v question it could be relevant to the maybe to the one year and certainly to the agreeable tone yes that's true in terms of relation back he has an a claim about the failure to have mental health expert involved claim eight which the court found an exhaustive wasn't truly completely exhausted because it has always been alleged since day one and state p c r the sentencing counsel was ineffective in regard to mitigation so it would relate back to that claim that portion of the claim was exactly what one of the prior claims based on the fact that petitioner was intellectually disabled that's certainly something that relates to your i a c claim but it's also not really the focus of the i e c claim what claim does speak directly to the same fact you're trying to raise for intellectual disability while we were allowed to amend in the martinez claim which is a lot of alleges that counsel was ineffective for failing to investigate and show that her client was intellectually disabled the court allowed us to him and to add that claim which was premised on relating back to claim eight so there's always been alleged that there was either lack of funding or lack of counsel on mental impairments that can claim merely gives that a label and i would like to reserve the remainder of my time for but certainly good afternoon may it please the court i'm john todd i represent the warden in this proceeding i'd like to first continue the conversation with the atkins claim back in two thousand one the district court authorized the federal public defender's office to review the state court record that was long before the akon scase long before they act in scase was argued the document that has all the work that trial counsel had done on sentencing was available to them since two thousand and one well yeah but the trigger day is the date that atkins was decided right right but the point is your honor that the document that gives the the childhood i q scores the document that has all his his school records were available to ok but so what if the train if it had no obligation and no reason to file this claim until adams was decided so let's start there well the his expert his mental retardation  had the opportunity to see all this information ok so what so what yes expert saw him and interviewed him argument correctly you're sears conceding that the statute doesn't start running until two thousand and two actions was decided your argument is that at that point there was already sufficient information on the record to put council on notice ye i call tolling argument based on petitioners personal refusal to meet with counsel or to accept the proposition that he had mental deficiencies that some information but they certainly could have made a viable atkins claim a tad point right because they had did have to do all this testing they could have done the testing in two thousand point in the knowledge i mean suppose they had been very jealous and well let's assume that for present purposes that maybe they could take out the period necrophile telling grounds that the client would deal with him because his his intellectual disability let's just assume that so from that time because you seem to be assuming that so from the time that he did a seed to testing right should they have filed it then even though they didn't have the testing and couldn't the heaviest proceeding and gone back to the and human have come in and said well they don't have any kind of viable adkins clamored where's they adapt and behavior says they would have stayed which they did they would have stayed the case and gone back in developed it the more over the  have they had the opportunity to interview people during this year's period prior the district court was not didn't abuse its discretion in denying those three act in sri lated issues factually is different in time and type from and and because because the facts that support an akc imp's claim is that prior to age eighteen that he had that the defendant had substantial claim based on the failure of the trial court to authorize additional or to authorize funding so they are the they don't have to as funding but they may well have to do with the i didn't follow your are they don't they have they may well have to do with the trial counsel i see claim it's seems to me that the relationship between a substantive claimant and i see a claim for males purposes is somewhat of a one way ratchet that is if you have a subset of claim that doesn't has an overlap of the facts with the i if you're trying to later allege and i see claim that there are more in the other direction which and this seems to be the other direction that is there a saying well they had it nice she claimed that included the intellectual disability issue while you would have to prove up the intellectual disability to do the martina's review let me put to you a question similar to the one i put to the petitioner's counsel as i look at the district court's order it recognizes the standard as being some merit similar to the certificate of appeal ability standard correct and the conclusion of the order speaks in terms of procedural default correct i see no mention in between of  applied the lower certificate of appeal ability standard and i have to say if that's the standard that applies i've got some difficulty with that some fair minded jurist might find some traction where the no fair minded jurist might not find traction it seems to me the district court spoke of it much more in the novo terms as the ultimate he including there's not merit to the argument but that's not really the standard that applies under martin is it i believe what the court did was he looked at the record and found applying strictly says strickland the novo found there was no merit to the claim and the story well so that means that he didn't decide in martina's question he decided the merits even if what you believe in if i assume that because i know your time is limited i'm going to push you down the road a little bit if we assume that's what happened and i can understand that although the conclusion doesn't speak in those terms don't we have a problem with regard to no opportunity to at least request or explain why evidentiary hearing is appropriate because there was no eviden hearing to speak to those issues that is correct there was no evidentiary hearing but the record was fully developed because what you're what you're looking i mean because of district court pointed out that what counsel did given the circumstances given the fact that the county the defendant was uncooperative giving the fact that the defendant had told his family members not to cooperate given the fact that she had to suspend subpoena the family members that testified to the sentencing hearing  that she had gotten all these records that were available the the new evidence evidence which has been presented some of it was stuff that  would have known and didn't share some of it most of it is simply information from family members who he had encouraged not to cooperate  there the the evidence the additional mitigation was minuscule compared to what she had presented in fact it able to get the trial court to fine g one which is the strongest mitigator statutory mitigator in arizona a finding that he that so she all this additional mitigation which is in in the record and proffered by declarations doesn't overcome the aggravation in this this case know no reasonable sense or would find that it did given the the double homicide which is heavily weighted in arizona the f six cruel and and heinous types of of the murders and his prior dangerous felonies violent felonies understanding your argument here you're basically saying the state was content with the state of the record  a procedural default we just have to worry about that i respectfully disagree i'm sorry why is because with the court found was that martinez did not release exist i mean it's it doesn't i don't understand how if you get to the merits of the claim where we're still going to put it another layer on top of it is the problem in his order is specifically recites on page five of that order page seven of the record what the standard martinez standard is it's some merit or and does not apply that standard thereafter and so we can reach the merits the standard for petitioner is much tougher there the standard for some merit is much easier and so that the but he doesn't offer a conclusion based on a sub merit standard so i'd but if we're going to go to the merits and the tougher standard for petitioner i don't think we can claim to procedural default distilleries and for not taking the case up if you think we should take it up under procedural default then it's your task to defend his conclusion based on a some merit standard that his order never speaks to well i guess the way that i'm can clear that without clearing the ultimate merits issue right but we do want to have some common sense if the if it sounds to me like you want to speak openly straight to the bottom line treat this as a merits appeal right but doing that but doing that that doesn't only for the purposes of establishing that the claim is procedurally you can't do that because there's a different standard mean i care your problem i look at the district court order and i see the same problem because if we're applying a merits ultimate the novo review kind of standard that's very different from the standard we would apply under martnez procedural default yes that  is true there is a difference obviously it is true that it's easier for the defendant to the a b s petitioner to meet the martinez standard but the issue the  this generation has passed since this case entered the federal review process so you definitely do not remain and you look at what the the court did decide whether or not it means to look at what they are you know what he should have done if what he should have done is is a some merit standard i understand your subsumed argument is correct in the we can be efficient but we can't be efficient and cling to the language of procedural default because that's a different standard i agree with you if what you're saying is we can get to the merits and resolve the case based on the merits we would have an issue there with regard to evidentiary development and whether petitioner had a right to an evidentiary hearing but we're not stymied by procedural fault at least my problem  think my colleagues problem is that you don't want to let go of the procedural default issue and we can't say affirm with regard to procedural default because he's going to lose on the merits the standards are too different so if what you want is affirmed i think what you want us to do is take up the merits when i do want is affirmed and i guess that somehow just just a hunch  however this court yes there is certainly your business i looking at it i think through common sense i think you you could find it a claim is procedural the fault but you know whatever however you like to perceive it taught me in law school of the judge says you when you get out of the courtroom right i so you're willing to get out of the doorway right the only other thing i might mention is that the  concerning the claim the mcwilliams the dunn case does substantiate that there was no problem with the arizona procedure as far as federal separate claims we have claim thirty six and we have claim thirty eight and i'll put this to petitioners council as well because they were just they were treated by the district court at different times in different ways thirty eight seems to be the more overt atkins claim it came after the state courts hearing thirty six speaks with the same language in the same neighborhood it was resolved and in thirty eight was resolved purely on on time on his grounds thirty six was resolved immediately before the state court atkins hearing on both timeliness and merits grounds i take your argument to be well what district court decision are you directing us to with regard to the atkins committee ok and i'm a little bit confused but the we're talking about the last three issues that are uncertified right and i'm talking about issue four in the appellate br ok that issue four is the subset of actions claim correct and what is it that well i'm trying to figure i mean i got confused it took me a long time to claims claims numbers thirty six and thirty eight that seem to speak to these issues they were resolved by the district court in two different orders in slightly different ways so when i look at what we're just calling the atkins claim issue for in this court what is it your pointing is to in the district court's decision that we should be looking at to resolve the question put to us the question of whether or not the trick or to be used his discretion in not allowing that the at that amendment and the reason i pose this timeliness grounds and did not speak to merits it seems to me the discussion for the two would be the same so i guess what i'm really trying to find out is whether you think for practical purposes the district court relied solely upon the lack of time  ss in presenting that akon is claimed a federal court or whether the district court was also relying upon a merits analysis i believe it was  lowering the higher score by five points because of the practice of fact he considered the  adapted to invest in that behavior yes thank you thank you he considered what the the there experts found both their experts the court's experts the state's expert all use all reviewed the prison records under arizona law at the time that was that was proper well but from thought for example said that test was not sufficient number but accounting for the margin of error from fail to report i q test results of seventy five was clearly in the range of potential intellectual disability and that's just that's not as i understand it relying on all of it just just applying a factual analysis under d two is insignificant unless it violates the constitution somehow enters into the proving up a constitutional violation the constitutional violation that that we're talking about is actions as it was aside in two thousand  in regard to the martinez analysis opposing counsel characterize the new mitigation as minimal i don't think it's reasonable to call intellectual disability and brain damage minimal new mitigating evidence  he talked a lot about ramirez's lack of cooperation if you look at the porter case he was described as fatalistic an uncooperative that does not abstain counsel from having an independent duty to investigate mitigation and terms of the g one statutory factor that the trial court found it was primarily based upon drug and alcohol use now the case law talks about how some fact finders will discounts this because they see it as a matter of choice to use drugs and alcohol intellectual disability and brain damage are not a matter of choice they're something that you were born with and it is haron lean more mitigating than drug and alcohol use can you walk me through investigation i think in terms of diligence you have to remember it wasn't just you know a mental health expert returning a higher i q score of ninety four he in that report said this score is in no way indicative of any form of mental retardation so you know it wasn't apparent at the time that he hadn't seen those childhood i  memorandum you have a difficult problem can suggest on the one hand that the trial lawyer should have gone further because she had the other i q story scores but the lawyer should have got for that can't be well we were presented with two different scenarios well perhaps but let's assume for the sake of argument that there was sufficient on june twenty fourth and july i think twenty eighth or twenty ninth when dr weinstein i q tested him because that's when the duty would be triggered to go investigate adaptive behavior when he came back with that seventy i q score and you know contrasting with what dr mant mcmahon had said about i q so that's what i would ask for equitable tolling i see that my time is like a twenty ninth which are two thousand and four no that there was about a year between the time that he did start talking to lawyers again and agreeing to see the experts when this last question was tried is that wrong so there's about a year where he kept refusing legal visits would take some legal visits would refuse others one year but we have two years to account for right there was a problem getting him to agree to another mental health  and absence of any indication in the record of that in terms of the time period and also indicating that if we remained for that you would be prohibited from putting that in the record because the attorney client privilege true there's  not sure i know what the parameters would be of what that hearing would look like i think it's you know the fact of the matter is akon says intellectual disability prevents rational communication with counsel that's what was happening here i don't think we need to delve any further than that i don't think you can do that if you're talking about a timeliness can claim i think you have to have a time period involved that prevented the presentation of life but let me move to one other and didn't want to further of attention here we have always ask for further evidence or a development however standing here today and hearing him say that he would be happy to stand on the record as fully developed well i would be happy to stand on the record as fully developed if you granted me relief on the merits i do not want to wave a factual developmental to the court is going to deny me relief i'm not i'm not asking to do anything today i'm just trying to figure out what was happening for the district court and appear for what i understood from your first argument is that you didn't have anything else that you wanted to present and you thought the state might want to contest ineffective assistance of counsel by the introduction of other evidence concerning the activities of the lawyer so what is it well you know dac instead hearing did not focus on brain damage at all there were no findings made about brain damage so  before we were would be denied any relief we would of course have the right to put on evidence of brain damage shall have but you have a report in the record about right that's correct and if the state is willing to stand on the record without the need for cross  examination that's fine for them in terms of our right to factual development before we are denied relief i would not concede that well actually i'm not asking about what you would concede or ok what you want today i'm just wondering it appears at the hearing that went forward on the idea that both sides wanted a decision on the merits based on the record before the core we had always asks for factual development  the parties agree though for different reasons the court should reach the merits of this claim the court does not articulate what it perceived to be the different reasons of the parties and the subsequent discussion seems to treat adkins issue which was two thousand and seven or eight and my question is was there prior to that time a request by petitioner for an eviden your arguments today and i could see you were all laboring under various degrees of respiratory illness so i appreciate your patience with him if i for questions weren't clear because of that wea