morning council good morning your honour's tanya morrow representing corey weidner from from medford oregon pleased to be here today always honored going to start out with the strongest argument which is that the state's post conviction court's decision that the timing was not right for appellate counsel to do something to ensure that mr weidner got the benefit of the new rule of constitutional procedure and that news new rule was the southard standard is not only wrong it's unreasonable and i think the circumstances in this case point out that the general presumption that the lower courts know what the law is is sort of rebutted here to be so strong about it but appellate counsel and the post conviction court missed the big point and fail to understand that the federal constitutional principle that new rules apply in all cases that are not final was whol missed in this case and that's what makes it unreasonable this is the principle that required appellate counsel to do something she had a duty to act and so the timing in fact was right for m here a new issue raised in a petition for reconsideration and what that's one of those cases that's correct and that was the issue that the state actually litigated as a defense in the post conviction the p c r court did not and a newer case actually was issued in two thousand and nine it was an on bank opinion of the oregon supreme court and hold on a second if i m days of that and in that case they they reestablished in that case the state sought leave to file a petition for review at the supreme court after the united states supreme court issued its ice decision in two state's focus was what the post conviction ended up ended up ruling and that was the timing of the issue the other issue that was litigated and it was raised by the post conviction counsel was the fact that there was this other rule that allows for you know the waiver of the timing of the fourteen day rule both both the petition for reconsideration at the court of appeals and the petition for review at the supreme court require you to do that within fourteen days and that was that rule was brief me twenty j letter kempner versus golf insurance company which stands for the proposition that it's that the judicial rule that we don't normally want to we won't we won't consider a new issue raised in the petition for reconsideration is a general rule designed to prevent a party from appealing in a piecemeal fashion to keep the party from shifting its position and to promote the finality of appellate court's decision in conserve judicial time are other cases out there i think there were reference in dominguez that you know that used the term that it was that it's ordinary not the case that the court will issue we'll hear a new new rule but the reason court of appeals case and two thousand and seventeen which is cited in the twenty j letter baskets versus double double press manufacturing they reaffirm this position they they do a survey of all the cases and they reaffirm this position that petition for reconsideration can raise issues related to a change in case law since the court of appeals decision but there was a there was already a petition for reconsideration and that w where the last change if the issue is not raised to preserve below the position could be the night and then i think the difficulty in this case is that you are here on he is review which means that we have to  but the bottom line here is that given the overlay of post conviction and in the fact that claims must be exhausted before they can come in front of the federal court or otherwise the fact that a new rule comes down before a case is final requires appellate counsel to act that's the bottom line because otherwise in the post conviction case the state's going to be claiming that  eighty four which is reaffirmed by the court in two thousand and seventeen was merely to avoid piecemeal litigation at the appellate level but this is about a rule that specifically says you can bring up new kilis law after the court of appeals decision and there is no reason for counsel to have not sought to within that two week period that she had to seek a new you know to strike the prior petition for reconsideration and file a new one entire argument on and we have not seen it and i'm sorry your honor so i really don't mean that what what what we're arguing is that the plain language of the rule says it it says you can bring up new issues or in new you can bring up on position for continued consideration and you can raise a new case law after the rendering of the court of appeals it seems it's plain language it's plain as day and so is the rule regarding what waiving time believe this judicial rule prevented her from doing that why is it if she had looked at the law if she looked at the hagberg case she would have seen that the state utilized the same procedure just that same year but you didn't look at it until this morning so why was on reasonable for her or not to because the language of the rule itself says you can bring up new case law after you file after the in a petition for reconsideration it says it plain as day the rules and to subpoenaed this situation where a because in order for him to get the application of the rule in post conviction if she had the duty to try because if she didn't in the post convention the state would have said he was not entitled to due process because she north carolina you have a right to an attorney and so they turn he needs to exercise appropriate duties all the way through if in fact she had tried to get the new rule applied to him in post conviction through due process claim and she hadn't tried the state would have been arguing that he was not entitled to because it was defaulted because his appellate counsel didn't raise the issue on appeal that's what would have happened and so he there was a conundrum there the rule the new rule should apply to him his case was not final and the only way to get it in in the application was for her to at least try to get the court to apply that principle due process to him because if she didn't  credibility issue there should be no question that there's prejudice here with the diagnosis coming in when you've got a situation like this so with regard to there may have been a couple other cases where there are there's a doctor in suggest that it would have been harmless  given other circumstances and i think there might have been a case or two out there but the majority of cases were mandated and were granted relief on on plane air and sent back and they're listed in the briefing well i'm one of the ways is there is a there is a specific case that talks about how important the credibility issue is in the context of the diagnosis diagnosis software southard probation when you've got  again prior to this case in which the supreme court reaffirmed middleton which was an eighty three case and actually held no this is evidence of the expert said that they found evidence of deception and what was reported was what the victim's experience was the supreme court reversed that saying that that's vouching direct vouching and even despite the fact that there was an admonishment to the jury in that case in the trial case so the court i'm david thompson representing the superintendent tailor with respect to the question of whether there was a process available to appellate counsel to raise the southard issue i think it's helpful to begin with what was the landscape that faced appellate counsel at the time that southard came down here's what occurred in this case there was no southard like objection made at trial so you do not have an objection to the sex abuse diagnosis that was presented at trial so you have an unproved her view issue at trial opening brief and the only brief filed by the defendant after conviction in the court of appeals did not raise a southard issue or a southard like issue there was no issue raised regarding the admissibility of the sex abuse diagnosis i think that there may there may be a case out there that says yes you might be able to raise it and petition for reconsideration given this landscape but here's what we have in this particular case it goes beyond that after the brief was filed here and that's what i wanted to complete the landscape we had a motion for summary of from and spiled by the state after a petition filed the brief in the court of appeals court of appeals granted that the only issue that was raised in the petitioners brief to the court of appeals regarded non unanimous jury verdicts there was a petition for reconsideration filed off of the summary of ferment and that reconsideration based on change case law that's what counsel is really relying on well on that and that's not clear your honor because we already have a pending petition for reconsideration in place and the question presented to the state post conviction co was was there a procedure available beyond the first petition for reconsideration i e a second petition for reconsideration filed based on southward having come down was that available to appellate counsel now that is a sure state law question and the state post conviction court resolved that question in favor of the superintendent and said there was no process there was no procedure under state proceed role law for appellate counsel to pursue consideration of souder now this court may think that's wrong i might think that's wrong based on the plain language of the particular rules that are in play but that is academic it is an absolute bedrock principle on federal habeas review that a federal court will not review state court determinations of pure state law questions and that's exactly what happened in this case with respect to the state post conviction court and then with the oregon court of appeals when that case went up and then on review to the oregon supreme court you have to look at it as a pure detainment of a state law question and regardless of what we may think about the correct with that's what you're dealing with but you've got a predicate question upon which the feds were all ineffectiveness claim turns and if that predicate question is a pure state direct response to your question is all right two prongs under strickland deficient performance and prejudiced so let's look at deficient performance because i think that's what's in play here that's what was before the state post conviction court and state post conviction court had to decide this question did appellate counsel performed efficiently by not filing something a second petition for reconsideration or a petition for review to the oregon supreme court raising the southard question and this state post conviction court concluded that under state procedural law there was no mechanism for a appellate counsel to pursue either of those things a second petition for reconsideration or a petition for review in order to try to get the benefit of the south their decision appellate counsel to have not pursued something that state law didn't allow and that's the point there's your sixth amendment question was it deficient performance no it couldn't have been because there was no available procedure under state law for appellate counsel to proceed as petitioner is now suggesting in from of this court and with that unless the court has further  six point two five it does appear to provide a procedural the goal for filing a petition for reconsideration once there's been a change in case law and that is common sense at all it makes sense plain language what do we do with the fact that the organ p c r court said there was no procedural vehicle available that sort of an increase if you're sitting here on but a federal havey is read it does not because it is because the court postcondition court was applying the differently than the state court how can we do that as a federal court because because post conviction court was wrong the tools themselves provide the process we don't get to do that we don't get to review whether or not the state court decision was wrong we just get to say whether or not the court was the object the unreasonable in making the rule and given the deference that we have to give the state court the problem what you do is determine whether the post conviction court was correct about whether counsel was ineffective or not involved in that decision is to know what oregon law requires ok so the court did post conviction court can get it wrong and in fact they did in the state never challenge the issue about the timing because the problem with your argument on hey b s it doesn't matter if the court the state court got it wrong we don't get to see it in review on whether or not the decision was right or wrong i understand that your honor that it has to be rejected objectively unreasonable and in this case it is because of the federal principle that require years requires