save five minutes for rebuttal this course this court remanded this case with instructions to the district court taken duct adin novo review of the merits of mr green previously will the claims weren't actually ever presented on the merits to this court judge rawlinson because they had never been developed right so they were the claims that were before us they maybe i should say the claims that were before us on appeal would it be fair to say that the remaining compas those claims that they were perfect before us on appeal they encompass the general ineffectiveness of trial counsel at the merits phase of trial so we're only talking about the guilt innocence phase not the penalty phase because that was already decided and is are those the claims that they were attempted to be raised in the state court yes but weren't they expanded a for review for the before the district court which finds facts to determine the merits of the case if it were soley limited to the exact presentation of how it was presented in state and federal hey vs first time around well it was found procedurally voc barred and procedurally defaulted this court could have reviewed that claim in and of itself and ordered supplemental briefing but this court did not do that this court that doesn't mean that the claims can change and there can be additional evidence in support of the actual claims that were before the core but the claims can't metamorphosis into something else  claims if a new claim is presented on remand then there's additional consideration that that happens with that but a claim that was presented in state court and then in the district court where mr greenway was cut off from development that claim is what was remained it back to the district court in order for development of that claim so there is i agree with you there's case law that says if there are facts that fundamentally alter a claim then it becomes a separate claim but mr greenways case he wasn't fundamentally altering his claims he was developing the claims that he was prevented from developing in state court he asked for funding he asked for investigative resources and he asked for an evidentiary hearing and he was denied that in the state court and then was procedurally barred inadequately as this court held several years ago  from your recollection more precisely where the inoffensive assistance of counsel claims that were he was present procedurally barred from presenting so that the ineffective assistance of counsel claims that were presented and  want to talk about two aspects of those in the first one involves the failure to ensure adequate questioning on why dear and the second one involves failure to investigate and develop a reasonable and supported theory of defense and those claims were in fact presented both in the petition that was filed in state court and then in the initial hey b s petition that was presented to the district court specifically the allegations related to ineffective assistance of counsel for failing to develop a in investigate a defense were allegations that greenway council failed to investigate the state the witnesses who were link in my prior to trial failed to interview potential witnesses or individuals who have made lead to relevant information there was no attempt to locate individuals regarding the state's key witnesses for their truthfulness or lack thereof and they didn't investigate key witnesses and obtain the necessary information regarding impeachment of the state's theory and that's all in a si or for ninety nine five hundred which is the petition that was presented in state court and the allegations that were in the federal hades petition the first time around were mirrored those allegations for the most part so that was presented and then there was also the presentation of failure to use a juror questionnaire so these claims that mr greenway went back to the state are i'm sorry back to the district court to then brief and develop which this court ordered the district court made findings that those claims were new claims any new facts that was presented to the district court it read that as a new claim but i thought that the district court decided the claims of on some of the claims judge schroeder and so the problem with and if i can separate the two issues that i am speaking about the juror bias issue that was the end effective assistance of counsel for failing to ensure adequate body or district court initially said these are the this was the only opportunity was to present additional argument and legal authority and that any new factual factual allegations are not properly before the court that was at the are ten of the decision now in the alternative the district court denied relief on the on the merits of that juror misconduct issue but mr greenway argues that that was in correct and the reason being is there is a reasonable probability that if his counsel had performed adequately and ensured that the question that really is a critical question to be asked whether a juror is a victim of a crime was asked either through juror questionnaire  through adequate why they are questioning the pardon me i'd like to take you back since second is it your position that after i read the district court it was not to consider developing his claim and he presented the claim as failing to ask for a jury questionnaire and at that point he hadn't had the opportunity to determine everything t after that there was nothing other than the failure to ask the question there wasn't any other thank you all claim to buttress the unfair juror bias quitclaim so it hadn't been exhausted except for the questionnaire in the state court true well i agree that that the way the claim was presented in state or was failure to use a juror questionnaire was disbarred he was represented in part by himself and then by of the capital representation project that was defended and miss ryan we submitted a declaration from this ryan was overloaded at that point so she was doing what she could as an addendum to say here are additional claims that i need to and what we said the last time was she did what she could to get these the these these cases before the st be regarded as of these claims before the state court of ineffectiveness and we said this report take a look at the correct and so that's why we're here because the district court looked at them with respect to the juror questionnaire what the council should have done was initially asked for a jury questionnaire and have that question were you ever a victim of a crime and in fact the the counsel reckon we know that now but is the that anyplace where we submitted a declaration in the district court which the district court doesn't mention at all in its order from a standard of care expert regarding ineffectiveness and that expert wrote in his declaration what the standard of care was at the time of mr greenways ohio based on his experience in practice and being a trial a criminal that i to any court ruled in any model form  just based on his personal opinion rather than some standard document well in which information we now have well into what happened well in general when i see claims are presented the question becomes what is the standard of practice during that time what was reasonable what would reasonable defense counsel have asked and the question of whether a juror is a victim is such a basic submitted proposed questions and when the judge asked are there any other questions that need to be asked counsel say yes but he didn't say you need to ask whether there is somebody has been a victim if she had been raped you think she could be called as a witness in the case of course of course so then when she testified in that case she did and when she was asked that question she denied that what leads you to believe that m kolker would not have denied being a victim two things first of all she came forward the following day and then asked to approach the bench and said i yesterday you asked about being a witness i've been a witness to domestic violence and she mentioned an incident that happened in her home so she was aware and shoot and so she would have if asked the appropriate question came forward the second reason being is that when she was interviewed by prior counsel she came forward and said that she was a victim of this violent crime that was the circumstances are so similar to the circumstances for which the state was accusing mr greenway i mean this isn't a situation where it's you know a friend or relative this was a juror who had a man break into her home hold her you know raped her and with intent with a deadly weapon and her kids were at home that was the same exact argument that the state made in its opening against the facts in this case it's an accusing mr greenway so there is implicit bias here in this situation and with the district court finding the district court found that it would just be speculation that the court the court would have asked these additional questions but as we argued in our reply brief this wouldn't have been speculation because the court specifically asked for additional questioning which counsel said ok ask on these issues and the court did and it would not have been speculation that the juror would have been struck for cause either because the court struck another juror for cause whose house was burglarized so with these seeming facts what it seems to be it is speculation that if further questions were had been asked in some somewhat different form that she would have been truthful who come out with with all of these details that does seem to be speculation that she would have been truthful regarding the call of  forward and said after the trial i testified i didn't tell the truth and answer the question well never testified before well and she may have so you think you're right about that why wouldn't she lie about prejudice there was you you have to say show that she would have testified had she been asked that question the record is not your favorite well what we what we can show is os on this has to be in effect correct but in order to show ineffectiveness of counsel we have to show there's a reasonable probability absent the errors that the proceedings would have been different which  this court in fields versus brown on wagner said that was the standard and so what that means is we need to show that a biased juror was seated and we've shown that on the record here and if the court has any question then it should be remanded for further evidence jury development with an issue so critical such as juror bias i'd like to turn now to the ineffective ok so in with respect to the development of defense on the one hand counts almost in best a gate relevant defenses on the other hand the council must reasonably select and present a defense here counsel did neither counsel failed to adequately investigate the backgrounds of two key witnesses who would testify that mr greenway was involved in the murders also claiming that mr greenway was only involved after the murders happened so he was not involved in that aspect at some time pretty good argument it was consistent with all the evidence was in the state had proved that he was involved that would've been a bad argument judge schroeder if in fact counsel did the necessary an adequate investigation and presented the available witnesses to attacks the state's case instead mr greenway would have been better off with no defense than the witnesses that counsel presented counsel presented the witness who was the probation officer for mr ski who testified that mr  truthful and presented vogue and who was a witness who said that brian my eyes was telling the truth so the two witnesses that he put on who we only interviewed five days before trial had not been able to undercut the state's theory had he actually developed an investigated he could have presented the testimony of me on skis landlady who would have undercut entirely and said that he lied has he cannot be relied upon to tell the truth and he could have presented the testimony of dare and say who was a witness that would have in fact supported the theory that mr greenway was only involved in disposing of the property after the murder and robbery occur but wasn't he unable to locate was to say she tried to find him as a witness and no one could could locate him so why should he be faulted for failing to call a witness who couldn't be located there's two reasons for that judge ellis and first he never actually investigated this witness this witness was interviewed and investigated by the investigator before mr benedict even was appointed to the case but second had he known if you're going to trial for capital murder for your client and you know that there's a exculpatory witness you would make it a point to go and interview that person secure his presence at trial subpoena him he did none of that it was now we go forward presence of someone who couldn't be located he was located after the trial was over he was located pursuant to a warrant that had been issued for his to respond law enforcement right but he could have been he was interviewed in august they went ended up going to trial in see case i'm under the impression the certificate of appeal ability here deals with the value to present a defense only as to the specific issue of the the appeal ability was written and as we asked that if this court disagrees with our reading of how the certificate of appeal of the appeal ability should be read then we asked to expand the certificate but what the district court did and this is one of the fundamental errors in the district court's review of this case was that it looked at the opening and closing still arguments with the christians and defense and lumped those together and certified that the issue as the entire challenge to what was presented and every simple theory of defense  delivery we might ask for a supplemental briefing to rehearse a supplemental briefing on this and these issues not on the particular ineffectiveness issue however i just want to point out because i this was this was one of the parts of the brief that we stressed is that the district court in this in denying this claim it excluded most of what was argued regarding the failure to develop a reasonable defen so it looked only to several points and discounted most of the other facts and so what fact that into so and in looking at the the part of the district court opinion where it looked to the opening closing in christians and defense it didn't consider the failure to investigate scare ma is it didn't consider the failure to present exculpatory evidence of of sage it didn't consider the fact that he put on witnesses who harmed rather than helped mr greenways defense all of those facts were not considered when looking at what was in fact a reasonable defense or not and so that was an error in the district court by looking at the claim piece mail rather than looking at the claim in its entirety if you have specific questions on it issue i'm happy to answer but because it was not certified and also there is no order specifically on it i am not fully prepared to argue it was the claim that counsel was ineffective for failing to press the court's ask additional questions and also the allegation that the result of that was that the juror who had been the victim of a crime was seated not raising the stakes or put that claim also wasn't initial hippias petition there was something else at the district court noted on the procedural aspect of the claim noting that that claim wasn't even properly before it because it was something that was being raised for the first time on the remained there was no motion to amend the petition to include that claim which would have required showing that it related back to a claim in the petition to be timely so that's another reason why the district or is correct that claim is not just recorded makes no mention didn't do i think that's that's the reason why martinez wouldn't help him here because well there's been no finding that that claim is procedurally defaulted that the real issue is that that claim was never raised in the first time and if it was raised here in the first time in the petition in the course of his claims procedurally defaulted then martinez would come into play he said a ruling by the state court within the last few days could you refresh us on just what that was sure that was a claim  stand and alternatively the court also addressed the merits of the claim and found that there was no germans conduct it found that it was unclear whether the juror intentionally withheld the information or it was some kind of mistaken understanding of what she was supposed to reveal so decline to find given that uncertainty that she intentionally committed misconduct and so these facts this nucleus of facts concerning th the facts overlap and i think as far as the state courts finding it did conclude that the simply the fact that juror had been the victim of a crime would not automatically have made a cause or a strike for cause successful  it looked at it and said that the trial court if that information come out would have had to ask additional questions and on the record here there was no showing that she that she was biased simply because she had been the victim of a crime and that the claim before us is that there should have been him that's correct so it's a slightly different legal claim and so your position with respect to whether the counsel was deficient in not asking for the questions or asking the on the merits of the claimants that their counsel wasn't ineffective counsel submitted the questions to the court the court didn't ask them it's speculative again whether the juror would have revealed the information had a more specific question been asked since there was a question from the court regarding testifying in a criminal case that was was true of the same incident that arose out of her being the victim of a crime and i think another important point on that is her affidavit or her declaration it's significant for what it doesn't say because there's nothing in the declaration where she indicates that additional questioning or a questionnaire on paper rather than questions in open court would have caused her to reveal that she had been the victim of a crime and there's also nothing in the declaration that the fact she'd been the victim of a crime made her bias or in any other way impaired her from being an impartial juror so i think it's significant that the declaration doesn't contain anything like that as far as response my response is that the court did look at all of the assertions cumulatively it specifically addressed the separate subheading in its order cumulative ineffective assistance of counsel and the analysis was because the court had not found any specific instance of deficient performance or ineffective assistance there couldn't have been any cumulative effect in other words you would the court would have to find that he was nothing to cumulate you know that's right that's right what about the landlady well it does seem that the landlady could could have been called to investigate a call to undermine some of the testimony that was harmful to she could have but it wouldn't made a difference because that  was was thoroughly impeached as far as his credibility and his bias came out through cross examination that he was he was in the jail when greenlee allegedly made the the comments to him he was in the psychiatric wing of the jail he was a lifelong alcoholic also that he he testified that he had hoped to get if not some kind of a deal at least some favorable treatment i'm sorry for favorable i was right favorable treatment in his case by cooperating with the police so it was all before the jury that he did have an incentive to testify in the way that he did so there's really no probability that some additional evidence regarding his general truthfulness or not would have made a difference in that regard that weren't included in the heaviest petition for example the derren sage the witness who could supposedly provide some exculpatory testimony there was no mention of him in the original petition so the court found that that was something brand new improperly inconsistent the notes from the investigator interview them indicated that the first two times he said that the codefendant chris lincoln implicated greenway in the murders but then a third time relating the story said it was actually somebody else other than greenway so that's something that that would have been used to impeach that witness and in his testimony will be ultimately would not likely have had much credibility for those reasons even if he had been presented somehow and as far as the merits of the general theory defense claim i think it's pretty clear from the district courts see away that it was only granting a certificate of appeal ability and the general theory that was presented in opening and closing statement and the failure to present a christians in defense the court addressed the trial counsel's the way he handled the other witnesses separately and it's clear from the wording of the c e o way that that was not included in what the court was granting the christianson from some kind of mental characteristic of acting impulsively and therefore could not premeditate and in the christianson case itself there was a full blown defense and experts who were ready to testify to that which i gather we don't have here the claim is that it should have been developed so the counsel was ineffective what i don't want to quite understand is  if if if it had been argued that he did this is a matter of impulse rather than premeditation would he still have been guilty of felony murder he would he would have so that and that's another reason why counsel was reasonable for not pursuing a christians in defense because it didn't touch the felony murder theory that the state was presenting so it not only would it have been inconsistent so the defense counsel would have been in the awkward position of arguing to the jury that look the state's evidence doesn't prove that he was involved in their only came into play later but he also tends to act impulsively so if he did if you do believe he did the murder then it wasn't premeditated that but again that would leave him open to the f murder theory here the jury really is no question that there was a robbery involved like no no there's really no question of the felony murder theory is that the murder committed johnson what's your response to opposing counsel's reliance on the declaration from the expert regarding the standard representation that apply in this case this that's something that a district court can take into consideration but it's not required to i'm sorry i can't name a case but i have come across cases from this court and others that state that such testimony is not necessary and it's really up to the courts it's a question whether it's going to give it any weight or credence or not so it's something that the court can consider but ultimately whether counsel performed efficiently or not is a legal and a fact question so it's something that a district court is capable of handling on its own without expert testimony court has no further questions just ask that it affirm the district court thank you just a couple quick points regarding the juror at the supreme court in mcdonough has says the jurors are presumed to be truthful so we should assume that the juror would answer truthfully if asked whether she was a victim of a crime  judge they you asked about martinez and the bottom line regarding this remain and is the district court was to conducted an over review on the merits of these claims the district court ordered briefing and ordered us to provide information regarding our evidentiary development and that's what mr greenway did the state claimed that all of these new allegations were new claims and  reply in the district court page for note two of the e c f one eighty two greenway asked that if the court finds that these are in fact new claims that he provided the opportunity to my brief martinez and as an excuse to overcome the default of these new claims the district court did not allow that opportunity and he again in his rule fifty nine emotion presented this argument to the district court asking to do that which he did not and again when he raised this issue on appeal he asked this court if it is finds that these are new claims that he be provided the opportunity to brief martinez the i thought that the district court said that in light of martinez it was going to consider the merits of a place in part but again it didn't do that with every claim so the core excluded certain things as being new evidence or new claims so with regard to their end stage it didn't include any of that in its analysis and you asked about cumulative error or i think maybe judge  asked about cumulative error and whether whether we look at all these allegations that relate to deficient performance cumulatively the district court never did that is the district court to do that it's just a court found no error individually in any of the claims well that would make sense judge allison if it looked at each fact that was a ledge and said this isn't deficient performance this isn't efficient performance but it didn't do that it didn't do that instead it said we can't consider these facts these are part of the the re man these are part of the claim and so it discounted a bulk of the and effective assistance of counsel claim in deciding the claim so what it ultimately decided was just a very limited amount of information which was in particular the landlady should have been presented it just presumed deficient performance and then found it would be there would be no prejudice because it wouldn't matter but it was looking at prejudice in a vacuum because it didn't consider everything as a whole so we asked the this court grant relief and or remand back to the district court for