may please the court my name is like the federal public defender's office along with charlotte merrill we represent ernest gonzales like to represent our i'd like to reserve five minutes for about oh ok keep track of those counting down we'll try to help i'd like to start today with claims tina of our opening brief which is the district court's denial of mr gonzales's motion to amend his hay b s petition the district court denied motion to mend his hay vs petition was ineffective assistance of counsel claims based primarily on three reasons first based primarily on some three reasons first the district court faulted mr gonzales for  withdrawing his ineffective assistance of counsel claims in the year two thousand from his hay b s petition despite the fact that keeping those claims in the petition would have rendered the petition mixed and subject to dismiss but he did withdraw the thirteen or shall we like that point for that very reason yes your honor and the second reason the district court denied the motion to amend is it's clear from the district or court thirty he the district court also fall to the mr gonzales for not amending back his hey b s claims earlier despite the fact that all litigation was state and that there was no vehicle under which to amend those claims and tell martinez was decided as i read the district judge you seem to be willing to allow the suit to go forward if there had been a prompt attempt to amend after method he was still timely is that right i believe so yes so if we thought that particularly after the supreme court opinion last year an artist there was that you do a stopped clock then whether idea that martinez constitutes and quote extraordinary circumstances of the meaning of the statute well i believe the change of the law we cited case a few cases in our brief that would be that a change in the law would be an extraordinary circumstance and what cases are you referring to sorry i don't have that right in front of me while you're doing that let me ask you would martinez have to be retroactive in order for that to benefit your client here i don't believe so because  raised his or attempted to raises claims through martinez as soon as they were available to him as soon as he was back in district court my understanding is it's not that martinez is extraordinary circumstance external circumstances that for assert that's correct that's a that's another way of looking at it the trajectory that mr martinez is ineffective assistance of counsel claims have been has been has been very i want to call it crazy but it's extraordinary he's been trying to to exhaust these ineffective assistance of counsel claims since his motion for a new trial and and he he raised these claims they didn't go anywhere he tried to raise a month direct appeal the direct appeal counsel told him no you need to raise them during post conviction proceedings post conviction proceedings which was correct that was what was correct yes and  conviction proceedings as well as the court has probably read he he was given in effect of counsel and we actually consider the relationship between counsel and mr martinez an abandonment under maples this attorney got on the case early on she met with mr gonzales once in the entire proceedings she wanted him to come up with his claims she didn't take any of his calls alternately she tried to get off his case two months into it because she was too busy she reluctant lee filed a post conviction petition that was fifteen pages of argument six claims thing claims were in fact arranged by the summary fashion by the other lawyer well some of the claims were raised by the other lawyer and that was after after sept after she kemper had already filed her post conviction petition and withdrawn and mr gonzales is continuing to trying to exhaust these claims and he filed motions for new counsel motions to open up the petition again  filed a supplement and then it was transferred to a different judge that judge off or brought in the post conviction or back asked her to consider these claims they put on a second lawyer to brief these claims and even after the second lawyer supplemental petition which was also very deficient it had no investigation no outside the record evidence again it was a short of petition with barely any analysis even after that karen kemper refused to raise those few claims in the petition for review so the law isn't settled on that but i but is there any case law i don't believe so but i but actually the problem is is the raising of the claims in the first place in the post conviction petition because they were properly raised and she didn't raise all the claims that she didn't do any investigation she hired an investigator and two weeks before the petition was actually do that investigator went and spoke to mr gonzales and told him that no investigation  been conducted and that was confirmed two weeks later when she filed record based claims without any experts without any investigation despite the fact that mr gonzales had been requesting an investigation and experts to be look at all the petitions that were filed by mr gonzales a lot of those are very real substantive claims assume for a moment that the three of us will read all of what you just told us here or wrestling with the timing issue putting more tuna fish aside for a moment one told the statute of limitations from september two thousand and chill june of two thousand and eight without martinez what else told during that time if anything well i believe his incompetency for want he's we've we've the record is extensive  that he's been incompetent we believe he's been incompetent since we got on the case anyway and actually we believe one was the proceeding involving incompetence and there was a period of time but it wasn't called terminus for what i just mentioned  it wasn't it so when when the federal public defender's office started representing mr gonzales we immediately noticed something and while we were trying to litigate his post conviction or his petition we were trying to have a relationship with mr gonzales and without getting too much into attorney client we knew there was something wrong and he me and started to to have experts evaluate him and so we had experts kid is really bothers me frankly i really need to get my arms around how that applies in this case but inside for the moment i i know you think he was incompetent but even if you were nobody made a determination during that period of time he was represented some claims were made some claims were withdrawn what do we do with that in terms of limitations during that period of time putting martinez aside so just to be clear  it was not finding of a competence but not for lack of trying on mr gonzales as we move for competency hearings and we have fourteen expert reports that all say he's psychotic right and the court not make a finding on that one way or another back to two thousand and as you pointed out it was during that very parian that he or shortly before that that he was seemingly competently complaining  issues in complaining about his lawyer not doing it and so on that was one in one thousand eight hundred nine i guess so you'd have to be able to get the incompetence back pretty far while before you  somebody is schizo phrenic doesn't mean that they don't have especially if it's a degrading disease and that's not that's the point that's the problem the problem is that you have to get the incompetence back from the time that you got into the case which was  what happened here exactly once he thirteen of these claims including the one you're complaining about now i gather is that right yes your honor were dismissed well he wasn't given a choice whether to  stay in a baby that was not a choice no not at the time they were withdrawn from the cash they're withdrawing and if he had gone to exhaust them they would have been there they were procedurally defaulted in the sense that they were certainly too late as a matter of arizona law and he even tried to exhaust them because there was a second post conviction petition filed the second one almost certainly too late but the question was whether later he was incompetent because the tourney that was the attorney speck in that's that is another point yes your honor so let me ask you a variation of this kind of extraordinary circumstance began and after the statute of limitations has already run i after the statue of limitations has run can there be an extraordinary circumstance that began yes if what we can if the extraordinary circumstances began during that time so if we were talking about mancini's of course it's a case that was decided a particular time period are you saying that as of that date we deal with that or does martinis have to relate back in order to help your client what we did we could do we also briefed the relation back part martine is help you if it doesn't relate back well i've never understood why we have to really back claims that are that are available under martin martina's puts an end to the extraordinary circumstance so martina's marks the end of that period but just the extraordinary circumstances not martino's the extraordinary circumstances during this period you simply can't bring the claims and i'm not sure if that was clear in our brief but that's that's the position that we're taking and that position is is that the extraordinary circumstance was his inability and availability to bring these claims forward and sack like santa claus and when martin this comes along suddenly graham that your position because during that time something's gone wrong but during that time there was there was no means by which to bring these claims i suppose we could have raised and the reason they're not available to him is that his counsel was ineffective and that's an extraordinary circumstance that lasts until martina's and now and if we never had martinez it would remain an extraordinary circumstance and you'd never be them they look at least plausible whether that is an extraordinary circumstance up until you get to martinez that's the issue that's character and so how would the limitations period run in the meanwhile if that were true how could the limitations period right in the meanwhile how could you have if you were asked whether if they if you think limitations for it had to run in the meanwhile would richie and martinez supplying you said no but how could it right in the meanwhile occurred with lawyer number two were that to be a lawyer number three said there was an i see by lawyer number two prosecutor that never really got anywhere and then martinez comes along does that heartiness gives you one shot at post conviction claims yet ineffective assistance of counsel claims and so mr gonzales has not had his one shot so when i'm asked you if you've had a shot about and i c laimed before martinez would martina's resurrect the claim nonetheless if those claims were not exhausted mightiness is only a vehicle to to overcome cause  record clear on the delay because the district court judge or the district court order makes it sound like mr gonzales took two years to bring his heartiness claim to after after mar district court didn't make a decision on that until january twenty third two thousand and fourteen and that order they kicked out our motion and asked us to refile it complying with local rule we weeks of that order and that was the february fourteenth two thousand and fourteen motion to amend that was filed and i can give you all the as to that but that's that that's how it happened we were as soon as we got back to district court we were we were is as diligent as we well they're raising a relating back question but let's put that aside and say we're not talking about relating back we're talking about them from the procedural to fall problem that they had at that point which wasn't  innes i know so your position i understand it correctly is that the statute limitations had expired before march it grows or teen is would have to have been retroactive for it to do so until martina's they were all received really defaulted and there was simply no way that they could bring them as soon as the procedural default took place and then had and was then in effect  counsel which i'll assume for purposes of a question and the if and because the ineffective assistance of counsel the claims that are otherwise plausible claims have been defaulted now sometimes you can't get around to starting our circumstances because the procedural default isn't excused but martina's quite a long time later says william what there's a way around the procedural default of a comes from ineffective assistance of counsel why is not the ineffective assistan well that's got to get to that point you know what i want what i want to know is whether you're relying on the fact that he waits until two thousand and fourteen after martinez is that there is that he brings the day after martinez well he certainly diligent and nothing is preventing him from doing nothing it had been he had been prevented prior to martine ross so i'd say questions that one is how because the case wasn't it just recorded that point why isn't there a second telling carrier at least to the point that it's i'm not sure if there is law that prevents them from filing an amended petition yet at any point when he was   in the period after martinez the this court had issue a stay as to the the case it was did i don't know if while that stay was pending that that prevented them from filing but clearly after june when the cases returned they made a decision to challenge the district court bias and prejudice in fact decided instead of filing any sort of  this this court denied so again what prevented them what prevented them from filing so your argument is that he should have been diligent after the stay was lifted  you take the entire period from june to february as this but ticking off the limitations period it was still timely if you take out the whole period before june is that right in other words if you apply a stopped clock method of of equitable child this was timely is that right if you take out everything until june third two thousand and thirteen and then don't worry just consider as a time as running from june two thousand and thirteen is a timely no why  because there was nothing that prevented them from filing prior to during that time period ok but i'm still asking you whether any of the limitations period is a year right and that it already run long ago well that equitable showing means that it doesn't run it means that you're taking out the time period that if you're sake a backward be told you're saying that it didn't run it's told there's no no there because this goes back to my earlier point i gather your position isn't even the opposing counsel perhaps that the statute of limitations arguably run before two thousand and twelve so these discussions about working is probably only have an impact  retroactive as the first statement and i don't know what impact it happened if it if it did that would be i began i guess i'm i'm having trouble understanding question is can an extraordinary circumstance begin after the statute of limitations has expired which is i gather your position that it's expired right yes absolutely so my question then is can an extraordinary circumstance if martini's is such a thing can it began after the statue of limitations is already expired and i guess my trouble is understanding we're not talking about the statutory act that would provision that would start the statute to run a new our way no that's a separate account my i'm saying is from from roughly i think september two thousand through roughly june of two thousand and six what what told the statute during that time that was so that it would not have run during that period nothing so from your perspective the statue of limitations had run a comes martina's if if it was an extraordinary circumstances what difference does it make if the statute of limitations as already run it doesn't i mean he the only the claims would either have to meet ethical trolling or they would have to relate back and in this case neither either of those options fit and you're saying that once you get to martinez in response to my colleague's questions you're you think that he was not diligent after martinez was filed yes may not have made a different if you start at that point it may not have made a difference because i think my colleagues believe that there's still enough time to file within the period of time which indeed may have already expired is that correct correct so i've got a question that relates to this earlier period assume for the moment although i don't ask you to conceive assume for a moment that there was ineffective assistance of counsel at the sentencing phase by the trial counsel assumed further there was ineffective assistance of counsel at the p c r stage resulting in a default procedural default so that the claim with respect to the penalty phase can't be brought why is that not an extraordinary circumstance because one my my my assumption is that there's a perfectly good claim at the penalty phase there's a perfectly good you see claim at the p c r stage to come but a combination of those means that the claim which are perfectly good can't be brought because of the procedural fall brought about by the ineffective assistance of counsel why is toing works i mean in general i mean take a case like holland i mean when the petition was actually filed it was late and they should take out the limitations period that's what tolling is for tolling this to others or stopping the statue of limitations from running at some point and you're picking it up at another point so it can't run if it is in fact an extraordinary circumstance like outs for tolling propos  only thing here that is an argument that there was something that stood in its way is the inability to bring a procedure only defaulted claims correct and martinez in two thousand and twelve vi did a vehicle to do that and the right so let me pursue what i'm after here so ok what i'm trying to figure out is once we've got a procedural default of a perfectly good  reason we have the procedural to a fault is see of the procedurally defaulting claughton going to be specie our counsel if that's an extraordinary circumstance preventing him from bringing the claim that then is an extraordinary circumstance that tolls the statute until that disability is lifted by martina's what's wrong with that analysis other the fact the statute run nothing is wrong i think nothing is wrong with that and now we wait a minute this to at the time of the ineffective assistance of counsel the statute has not run so the question is do we get equitable polling from the time of the ineffective assistance of counsel until martina's the ineffective assistance of what counsel ineffective assistance of counsel first off of the trial counsel and then the ineffective assistance of counsel p c r counsel the statue of limitations has not run it in either of those two times so the question well we're in we are in the state court and p c r proceedings the federal statute of limitations has not yet run ok we're in state court you're right so we have ineffective assistance of counsel in state court at the penalty phase we then have an effective assistance of counsel in state court at the p c r affairs and need neither of those times is the federal which produces the procedural default at that point the federal statute of limitations has not rom so the question is do we get equitable tolling from the curried of that second procedural default either but it was pretty procedural before by the second council extraordinary circumstance which would give us equitable tolling until martinez is decided that's the question some question and it's our case if you agree with limitations has not run and then the question is do we get equitable polling from that time when the first p c or council procedurally before us i don't believe that's that's correct i this is all undefined law right we're side and why i'm not sure why it's a relation that question but maybe you can clarify that well i don't i don't think it is a real i don't think it does relate back to what i meant by that so i can clarify at least for his way the question is in this case you have the mightiness was not in effect you have procedurally defaulted i see claims they're dead unless something revised them some take the position that martin is opening this made it possible for these if you will just some body and spirit floating in the non procedurally default land to be revivified that's why i say retroactive it well i think the emphasis is not so much on extorting extraordinary circumstance that stood in the way but the second part of that and prevented the filing years if they exist at all assuming we assume the court's position that these claims are plausible they've been around since the early  sat twelve years later and says case is still going on and you were wrong and this is you know in the victim in the case would say why has this case been in federal courts for twelve years i mean this this is the problem you know there are a lot of problems in this case in the core problem to me is what happened in the trial court the core problem to me is what happened at the penalty phase if there was ineffective assistance of counsel this guy was appointed the very last minute he did absolutely nothing and the predictable happened then we got a p c our counsel who refuses to blink was obviously a lie as he claimed and therefore we don't find out it's entirely case been tried properly by a by an appropriate lawyer who doing his job at the penalty phase we would have a good record we would do a lot of allow the district judge to have a sense as to ok whether or not there should have been the death penalty imposed and we c forward but but the problem shows up when we get this last minute appointment of the penalty phase counsel who doesn't do his job i mean there's the that the problem is not the federal courts problem the problem is what happened back there in the state court a long time ago a long time ago that the arizona supreme court review and looked at the record and did their own analysis and concluded that the death penalty was appropriate in this case where the based on the record in front of it and the record on front of it was horrible because the ineffective assistance of coun and if if you were sitting in on the arizona supreme court back in the ninety's maybe you would have decided differently but no my buddy up because there was no record because there was no record because the penalty phase lawyer didn't produce one whether there was a record maybe the what the the the or what has been produced sense then has not been all that significantly different there was a record  this following up on my my colleague's question let's assume for a moment that there was i see even a bad i see let's assume that the year was one nine hundred ninety nine martina's was decided in two thousand and twelve but just being futuristic i just it was decided forty years later and assume that the defendant was still alive would that have vivified the bill of the council to basically move forward with an i see claim at that point no i don't believe so i and i i believe i'm not positive but i think there are cases under rule sixty sixty b six where they have refused to apply martinez which would support might be some kind of a time limitation on the effect of what you well whether martinez is an extraordinary circumstance if you are aware of any cases say that martinez is an extraordinary circumstance of in the meaning of holland versus florida i am not here here's a thought it seems to me entirely possible and i'm i we have not had conference in this case obviously but it seems entirely possible given the questioning from the bench forward under martina's if that happens you're probably in for another five years or what a geisha at the very least yeah other well i'm and i maybe that even makes the point about to make stronger would the state be interested in mediating this you i don't have very much i just want to really address the martina's retroactive question heartiness was an equitable decision so it is retroactive and we're willing to to retroactive i don't have any in front of me right now but really i'm willing to supplement that for the theory that equitable relief is retroactive as martina's itself and in combination with his incompetence just to compound it on that issue i wanted to clear up the red relation back statement that mr todd made that we didn't tie any of our claims back on in our opening brief on page one sixty nine we listed our claims and where they relate back to so that in our brief also mr todd mentioned  that mr gonzales filed a motion in just record trying to get reassignment of his case when i went back and alluded to that was a more wasting time and that's just not the case the filing of those pleading not take one single day extra it all happened parallel to the district court proceedings and there mr gonzalez did not when we went back to district court on june did not sit on his hands and did nothing the in holland the court stated that it was not required maximum feasible diligence  diligence is required and as i laid out earlier for this court we were as soon as we got back into district court we had merits briefs that we needed to file and we were complying with those district court orders and in immediately after that in fact the last day and when we filed the reply in those briefings we filed a motion amend in november and the district court kicked that motion out and then it took time trying to decide and so by november we were