you all are aware we just have one case this afternoon an important case certainly all of you both of you are familiar with our lighting system and see that you have reserved five minutes for think it is important to initially determine the standard of review since this is under dispute by the directors this claim was not presented in king's initial state a b is busy petition but in his federal petition when the federal proceedings were held in to deferential standard review under and under twenty two thirty four d is that the claim must be adjudicated on the merits in state court proceedings which is claim was not the director has argued that this claim is exhausted  an issue of what our standard of review would be on an exhausted vs non exhaustive queen judge southwick yes there is some authority in a standard you cannot be waived even if we say it cannot be waived we're still with the issue of the stoppel because the district court relied heavily upon the argument that this claim was an exhausted in the district court so even if we leaving aside the waiver argument we have a an issue here the stop exception to procedural default so basically there was no education in the state courts on this claim the director has tried to pull out two other claims that word decide on the merits of the alibi claim andy failure to present an insanity defense they have nothing to do with as this does things are not under consideration here as this court has already ruled but so we have no we have no state court determination to defer to  and so there's nothing here underlying there's no difference here we have we review this to no because a subsidiary claims here are not under review this court has specifically excluded them from the ceiling a standard so the basis the factual basis the alleged actual basis for the actual innocence claim that's different from the alibi well the alibi was presented in three sentences in the state petition it does not go to actually it goes to a failure to preach to produce a witness for an alleged alibi which was never produced it was the the alibi defense had we  singled out five main failures that the stink were singled out that the c c a singled out in the opinion as pointing to mr king's guilt and we've we have shown that all five of those could have been effectively challenged us by the by the defense so the alibi defense here is not really under consideration it's a three sentence throwaway claim that was never developed it was never never never any evidence presented to support that claim in the state court so that's why they're saying that this is and it's been held by even the district court held as to that these were separate claims these are not under consideration here this court has held that they're separate claims and they're not under consideration here and  this case into the holding award versus stevens where words a case where the evidence presented in federal court was substantially overlapping duplicate the evidence presented in the state courts and that's not even remotely true here there was nothing except these two claims that are not under consideration today disclaim was not presented in the state courts so we are left with the no review and the exception to procedural default under martina's intervene y unless there's any other further questions on exhaustion i'd like to move on to the two argument the this is another argument not presented in a district court let me ask you about the eight two because the e two issue matters only if there was evidence that matters that was available but wasn't presented to the state court right and so what is that evidence what is the evidence that mr he thought believe it was should have presented in the state court that he didn't that would make a difference in the outcome of the case and the hades case those those are those are strict strickland noble review arguments which is the for instance the deficient performance to the federal district court that wasn't presented in the state court and in my view this issue of what to say to mean it doesn't apply in the martinez context and all of that matters only if there was evidence that he should have submitted and didn't that would affect the outcome i'm asking what is that evidence like what witness what document what that's what i'm asking what is that evidence that matters that changes the outcome that he the cigarette but it has to do with their forgetting that the cigarette was was not conclusive as to bird and he or i but you can go to the trial record and argue that you don't need new evidence so i'm looking for what is the new evidence not in the trial record this not in the state court record that should have been part of the hay vs record but he in effectively didn't put it in there that's what i'm asking about and i'd like you to tell me what is at is there's plenty of that evidence the it includes evidence that this was never a racially  motivated crime the there's evidence here that things can never tried to recruit anybody to this allegedly says gang after his release from prison we have evidence here that he hadn't sat so that's a witness so about that the witnesses me again this is what i'm not looking for general statements i'm looking for this guy or this document or whatever we have evidence here that was prejudiced by failure to present the evidence relating to his desire to move to georgia this would be from his natural father samuel ray he had plans to within months of this killing to moot that was never presented never investigated even we have evidence that was not presented roy he was the he was a witness that could appear that did actually most of the tattoos he was not called at at the trial john moseley who was did not really do most of the tattoos however roy  manners and whatever dark spaces aurora and lower about that so who is being hung you want to make a question through burned long i suppose yes who that is on the tree you thought could have been disputed well that could have been this but i think there's a lot more important things that could have been disputed however the we have evidence that the well the sandals were really never developed at trial i mean i don't know if this one say this record based or not record that this isn't talking about somebody who has a size eleven feet and we're talking about a size eight shoe this is within a half size and we all now i there's very few people i know who have exactly the same size in every single shoe they wear so that to me this s alibi challengeable well we would like to challenge it but we've never been given discovery or an evidentiary hearing his alibi was that he was we don't know who it is or who you know why it's reliable or anything then an alibi because the yellow by was up until one am he was in mr parks house and these events occurred well after one am we have people they left the apartment at around one thirty  but to continue the d n c to your question judgments the the they could have called the king's initial a turn around a walker who could have confirmed about the giving king the evidence which described the sandals as having a dark brown substance on them he disclosed never fall that this was important because the letter from king to brewer was taken as very incriminating because it said you know i don't know if my clothes have a dark brown substance on them so this could have been cleared up by around the walker telling the jury that this is indeed was was not king's words but these were a description of doubt that same letter says a thing about being proud of it  you want to highlight that letter and nick and put it on one part and then they got this giant thing that don't go we went over again well that is doesn't necessarily have to be construed as a as a sense of mission of anything i mean certainly king had racist views nobody's disputing that and but what he was and this is i think gets back to the whole failure to present the series that basically which i think is very supportable that this was never a greasy crime in the first place as was the backwoods drug deal gone bad we have sean berry using steroids we have evidence that mr byrd was dealing in drugs and no evidence that he was dealing in steroids that is correct then that's a problem because not all drugs are the same and so byrd had some other types of drugs but he wasn't in steroids so how could this be the steroids deal gone wrong well he barry was interested in weight lifting his weight lifting equipment and you are this is something that basically brewer in his statement confirms that there was steroids use going on here liz berry said he didn't know that his brother was involved with steroids  birds connection and that that's the hard part and i think you have some evidence of steroid use by some of the alleged wrongdoers but as far as burned i don't see that i don't see any indication he was a stereo or had anything to do with steroids i'm sorry i think that's i think i've covered most of the evidence that could have been presented in support of the innocence claim here there's also evidence that originates from the trial record that was not developed here by counsel would such as the shoe size the cigarette was mis represented by counsel i think they didn't really understand that it did not involve birds d n a certainly the plan to relocate to georgia is as important the cigarette lighter for instance also could have been shown to be freely available to anyone in the apartment that night through americans mcneely russell brewer says that he took the cigarette lighter  there were lots of things found at the scene of the crime that for instance seedy belonging to louis berry was found at the scene of the crime law grants belonging to the very own was found at the scene of the crime there are lots of things here that could have been done to to discredit the these states claim here that this meant that thing was at the scene of the prime let me hear how you would use each to in this case despite the case flaws is already there we it allows if cause and prejudice is shown of that before an exhaustive claims to be pursued but just looking at the statutory language i am at least open to the argument the state is made of the ineffectiveness and on the merits of the of the missing evidence in this case is a particularly poor case in which to apply to for many reasons the cases relied upon by the director cohen has been holster and williams versus taylor they all predate the exception under murkiness trevino cohen group in holster for instance is is really not a political where there's been no education on the merits the supreme court is very big on saying they're the ones who get to say their precedent has been overruled by subsequent precedent and if they don't say it if they don't say in case number two that case number one is now ruled or partially overruled we the fifth circuit or other circuit judges are not acquit to do that so we have to follow the precedent until they say even if we're reading tea leaves correctly they still don't think we need to be doing that that's not our role so we are bound by the statutes language and these cases unless and until the supreme court says oh we now expand martinez to also cover eat to right yes and i would note in that vein that no circuit court of appeals has adopted the director's reading of the two they have tried this in various cases i think this is an argument currently under consideration does being court in the carla say yes this case the court may want to relate wait for that determination but this is a much less justice overturn don't you i third twelve twenty six and twelve thirty one thirty two they really do say that the and they go along with the ninth circuit in dickens and dietrich that basically eat two does  now is it possible that this evidence you talked about say burn bombs testimony could be used to prove that martinez causing prejudice but then excluded to consider the underlying claim of ineffectiveness of trial counsel wants the martinez hurdle has jumped no there aren't because it would make any sense to do that because if we're if you're having a hearing here all of the evidence would be relevant to the ineffective assistance of counsel because it was or most of it would be because it wasn't presented at trial so how could we have a hearing ever have a hearing and exclude this new evidence from consideration saying there's if it's a two step process when you're talking about ineffectiveness of trial coun that was not raised in state haiti is first you have to show state a v s was ineffective in failing to raise it and then you have to win on the merits of the ineffectiveness that gets you in the door to now consider the otherwise  barred claim procedurally barred claim on its merits those are two steps so why couldn't you say well you two doesn't apply to the martinez exception and therefore there we can consider the evidence to determine whether you are in the procedural bar is overcome but now we're here on the merits of the trial judge the trial lawyers ineffectiveness we have to apply to on it's all on its face well the it would make the hearing nonsensical  evidence it goes to a claim it goes to a very specific claim and effectiveness of trial counsel and the failure to raise that in state hey because that's all it goes to and if lp is a back it's a way of overcoming and otherwise and overcome a bowl procedural bar well yes but the i guess the point i'm trying to make is you're the if we get to the hearing here and it i think by the way we've shown massively ineffective assistance of state a b s council the a b s threat was basically some claims that already been presented on under active p o and some claims were not there was no evidence there was no evidence backing up the richest allegations here it was twenty one pages it was orally play plus you know the alibi claim for instance was three sentences so but if we get too late with we get to a hearing here it's on ineffective assistance of counsel but this evidence has to be no because by definition under mightiness tribunal it was not presented to the state court so it all has to be no so wouldn't it would make martin is to be in your meaningless if we were to add a hearing later on exclude is that evidence is not admissible under each too and that's what you're talking about and i'm not saying there's anything particularly and if i would disagree with you this a little bizarre to our door to be open on a martinez genial but then you must proceed with the record evidence so we were diligently presented to state court with all of this evidence in the state's excessive petition the state court ignored it the state court wouldn't even point counsel or i o p status in state when we went back there so we're saying that this is diligence under the main case that they cited williams resist taylor williams versus taylor the port explain that failure to develop the factual basis of a claim is not established unless there is a lack of diligence or some greater fault attributable to the prisoner or the prisoner its counsel they personally attack the state's case and king's current complaints before this court are nothing more than hindsight nitpicking in the many view of this though is that these new elements of of actual innocence family collapse and i figure with the other issue was but but issues here you going about how certain certain issues pieces of evidence were never introduced at all what was the significance of these tattoos the cigarette but maybe not d no does not go as far but the but the legal principle and ward is that when you're looking at whether something is is a new claim and you look at whether the legal posture is is significantly different and king's claim from the beginning in state habeas and here was that his trial counsel did not do enough to prove his innocence the alibi evidence just as you would separate out the cigarette butt evidence from the sandal evidence and make those separate claims you wouldn't separate out the alibi evidence because they all go to the same substantive legal claim which is that king's counsel did not do enough to prove his innocence and ward ward relied on this court's decision in andersen which said that in order to make a new claim said for a claim to be new in the grounds of ineffectiveness must be entirely independent from the grounds raised in state court and the grounds here are not and means any i kind having to do with the trial of the case is now exhausted even if it was totally not nothing to do with what's being raised now a journal i would i would submit that that it doesn't go that far for instance i think that a limiting princip on your argument so i think that if you have so a failure to investigate innocence for example that is clearly the same claim but a conflict of interest or a failure to investigate mitigation evidence under wigan's or certain things like that involve different legal principles and have different legal postures and so if you bring in new evidence of an effect instead of ineffectiveness for example that goes to a conflict of interest or goes to failure to to  investigate mitigating evidence then you would have it anderson called a one hundred eighty degree turn alibi of defense versus saying just trying to eat at the state's case and show reasonable doubt i mean it is it is a stronger version of the same claim which is you didn't do enough to prove my innocence one is you could have shown that all the state's evidence doesn't matter the other the new claim is that when you should have nibbled at the state's evidence but but they are basically the same legal claim which is that you didn't do enough to prove my innocence and so the claim raised here has the same legal posture as as the claim raised in in state court i mean we've had a ton of cases and he very virtuous every makes and i see crime i can't think of one that does and i'm sure there may be a few and almost all of them have something to do with should have done some different trial which goes to the question of you know getting me a not guilty verdict we do have the bunch on sentencing i agree and work and put those aside for the moment but we have traditionally kind of parsed those out by the basic subject matter of what you're claiming it just saying i see you didn't win my trial you didn't get me found not guilty enough to exhaust the well there was an alibi there was the insanity defense there was the you didn't talk about the cigarette but you should have brought in an expert witness on this point well i think your honor that the failure to investigate incense can be separate i separated out not only from the claims i already mentioned but for example requesting an incorrect jury instruction or fail and two to object to you to certain evidence i think those are all easily separated out but a failure to investigate claim is is i don't know what broadly i guess it is it's not a line you draw a circle often broadly as to anything that would have tended towards convincing yours that the person didn't commit the crime if you commit if you submit one of those but effective in presenting others all of it's captured in that one category of trying to show this fellow didn't do it and i'm i don't read ward as necessarily meaning that you pull out language  may or may not be directly applicable toward deceives me the better view of this when you're trying to determine if it fits within the case law of whether this particular ineffective assistance has in fact been explored by the state court or not that u v s something as different as i wasn't even there as opposed to attacking the circumstantial evidence that seemed to need to show that he was  there direct evidence of an alibi as opposed to attacking in various ways and circumstantial evidence that he committed his crime and his tattoo showing black people there was more likely he killed this guy but he seems to be qualitatively different in independent of the grounds for ineffectiveness middle below and the alibi is not entirely independent from from attacking attacking the other failure to get his tattoo means is independent of where he  tattoos and whatever your honor i don't i don't think so because it's not factual in independence because what what this case goes towards creating reasonable doubt it all goes towards the something to be legal claim this is how he has framed his claim lawyer didn't create it sufficiently create reasonable doubt mr king's killed that quote trial counsel failed to present evidence of king's innocence king not only relies on the same case law from state t v as that he relies on here he mingles his alibi claim repeatedly in the in his briefing as evidence that his counsel failed to present evidence of his innocence this court and its c e o opinion called the alibi claim simply an aspect of this larger claim that trial counsel failed to feel pain that wasn't my shoe that wasn't my cigarette or in that bird wasn't on the cigarette that wasn't my this is all kind of part of i won there which is the same as how i won there because i was somewhere else i wasn't but there's other evidence you need to explain that evidence because i i wasn't there these are all parts of the failure to investigate innocence claim now can i let me ask you this if we consider all the evidence  uming everything there's no prejudice here king essentially admitted his guilt to this crime and in his letter to the brewer where he says i don't think there was any blood on my clothes a person who is not involved in a crime does not have to think about that when he says we've made history we've made history doing what we made history killing james byrd jr the other way to read that there is absolutely no other way to read that saying saying that we're here to call walker to say i told him about the thing on the shoes well that but then that only goes to the sandals that doesn't go to that i don't think i had blood on my clothes i mean there is there is nothing to explain why somebody would say i away in this case and therefore there is not a substantial likelihood of a different result i mean i guess the problem is it's kind of hard to get around this guy he's saying you can't bring up anything new in a state  first rep's was a good lawyer and did a good job to the best he could and that's that's true your honor and i won't go too far into it in defending this mr heath but i will say that from the other aspects and in that letter and everything else he did it was clear that he did know that you could bring up outside evidence he requested an evidentiary hearing he spoke to the king about outside evidence and so that that alone misstatement cannot cannot justify the the  know that you do make a point and you reefing about various indications that he did try to develop additional evidence and introduce it on what you see is the significance in the decision on the  read that part of the opinion and maybe that's where the famous footnote thirteen years that both sides keep sign it did seem to weigh heavily on the court and an engine to me that and how will they want looking at this other evidence that you're talking about  if that evidence is indeed contextually fit at the same time doris we said in that letter he was trying to develop additional evidence that he wanted to use the not much of the panel was probably looking at the significance of that letter i think i put i think that's right honor that the letter says that and it goes on to say i've been looking into your mental background you know i need certain in information and the letter also indicates that king was refusing to cooperate with see throughout there that that he did recognize this as as a potential basis or at least recognize this this potential complaint he he uses he uses king's complaint about counsel's failure to raise evidence to bolster the the claim that counsel ships are that the coarseness of suit counsel the council should have raised and an insanity defense he says to all these things well king says that his counsel wasn't wasn't proving his innocence as as he wanted him to and so i think that from from the full context of of the evidence that shows that he was able to move it is king is unable to overcome the the presumption that he thought consider this claim and for to nothing allowed it until martinez chauffeurs decided to intervene you as well only your honor what the court did in martina's was it it applied an equitable exception to court created procedural  not change the meaning of it it did not rewrite that and what the court did in martina's with some it was very it was very specific it did not change the rule that attorney fault is imputed to to the petitioner what it said was for certain attorney fault we're going to allow that to because under cause i'm under the clause and unprejudiced standard now if you go back to williams what the court said williams was that easy to replace the cause of prejudice standard and it did and it replaced it with  and each to be and those are the only ways you can get around the failure to develop evidence now what king wants us to do is to put a c in here and to say well you can also get around it if you if you raise and ineffective assistance  the falls under martinez but martinez cannot rewrite the statute that way and this court should not either using the two itself congress contemplated in it that someone could have explicitly that attorney err error in failure to to develop evidence is failed that that that is the same as as the petitioner failing to to develop evidence  william says that that is what congress knew that it was it was codified in each two and this is now more complicated because because of martinez before you never would have had this question because you wouldn't of a of let these claims in the in the first place but while martinez could change the equitable doctrine of procedural default to allow these claims in it could not have changed the text of the two which williams tells us and unequivocally just as holland did that attorney error is the was was an act and it could not have it cannot tell us anything about what what congress meant in an acting at the end williams in fact has already told us but also marty has said there would be no it had  that is yet another reason why martinez cannot be read to change the meaning of the two expect you would agree with the suggestion to change made your friend on the other side it seems to me after martinez we were faced which i got the cases back which martinez has ears on account after martinez we are faced with how much further they would go and it it certainly seemed quite possible they would apply to a situation like texas where it's not absolutely so it seems to me at most and i'm not saying that for certain most of us but at most that may be where we are here wouldn't whatever to make of all this it's not for us to make this court has refused every invitation to expand martinez beyond what the court said there has been one court once who expanded martinez and that was an opinion by judge fletcher in the ninth circuit expanded martinez to cover what doesn't make any sense to to apply to the two here fletcher was only speaking for four members of an eleven member on backcourt in that case that is not precedent in in the ninth circuit and the case that king cites from the eleventh circuit says only the two doesn't apply to the cause and prejudice question well it's a tough world because the supreme court has made it clear they are the arbiters of their own opinions so we're not allowed to read to you please but we we're bound by him even if it makes no sense and then it's up to three court to square up its own precedents and make sense of it if it if it doesn't make sense but your position is and you heard his list of the evidence that he should have put on what is your answer to that let's let's take a look at that let's assume argue window that eight to does not apply at least in part what about the moving to georgia with his natural father testimony that ke intend to establish a racist organization because he was playing with florida because as as the evidence that we cited in our brief shows king had written over and over again that he intended to establish quote in the jasper area a  confederate the texas rebel soldiers of the more hundred anneliese witting or if you were not doesn't mean you don't care about where you came from but that texas a long time ago i still care about florida where i'm from originally so i don't know that it even would have have avoided this in the first place because it is directly contradicted by king's words and then the second point is this is this evidence has very little value because whether he whether he went and wanted to establish this organization before he moved or whether he would have changed his mind had he been able to move those where nothing about what but was in his mind and and what he was planning to do at that point in time doesn't show anything about his attitude about black it certainly does  not and that brings me does no no in that and that brings me to the right term bomb evidence i mean the thing about about the person hanging on the arm again you have his own words calling this my little n word hanging man i mean some teenage girl that oh well he was he wrote some teenage girl that and he also and he also said it to two other people and then my bourbon king says well yeah he brought on one tattoo artist but he should have brought on you know it was we talked about burma the key should make mealy testimony about the drug use and the lighter and then we did talk a little bit about walker and the brown stain so i want to talk about  the drug use as as as your honor noted doesn't do much because there's no evidence that bird dealt in steroids and the only evidence that we have that sean berry was was involved in steroids is king's statement to the media which is rife with falsehoods and breuer's deathbed rambling statement which this court which no court would put apply any credibility to there is simply nothing here to say that my my first argument to that is that i don't think there's any need for counsel to point out the obvious which is kesha atkins who i think is the same person testified at trial that the later was on the counter i mean she testified to that now what lewis berry testified to was that that same night the lighter was in king's hand and so and so having more testimony from kesha atkins saying going one step further and saying so that meant that anybody could could have access to it doesn't add anything i would argue to the trial and so i want to make this point clearly this court can bypass all of these issues about the scope of martina's but these are very important issues and they and they recur regularly and they make a vs they they make a vis proceedings much longer and much more complicated not only for the district court bug but for th than they need to be when when martinez has come in this court has an opportunity here to clarify the scope of of the martinez exception and i would ask the court to take that opportunity  what is a new claim and and and the standard for determining when the martina's gateway's open by by by deficiency which is that the the under raised i see clay must be clearly stronger than any claim actually raised in state court so those those are are the three issues in which you would ask this court to clarify clarify the scope of martinez but i also want to be clear that our case is not rise and fall on that king's king's i this this is an argument five has been c e o way grant that's just a jurisdictional thing i don't know that this that we're bound by that meaning we can't say well the rest of this stuff is really kind of the might be a little different but the alibi and well you've got to explain the cigarette but better you got explain why my lighter is there you got explain about the blood on the shoes it wasn't my shoes isn't that all variations on the notion of i was not there those weren't my shoes that i didn't one the one carrying the lighter i was somewhere else that's all variations on i wasn't there and therefore i wasn't the guy that committed the crime not really because  is but these other points all have to do with i one day or one my shoes i was the one holding a lion or a cigarette but i don't know how i got there but i didn't put it there you know that's all i was somewhere else that's all part of i was somewhere else is an at it's perhaps it includes i wasn't there but it doesn't mean that the i was was somewhere else that statement none supported for better or worse so i guess the point is you know i agree you don't want to make this too broad all i see cases are exhausted by the by having raised one on the other you don't make it too narrow well you have you talked about cigarette butt number one but not number two and therefore that's a new i a c claim so hat tell me your limiting principle where do we draw this line between just another kind of argument to support the same claim vs and new a different cl i think that i think the lines are even gone it's it was the claim to early raised in in the state court and there's plenty of cases on that point i'm forgetting them some of them now but i think was really fairly presented and therefore these ones you want talk about now certainly weren't part of the claim but don't seem to be a limiting principle other than just say unless you make one we don't need to worry about  you make one good argument about one issue and you're saying here he didn't make one good argument about the alibis remember to lie on all russia if that's what you're signing on to we'll get that what we're saying is that the innocence i a c innocence claim was not fairly presented as a court that's argument and i think that the record shows that if the alibi claim the the director is trying to hang everything on these two claims and they don't really much to do at all with what we're doing here other than the fact that maybe he would like to briefly get on to the two argument the dealer this year described martinez as an exception to the rule that attorney earth does not violate the constitution that is attributed to the failed to develop it so twenty to fifty four to does not come into play that's one of our main arguments here but as i said this is a particularly poor case for the implementation of the two because williams and really do not apply this case was never educated on the merits of state court we would respectfully ask the court to reverse mr art mr hockey both of giving us very thorough vision a lot to think