number twelve four zero zero three thomas martin versus warden the other no heigho correctional facility or argument not to exceed fifteen minutes per side mr pagan for the operated a burglary for hire ring in warren county in butler county ohio and that my client mr borden patronize that ring with a motive to scare his wife into moving from the country into the city so that he would be eligible to be the police chief in the city of spring but the state's evidence on those points was very very thin to say the least there was no confession there were no eyewitnesses there was no real forensic evidence there was no medical evidence and the motive did they put forth in court was substantially debunked on top of that there was substantial and real brady evidence that was suppressed by the kid by the state the brady evidence in this case involved henson's statement to the police that we believe untrue he had also committed a burglary for hire involving a guy by the name of james kelly kelly and that he had done that for the exact same motive that he acted in the bargain case and that was to scare the kelly person that you've done a brewer for hire for and you could name anybody and they suppressed this kelly evidence and that would have placed the entire case in the entire state's theory in a new light and it would have altered the probabilities of the operating a burglary for hire ring in which somehow they would find men that lived in the country and wanted to scare their wives into moving into the city and they somehow these people these these homeowners somehow stumble across gary hanson who seem to be in the business of scaring w fact that it had been disclosed but factually it did not and i would cite the court to document eighteen point one page i d number thirteen seventy nine in the state prosecutor i have to i have the transcript in front of me the state prosecutor said have you been involved in an instant before that happened yes what happened lady came home we was in the process of laying out the house it was an insurance job though but we was in the process of laying out the house and she seen us she ran nothing was ever come of it i guess what i'm saying is it taught us that somebody is scared they're not taking the time to remember your license plate or your car or probably what you look like so that's the illusion to burglary that the only allusion in the kelly burglary that was in the state court trial record and it didn't identify the name kelly it didn't talk about a burglary for hire in only vaguely alluded to it  well your words but again you can look at the transcript yourself to get how it was characterized but what at this point the trial that we're talking about the prosecutor is asking about whether or not you've been involved in a case where you fake a burglary and shot over somebody's head to make fraudulent insurance claims the bargain case wasn't one of those and he alludes to this kelly incident but didn't name kelly and didn't say that it was specifically  case no the only thing that was disclosed was the burglary report that didn't have james kelly's name on it didn't have gary henson's name on it didn't have phelps's name on it talked about a real burglary where there was real injury it didn't talk about a police report that's it and what they suppressed was henson statement to the police that he did that burglary for mr kelly for hire for the purpose of scaring his wife into moving from the countryside so there was just this random reporting there for no reason yes that's right and what you have to understand is this was and a nine year old case it was a very high profile case the time it was litigated and there was a huge document dump from the state to the defense in this case and it was buried in the middle of discovery although designated as brady material and how how was it discovered that henson have all these connections to that robbery and the reason court decision was explicitly decided on rescue caught and you don't go beyond that second your sister courts in the third in the seventh in the ninth circuit applaud the produce of perc loose of stripping doctrine that is if there is a higher court determination on procedural bar and there was a lower court decision that was determined on that was adjudicated on the merits that lower court the decision is stripped of its purpose of effect when the higher court merits and the state appeals court we don't need to get to the merits because we're going to decide on procedural to what should we do in the preclusion stripping and you look at the last court decision which is the procedure before it and you see the fault and you say there wasn't in it there's no longer an adjudication on the merits in state court because it was stripped by the procedural default decision of the higher court what is your best case they hopefully a supreme court or sixth circuit case that we would ignore a definitive decision on the merits by a lower court because there's a definitive decision on the procedural depart by a higher court the supreme court has decided  stripping at this this circuit has not the third the seventh and the ninth have the thomas case out of the third the on for close of stripping there are other circuits that go the other way there's not so there is a supreme court case you'll stand i think that's a good case for me because that's why i think i'm pronouncing that right and that stands for the proposition that if there is an explicit explicit determination by the last recent court about how the case is decided you stop there my second argument is because of stripping that we've already gone to my third argument is that if you read the state court decision and i have it here that it explicitly decided on procedural  the state points out and post conviction petition is not a substitute for direct appeal by not raising anybody issues under oath to peel the defendant is barred from raising it here stop it what's your answer to the did decide this the state judge decided on procedural bar just like the court of appeals now there's a couple other sentences that follow that that i contend are just contingent dicked speculation meandering but what the state court judge went on to say was one have reservations about whether or not the brady evidence would be admissible reservations not holding to and this is important i'm not going to speculate on how that evidence would have affected the trial outcome but that's critical because that's the  saying i'm not going to do what brady requires me on the third element which is measure the evidence against the trial outcome to determine whether or not there's materiality and by doing something contrary to the brady the brady decision i think that would trigger so even if you got to the state court decision in these in these contingent discussions i think you would find that there wouldn't be a death of deference because the state court adjudicated our claim contrary to brady's third element and then the state court judge went on to say and you know what the the trial attorney in this case had lots of options and maybe he just used his judgment and discretion in not approaching this evidence and presenting it you would win anyway i think it's a harder case but i think clearly i've given you four reasons why a double doesn't apply it's explicit preclusion stripping the trial court judge himself found it on procedural bar and heard in say this clearly the state court judge said i'm not going to speculate about what that evidence means and how it affected the trial outcome that's contrary to and by introducing ineffective assistance of counsel elements into the brady analysis but he could have had involvement in being solicited for the job and in arranging for the job to be done and he could have been potentially criminally liable could barton the kelly burglary report was was not suppress it was given to the defense during discovery things that would tip anyone that there was this theory that this state was going to espouse that there was a big burglary ring to cause wives to want to leave the countryside certainly it worked there was nothing direct but as judge white sort of said sort of disbelief disbelievingly what was it random that that report was included in the discovery the during the post conviction proceedings bar investigator submit an affidavit in which he said he spent hundreds of hours pretrial interviewing hundreds of people about this case certainly the connection could easily have been made with  the discovery report with a report in the discovery i had all of the evidence i'm sorry why would the state not provide all of the evidence that they're going to give the kelley burglary report why wouldn't they give the additional information that seems to be the critical information i'm not sure that there is any evidence in the record that there was other information they're it's not clear with a record that there was any report generated any witness statements generated by the reinvestigation in two thousand and four interviewed him didn't they didn't the interview hanson yeah the the police interview unit henson and his statements were right i i can't be certain on that i believe so yes i mean i think that's the assumption in the record about i don't know that there was any report generator or a specific written say there were no materials that's what you're saying though that there were that there were no brady materials there was a police report and nothing else is that true then why are we here at i would ask you the same question you're representing that there was nothing else there i don't and all the information that was obtained was just the the investor to get or going out and speaking to be able that there was no the investigator for mr investigators had talked to them in two thousand and four they denied that there was a stage burglary their father denied that there was a staged burglary and that's all that's all the further that have gone is this in this court is it that there is brady evidence or is it that there was no obligation to disclose the brady evidence my position is that there was there was there's no evidence that there was brady evidence to disclose and did default and really the crux of this case is the materiality regardless of whether or not there was evidence that was suppressed it's plainly not material as the trial court found the jury could have just as easily found that there was a ring of truth in james in jim kelly's supposing testimony what he would have testified to was that henson was lying about a staged burglary but if if if if the case credibility why wouldn't that be material well the test is is whether there's a reasonable reasonable probability that the outcome would have been different not whether it might have been different and there's the putting the facts of the calorie kelli burglary before the barton jury simply would not have helped mr barton because that way you have a separate probability that that would have caused the jury to make a different a theft of the credibility of that witness i mean how in a small community like that that you would have beef mirror image burglary i'm saying that's that's in fact paying that that substantiates the credibility of henson by he saying that he's done this before i did this case it was an insurance case but we did this before where we  faked a burglary and shot over the head of a lady oh well those facts are exactly the same as the kelly burglar and you have evidence that is the purported brady material that was suppressed that the did not believe that it was such a case that your point that mrs kelly and ms kelly have affidavits that are after the fact after the trial occurred in this case is a timing problem for your opponent but your opponent argues that there's other evidence that shows that this was a made up story by henson in the penson who apparently lied on other matters  lies about the kelly matter being a murder for everyday burglary for hire why wouldn't the jury be more likely to believe that henson was lying when he says that bart n hired his crew to do a very well it's clear that there was no short of shortage of evidence demonstrating that henson had credibility problems he was  a career criminal he had gauged in falsification type offenses before it was all brought out on process so the defense did everything it could to damage the credibility of henson having jim kelly stand up there and deny that he had collaborated with henson on a prior robbery doesn't doesn't in a way it hansen's credibility is it of course jim kelly's going to deny that he was involved in it it was it was sort of an insurance fraud type of thing it was it he's not going to stand sit up sit on the witness chair and say that he participated in a robbery of his own home well i mean if though that what you're saying now that it would have affected the outcome but you the prosecutor are are making the decision that this would have no bearing what it clearly i believe  relevant to credibility and the defense doesn't get an opportunity to theft where the other whether or not they can use that to challenge credibility in a way that makes them a hero different than the trial you're making that decision on the friday and that's problematic well i don't deny that that it would have been it could have been used by the jury to assess credibility what i what i disagree with respectfully is that it was rose to the level of materiality that it would have it created a reasonable probability that the outcome of the trial would have been different given all of the credibility difficulties that henson had to begin with  having someone stand up there and say oh well i didn't participate with him in this in this particular robbery when the facts of the robbery had that would have come out if jim kelly would have testified and it would have looked exactly like hansen said and looked exactly like the barton robbery i i don't purport to know all of the evidence that came in but it  there was absolutely no physical evidence linking this man it was his wife it was his home he wasn't there the only thing that links him and you have henson who wasn't there is either who testifies to what his dead brother told him and the only evidence that links him is what henson's testimony that he asked him to do this but he was in jail and that's what he's convicted on what originally put them on to  and henson was the recording of the nine one one call and what in which mr burns sad i got a call for help and the the investigating officer who was doing the reinvestigation squad remembered that there was a phelps name in the file and connected that with henson felt was dead at that point and i was sort of curious he said to the it was that it took the nine one one operator nine one one upper right his defense  trial was what he really said was i got a call for help while that of course doesn't make sense given that he was talking to the nine one one operator who told him help was on the way in resolutely doesn't make any sense to tell the nine one one operator i got to call the guy who i hired to rob my house so that my wife would move to the city well i mean i mean all admittedly barton was also panicked at that point because he didn't intend for his wife to be dead so he was he was got a call for help yeah i know he had already called for help but it doesn't exist and nothing makes sense here that the nine one one tape also show that he was wrestling around the house and he wasn't in front of the phone at all the times necessarily was on court and from then he was on a cordless phone and you know he might have just been talking to himself out loud you know what if what i had to do what was going on here i got a call for help find out what happened did you hear that out loud yeah i did did he mean to probably not was there an allegation that his wife really was messing around with phil that was an original story that henson told i believe i don't i don't think that there was any evidence of that at all that was mean that the case went cold when it was lying originally apparently when he was originally interviewed i believe back in ninety five when it was originally investigated the whole theory of the prosecutor is that these two broad brothers are running an operation which was burglary for hire is how could it not be relevant that here's another case where they're claiming they did burkley for hire and these other people deny it now sure you can say well they wouldn't admit it but you know it's it's something for the jury i would think i mean i mean that's that's that's certainly true of any type of information comes up after the trial all we can do  is speculate on what effect it would have had on the jury and here we have to determine whether there was a reasonable probability that that information would have made a difference and i think it's getting to that question of the standard of review and what what is the state court decision that we look at i believe as a magistrate found that if you look through the court of appeals decision and rely upon  trial course decision on the post conviction petition if the right of appeals decided exclusively only on procedural default what is your best case from the supreme court or the sixth circuit or any other court of appeals right there's no reason there's no reason incision on the merits and i don't believe that there is a specific case in the six circuit or the united states supreme court the discusses when there is a decision that there was procedural default it's not correct i think it's a tough argument to make i mean i made a good faith argument but i'm not going to you know i'm not going to shoot myself in the foot i don't think it's a very convincing argument that the priest that he could have brought it on direct appeal it's extraordinarily difficult to bring a brady claim on the record nevertheless whether whether they whether we have difference to found that both burglaries were similar in just because kelly denies just because kelly denied it would have denied it doesn't mean the jury would have believed him and conversely that they might have found a ring of truth in the rector the supreme court decided that the state court doesn't have to expound at length on the standard or use the magic words as long as it gets the result correct and show it in the questions i've looked at this case for ten years so i do know the facts and he did get a consecutive sentence he got five to twenty five in ten to twenty five run consecutively and and scott's point about the fact that hanssen was incarcerated and didn't participate is not reflected in the record in conspiracy he just couldn't fulfill the end of it which is the entry into the home because he was incarcerated but he has brother had staked out the house and done things in preparation for the burglary before he was incarcerated but the what the the main point that i want to get across here is that my opponent says that he denies that there was suppression but that's not how the state itself the prosecutor's office itself in state litigation conceded that they had suppressed it and the best evidence of that is investigator newsom's affidavit that was appended to the state prosecutor's response and post conviction and in paragraph six seven eight they explain why they did what they did and paragraph six investigator newsom said we gave you the report and you you should find the rest in paragraph seven he says i didn't believe kelly when he when he told me that he hadn't hired henson in phelps and because i don't believe him we don't turn it over and then lastly he said in paragraph eight which scott  and he said i'm not going to do that and they said if you don't we're going to charge of obstruction of justice and then kelly went got an attorney and nothing ever came out of it so there are three aspects of the brady evidence one is what has been told the police but none of it has been perpetuated in writing absolutely not the only thing that was in writing was the burglary report which was totally innocuous that never had james kelly's name on it didn't have henson's name on it didn't have phelps name on it didn't have burglary for hire on it it had becky kelly's name on it what case would support your this this kelly stuff happened and then we presented in state court they said yeah we gave you the police report that was enough and by the way we didn't tell you the rest of it because we didn't believe it and you know what we think it's  that's all a nuisance that's on affidavit and that's how they defend they defended it on a reasonable diligence defense which is it was your responsibility once we gave you the report to understand its significance go out and find james kelly talk to james kelly find out what he has to say and then use it but the problem with the reasonable diligence defense is the supreme court has said look when you make a promise by providing brady evidence that you've given everything you need to the defense doesn't have to go any further than that but if  violation of the purpose of occur ok two questions were they supposed to give they were supposed to give a summary to the defense under rules of procedure that say we've orly interviewed the kellys and this is what they've told us and it's  investigation from the cold cause of the cold case squad they got all that information before that's why they knew the burglary report had some brady significance and again they withheld the important stuff and gave the stuff that was a knock us and then the last point on the reasonable diligence defense the state court judge in this case made an order and it's reflected in his post conviction decision he required the state prosecutors to turn over every statement that henson made every statement and it's the order the court required the prosecution produce every statement made by ensign because of the suggestion by the defense that he was totally unreliable they didn't follow that my clients were allowed the board was allowed to rely on the state court on the on on the idea that the state court the state prosecutor's fulfilled their promise and gave over every state investigators that he had been hired by mr kelly to do a burglary for hire with the motive of scaring his wife into moving from the countryside and into the city that he's editor ohio if it's an oral statement there's to reduce it to writing under ohio criminal procedure all pretty evidence whether or not it's a statement or what have you needs to be turned over its criminal sixteen and that includes summaries of oral statements i know but if there wasn't a thumb you seem to be conceding that there was no summary i've no idea if there was a summary or not it's never been provided to me all i know is that they've they've acknowledged this interview took place in an affidavit and that they didn't turn it over because again we did we gave you the we gave you the report and that's enough and we didn't have to tell you the rest of it and we didn't believe them maybe they didn't take notes because i didn't believe them but it is not their job to decide credibility is a jury's job the side credit with respect to the question about what to do about they a and if the state court of appeals was wrong to decide on procedural default then we look to the last reasoned decision on the merits of which there's only one decision query whether it's reasoned which is the state arguably by the state i don't concede that but i take your point and i don't think that a his court looks to the last reasoned opinion then makes a decision on the basis of state law as to whether or not it was right or not on procedural fault i think your job is to look at what how they decided was there an education on the merits or not and if there wasn't and its explicit that was decided on procedural default then you stop there and then there has been no education on them as we decide whether there was in fact a procedural default all right well that because there was a president procedure before that i can make my claim but the district court said there wasn't procedural default and i think i'm hearing a concession that there wasn't so you could you could make an error right and you know i made that in the district court and i haven't made it i haven't i haven't because i felt like the case was strong enough otherwise that i haven't made it but you know the point actually the point that you bring up about procedural fault is that the the cause and prejudice would be satisfied here