we've only got one case on the afternoon docket and you may call it normally in the crowd in my courthouse and please the court counsel mr carter for many years has tried to get relief based on the fact that he was subjected to numerous adverse childhood experiences that were never fully presented to a jury and that is why we're here really today is that particular  sense the question's going to be well how did how do we evaluate the district court's treatment of these claims after calling versus penalty because this court did not address pin allister when its decision was  which of cording to the court's decision did not expand the scope of his claims from what he presented as state court i know that judge sutton took issue with that is dissent but that was the holding that i think judge martin state court you can't add any evidence that you find in a b s to ok so there's my problem i've got all this i gotta have this mountain of evidence that we've obtained and a b s and i can't get any court to look at it it so the issue is whether or not he should be sentenced to death or so the fact that the district court applied a pinhole stor merely said to me well i've got this mount evidence i'm going to have to take it back to state court because i operated under the assumption that gets he was the rule gets he's no longer the rule so i try to take it back to state court using rinds versus we and in pain and stay in a bail the judge judge merz says you can only use rinds versus weber for claims you can't use it to exhaust evidence so he decided that i wasn't trying to exhaust a claim i was trying to exhaust evidence that is why we're here today because that evidence never got considered and of course but i without which claims were an exhausted and i thought the prior decision was pretty helpful to you on exhaustion right yes it was is totally helpful your honor ok so if things are exhausted then you it isn't that mean there's no reason to go back to state court there and they were on exhausted due to the effect of pinholes because panelist or says you can't use the get  you can't use the get see case to have the court consider evidence you obtain in federal a b s proceedings so they're exhausted in one sense decision but on exhausted purpose and holster that's correct but that goes back to my first question you're using panelists or is groundbreaking decision for you that will it allows going back the stay in a bay or is to go back and supplement the state court record and i'm i'm just not sure that's what it had in mind or your honor i think it's exactly what the supreme court had in mind because in rinds they said to the effect that we're going to have these stay in the bay orders because otherwise lead against are going to lose their ability to present these claims so we're going to have this procedure to me and pin holster did not in any way shape or form eliminate the ryans versus weber stay in the bay procedure for an exhaustive claims for an exhausted claims as so i'm going to i'm sure i'm just not getting your argument but the way i'm thinking about it is if a claims  exhausted that means you've raised what you're going to raise in state court and to the extent there's evidence for that claim you will of developed it and presented it in state court and that will be the state court record that pinholes is referring to and that's just the way it is saying is for those types of claims you can expand the record in federal court and the only thing that's left is a claim that's not exhausted and then you can go back and that's what we have here is we have a claim that's not if it's not exhausted then we can do a ryan stay in a bay because you pointed out that i think you used the example of checkers and chess that maybe maybe that was a checkers claim when it was in state court but by the time it got to federal court it was a chess can you believe that such a good line could not find support from any other judge in this court to this day i can understand that it was just such a good line but anyway now i have at least one other person that appreciated it so i'm liking your argument as well what i'm trying to get to is is either it's exhausted or it's not if it's not if it is exhausted i sixth circuit said it was then judge merz should have considered all this mountain of evidence with it inspired to pin holster and the reason why now he could have done that is of course more teen is versus trevino because trevino specifically shows the judge batchelder was wrong in more versus mitchell when she said that well we can't really expand martinez beyond the specific holding in privy no says now you can't so if that's true what we do is we go back and we say to ourselves it's a defaulted claim is are causing prejudice and there certainly is cause state court collateral counsel as i've argued for years gallagher in arnstein failed to get this stuff into the record and they had because i that the remain an order was complied with when the case went back to federal court the federal district court or that it was not complied with or the remain on it couldn't implemented i believe it's that the remained was not implemented as this court vision that at the time of its decision that's because of pin holes or pin holes there is a sea change it came back it changed it's the controlling authority now and i think that because of that the law of the case doctrine wouldn't apply and they didn't really and in mers was in a position where judge merz had to follow pinhole stor despite the fact that the six circuit said this is only looking at claims being exhaust is not looking at evidence he's me making a distinction and that's what we have today is we have this distinction can rise vers webber permit exhaustion of evidence judge merced says no the ninth circuit says yes the case went back and you agree or least sounds like you don't disagree with the legal accuracy of what the district judge did but you've now taken on the peel from the district judges rulings that that you want you want us to try to fashion some kind of relief that would get the case back to the court so you can you can them for you can avoid the effect of pinholes that is that even worthy of further consideration and it's your argument that the terminations was made the last time the appeal was here and because of the three man instructions from the that judge my own presided or us wants to make some new determinations i think the court already made the determination that this evidence should be considered that i mean this isn't just some useless  mountain of evidence this is in fact an entire life history of adverse childhood consequences your honor it's what they call a trauma narrative and the fact that the trial judge in this case rejected the request for it for a life sentence because they did the trial lawyers didn't present trauma narrative they didn't show how mr carter was corrupted by his family and other influences the point where he ends up being a person standing in the courtroom charged with death penalty murder carter's history is just horrible head injuries kidney were injuries he's had swollen up his fathers beat him saying to him say i'm not your directions from the last time you hear of that the if the that the district court should of sent to matter back to stay court pursuant to those remain went back last time this is some sort of new appeal of sorts what procedurally what it what do you where you procedurally in terms of how your posturing this appeal now is that the judge didn't follow the re man instructions the last time we were amanda and you're appealing his failure to do so is is i don't want to put words in your mouth but is that is that essentially what you  with are you first of all that he failed to follow the court's instructions in consider all the evidence he applied pinholes that was that was what he used to say i don't have to follow the six circuits instructions is because pin holes are came down and from i understand a lot of the cases i believe judge merz is right because all the sun the supreme court says wait a minute the discretion box isn't this big it's this big and the evidence that you say the district court did not follow was that you're saying that that pursuant to the camel's remain an order of the district court should have to sort of all those yes unfortunately i think of it dead and it granted relief that we would have been right here instead of me being on the appellate side mr madden would he be arguing that the district court should have followed pin holster well i guess i'm the new judge to the case but i guess maybe maybe there's remaining order can be complied with and if you're saying that that sounds like you're throwing in the towel i'm not thrown in the towel your honor because even if pin holster changed the box the size of the evidence that could be considered the scope narrowed it which is extremely narrow now that that's not the end of this claim because state court lawyers are the cause as to why that evidence wasn't in the record in the first place and obviously there's prejudice because this is a locket violation and the juror and jurors were deprived of you know factors that they could have used the term whether death was appropriate sentence ok so you're just asking us to reiterate or clarify our instructions and re man with instructions to or where that's what we want we want we want to give the state court the comedy it's do we want to give them the first bite at the apple that's what we're trying to do here the what's the precedent postponed holster that allows you to do that with a claim that's evidence conway versus how judge merz did it in that case no six circuit or u s supreme court no i don't have any of those other than gonzales versus what gonzales yeah that's in the brief it's the ninth circuit case that says you can actually do a stay in  with respect to an exhausted claim yes ok i get a look at it might in my perspective your honor given the amount of evidence here i think i think judge that may be right we do have chess we don't have checkers it's completely different ball game with this evidence that's been excluded dupe in holster and therefore it's a new claim that it would be and that's how vazquez versus hillary used to work before it was moved off the charts so we would ask that the court reversing remand back to the court and telling the court that ryan's versus webber allows stays in this type of case because the evidence is is so substantial that in fact it's a new claim as opposed to the claim that was discrete claim it was presented in state court years ago by state lawyers look at more verses michel judge batchelder didn't consider whether pin holster could be ameliorated by rhinestone didn't consider that at all doesn't even mention writers with not opinion so i think that that a court from considering the evidence that they that the court should really think that i think you're right i think comes after panels dermot's the same year but it's december and so it looks like it looks like pinhole just before so you're that's a case we're reading they what what can get lost here is that go back in look and and it is the most thorough metal mitigation investigation you i've ever seen in any of my cases and any cases that i've read coming out of the six circuit it is he interviews friends he interviews siblings he interviews the mother he interviews father stepfather aunts uncles everybody anytime anywhere mr carder had gone to a hospital he sent letters to along with releases saying please provide any information that you have so you making the point this is in the state court record already this is all in the state court record in the point i'm making is that an ineffective assistance of counsel claim focuses on the investigation in this case there is no question about the investigation conducted here so going back to state court on evidence that was not not present that allegedly was not presented during the hearing has nothing to do with the investigation that was conducted here there was a thorough investigation in this case you're not have to go back and read the the expert testimony he touches on everything i mean this is of a huge amount of evidence papers about and he touches on all these different parts whether court record that already exist and the record that carter would like to create now i think that's what i think it would be nearly identical or things that were found i think there's a big difference between a duty a reasonable duty to investigate and an obligation to find there is no question we have a reasonable duty to investigate here they should call the bush's in checked all the regular places and came up with a very comprehensive well informed mitigation strategy now has there been some other things that have popped up here like he's got brain damage and things that that have popped up since then and federal court yes there has been but it's not due to the attorney's failure to investigate the attorneys had experts this guy was evaluated mr carter was evaluated for competency he was evaluated for an injury the the doctor shop own who is who they are attacking interviewed those prior psychologists and said he would tell me what you have what are you what do you think and then came up with his own diagnosis of mental retardation borderline mental retardation and also drug dependency so he had a thorough investigation he had the diagnosis is now are there other doctors willing to come back later and say hi i've got a diagnosis that that you guys didn't find in state court yet here's what i think yes there are there have been people who have come lately but that has nothing to do with the ineffective assistance of counsel in state court that would be fine in the in the record this one took examination oh sure i can give you a cite and the way in which it was used by counsel sure proceeding yes or now i'm the this case has been done a little differently they follow the all the records that they are relying upon with the six circuit so i've got that site record twenty information that dr shapiro mre lot upon surrounding all of those those two documents are all the interviews i think they come before they are that it's but basically record twenty four and record twenty three most a record twenty four in the latter part of a record twenty three now what happened previously that i think that the man order was pretty clear  when this court heard this earlier it said that the claims were not defaulted and were exhausted in the languages in so far as they relate to the preparation of carter's mitigation expert in the failure of carter's mother to testify those were two because of the thorough investigation here postcondition counsel instead of saying there's a failure investigate here which you couldn't it could never prove he instead was like well dr  testimony wasn't that effective and two they didn't call mom to testify they should've called mom to testify so if they were they were nit pick instead of saying a total failure to investigate they were more nit picking about specific ways so this court's found that those two parts of a larger global ineffective assistance of counsel and mitigation were exhausted and then send it back quote for the district court to determine in first instance whether carter is entitled to a writ based on his counsel's performance at the mitigation stage of the proceedings that's pretty direct and i think merged judge mer the united states supreme court decides calling vs penalty and calling versus pen holster change the changed a bit the d the way d one was interpreted in this circuit before d on a grand jury question like can you when you add a bunch of new evidence to a claim do you fundamentally alter the claim making in a new claim that's now on exhausted and the supreme court said well it depends on how much and you know it was more like if you had a little bit not so much but if you had a lot you do and basically that's the way d one was interpreted in this circuit prior to first it's the nz and the only things that were exhausted the preparation of the carters mitigation expert and the failure to call carter's mother those are the only two penholder that's the only facts i can really rely on and first of all my raymond order is not that it said decide this case on first instance i have to decide this on first instance so he denied the claim also the court on on your time limit so you follow your petition raise all your factual allegations because he views petitions have to be there not notice pleadings there are factual pleadings put all your evidence in there and then say in order to not be a victim of the statue of limitations i need to go back and exhaust this new information it's not a situation where you can bring a claim just a cord it gets adjudicated and then you try to  gather evidence in federal court and then try to go back to beef up the evidence first of all the state courts won't hear on arts post conviction statute in ohio it was clear you get one you get one post conviction petition after that it's very similar to the federal one if you're not showing actual innocence and you're not going to get a second petition the state of ohio should not be faulted for making the post convictions that statute very similar to the federal court the one congress felt was appropriate so in this case i think a lot of this hands to do with a lot of this can be short changed short cut now but just saying listen the record is clear that a thorough mitigation investigation was conducted ok can i make sure i'm following a part of this case and this is really a question for both of you but the stay in a bad idea and request is that limited to the three main arguments on appeal here now the words is the point that well there's the concern about not having the mother testify there's the concern about dr chee opponent is the concern about the transcript is the part of the stay in a ba here's are three reasons this relates to twenty and twenty nine under their theory because those referenced those that long list of other items so when you take that list into a cow and you think about the claims that way then you so it's not about the stuff that's been briefed really no it's not it well right well that's the answer yes or it's about their global plan and my experience with this day in a bay thing first of all it's the dish records when they do it it goes back that's it's usually the time for them to do a free for all from everything that they can possibly think of under every fact they can possibly think of and there's usually no limitation whatsoever on the amount of evidence they try to present in these petitions when they go back to state court they know when they fall these post conviction petitions the state courts are not going to hear him because the state court does not hear second petitions unless they can show actual innocence so they get their do you fault they come back here and try to present claim that they were not diligent and presenting on the first on first instance and here's here's a significant difference this is this is and not try to point this out and if you look at footnote ten when the supreme court decided penned a holster they said ok and footnote ten they said we really haven't come to consensus yet on brady material guess that's material that the state hailed that the state didn't provide to the defense and therefore we're not so sure whether we're going to have pen holster up plus to a brady situation i think judge clay pointed that out in the hannah decision not to me years ago and so that's different what we have here are guys who are who know their own life history these defendants know whether they were beaten if children they know whether mother their mother was a protector or neglect or whether their father was never home this is not information that is something that just all the sudden is new needs to go back to stake or for first time this is this by its very nature and if this is evidence that they were not diligent in presenting  state court that's very nature and this can go on forever this is has the ping pong effect of trying to go i guess i've got a claim of ineffective assistance counsel it's barebone it only talks about mom not  psychological impact of it and how it affected your life for me well in this case you think it takes some time medical professionals to sort all that out and explain it to a jury or judge well i think i think in exeter ration where they don't ask for a mental health professional at the state trial level that could be something that could raise an eye or but in this case he was a he was interviewed several times by psychologist and attorneys are psychologist you know the ineffective assistance of a psychologist is not ineffective assistance attorneys attorneys rely upon these experts to provide them guidance on how to how to present their mitigate what's their best mitigation case in britain with respect to a person's psychological back pretty fairly low i q yeah there's no question about that he's not yeah you're right he is borderline although he did go back to state court to litigate these other eight or so list it matters that and maybe more that as i understand  a supreme court case that says if if your avenue if you look back and stick it to the state courts and the rule show there are no avenues for relief then you're you're not there and there's nowhere to go your default and that's in the illinois case where they didn't go to the supreme court all sort of inversion marks and so i think they're i think they're that they've got that problem yes i absolutely do agree they have that problem was the man some of these matters were to be baiting whether they should go back to state court the prior opinion of this court indicated that some of those matters were already fairly presented to the state court and are not based on  and and thousands that we're talking about maybe maybe the prior opinion of this court was incorrect but said that these some of these matters that were not abating had already being considered by the state court and that the problem was that the district court had failed to rule on i'll address these matters and consequently we re mandate and it sounds like you and your when this was when this was sent back ok i was on i did believe that well reading both decisions that there was obviously the present some evidence but not all evidence and therefore under the d one standard as it existed before pan hoster you could you could have a hearing on it in federal court and judge merge often did we'd have three or four of these hearings a year where you  down and you'd say show what you presented in state court and then you'd offer some more and then and then judge merz would would would whether the state courts were reasonable or unreasonable for dying the client but the d one standard after penholder changed and i think you know if you look at what happened in post conviction there's no question that the only claim of ineffective assistance of counsel that they brought on post conviction was the failure to call mother to testify now they did bring on direct appeal the claim preparation of carter's mitigation expert ok those two claims were brought in state court and as you pointed out in your decision you're saying there's no question that these claims were these two claims were presented and so this should go back and have an average your hearing on the global climate and judge sutton was saying i believe in his dissent that was like well you can't have an evidentiary hearing but after pinholes was like i can't i can only adjudicate what the facts that were presented to state court and that's even though the six circuit told me to do i will but i can only do it on the six not the eight so i think that's what happened here and so the and i don't think that he abused  follow the remainder order by doing so i think that's exactly what he did and i think also that ron's work as webber has a very little if no application here at all because first they weren't diligent all of this information ninety nine percent of this information is in one tuck's investigation you just read that it covers everything so they've known about this since before the trial so this is not in from this is this  there's no due diligence under under rons versus weber if that's due diligence than due diligence means nothing and secondly second point i just kind of recall it  so i think that's the procedural posture this case is in and just by circumstance of calling versus penalty for conduct coming down i think that kind of took everyone by surprise so it changed the your honor mr mann is correct but the investigation by mr wanda it is in fact the most complete mitigation best occasion i've ever seen in all the years i've practiced law i'm going to tell you something that would have been would serve carter better to have just thrown all those papers into an exhibit and stuck them into the jury room and say hey read this instead of put your pony on you want to know why it's really easy your honor but they had they had they did have the want tech stuff they didn't have it that's the problem because what you have to do is you've got this defense expert witness you've got this site guy who's sterile if you read his testimony it is completely sterile it is not in any way shape or form animated or very convincing and the problem is it's not but access to the want to yes want to work for what you have to do to do it mitigation right if you have this expert come in but then you buttress it with contemporary information in which and lay witness testimony that didn't really happen here for all this stuff that we're talking about that's the big problem the second problem is is mr mann says the stuff in the state court record it was not in the state court record what it where it was his it was sitting in a filing cabinet in the court clinic and no one got a hold of that and tell arsenio gallagher were appointed by judge webber to represent carter in haiti as proceedings and then they decided well let's try to do a twenty six b and try to get that information in that way and then of course they failed to appeal that and that's how i got involved in the case and there is there is the problem this stuff is never it was never in the state court record when no one else is in that secret filing cabinet it was a state court records  in our it's in your record how did you get in the record i put it in your record in the district court why did judge merz allow that to happen after panels to the it hadn't before under gets and what was really important or honors and this is really significant and i raised this in this briefing arrays in the past there is also a secret order by the did by this a court judge what happened the first time judge merz had this to your client win or lose point of the investigation we didn't have what we did but the ineffective assistance on getting the stuff in was trial counsel didn't know about if you look at their depositions which are in the record they did know about it and they did know that the judge had the secret order that says everything the court going to prepares gets transferred over to the prosecutor and what you mean by that secret there they didn't know that this none of the trial counsel knew that there was an order signed by the judge that made everything you had did transferred over and given handed to the prosecutor no idea that that order existed it's in the record it's mentioned in my principal brief and it's mentioned in  had no idea that they had everything and the trial proceeded without them ever knowing this proceeded without the fence lawyers ever knowing that order existed until we depos not of course it's a ninth circuit decision but as opposed to a six circuit decision but the one thing it says so even under consolidates it's saying before you're going to do the stay in a bay it's not a function of the  penance counsel asked for this and therefore we're going to do it you have to make a threshold showing that it's likely to change things and i guess i'm still a little bit see in terms of what this new evidence is and whether it's going to change things and i little frustrated with argument with you know on the one hand i hear well the expert looked at all this the expert well you have to sense the all of this potentially was before the jury certainly was description of the law that you've actually made a search threshold showing that there's any likelihood that a new state court evidentiary hearing would improve things well it's because then this evidence would be exhausted that wouldn't be subject to the pin holster bar and it would move right on through and have to be heard on the merits of the issue we have is that this evidence is just like in wigan's in wigan's they didn't have a medic they didn't have a mental professional testify they dump truck the records on the jury they just like gave them all and that was good court in the u s supreme court that was a good thing and i think that's what we have here because we were diligent that as soon as these records were uncovered they were put into a record they were put into the federal record because we were relying on to get c interpretation of d one and that as we know now is not the right interpretation according to pinholes mr man pointed out to the court well yeah these defendants a on other life history yeah they do but they also don't understand the impact they don't or stand the significance and more importantly most defendants in this is something that is taught and in fact i they're embarrassed give me some examples of the evidence that was not available it's not in the walker pour not anywhere that you've uncovered well in the first evidence that can't be in the want to report can't be mentioned by chip polony and that you've discovered since and it's that kind of evidence that you think we should supplement the state court record as a pedigree of mental illness on the maternal side of mr card that all you have to do is look at pages sixty one and to through seventy five of my brief so there's that there's this entire pedigree this isn't just appearing this is a family history that you've got mr carter's father who killed his own mother ok you got him you got carter trying to commit suicide multiple times you're still limiting it to things that weren't in any of this other stuff yes i believe that it does not explain them all the times and it doesn't it's see this is this is this is the issue i g it's one thing to say well carter committed suicide ok so what what's that mean that's what a juror sitting there to pony has to explain what gets a kid who's nine years old to the point where he wants to kill him so how does that happen that's the trauma in there that's worked to pony fails because he didn't inject all this information to show all these things that happened to carter growing up that twisted him into who he became and then you po that is in completely touched upon or not touched upon a ball that's what is on those fifteen or fourteen pages ok is is just summaries of that and there are record citations it's in the record it twenty and that's where all this stuff is and it is completely different than the sterile talking head of dr chu pump it really gives life to how mr carter became was and this is the stuff that the jury should have heard  censorship i don't care if the judge or jury to censor should have heard this stuff because that's what the judge asked for he asked for that in his opinion he says the reason why i am going to go with the jury opinion is because you didn't give us a trauma near it's right in there he doesn't call it a trauma narrative but he explains these adverse childhood experiences it's right there i see that my time's running out so this is basically what i believe one carter net has never received america terminations compelling them from i see clean using both exhausted claim then maybe we should expand rise to include this because what happened here is carter acted in relied on this court's precedent and get c regarding d one we functioned under get c for years and then all of a sudden pin holster came along and changed the game to carter should not be faulted for failing to see the pinholes to risk coming down the road and going back earlier carter simply should not be faulted for that i think this is an extraordinary circumstance where this court can do that can say wait a minute ryan stay is appropriate in this case because one just one last question why since i don't know when the argument in our prior decision was i knew that i do know that from looking at our decision came out at least nine ten months after panels or the wash in of all of this been argued to the last panel the argument was way way before by now but it's i've seen a few supplemental authority motions in my day in capital cases i mean you know what you're the one saying you change the game well if it won't change the game in favor of the government the government should the state should be the one who would be raising penalties same wait a minute six circuit you should have said it all comes in just trying to make i'm not doing a gotcha game i'm going to explain i'm trying to get you think then holster because it switches g changes things i'm fairly because everybody's assuming gets the applies allowing you to supplement the record in federal court i'm just saying i just don't know why that argument wasn't made to us well and i'll start back on the books for nine ten months before this decision came out because we didn't know what the decision was going to be until it came out and then we're reminded and we're back i mean we justifiably relied on existing precedent to form our litigation strategy and it's gone and now my only hope to get this stuff in front of a decision maker is you want to stay in a bail because pinholes or says it's you who says it can't be heard unless already do you see any benefit here to a very brief post argument let of research something like that if you don't that's fine but there are just some kind of open questions here but one question i have is i maybe it's clear but i thought that this one took a long talk examination was in state court i thought you said in state court proceedings were for example you said you put much of that i think into the before the district court that's just the one one