schonfeld let me just ask you a question over the years since ed put was passed i can't tell you how many applications for permission to file a nd or successive motion under section twenty two dollars fifty five i've seen in which the person wants to raise an ineffectiveness of counsel claim but then you go back and look and you see in the st two thousand two hundred and fifty five somebody did raise court in the country to my knowledge will always decline permission to file the nd or successive because there has been an airing of the th amendment claim which is understood to be one claim not the individual parts of it though could you tell me how your saying that that happens before and it trust me it really does happen in a lot of cases so i wonder whether you can point us to a case where against staying for the moment just inside the conventional tw five because obviously a six minute claim is a constitutional claim why that's not understood to be already adjudicated even though certain aspects of the ineffective counsel weren't aired sure i understand the question i can't point you at least standing in front of a court right now where this is and so but i think that the risks reaction on twenty to thirty five nd or successive  even if that's true if they are viewed separately and not as the same claims to pick up on judgments question are there any cases that you can identify where a request for his successive petition raising an additional or a new ineffective assistance of counsel claim was permitted where there wasn't some change in the law or constitutional reason that would allow for was doing a it's doing a fair amount of work as other cases including davenport and webster and so on have shown what i am having trouble to grasping is let's put the success of twenty to fifty five off the table i actually agree that the criteria are very strict and it's quite rare to see one of those quotes but what's the difference between an unsuccessful effort to show ineffectiveness of coun of counsel under a twenty to fifty five and one where there's no opportunity what the government is arguing is that mr pearcy through his twenty to fifty five council did have an opportunity it's just that he didn't win you know he and so that's one question actually another question which is suppose you won and there was a two thousand two hundred and forty one dollars and somebody wants to come along and say heaven forbid that you were ineffective that the twenty to forty one  would get another twenty to forty one round of the like keep doing this forever so answer your nd question st no i don't think that's the case i think the court was very clear in martinez and that the critical question here is whether you have the premise i think there is a dispute because he could have brought these claims in his initial twenty to fifty five his lawyer just didn't exactly and i think that that's exactly where we got to the a presentation of their constitutional arguments the vehicle of course for state prisoner being twenty to fifty four so maybe you've had a couple of rounds in the state court you know but procedural default and the like are are excused in the case of a twenty to fifty five dollars it's a more compact procedure if you will you've had your direct appeals then your motion under two thousand two hundred and fifty five dollars is the congressional substitute for hay vs corpus for federal prisoners for reasons that all understand and so in some ways each of them is looking at that st opportunity to present to the federal district court whatever the arguments may be and you know again maybe when maybe you lose maybe you've got a good lawyer maybe you're not such a good lawyer but where do you get that you did it's not a real opportunity unless you have effective counsel well so a couple of observations or couple of points here i think st up is the court pointed out collateral review counsel i don't think it matters whether that since we're federal court and for reasons i just explained i think it should be even more permissive in federal court but if you didn't have the opportunity to present a cla to martinez and trevino they cover not only an effective counsel but if a defendant brings the claims him or herself and doesn't  assume you would say the same would apply here that whether counsel is ineffective or the defendant didn't bring the claims then they wouldn't have the opportunity for the st round of litigation and post conviction so they'd be entitled to a are based just on a gut feeling you know obviously death it's different in the it's permanent but we look at it a lot for something that we can understand as a limiting principle and i'm i didn't pick up from your brief that you're saying now that you think the statutory right to counsel for a death eligible or or a person who is under the sentence of death is a way of distinguishing this case from the great mass of other twenty to fifty five wait but it would be a little different than that it would be one opportunity to raise any all issues ineffective assistance of counsel because he already had one very detailed treated the same if we take that premise then how do you respond to what judge would asked earlier you're arguing that death eligible defendant should get art defended to have been sentenced to death should get one opportunity for all claims to be addressed he had his opportunity in the twenty to fifty five now you're asking four hundred and eighty two two thousand four hundred and twelve raise additional claims of ineffective assistance of trial counsel what about to limit this to death eligible defendants or defendants who have been sentenced to death you get to twenty to forty one dollars through the savings clause and twenty dollars to fifty five dollars which says that the remedy of the motion has to be inadequate or ineffective to test the legality of his detention right how i link you up that language i don't know how you would read in a death penalty but that doesn't help the plain language of the statute that might be an applicable reason to do it but if we're trying to trying to differentiate for purposes of the statute and fitting this in a savings class case well so i think one way to do it is to jury selection process though in the preview of the questionnaires you have an affidavit from one of his attorneys but not the other so co counsel split things up all the time did the other lawyer look at the questionnaires and they would lose it would be just like the adams case from this court and the clay would lose what about going back to martinez intervene you know though and saying that at least in death case that remember the rationale that the supreme court was looking at was the thomson case because for a very long time it had been understood that you didn't have a right to counsel under the th amendment or anything else in collateral proceedings and thus you couldn't complain about ineffectiveness of counsel because you know if you didn't have any right to counsel at all there was no such right and the court took another look at that in martina's intervene you know and it says essentially well in these states st it was the absolute rule then there was the practical impossibility extension trevino in these states your st shot is actually on collateral review and ineffectiveness of coun is is a fundamental claim so you can bring it then and if it's unsuccessful you can go over to twenty dollars to fifty four dollars without being faced with procedural defaulter and other problems  you have to find a right to counsel to begin with before you can start complaining that in fact if that's correct your honor and so i think that goes to what my next point was going to be in what is the right to counsel that comes out of those cases and the supreme court clearly says it's not a constitutional right to counsel instead it's something based in equity and as an act basically i think of it more in terms of not a right to counsel rather an equitable room and as an equitable remedy it allows for what would be procedural be faulted claims to be heard for the st time in federal courts what it really does is open the door if you otherwise defaulted claims to federal  indefinitely so how do you respond to that in terms that i didn't understand that to be that the gist of the argument in the three ifs so i'm giving you the opportunity to respond to that in my answers creation a limiting princip and the reason it doesn't create a limiting principle is one of the supposed to sources of this right were not death penalty case martinez ramiro as in the other cases largely they're not death penalty cases so whatever this equitable  is required it's there for all definitely but in fact it's the statutory ability to appoint counsel so is there any way to police the effectiveness of these counsel under the statutory right you're talking about or can somebody just you know throw a brief or to win and go to sleep ineffective in lots of ways sorry you're on but i think going back to sort of what i wanted to make in feeling out the right to counsel is that all twenty t who's in a death penalty case and so pointed by pursuant to statute if the cure is not giving somebody access to twenty to forty one because of the savings clause you know the safeguard was put in there and it broke you know the facts show that it broke so that's not it then what is it in your view you just it's s just tough luck and it's not really a real safeguard or is there some other answer well i think  that's pretty harsh that seems to me well i do think there are other people remedies and i think you're really talking about there being some procedural ball or something about council performance created a procedural bar essentially that what i'm hearing you say is that if counsel is appointed for a twenty to fifty five and the lawyer let's say doesn't spend five minutes doing an investigation doesn't read the record just kind of shows up it in ways that you know that the failure to investigate for example the supreme court a number of occasions has called out as a way that performance can be constitutionally deficient seems like wigan's against smith there's some other cases that have held that i don't remember all the names right but it's a common holding so that happens and the failure to investigate also means that a potentially strong issue isn't brought to the court's attention and seems to me that would be prejudice as well so that looks like strickland satisfy but you're saying well the person has to be turned away when they try to get some relief because you don't see how this fits within the savings cla claims seventeen of which were ineffective assistance of counsel and i think six or seven were which were some of the particular issues that are being brought in this case creating a mitigation when that was  circuit still considered when that was mean obviously our system is only as good as you know a fair and impartial judge a fair and impartial jury can be it seems like a very simple measure would have been enough to reveal this match between juror thirteen and the victim in this case and it seems that there's a very strong chance that the judge would have granted an appropriate motion to juror would be stricken in the circumstance all of them are stable never really had the chance to develop that record because of this but we do know these facial similarities which might have called for more in depth for deer and more in depth examination but at that point your honor we're getting to the question of trial strategy and why don't you know why would the trial strategy be advanced by having you know a clone of the victim on the it had nothing to do with the jury selection that was mr de you can't problems and mr ducard this particular question doesn't show up in his affidavit is this was not an issue raised and so he was off into the issues that so from that question we know that he did look at that questionnaire but if you also look at the questionnaire there would be reasons why larger and thirteen would be a good you're looking from the perspective of mr purdie and you know we go back we go through this in our response below but she makes comments about she thinks that the number one cause of crime is having a bad family well mr pearcy was not contesting that he raped might be sensitive to the mitigation issue and so her similarity to the defendant really isn't an issue that's just but she says things that you could easily just on the face of it see that might be useful with regard to the h her on a jury and what is going mitigation point because another issue your opponents raise is that even after getting permission to hire mitigation specialist they st just hired some friend and the actual professional medication specialists really only had something on the order of two months to put a case together which is in death cases a very very short period of time and so now at the twenty dollars to forty one  trial i think there were eight witnesses called many of the same people that were called now today they say will the same people have more to say i think that is it is very much a matter of degree and comes with its own skepticism example now they say well mr purdie rather would say that he was physically abused by his mother and that wasn't testimony at trial but the issue of mr purdie being a physically abused by his mother sexually abused by his mother was a trial it was  can you speaking of the th circuit you made a big point in your brief about whether the th circuit law is the law that we ought to be following here which would be quite unusual or the th circuit law and i wondered if you could explain why you think that matters or which issue you think that matters to it's actually fairly narrow point eighteen circuit law should apply and the point is with regard to j the government's position is the only way to judge that is is with regard to the law that he was practice you know that because a forum shopping is concerned or what's the reasoning behind them well  the reason is is he needs to follow the law of the localities practitioner and if the law in that locality is that this is not a this is argued is that you know will be stuck with an infinite line of post conviction proceedings if we were to agree with mr pearcy and it seems to me the same could be said about the twenty  trevino except that it hasn't happened and there are devices to curb abusive litigation whether or not there's the any terrorism act so  i wonder whether that's really sound reason to make a legal decision to say that an avenue is not open to some well there's little difference between bringing additional claims that sound in twenty  there's no doubt about that but on the other hand it's a balance and to shut out a potentially meritorious claim that didn't get rates because there was counsel that was so ineffective and there was so much prejudice that the strickland standard doesn't really show up in congress's discussions at all so i suppose that's where the i come back to the question whether there is in fact any ex any reasonable expectation that you're going to have counsel or effective counsel in twenty to fifty five's most of the time the answer may be no but maybe in the death cases maybe they'll be some other kind of case the answer might be yes well and then your honor i think i mitigation that's already been brought in so he's had that opportunity understating scores about the opportunity to bring the claim and he had the opportunity to bring all of these claims there's nothing structural that prevented but we know  mariner's so now you're left with the juror thirteen issue that you cannot find deficient performance the law was on so and so all three know these three claims are substantially and so i do think