morning your honor said claudia of the and white for appellant charles rhymes i'm going to be focusing on point one of our brief this morning and we've asked for thirteen minutes for my time my point deals with claims that claims that were raised in state court the same deficient investigation gives rights to post sets of claims but point one reaches the court in a preliminary posture because an amendment to add the new claim denied and also because the bequest for relief is limited and i'd like to focus on two errors of the district court first the court deviated from this court's precedents and those of other courts which treat specific claims of ineffective assistance as separate claims specific instances for the purposes of analyzing exhaustion default and eligibility for excuse under  discretion to allow an amendment and needed to make a factual inquiry about the federal public defender's conflict of interest and conduct during the history of the case before deciding whether to give new counsel time and an opportunity to amend the petition so i think the most important question for this court is the difference between new claims and new evidence under the supreme whether there would still be an avenue of relief because while there's a new statute of limitations that came into effect in two thousand and twelve the court also  precedent that effective assistance of post conviction counsel is required has not addressed the relationship between that and the statute of limitations nor to decided any constitutional claims or any claims that is addressed i think in the procedural default doctrine is claims that are out of time i think a number of the cases in our brief in involved cases that would otherwise have been out of time and court to addressed claims that had already been raised in the federal petition and those were the claims that were subject to the post conviction litigation the took place after the stay in abeyance was granted the new claims were not the federal court precluded the attorneys in the in the state court from doing something that the state court might have allowed him to do well i think that's something that needs to be explored but the terms of post conviction petition was appointed counsel was not the federal defender so which date proceeding are you focusing on that allows you to take advantage of the martinez ruling are you focused on the initial yes proceeding or the second round focused on the initial proceeding and i think that's the operative default for martina's purposes the supreme court has never specifically addressed this situation where subsequent rounds are pursuant to a stay in excuse pertaining to a default on appeal but justice thomas indicated the reason for that is that martinez seeks to guarantee one round of review for a claim b least one state or federal court and to feel the such review had been conducted by the trial court here no court has ever reviewed the new claims how can we ignore the second round however i think that the district court as i read the opinion was of the view that there had been a full opportunity to raise the claims and if you have to take and and maybe the district court didn't say this but if you take your theory to the conclusion you couldn't would there ever be an end i think there would be your honor first of all that the district court i think failed to treat these as district court didn't even get to the point that your honour's hypothesizing the district court decided this is new evidence in support of old claims pinholes to precludes me from considering new evidence end of story i think the limiting principle is that this was not a situation where the petitioner was coming back to reopen a hay b s case it was a situation where the same havey as had been pending the court had been assuming that all claims had been identified and the district court also heard for the first time after twenty fifteen that proper investigation had not been done number one and that the person who had been in charge of the purse strings namely the federal public defender had a personal relationship with the victim's parents court rejected that without further into so all we're suggesting at this point is that the district court should be directed to inquire into the factual allegations that were made in support of an opportunity to amend and find out why a proper investigation was never  done and then exercised its discretion in deciding under rule fifteen whether an amendment would be appropriate to decide the new claims to to do as as you request we would have to went claim by claim looking at specific instances of alleged deficient performance or prejudice and treated each one separately for purposes of deciding martina's for example in dan b there were two claims that were potentially eligible for a martinez excuse failure to investigate the petitioners early life and failure to prepare a social history and yet another claim more generally that the petitioner had failed to prepare for the penalty phase that was will to be exhausted and not eligible for martinez excuse simile in sasser v hobbs a claim pertaining to meaningful expert consultation was treated separately from a claim pertaining to timely expert consultation and i think you know for the purposes of consistency with prior practice the district court should have treated court should have gone instance by instance these were new claims they had never been pled before they had never been addressed in any court no one has ever analyzed or evaluated structure and learning disability but no one has ever assessed him for head injury brain injury brain diseases or brain toxicity and  mental health mitigation aspects of the ineffective assistance of counsel claim and the evaluation that counsel sought from dr kenneally is a critical part of that and i think you're right when  competency the ability to know right from wrong which is sanity and whether he had a paired mental condition at the time of the theophanous nothing in the charge to dr kenneally dealt with and and this is important because this is not the case like you see in a lot of the other cases where ineffective assistance is rejected where counsel had no indications of mental health problems because counsel had interviewed the  and the sisters as they testified to at the penalty phase gave a history of mr ryan's as childhood that was replete with indications of mental health problems his failure in school at a very young age his inability to focus and maintain attention his inability to process information so that the information that he knew in his head he couldn't get out on writing his social isolation his inability to fit in they told his parents that he had psychological problems and needed help so counsel knew all this he knew that there were indicators of significant mental health problems that us arise faced from very early on in childhood and yet in requesting an evaluation a mental health evaluation he didn't ask for an evaluation for purposes of mitigation even though counsel knew that this was a very very difficult guilt  case that was very very likely to end up in penalty phase at a death sentencing hearing well i think the lawyers themselves testified that they didn't for lack of a better phrase want to go there for concern about what else might be opened up that would cast their client in a worse light and i think the courts gave that some deference and and i think that was an unreasonable finding of fact for this research first of all we have to separate out the presentation at trial from the investigation of mitigation but why the finding of fact or a conclusion i think we argue in our brief it's both an unreasonable finding of fact that this was the reasons for the deficient investigation and preparation and that it's an unreasonable conclusion of law under stric penalty phase weren't issued one was issued a few days before trial and one was issued during the course of trial so those were ordered to be one what what what's the evidence in the record that suggests that the finding that they had a strategic reason was clearly erroneous or unreasonable well the evidence is that the orders that limited the evidence to be presented at trial didn't come until month after the evaluation took place so they couldn't have had a strategic reason based on the trial court's orders well maybe it would have been in light of the fact that they had two doctors who had done evaluations that really didn't make any significant diagnoses well i think that's i would disagree with that respectfully judge rather because dr r s who did the psychological testing had the significant diagnos he found general anxiety disorder schizotypal personality disorder which is a severe mental disease and defect that interferes with people's functioning in their social relationships with people that causes breaks from reality that fits in consistently with the evidence they did presented trial ok so even if you deviate from the sisters even if you deem that to be significant they knew about that and yet why wasn't it reasonable to information from dr arms dr penalties report was written before dr our business report dr kenneally in his report says i see some indications of of personality interactions never followed up with dr kenneally at say how does this report fit and can we use it for mitigation purposes and that's where the deficient performance falls in that that they had the experts but they didn't inference they didn't give the experts the information they needed they never gave dr kenneally the background information that they had obtained from the sisters about all those red flags of mental health issues that he had in before none of them had any capital experience they didn't obtain any capital training prior to the case two of the waters were civil practitioners who had very little criminal experience the third lawyer don't know the answer to that well i think you're right think your notion that they'd never have tried a capital case means that constitutionally the south dakota court was required to bring in the defense counsel from states that had capital prosecutions i go to what i mean we when i came on the court twenty seven years ago i knew that south dakota have the death penalty and quote didn't realize that so big surprise there wasn't any criminal defense lawyer in south dakota would ever tried a capital case and now there had been a couple of capital prosecutions before i ask you what was the money for mr ryan so i just don't know the names are particularly which once they were but but and i'm not suggesting that there's constitutional duty to provide experience capital lawyers with experience but there is a duty on the lawyers if they're going into a capital case they've never done before to try to educate themselves that to take trying to educate themselves on organization in georgia that trained pappa lawyers and that they got that information in writing and that they had a few weeks that was the limits of what was has to fight at the time of the hearing but but that's not the basis and it's wrong for  my apologies it's one for this reason because besides the usual ineffectiveness prejudice about how does this fit in with in the overall mitigation posture of the case there's something unique about d r report in this case that as dr ertz comments on mr ryan says demeanor during the confession now mr wyness demeanor during the confession was a major issue in the penalty phase part of this case the prosecution characterized him this cold the callous and remorseless they played the tape to the jury and they talked about how he came off that the jury the south dakota supreme court on on direct appeal even mentioned that and it's mentioned in my my adversaries brief to this court dr erts would have testified that that what seems to be c a callous is really a product of his mental health the fish and says that that his ability to to process information is being questioned in a highly stressful area to to read social cues to relate to people how he responds because of his mental health difficulties is a better explanation for his demeanor than coldness and callousness and so for prejudice all we need to show is that there is one juror who there's a reasonable probability that one or more jurors might have reached a different result if a jury finds that his demeanor at the confession is not the sign of callousness and evilness but a sign of mental health problems and childhood history of mental health and social interactions social communication problems in a case like this where the death penalty question was close the jury deliberated for more than eight hours asking questions about the nature of life imprisonment the south dakota supreme court two justices found that on the facts of this case the death penalty was disproportionate it was a three to two decision those two justices were the minority but it shows the closeness of the case so for that reason there would be prejudice and certainly should go back i would like to if the court has no further questions on this or the other issues reserve my remaining time for decisions denying ryan's relief the subject on his subject claims contrary to or an unreasonable application of the united states supreme court law runs a central claim here is that his trial counsel conducted ineffective mitigation investigation but as described in the testimony in affidavits of ryans as defense counsel and as pointed out by judge kelly his defense counsel felt that they were quote walking a pretty fine line on the mitigation that they could present so that they would not open the door to ryan's is marmion criminal and personal history what but you don't open the door until you present it so if you investigate it and you don't like what you find you don't present it as your evidence so how is the how is the i don't want to open the door reasoning the political to just simply finding out what's out there to begin with and right as trial coun did do a customary mitigation investigation starting with your client and that was where the problems immediately started to arise in the form of mr and his autobiography mr rhimes described a history of his life that showed that friends that he had had were by a large criminal complexes or victims they showed that the basis for many of the arguments being made here today that he performed poorly in school due to mental defects or and presented that as that as evidence no it wasn't presented in evidence it was given to his counsel and then his counsel uses that to base the decision on how to structure the mitigation that's a geisha so this just came out in the determination of the effectiveness of council was not something that that was turned over during the course of that knowing it would not be the west it was at the state post conviction for state post conviction for one yes and but that autobiography certainly informed rinds as trial counsel as to what they were facing in terms of trying to build a mitigation case not only that rises trial counsel could justifiably assume that if it w the autobiography the state was going to find out and the same information in one form or another that was in the autobiography was going to make its way into the counter mitigation case if they open the door to it it is  guilt phase and i think the record is pretty clear that the jurors in the penalty phase were quite taken with the fact that mr ryan's his demeanor during that confession was very cold blooded and and calculated but wouldn't wouldn't that in and of itself suggest that counsel should dig in deeper to once you've got that right it wasn't likely that it was going to be suppressed wouldn't it make directive from the paperwork well dr kelly wasn't used at all trial because when you look ok i'm sorry that he back out then for the guilt phase versus penalty phase or or any phase to try think once they open the door to rise his mental status whether it's during the guilt penalty phases they open the door to everything so that was a strategic calculus that trial counsel made that they wanted to avoid at all costs opening the door to darius's background any further and they had an eval and that evaluation did look despite what was in counsel says it did look for neurological problems a screen rinds for neurological deficits and dr kelly simply found none there's no reason at that point to i mean there's no united states supreme court case that says well once you've had a neurologically screen once you have to have been gone or logically screened twice so that's really what what we're kind of talking about here they say they did what they were supposed to do they had him evaluated they stick turn him over to  was trying to keep out and so then there is this damaging evidence coming in and we all know that two weeks or a week before trial would we be looking at this case differently well  but so they were trying to get it yes they wanted to get as much aggravating evidence and as they could but the trial court said no the only thing you can talk about are statutory aggravators that's it any other aggravating evidence that does not pertain to a directly to a statutory aggravator for eligibility purposes that just doesn't commit which is a rather extraordinary ruling and i don't think that that's a ruling that would probably be made today but that's what the trial court did so that was a breath rather monumental ruling but but in spite of that whether that ruling whether they won that or not just trial counsel still had to had to decide how much are we going to try and open the store or how much we're going to try keep the door shut doing you not concede in the absence of the of the win on the motions in limine are the decisions and the motion and lemonade the council would have been defective are you i'm sorry i don't understand the question or had the motion in limine a gone the other way you're not conceding that the investigation that they did was deficient no not at all was it was not deficient i think i'd say was a fairly textbook of investigation they talk to friends they talk to family they looked at his army records incarceration records social history psychiatric testing and remember this is one thousand nine hundred two this is before this whole cottage industry of mitigation that is developed in the last twenty five years existed we have to look at the standards that assuming that ryan's is allegedly overlooked the fifth afflictions were genuine the fact remains that they were not mitigating evidence of sufficient quality to warrant opening the door and ryan's fails to demonstrate how the state has corpus court or the decision was to try and keep of the defendant's history of having spent most of his life in jail out of the record and that by comparison like mr wright some self also spent the most of his life in jail but on top of that there was a amount of other aggravating evidence that the didn't even exist in the strickland case but simply simply the calculus of trying to keep his criminal record out was sufficient in strickland to  answered the standards evolve but what kay said if you can't apply today's standards and looking at the mitigation analysis that was done in one thousand nine hundred two and i don't have that specific site in front of me but that is united states supreme court law and i can supplement with the clerk a citation with that after the argument if if the court wishes to do address the stone field affidavit we are he said the defense team gilbert mr gilbert's and says that they did certain things that either mr stumptail doesn't remember or didn't wasn't involved in the left hand not knowing what the right hand is doing yet three different lawyers which i might add were very experienced lawyers  joe butler's one of the most revered lawyers in south dakota history even though he was a civil lawyer mr gilbertson is a is a very fine and very gentlemanly lawyer  stone feels a very experienced lawyer so the notion that these guys with the three stooges coming in there that's that's not correct and it's not fair to these lawyers but mr gilbertson said these are the things we did and mr stone feel maybe doesn't remember or maybe said he didn't do that he can only speak for himself not when mr gilbertson did but even considering if you want to look at well the they aren't exactly saying the same thing that doesn't change the fact that the very damaging nature of the aggravating evidence that existed in this case was something that had to be kept out of mr r penalty phase of this case really pretty much at all costs ryan's then sought to amend his petition in the federal habeas corpus court below to allow his second biggest corpus counsel an opportunity to conduct more testing and introduce more evidence of these insubstantial alleged mental afflictions and this was pin holster all over again why why aren't these separate claims if we can start there why are they separate identify a local bulk claims of ineffective assistance that mitigation well the the claim is ineffective assistance ineffective mitigation investigation so your view is any that's just one big general claim that is an umbrella claim and then i'm not aware of any united states supreme court case that dissects that claim into different facets and says you  know failure to talk to the first grade teacher is a different claim from failure to talk to the second grade when well let's not go that that detail let's let's rise up a little bit i don't think that's what he's trying to do the second versus first grade teacher it's sort of mean is there a supreme court case that says that you do do an umbrella and ineffective assistance off the top of my head i can't and i don't know if there's explicit holding to that effect your honor but i do know that  supreme court has looked at ineffective assistance claims as that claim so in terms of meeting the burden here of showing that judge schreier is ruling that this is all one claim and simply new evidence and in furtherance of that claim is contrary to or unreasonable application of any united states supreme court law well if i can just push a little bit if we do just traditional ineffective assistance on a guilt phase you don't just say you were ineffective assistance ineffective at trial generally there's always individual claims and there's all sorts of case law on on whether a claim is relates back and is a separate claim different stages of  trial and different decisions by the lawyer why doesn't that apply in the medication as well well the claim relates back then it's the same claim and that's the problem they have is that they they want to say well this is a new claim but it isn't a new claim so consequently the district court was correct in saying you know you had an opportunity to go back and look at mental issues you went back to state court you had hypothesized about this cognitive processing deficit so that has been covered in terms of whether there was anything there that caused him to sound evil during the confession and dr ertz came up with nothing there was no formal diagnosis at all he had the opportunity to do the testing he had full access to ryan's and he came up empty handed on that if there had been something there to pursue i think the doctor or its would have done that so your iris correct and terms of are we parsing this down the first and second degree teachers no but but the fact remains is that his mental health status both at the time of the second corpus as well as anything that existed at the time of the murder that was examined by dr ertz and when judge schreier re man did this case to state court after this case when all when the united states supreme court backed down created the stay in abeyance rules that go by mr ryan's is named to this day when she remained at that point she told second status counsel you bring every claim you've got anything that you think is a viable claim you need to bring it if not it's going to be waived and that's in the order that referenced in the in the briefing in the in the record so they were told to bring any claim they had and this claim that comes up later about airborne toxins groundwater contamination this all falls under the umbrella of the claim that they were ordered to bring consequently judge schreier found that mr ryan's was not raising in an exhausted claim he was raising an exhausted evidence and even if mr ryan's is afflicted with a d h d or some sort of cognitive processing deficit or p t s d or these afflictions ultimately are immaterial because they pale in comparison to the counter mitigation evidence that the state had available to it the united states supreme court pinholes to found quote there was no reasonable probability that the additional evidence pinholes to presented in his  pinhole store martino's unless the court has any further questions about these claims i understand counsels limiting basically their argument to claims one and two i don't want to talk about any further claims unless the court wants me to or thank you let me make two quick points as to claim one the an exhaustive claims one is the standards of twenty two fifty four d that require clearly established federal law don't apply to this question the question of doesn't apply the question of whether counsel was told to go back and exhaust all claims or whether the orders swim it to the claims we read the orders of swimming the claims to go back those orders can be found on appendix at pay ten sixty three and ten eighty two and i'm sure this court will make its own judgment on that as to the ineffective assistance claim that is preserved let me say this one of the what why are rum why are the post trial cases on which you so heavily relied the governing standard for whether there was a deficient performance in one nine two i was when i came out of law school and quirk it was still constitutional to to have an integrated built in penalty phases so that the fish of performance in those days couldn't conceivably have involved what you're talking about here no or no lawyer in their right mind would open up at the guilt phase this kind of mitigating penalty so why why isn't wise to counsel right that we're looking at strickland are going to darton as as the the standards for judging deficient performance at the time of the trial well strickland is standard and that's what the supreme court said and williams and w tried in the late one nine hundred eighty s and they applied strickland to raam pill and williams and wiggins were cases that were tried around the same time as mr ryan's case in the late eighty's or the early ninety's that's a good end and they applied strickland to those cases so the supreme court and i think the dissent and williams if you look at the dissent in williams it says that you're you're creating new law in the majority rejected that but i think that's e obviously important will take it under advisement