prong of our equitable hoeing argument is not yet available now contrary to the state's objection it is of the moment that argument was presented clearly in the a supplemental grief rather than in the reply after rely harris versus carter the court drew one or i should say described as the critical factor there was controlling binding circuit precedent on the issue on which the  amend that district court order was was sort of the law of the district and that's what he relied on it wasn't that the law was unsettled it was of law actually was settled it was just settled contrary to what the supreme court would decide later on but it was that way by the district court in a district court procedure the how is your case like that but respectfully don't i think in harris versus carter which predated williams this court rejected that sort of or any requirement that they just report firm and if we mislead or lol and petition into filing it on an untimely contrition in williams the court began not with the district court's order in its analysis relation back and the craig crawford you was in fact the distinction that this court drew in anthony versus cambridge in two thousand so if there were any so so one would have been reasonable to distinguish those cases and as those claims back to him and i think something like six or seven months after great profit was decided there wasn't any indication the williams decision that mr williams was responsible for coming back into the district court once  out of circuit on relation back in this circuit it was still reasonable to believe that the interpretation from fifteen that the court ultimately accepted felix was reasonable and to your honor's point and judge i was point about the from the other actors in the case that was standing and there was no affirmative mis representation the district court those the actions of those other parties nonetheless corroborate the reasonable turning that those records wouldn't be forthcoming or not forthcoming soon enough did he go back on its report and move to amend i should also add that during that period the sentencing related claims were stated in the declarations for example from family members describing the extensive or magnitude of the pervasive incest in this family over multiple generations that it was the one and violence at a young age diminish his own abilities to regulate his sexual impulses and contribute to the sexual violence for which he was convicted we would bolster that with the other talking about she numbered them from one to one to eight in the order in which she would present them and she began with the bad things in the childhood it's interesting that numbers two through eight are all good things that he was an honor student that he had been a boy scout that he was played baseball and football that he was a that he was a father and a husband that he had been in the military and the story that that that council tells there is things were a lousy at home and he overcomes those things because this is a man well worth saving because he's he's be redeemed the story that you tell is a different story i'm not sure that it's a more effective story you've told your folks you told the story in a different way which is the guy never had a chance i was the messed up from the beginning you're not going to put the stuff in about the cub scouts or the boy scouts or the honor roll or the or the football why is why is your theory a better theory than what council came up with  it would also be remiss i think of it she had quite a bit she had mentioned she she knew that there was lots of she knew about a lot of the sexual misconduct she knew about the aunt she could related to her client but she knew about it they had the father criminal history they knew that there was a lot of really bad stuff had to be going on because the family had really cover that up but your client didn't want that out and they fought to keep it out so council had lots of bad information which your client discomfort with the father's records coming out i could have been fairly a product of how rushed that whole episode was trial counsel hadn't gone out obtain those criminal history records discuss them with the client discuss them with an expert rely on an expert to explain to the client or i mean those records were turned over december st i believe and then put before the court on december th for the st time at the sentencing hearing so i don't think that the client's initial discomfort when this st comes out is an indication of what a reasonable  it's not a voluntary intoxication offense where the mitigation is specific to a particular crime this is evidence that would have been textual lies sexual misconduct at you know irrespective of of the potential for the just learned that he had other bad acts i also think it's important to note that at this stage this is we're just in the martino stage so we haven't had an evidentiary hearing on the underlying ineffective assistance of counsel claims but at this stage we're only trying to demonstrate that the underlying claim of ineffectiveness trial counsel without evidence or development or a hearing is substantial enough to justify a nd look under heartiness i don't think there's any dispute that state post conviction counsel was ineffective and so as we talk about the unified visits counsel claim we certainly believe it's compelling counsel that is you know doesn't get you all the way marriage doesn't get you all the way to finding opposed to mission counsel was ineffective but it's a pretty good indicator that if there's a substantial underlying claim that host edition counsel cell thank you may it please the court my name is lacy gard i represent david shen and this appeal i'd like to start out just by responding to a couple of the comments that mr oliver made regarding waiver i think the main problem here that makes it a little more complicated to start talking about eggs equitable tolling at this point in the proceeding is that the district court hasn't made any findings about diligence made any findings about you know when the period exactly expired when the would have started or concluded so we don't have those factual findings in the record to review now and while we're looking at this for the st time on appeal and the other the other plan the waiver i wanted to respond to as well is  that you know i do agree we had an opportunity to brief it on appeal that's fine but the issue is really just the lack of development of the i'm sorry i apologize i lost my d extraordinary circumstances we can look at that and say and it we may we don't need to worry about exactly when the period started and stopped because unlike in the williams case we have we have a situation here where th s defendant his attorneys were warned specifically warned to include everything in the petition that anything that's not included in the petition would be considered waived so that's kind of the opposite situation as what was at stake in williams which is where the defendant was told you can file your petition later you know i'm going to set a deadline that's way outside of the limitations period and go ahead and file it consists or on that deadline and then when that deadline came and he filed the petition it was dismissed as untimely so it was a kind of a bait and switch situation and we don't have that here what we have here is the district court telling the defendant include everything in the petition and then you will recall from the record that there was an dispute once the petition was finally filed and i think it was august of two thousand there was a dispute between the district court and mr walton's counsel about whether mr walton had to you identify claims that were not presented in state court whether he had to file a statement of exhaustion and he didn't want to have to do that because he was going to have to admit that claims were not raised and it was only after this court denied his mandamus petition that he withdrew those claims rather than admit that he had not raised them in state court so really what we have here is not an extraordinary circumstance that's preventing equitable or preventing timely filing in fact we have the claims filed timely so we know that there was no extraordinary circumstance that prevented anything what we have is a strategic decision by mr walden's attorneys to remove claims from the petition the procedural default rules were not independent and adequate and to the extent that may have been an unsettled issue at the time you know smith versus during sort of suggest that maybe it was but at best it was an unsettled issue and so that leaves two paths that counsel can can take and i believe this was alluded to in the questioning of mr maule over you can make the are you leave the leave the claims of the petition make the argument that they should be heard or procedurally no i don't think there's a reasonable possibility that there may be you know an outside chance of that but i and the best evidence of that you know could be that  case for example and i don't recall the year of his rule thirty two but i know that they were they went back to say court and filed claims in a successive rule thirty two ineffective assistance claims that were found to be procedural defaulted and i think also just as a whole the martinez jurisprudence in this district in the district of arizona the cases that have been reminded from this court to the district court almost all of those cases except for this one the only recall there may have been cases where someone argued that there were still state court remedy yes left but i don't think that that was a common argument being made at the time and i'm just i'm not aware of any significant support for the idea that there were still staker remedies left and the other thing about stewart versus smith is that that was decided two years after the claims are withdrawn in this case so they weren't withdrawn in reliance on that case or  anything else and again you know if there was an argument to be made that the claims could still be heard then fine there's an argument to made that be made that they could but there's also a very strong argument i would say a stronger unit to be made that that they that they couldn't and again it comes down to a strategic decision by council that's the basis for the claims being untimely is because they made a strategic decision to withdraw them from the petition is that correct expectations were not allowed so if they were exhausted but but i think they if anything they pulled the pulled the claims prematurely because there was no implication of the briefing that i that i'm taking is that they were backed into a corner mr walton felt backed into a corner that he had to remove the claims or else the petition would have been dismissed but there was no threat of imminent dismissal because the state had it asserted exhaustion as a defense at that point and the district court hadn't found the claims to be exhausted exhausted and my understanding of the procedure for rights versus weber is that if there was a mix petition the petitioner prior to dismissal should be given an opportunity to cure that by withdrawing the an exhausted claims so exhaustion with still something out there to be litigated and you know again let's bring back to my point that i think you know they made a call as to how the best way was to proceed with their case and they did it despite being warned by the district court that that their claims might not be able to be brought back in that initial scheduling order and i'd also like to point out that that two years later after the ineffective assistance claims were withdrawn from the petition there was an issue with with ring ring came out and there was a six and a claim in the petition that was affected by ring and that in that particular instance and i think the district court noted this and its most recent order may be in the two thousand and four order that mr walden did go to the court and you know tell the court he wanted to exhaust these claims in state court and got a stay of the sentencing claims now i realize that doesn't affect the statute of limitations but it does show that if there was some kind of confusion as to how to proceed with the claim that he knew how to approach the district court and asked for a stay so and i guess all of this is relevant in my mind when we talk about tolling or any kind of equitable remedy that just that basically deals with fairness right that we want to make sure that everyone is being treated fairly and in this particular situation we have council making decisions that are clearly strategic and in fact i think there's a finding in the in the two thousand and four district court order that this the claims have been withdrawn as part of a tactical decision to circumvent the court's rules so in light of that whole constellation you know they made a call they have to take the consequences of that call which is that the claims are untimely when they try to in the bakken and on the issue there was an argument out there that there was an earlier date potentially that starting the tolling with the arizona supreme court order being signed twelve days before was filed and and only if we go from that earlier date to those three months matter but those three months the explanation the mr moller gave this morning or this afternoon for diligence during those three months was that they were waiting for records from the post conviction proceeding and the records that were necessary to support the claim were records and his position possession they were his affidavits they were the same evidence by a march almost entirely the same evidence that was later presented with the martinez motion so that evidence was the equitable or to the district court for a finding of acquittal tolling and i think that's the answer is because if we're going to break down the time when it's just it doesn't matter it doesn't matter what was going on in those thirty three months because we he w claims before or after the statute of limitations had already expired or best case scenario he hasn't given a good enough explanation as to what was going on during those three months that that warrants of finding of active actively the st thing is that the council isn't saying mr i just read mr malvo as characterization that they basically did nothing and they waited too long to start interviews and we know the reason why they waited at least with the expert assessment which was to prevent the state from getting ahead as to who their expert was and what they were looking at so but not withstanding them waiting they were able to get multiple continuances from the trial court there are references in the packet of notes that the court mentioned that they went they traveled to different parts of the country to interview friends family members of mr walton they were aware of the allegations against the father and that actually calls into question one of the other ineffective assistance claims which is faulting helsel for not objecting based on a late disclosure of i think a police report or something relating to the father but the reality is comments from the defendant notes taken during a jail visit where the defendant tells his attorney to check with his father about releasing the information and describes having been contacted when he was in the air force and learning about what his father had done so council was aware of that information but the problem that council had is they had an inmate who or a client who was by all accounts whatever the reason for it was a very dangerous person someone like ken holster who was they ran the risk of having the jury think that this person was beyond rehabilitation and i think that dr lewis is report in particular confirms that and not only that but also the statements in the again in counsel's notes we don't we don't have a report in there from dr s when i don't believe he ever did a report but we do have the phone messages that i'm sure that the court has seen in the  packet of knows where dr estland tells counsel about how the m m p i profile for mr walden is the most dangerous profile and how he's an honest psychopath and how you know just very things that are very very damaging and you know could there be an argument that maybe if he had known about this this this the father's background maybe that would have changed it's an issue for the expert but the but the bottom line is that the attorney having been given all of this information has to make a judgment as to whether it's whether it's a good idea to continue down this path of expert testimony and to try to you know find a find an expert to say something  presented anything through well i believe well yes i don't know here that there was any effect on the guilt phase strategy because the strategy  suppose as best practice yes i mean it would be best practice to start as early as you can but we don't demand i guess perfection from from attorneys is constitutionally adequate representation and and you know maybe if the continuances had been denied the mitigation presentation wouldn't have been as their own but the continuances were granted and in and in this particular case they did have time to consult with an expert and that's one reason that the court kept pushing sentencing out was to allow them to continue with this expert assessment and to continue to consult with the expert to see if they were going to use the report and in fact there was another expert as well that was that was contacted which was d that they weren't going to be able to establish that from him and that he did not want that report out for public consumption so that's another factor that goes into council's decision making process so so i think both on the issue of deficient performance and on the issue of prejudice i think you have to consider the fact that the mitigation here are available including the mitigation presented for haiti as dr lewis's report to a lesser extent dr goldberg's report and then also you know just the nature of these crimes that the mitigation is profoundly double edged in this case that a reasonable attorney can make the decision that they don't want to present expert testimony because done i don't think this is one of those those types of cases where you know counsel just did nothing and just sat on their heels for you know forever and then you know maybe called the defendant's mother to testify about what a good person he was or something this is this is did do some legwork to uncover so uncover a good bit of information an attempt to develop expert testimony that didn't pan out or was not used for presumably strategic reasons which are which are fairly obvious to me at least from the the net disclosed by mr oliver i asked opposing counsel what he thought was important new information and he indicated that it was i think he was referring to the declaration o n there was no information specifically presented about mr walden being sexually abuse that i recall there was that you know the inference that the aunt had sexually abused him because she's actually is the brother  t and there wasn't that i recall information other than the reports that were submitted regarding the father but the intergenerational background was certainly not presented at sentencing and of course there was no mental health evidence presented either but my response to mr modern thinking that those are two or having the opinion i mean that derisively i'm sorry having the opinion that those were the most the most important pieces of mitigation taking them separately  is his answer something but but aside from what may have directly happened to mr walton himself the intergenerational background is part of the picture but i don't think it's significantly weighty and i don't think a jury there's a reasonable probability that a or a sentence or would find it to be reasonably weighty and that say the same is true for the abuse that he himself experienced because it is remote in time to the crime up and that would seem to also counsel against a finding that this significantly affected his behavior now as for dr lewis's bipolar disorder diagnosis she as i recall opined that  the condition is characterized with impulsiveness and aggressiveness and things of that nature even that in light of the facts of of the murder for which he was being sentenced to death and also just the pattern that we know that he engaged in from that the survivors it's not consistent so much with an explosive or impulsive act of rage it's more consistent with a predatory kind of stalking behavior where he you know he fooled for example the one into allowing her into his his his her home he did it through a ruse that he was a maintenance man it seems likely he did he may have done the same thing with the homicide victim because at the witness saw him you know again with it with the pest control equipment at the apartment complex so there seems to be significant planning  in these offenses so so that for that reason i think it's minimally weighty but it's also double edged because if a sentence or was to accept that theory that mr walden just uncontrollable that he has these rages that he can't control himself that he's you know prone to these moments of just pure aggression you know that bipolar disorder me explain that but that doesn't mean that sensor is not going to look at that and say well this is a reason not to show leniency because this is a person who is just too dangerous and who can't be fixed and who has just done too much harm to society whatever the reason so which brings me back to i guess my point that you know an attorney and he also had some of that information about him being you know the most dangerous in n p i profile and the statement from dr aslan about him being an honest psychopath those kinds of things all go into counsel's equation so in light of them having that knowledge i don't think that we can i would submit that they can be deemed ineffective for instead attempting to focus on you know some of the i guess better qualities of him like that he was able to you know have athletic accomplishments and trying to show that you know there was some family some family dysfunction that makes him more of the you know that human and alcoholism that anything to do with the rapes and murders and now which was seem to be the court also the reason i don't fully agree that there is a cause an exodus is that the finding of a cause like this was unreasonable i don't agree with it i would stand on my r d i don't have anything better than what i put in the brief as to why that wasn't right yes and that's kind of a threshold question in fact the district court didn't allow the petition to be amended to include the mckinney claim because because it had not been briefed on the hideous petition i don't thirty one of the petition which we maintain it doesn't i'm not and i don't want any thing i'm saying here to answering the questions about causal nexus to be construed as a waiver of those those arguments because they need they were correct but but the district court said that even assuming there was a causal nexus exhausted claims the state did not argue the claims had always been technically exhausted and that mr wall was just wasting time in state court instead of the state characterized the success and post conviction who he wasn't given any sort of information from the trial lawyers that would have allowed him to reach a useful or forms decision that may be that in some circumstances trial counsel provides an expert with the material that the expert needs the expert provides a pinion a trial counsel recently is unhelpful and decides not to use that expert but that's not what thank you for