over morning please the court kevin lamb propellent thomas i'd like to reserve four minutes for rebuttal the due process clause does not permit states to define inherently distinct offenses as alternative means of the same crime kentucky's definition of murder does precisely that it authorizes the jury in this case to convict mr thomas of murder even if half of the jurors believed that he have the specific intent to kill while the other half believe that he lacked intent but and with extreme indifference to human life that combination brings together crimes that are logically and historically distinct and it prevents the jury from deliberating as a body to find the facts that are necessary to justify punishment all of the rationales that supported the combination of premeditated murder and felony murder that was narrowly upheld by the supreme court and shot versus arizona compel the opposite result here that is why it was ineffective assistance  issue in mr thomas's direct appeal and that's why the claim is properly before this court as a logical matter under kentucky law intentional murder and want to murder correspond to distinct fact patterns that cannot co exist in the same crime intentional murder requires specific intent to kill kentucky has defined it want to murder as inherently unintentional that's why in mcginnis the kentucky supreme court reversed verdicts of want to murder where there was only evidence of intentional murder that's why that same court in hall said there can be no such thing as attempted wanton murder because it is logically impossible to attempt that is to intend an unintended result of i mean that may be true but it's not clear to me why it's constitutionally permissible for kentucky to conclude that intent to murder is equally culpable as extreme indifference to the specific possibility of taking human life i mean as you know we could have debates about that but as a as a constitutional matter i mean what i don't think shad said was that equating those two things is constitutionally permissible you can tell me if you disagree but why is that in permissible what why can't kentucky make that moral judgment so the constitutional objection here is not that kentucky has created this in between category called want to murder which it assigns  of as intentional murder the constitutional objection under shad is that rather than treating those as two separate pathways one of which the jury has to decide on the kentucky supreme court has construed these as alternative means of the same crime even though logically if the jury found both those two findings could not stand and they do not stand when those same mental state findings are made under separate verdicts i mean it almost seems like  that you can't intend to kill somebody and be totally indifferent as to whether you kill somebody at the same time i mean just why it is that that that the fact that you can't have them both at the same time what does that matter for purposes of due process clause well respectfully your honor i think all homicides involve some indifference to human life but the question that is asked to a jury when it's deciding want to murder is a different question that aggravator extreme indifference to human life exists for the jury to find that this unintentional homicide was different than manslaughter and should be treated as murder that's a relative culpability finding that the jury is required to make under want to murder that's why this court when it considered terri versus potter and terri versus peers was faced with a want to murder conviction concluded that under the double jeopardy clause that implied an a of intentional murder it meant that if the jury had decided on want to murder it had already decided that the person lacked the intent to commit the crime there was a reasonable doubt as to it as to intent that's the only time when the jury is required to consider the extreme indifference to human life if they are deciding intent and they find beyond a reasonable doubt that there wasn't tent that's sufficient for the culpability of murder they don't need to be considering a separate element that element only exists in a context yes i mean why is it two different means satisfying an element of bad intent i mean some are level generality well the other the other point that we have made your honor which i really want to emphasize before this court is that kentucky as set forth in the eliot vs commonwealth decision cited in our briefs has made very clear that homicide under kentucky law is carved up into two distinct paths with relative degrees of culpability there intentional homicides there are unintentional homicides and if you go along the path of intentional homicide you decide a set of facts that determine whether it's intentional murder or first degree manslaughter because of a panty each of those facts along that path is offense element same is true but for a different separate set of facts under an intentional homicide so the jury has to decide was this conduct merely reckless or was it wanton if it was wanton was there this additional aggravator of extreme indifference to human least the crime is defined in this case i mean these two things are within one sense understand how it's two different halves i mean it sounds like you're describing two different crimes as statutorily defined under can talk and in most cases that's how they're charged but as a as a matter of the state supreme court's interpretation of the statute that it has allowed as happened here exceptions to that standard practice where they are charged together and they come under a general murder verdict we're saying that's unconstitutional and violates the due process clause because it effectively deprives the jury finding the facts under either pathway that has to find and it deprives the jury of what is basically a reasonable consideration of the lesser included offenses under each of those distinct paths if the i thought a common law like blackstone i thought blackstone do equate the two mens rea is an issue and it's intent to kill and not just want and it's not just recklessness generally but wanton as to the specific possibility or likelihood of taking human life i thought i thought that this statute that common law that wrote down and said i def bizarre alternative means what there were cases that said in this case the defendant had a malignant heart or this person had a deprived heart that satisfied murder but we know what i need to be very precise about this is that that was a type of murder that was recognized a common law what there is no evidence is that that was charged together with specific intent to commit murder and that's what matters in this case it's what i'm saying is that there is historical precedent in the common law for seeing the two mental states that are means here as equally culpable just as that was true and share that inspires a different question and i think your honor which is what there are in some cases not intentional homicide can be treated as murder we're not contesting that the question here is whether it can be charged with an intentional murder and treated as though those are simply alternative means of pattern that has nothing to do with the fact that are involved in intentional murder it can be charged together that's no different from what justice scalia found extremely troubling and shad which is the idea of charging someone with killing x on tuesday or y on thursday if these are distinct fact patterns that logically historically have not been combined than under shad there's no basis for treating them as the same offense and merely alternative means of that offense that's the this the government of the claim here ok i think we also want to really emphasize the other the other point to the common law that was very key in upholding the combination in shatt namely that when states were dissatisfied with a common law shortly after the founding they enacted statutory reforms and in so doing they retained premeditated murder and felony murder as part of a unitary first degree offense or was classified under those same statutes as a second degree of facts not as a first degree facts that too was unrefuted evidence here that the two crimes have been treated historically as different finally i think it's it stream important to point out that this is an outlier practice the due process clause exists to police outlaw that is all that we are asking for the due process clause to do in this case even as a matter of that's i think it's a bit of an overstatement i mean we store a federalism in this country and just because you know all that many states even any other state might have this particular definition doesn't mean it violates process it's not a module provision for criminal law what the due process clause says with respect to any two crimes being combined is that if they are distinct crimes it's impermissible to combine them because of the impermissible risk that that creates that the defendant if convicted wasn't convicted by proof beyond a reasonable doubt of either of the two offens that would be the case as long as the court decides that here these are logically and historically distinct offenses they're both murder i mean one your argument is one historically was first degree murder and the second was historically second degree murder for both murders right that that's true as a matter of the statutory practice having the jury verdict that might convicted of murder and manslaughter i mean we're talking about degrees or that's unconstitutional that's basically you're going to guess that that's not my argument your honor so just to make them because they're all the same crime i mean i think you've admitted that want to murder is murder but it should constitute let me answer in two parts i do appreciate if you define two different crimes as degrees that automatically under that bright line rule would have to be charged separately to the jury yes they're part of the same overarching rubric let's call it kentucky only defines murder is murder simpliciter the question here then is really can you define these two types of murder as alternative means to get to the same place because you can't have this the mental state at the moment the two different states is that all that's this boils down to know your own i think that's one key aspect of it but the other key in very troubling aspect of it is that under as a matter of kentucky state law you have these two paths and the jury is supposed to go down one or the other what do you mean by these two paths so i go on and understand your argument so i the path of intentional homicide the jury has to answer a set of distinct questions it says i know we agree that there is intent here do we think that the intent was to there this court said kentucky gets to define its law the way it does this court's concern is the constitutional implications of how kentucky has defined its law and what our argument is as the constitutional implications of this separation is that when the jury decides intent they essentially have to answer a separate and discrete set of questions about the intent to determine the level of culpability felony murder that's a different finding intent to kill true here and the endorsement of history makes somewhat good sense even if there are troubling things about that combination because felony murder never required any juror to decide the issue of intent all of that a felony murder rule which  liability rule it doesn't require any mental state findings so it doesn't require the jury to say as they have to here under want to murder that the defendant lacked intent but instead had this separate and lower level of culpability called want to know this but not withstanding that there was an aggravator and the aggravator of extreme indifference to human life justifies the imposition of penalty tucky has made a policy decision that want to murder is the same culpability as intentional murder i mean that seems like a  choice policy choice i just don't see a constitutional violation and your honor several states have made that high level policy choice we're not objecting to the fact that there can be such a thing as reckless murder or case as i pointed out the only reason that justice scalia joined the four justices of the plurality was the endorsement of history which is lacking here there are two very key distinctions that i've tried to emphasize that make this case very different and very troubling one is that you have the contradiction of the mental states between the two and more importantly that the reason consideration of these distinct lesser included offenses won't happen if the jury doesn't have to resolve the issue of intent in the first instance the evidence here was sufficient to convict mr thomas both want an aggravated want murder and intentional murder and that's important because somewhere down the line the claim has morphed from what was presented to the district court what it is now before this court let me explain in mr thomas's second amended complaint his claim on which was one of those that the c o a was granted claims one in four he simply argued that there was an insufficient evidence to support a wanton murder charge he made a brief reference to a combination instruction to argue that both offenses are created a mandatory presumption and a fatal variance which he said caused that because the commonwealth failed to offer sufficient evidence of want this so basically we have an insufficient evidence argument and this mandatory presumption argument both of which the district court addressed this mandatory presumption argument mr thomas had sided france's case where there were some burden shifting going on by the instructions we granted a certificate of appeal for the very claim that we're well lambdas are well and i'm going to to address that but i just wanted to point out that i think somehow that that has changed because claims one in four are not that are not what was described in the c l way and i'm not sure that there were ever before the court on this amended petition mr thomas filed this was his second allowed and it petition he probably tendered seven or eight and kept amending so i'm not sure what went on i'm just saying that something more fair and i just wanted to bring that to the court's attention now i don't think it's necessary though to get to the constitutional issue even even if the court you know thinks the claims are before that's because they're procedurally defaulted the yes that is being presented now yes and then and so and then neither does his lawyer make it under kentucky rule point four two that's correct that the first collateral attack it is the first collateral attack and it is normally where all claims have to be presented it what happened is following it he didn't raise it then it was terminated within a couple of years later kentucky changed this law and said we will recognize the typical ineffective assistance of appellate counsel claims what  had i mean what was the kentucky law at the time that thomas's counsel did not make the eleven point four two argument why wasn't it could you just not making a pap i see of appellate counsel are you not recognize or something only if only in the extreme case where counsel didn't file an argument at all a brief at all in other words there was no such thing as so and the kentucky court of appeals which had the last word on it said look you should have raised it in your first eleven forty two you didn't raise it our state supreme court said we're not going to apply this retroactively and you also can't raise the can't raise it in the way that you've raised it under rule sixty zero two because that's an improper thing so it never discussed the merits it was in forcing the default so in other words he doesn't raise an argument that was invalid at the time yes and then the kentucky court of appeals later says you should have raised that invalid argument at that time as correct now why isn't the invalidity of the argument under extant kentucky law when he files the eleven point four two why isn't the fact that it was futile why isn't that cause because he did not present and the ingle case which i know but it's just that but that's cause that's the reason why because you know is invalid patently invalid under kentucky law well being will says that even if the state courts have said this is a bad klein before you are still required to raise it to the state court ok if you're i mean if you're looking down the road trying to bring this federally at some point you'd better give the states a shot at it even to reconsider that yes and as i can't recall if it was the that case or the bazley case but they basically said look you can to the states can change their position at any time of these sorts of things so you owe it to them and that's exactly what happened here the this court the working case that he sides with his brace was not a procedural default case what happened is this it the same the issue was before the court as to whether or not court and we're going to hear it and if reading that boykin opinion it says nothing about procedural default and i am satisfied myself from internal records that the state never  boykin the claim a procedural to follow it was never made in the a v s petition so that's why when you when you read that book in case it doesn't say anything about a procedural fall that just says kentucky courts don't don't recognize it but we can recognize it if so it's not just a court itself and not applied a procedural or for whatever reason in that case so we didn't have an adequate independent i don't know for in that zone but but anyway it wasn't a procedural default issue before this court is my point and i will point out that there is a non published case that has come out recently called halverson a fairly recently and it's on all fours with the  with the facts in this case on that issue and it applied it did say that it would recognize that as cause however it relied on  as i said it's not a procedural vote case in the either boy can nor how person side to ingore balsillie or that whole line of cases about perceived if you don't have angle in front of me so i don't know if there's a way to us that mr thomas can sort of wiggle past that but i mean isn't it doesn't seem just enormously unfair to say that a pro se litigant cannot make a substantial federal law if a substantial constitutional argument federal court because he didn't make in state court as a pro se litigant an argument that at the time was clearly invalid under state law i mean that's that's pretty pretty harsh as well he was appointed counsel of state court in his first subsequent stay collateral attacks and of course pro se before the district court here i mean was he he he he you're saying he's procedurally defaulted because he did not make this argument in kentucky law or well no change in kentucky locks he has me in other words kentucky has long recognized these combination verdicts they say you know it's been somewhat critical but they've allowed them  in two thousand and eight just two years after mr thomas's direct appeal to affirm it's the kentucky supreme court held in the benjamin case that this did not violate due process so that we know for a fact as you know as as well as we can that counsel could not have won that case could not have won that argument and more than that this court there is and i've cited a couple cases in my brief that says an attorney normally doesn't have to anticipate changes in the law that's not bad performance here there was not only not a change of in order to prevail mr thomas has to show not only that he's right on the merits but also yes to show cause and prejudice set that aside but then he has to show that his lawyer was constitutionally deficient for failing to make this meritorious argument in his view and you're saying it wasn't it wasn't deficient performance because at the time and in the kentucky courts  the law was pretty clearly against this argument yes so maybe it's right in the end but you can't say the guy was totally deficient because it was a look like a loser and you have to make choices on appeal exactly exactly and e because the state supreme court had not yet put its imperatore on that so that's a pretty high bar even were some states are those are ruling that way but but the state supreme court hasn't yet gotten their state supreme court th the final word united states constitutional claim and that they they argue it violates the due process clause of the cause of the u s constitution and the fact that kentucky states marine corps says that does not i mean that that's not  dispositive as to whether or not counsel was ineffective and failing to make that argument a supreme court should have known that the federal courts would have ruled differently then he's got to make the argument right even though you have a ruling by the kentucky supreme court that's that's arguable but to preserve it i certainly would have i think that's probably what they are but  the historical basis isn't here that you had there whatever i mean you know i guess that's what he hangs his hat on well and they had that in and i will just to see that my times out i would just say that most of those cases that counsel has relied upon including the terry versus potter case and some of the state cases rely on double jeopardy issues it's where there has been a verdict that says you can find guilty of intentional murder or you can find guilty of one murder and then they pick one and you can't go back on retrial one that when an appellate court says there is insufficient evidence of want me conduct you can't go back and we trying him on back out you can only do it on one of the counts that they intend but here we don't have that they were split that it was just one general verdict ok thank you thank you with the state court of appeals in deciding that issue had said was you can't have that kind of claim in our court we don't recognize that kind of claim that is exactly what the kentucky court of appeals did with respect to the third state post conviction motion here it didn't say oh well you had to raise it in your first claim you're out of luck it said holland provides relief but it only really provides relief prospectively not retroactively you would have had to raise this claim in your first everything about your collateral attack is long past and view is angle not a political reasoning to this case and specifically your client's failure to make this argument in his eleven point four two even before anything about procedural default comes into play the only condition for a petitioner having to raise a claim before state court is that they have provided a form for relief here kentucky did not provide a form for relief for a claim time the claim was invalid so there is no direct room what what case would you cite in support of the idea that there is no forum for angle purposes simply because the forum would reject the claim i would say boykin and i would cite this usually just because a former jacks your argument doesn't mean you don't have a form i'm concerned i mean i think angles a problem for you and i'm really trying to just i want you to tell me why it's not so we can is not the answer necessarily in there and angle defaulted claimed there was simply a trial objection that wasn't raised at trial about the self defense instruction there that is a low cost objection that obviously counsel should be required to present to the state court at some point for it to adjudicate that is different than a claim sorting rule which is what kentucky effectively created here when it said sorry this type of claim we just don't consider this type of claim not because of some way that you have to present it and following our procedures we just don't consider this type of claim that's that's not procedural default in ordinary terms that's not a way of presenting a claim that wasn't followed here and it would be particularly unfair in mr thomas's case where he has given the state a full and fair opportunity to consider it and it did in his third state post conviction motion and said you don't get relief because holland's only perspective it also would be doubly unfair because holland itself relied on this court's decision in weekend when it made the decision only to look at those claims prospectively it said we defer we decided that this is fine to do so only prospectively precisely because federal is available under so it would be particularly unfair in this case to use that as a reason for not considering this case on the merits and the ineffective assistance of appellate counsel claim follow straightforwardly from the merits as the supreme court noted in smith versus robbins the failure to raise an issue on appeal comes down to that it was clearly stronger than the issues that were raised that's the case here t