we jointly represent frank atwood in this proceeding there are four claims that we have brought before the this court in the limited time available this morning i would like to address primarily two of those claims first the an effect of assistance of counsel claim at sentencing a claim before this court  a based upon our argument that the state court in this case made an unreasonable determination of facts under twenty two fifty forty two i would like if possible to reserve some of my time for rebuttal but it's so obviously very important given the complexity of this record that we address whatever questions the court might and let me turn first to the end effect of assistance of counsel claim our claim here we think is a very straightforward one at the trial of this matter mr atwood's attorney spent very little time deed almost no time preparing for and presenting  mitigation case on behalf of mr atwood at sentencing i i urge the court to read that transcript of the hearing it's only eighty three pages it took less  he did very little else he presented to the court a cursory memorandum but spent no time conducting any investigation we presume to know in terms of at the the prosecutors were trying to go for three aggravating factors correct yes and then the court only found one that's true ok so and we thought that was a very important consideration because what it means is that in this case we only have a single aggravator and that single aggravator is one that we have also brought before this  about that i realize that yes so so so but obviously i guess i'm finding it out for the fact that if the prosecutors were going trick three and counsel got it down to run that there are some significant success on that it wasn't that all three were found to be true well i'm i'm sorry i can't agree with that i think that that that the soil would have been better to have find all three they couldn't have found all three we wouldn't be here today if the court had had found that this killing was cruel heinous or deprived it clearly didn't meet the standards for that aggravator under under arizona law and the prior felony also didn't meet it was quite clear that there was going to be at most one aggravator and that one by the way was identified by the prosecutor just before sentencing hadn't even been in the case and tell until he got right up to the time of sentencing so yes it's good that there was only one aggravator but it's also i think the most that could have been and and the trial counsel mr bloom knew or certainly should have known that there wasn't much there in terms of aggravation well one of the claims that the one of the arguments raised by the government is that mr bloom brought out more  mental health evidence or put on a mental health expert it would have open the door to a whole range of rebuttal evidence that a reasonable a trainee could strategically want to avoid yes there are i think a couple of important points to be made about that first of all virtually all of the negative information that the state might have wished to use was already known to the judge in this case and recall that distancing occurred at a time before ringing the arizona when we had judge sentencing but the judge himself was well aware of  negative information that's the first point the second one is that arizona law does not allow totally open ended rebuttal t for me one would you comment on the task records in their import and then follow up on your last point in the for us what you think would have been properly excluded and not being related to the first round the a task of barrow records we think are important this state had asked for them and had gotten them along the way some time prior to trial those records about four hundred pages of of records correctional institution look at those correct he said at the time of his trial or his hearing testimony in this case that he had looked at those looking at those what's made it was it was a judgment he claims he made but he made without conducting any investigation the most he did was read through those records he didn't look into the fact at all and maybe the most important single fact was the very serious sexual abuse that would had suffered as a child he read it is double edged in the sense that that indicates that he he makes statements that he actually enjoyed it that there is evidence that he didn't have post traumatic that he was traumatized by that particular event so you have you have a person that you can portray him two ways i think before this court that went to the supreme court where the majority come up and so the supreme court reversed the ninth circuit and said hey you know you open the door then this other stuff comes flying in and you have that situation here that there are certain things as judg double edged sword that your client in not a positive light entered for the trier of fact on medications but your honor the first thing we would submit any competent lawyer needed to do was to talk to a mental health provider a mental health provider as far ago as the trial in this case would have helped mr bloom understand  that peer to be a two edged sword actually may be perfectly consistent with the claim that this man suffered from a very serious mental health set of problems p t being as we've said one of them but but the mere statement that that someone is recorded as having enjoyed being sexually assaulted  i believe that's what picasso and doesn't apply it all here i believe that's right so if we found cause and prejudice for purposes of martinez then we would refute the claim yes that what you're saying yes that's exactly  time but there are many indicators to her which she detailed in her report and in her testimony that that that demonstrated to her that that are in fact he probably did have p t s d at the we i know you disagree with that we do disagree why do you disagree with that we we do because of all of the records that were presented ultimately at the hearing which could have been presented at the time of trial would have have shown that this young man i mean if you look at his story he goes all the way up to about age fourteen everyone says that he's off to a good start but then we find out that that that that that his mother has a serious mental illness problem that that he has been seeing a psychologist himself since he was a very young child and that at about the same time that the that he was sexually assaulted and then had to go testify about being sexually assaulted he then started to go precipitously downhill into a life of drug abuse and misbehavior serious misbehavior all of those things testified would have have been powerful indicators whether you call it p t s d or not certainly it would have have been powerful particularly in light of the aggravating testimony that you wouldn't want to you reasonably could decide to open the door to a do you disagree with that yes we do dude for a couple of reasons one the the amount of knowledge that the trial lawyer had of any of this is almost nonexistent so we're looking hypothetically at what might have been said but i think even through that lens if you look at  testimony and i would urge the court to read carefully her cross examination on point after point after point she acknowledged that a dead indeed a finding could have been made whether she ultimately might agree with it or not she was very fair i thought in her assessment that all of these things that that we had brought forward could very well have been factors relevant to determining whether he had what do we do with that well again i think it is so important to understand the help that qualified experts could have brought to this simply labeling something and i social personality disorder isn't the end of a properly done mitigation case you need to look beyond that i mean is a disorder at least it is it is a basis for saying this man had problems if you look at the sentencing record you can get no indication at all that it's not it's not a very good label it's almost like they're saying you're evil well that's what process and being evil is not something that you know even though it is a psychological caught anti social personality it isn't it isn't one of them it's different then the type where people maybe hear voices or p t s d or things along those lines antisocial personality doesn't necessarily that can be a person that otherwise functions can premeditate can plan things knows exactly what they do all of those things but they're just evil that isn't that that does that's a double edge well wouldn't you agree vote your honor that that if you knew the major touch points of his history you  would i think have to seriously pause and consider whether there are explanations for him and if you want to call him evil ok calling me a personality and sociopath those type carry a different connotation then someone in that household use a nation someone that's got schizophrenia someone that you know that it possibly interferes with other functions so i i guess in terms of i'm just saying to say that it can only be looked at one way i don't think it can only be like that one way i'm not intending to suggest to this court that there was only one way to look at these things i understand that there would be some rebuttal and some rebuttal might be permissible under arizona law but but to say you're better off not even investigating you're better off not assessing what you're dealing with with a man who has clearly been the most vilified human being in southern arizona for years in a case that was the first televised trial people thought he was charles manson and yet when you get to sentencing nothing is done to really tell the story of this young man's life i know you want to reserve time for rebuttal but you also wanted to address that  claim we claim on on this one that the state court failed to make a reasonable determination of facts and i begged the court to look carefully the at the trial court rulings you've got thousands and thousands of pages of material that have been developed three or four thousand of those pages were given to the state court the rulings are three no finding of fact with respect to the claims that we've made the court court doesn't address our specific issues other than to say he thinks in total that they are there they're speculative but but we go through a very long lengthy process of explaining what we have found we tried to explain to the court that it wasn't  essential that that we even have an expert but we had people who were when the court doubted whether mr hill the first person who had who had worked on these photographs was really qualified although she never i'm sorry he never met mr hill we never had a hearing of any kind i never even met the judge and we were before him for over two years but but we went out and got a second expert that who is a very well qualified expert unquestionably head had said that the methods mr hill used were appropriate and then that the one other thing that that i think needs to be said is that the during the course of that work we we began to develop more information about what's called the reconstruction which is a very carefully documented story at trial that the prosecution used that that the bicycle had been hit and had you did you to post police officers on this so you did it some oath we wanted to talk to the f b i agents because i think they would be very helpful on this claim but they declined to to to be examined hundred am i correct that we don't have in the record the actual f b i paint analysis other than the testimony about it well that that there isn't and then also not a lab report there was at the time of the gas chromatography that had been done by the f b i crime lab was in the trial record and it still is there could be could be but that's not something you put in and that is so that the paint wasn't really discovered the first time around that the bumpers got detached ships somehow by airplane or whatever to arizona that the bike them appeared with the bumpers and then the paint arrives and that even if there was some pink paint that was contaminated in some way and mixed with something that  it's a little more subtle than that there that there was a yellow substance that that the f b i agent described as a smear and he was asked in his name as clock a he was asked in his interview was that a line or as mary said no it wasn't a line it was a little smear that went into a matchbox the our theory is that the line of paint was put on there on the bumper later and then and then so i understand i got that but when i got them following the trail i'm looking at all the pictures carefully which have been nicely catalog for us and reading the interviews and looking at the timeline to be honest i was hard pressed to figure out why all this wasn't speculative also and so maybe in short order you can tell me what is the best evidence as opposed to a theory that would confirm what your argument well i think that the best evidence we we have of that it  is that is that that bumper that we talked about is this bumper there's no doubt about that it's on the dock of this property in evidence room the reflection of the bicycle is in that so again you had a bumper and let's just say that is the bicycle i don't know if it is not a let's just say it is a bicycle i don't understand why that in and of itself is damning unless we can unless you can establish the whole theory the shipment the contamination in of itself didn't seem to me to quote were flecked anything other than a possible reflection giving you the credit on that the thing that makes this in our minds very worthy claimed to pursue is that in addition to those photographs we also found negatives that that were photographs taken by the first lawyer lemark hauser who showed up on the day that the bumper on the bicycle came back from washington d c and he photographed everything that day those yourself authenticating you can see the dates on there but but if you look at the bumper on that day when it comes back from d c it's clearly not in the same condition it is there the road grime is different the cowling is different the license plate has been folded differently the plastic that the bumper was in is different plastic so so it that to us authenticates that in fact these two items couldn't have been together at any time  yes there the records which no one is able to dispute show that the bicycle was sent to washington d c on on the twenty sixth of september that the car itself didn't get to tucson until a couple days after that at which time the bumper was sent so when the car got to arizona the the bicycle was already gone there should therefore have been no time when those two things are together and these photographs were in the states file they were not produced at trial as have put in that wasn't already before the state court well the court said it couldn't see anything in the photographs we couldn't see the things that we said supported our view these photographs do take some some manipulating so that you know what other evidence is there other than the photographs of the bumper to support mr atwood's claim of law enforcement misconduct what other evidence is there well there is the entire criminology and there is the testimony of the f b i agents that when they first examined the car in kerrville texas they found no paint they didn't seen anything that looked like paint i don't think that was quite the testimony was it was that at that time they didn't know they didn't know they didn't say they didn't see it wasn't noted and then they went in it is true they say they say it wasn't noted your honor but but we know that that council i mean that that the f b i had been in touch with with law enforcement in tucson and that they were looking for anything that brought those two items into contact with each other sir i think my time is just about it is i will reserve thirty six seconds a little confusing on the clock but you're thirty six seconds in the hole i'm not going to hold it against you're going to give  that i'd like to respond to and as the court's aware you know we did argue ice argue that linked in the briefs that the district court did not abuse his discretion in denying mr hammond's motion to men behavior petition to raise this claim and i'm glad to answer any questions that the court may have on that but otherwise i'll just go straight to the merits of the claim and i do agree unfortunately for me with with mr hammond that unfortunately we don't have a deference in this case because we are in the martinez but we do have strickland deference which means that the question that the district court looked at in the question that this court should look at is could a reasonable attorney in mr bloom's position have elected not to pursue mental health evidence and was mr out would prejudice by the failure to pursue mental health evidence so if a mental health evidence had been presented is there a reasonable probability that the court would have imposed a life sentence instead of a death sentence i think that the really the i think question so at this time it was the judge that did this it was a judgment thing it ok does it matter whether it was a jury or a judge in terms of when you discuss those things in terms of discussing prejudice well i think because i think what he was saying was the judge already knew all this stuff anyway so it wouldn't it wasn't a problem to talk about well a jury would have known that stuff already and in terms of like belmont case for example that was the jury was deciding a penalty phase and and a jury finding out that someone had committed a prior murder if you brought in more people to say what a good point he was it's pretty devastating i might stop and then they said they're not going to consider it but he's saying the judge already knew all that so he didn't really need to worry about the judge being prejudiced i think well the judge didn't know all of it from the pretrial motions and it's notable the reason he knew all of it was because mr bloom went to such great lengths to try to keep this evidence away from the jury and out of out of evidence but  think that we can presume that the judge didn't consider what he had already excluded because mr bloom didn't present anything that made it relevant for consideration and in fact specifically with respect to the prior kidnapping  say well that was a foregone conclusion there was no way that you could find this to be a cruel and heinous crime i disagree vigorously with the with the cruel and heinous aggravated with a kidnapping aggravator i think you know there was a it was written differently back then and so there was some law that was against the state on that but as far as the cruel and heinous aggravating factor the prosecutor as i recall had intended to prove that through testimony from a jail informant that mr outward had confessed to and mr bloom the prosecutors were not actually able to prove that she was sexually assaulted that's correct that's correct there was no medical evidence that she was sexually assaulted but he to start with did tell the informant that she was so that if if the court had been willing to entertain that and believe that then that your argument is that that could have supported that absolutely but the court that was excluded that was excluded  the a problem but you never mill helpers and really interpret those and what's missing here is is a nuanced view of of evidence that could be significant in mitigation and the lawyer after the fact kind of covers his tracks and says well i thought of this and i thought that but he never really gets mental health advice so what is what is the state's response to that in terms of strickland well i i understand the i understand the argument that there's no there's no harm in looking for a mental health expert but i think mr bloom's testimony makes clear that he had gone through those records pretty carefully and he had seen that there were myriad antisocial acts captured in them there was a diagnosis of pedophilia in the records and in fact that's what mr atwood's treatment was directed at was pedophilia because he had at that point had two offenses against minors that he was convicted of and mr bloom i think decided that he wanted at all costs to keep that information from being relevant at sentencing and the other part of the information  that the other part of what went into his sentence or his thought process was the fact that mr atwood had indicated to him that he did not want to have his sexual history put before the court he did not want to have this mental health put before the court and they hear that all the time from defendants and that doesn't absolve the lawyer from duty and that's true but but it is a factor that goes into the analysis and mr atwood mr bloom's impression was that mr atwood would either refuse to cooperate with the mental health evaluation or or that he would cooperate with the mental health evaluator but might say something very inflammatory as he has said in the past and he's well documented going on record around the time of this offense  with such beliefs as that children sex with children should be legal he had said that through multiple people so mr bloom testified that he was very worried about what mr out would might say but but i think with respect to those records you know we can we can look back in hindsight and say well maybe mr bloom should've gotten a mental health evidence of mental health experts to look at them or at least give him some advice but the question is whether an attorney standing in his position looking at those records that are very damaging would have said this is not an area i want to go into especially when combined with his client's attitudes towards mental health evidence and towards the general subject matter at issue in the case that being you know crimes against against children and of course if we know now from well we sort of know from the evidence you're hearing what a mental health investigation would have produced and i think it's i think it's we don't even know mr strout would fail to show that there is any reasonable probability that a mental health expert would have even diagnosed p t s d at the time of the sentencing so what that leaves us with is  a really a sexual assault against mr out would when he was fourteen years old and how mitigating that would be in the context of this case where he is accused of a increasingly violent pattern of sexual offenses against children i think a reasonable attorney could decide very easily decide that that's double edged and not not presented at sentencing what was there was some statement and there are about an action that he'd had with a four year old child where was that located exactly and what age was he when that occurred i believe he was sixteen years old i think that was that you know yes that was believe it was in the seventy two i recall correctly yeah that was his first one and then there was the second was against i believe she was maybe around ten years old a younger female and that's what sent him to a task at arrow state hospital and then he was parole or he was sent back pattern and this goes to the prejudice question as well because you know i think it was the present mental health evidence and you say he has p t s d and an expert a safety expert coming back and says no i think he has anti social personality and i think he has pedophilia once you get go down that road all of this becomes relevant and so this increasing pattern of violence that he showed towards children would i think be devastating to any medication that it may mitigate in evidence because the second offense against the little girl was it was a groping and kissing offense but the sensing at the little boy was very violent and in fact he threatened to kill that child and then as we know he gets paroled on that offense he tells his friend in oklahoma that the next time he'll make sure the child doesn't talk and then here we are with with the dead victim here so so when you look at the whole complection of his life so are there mitigating you know facts that you could pick out of that attached to their records or that a mental health expert might offer sure but are they outweighed by this other very damaging evidence and i think that a reasonable attorney could easily have been clued in yes and also i think in light of the whole hierarchy of the evidence this is how much of that was he actually able to keep out of by not going into what right counsel is now saying he should have gone into well certainly the facts of the kidnapping in the court said were irrelevant mr out would i understand has made the argument that some of this information was in front of the court through the pre sentence report and that's accurate there was some of that information in the pre sentence report the judge however did not mention it in his special verdict and also judge who now are pointed out in his order that nothing that mr bloom presented at sentencing would have made that information particularly relevant sanitary presentation of those facts so there's a big difference between having an expert come in like dr schwartz was in dr nelson and talk in detail about what he did to for example the little boy and having that set out  kind of in a cold record i wanted to ask you about we having directed the state to file a brief in response to mr atwood uncertified law enforcement claim supreme court's recent decision and back davis just arizona i'm curious what your position is on that miami and i'm not saying what our position is but it creates a little bit of  interesting road to walk and i guess my understanding was that that the court had already granted the certificate of the skill of the levee that was my that was my understanding and so i guess my answer to that would be that you should simply deny the claim because the state court decision rejecting it was reasonable and mr wood can't satisfy on that claim and i'm happy to turn to that if if the court doesn't have a different view please yes yes and  it seems that mr hammond mr his primary complaint at least as i understand it with the rulings below is that there is there was no evidentiary hearing conducted in state court or in federal court and of course in federal court we're bound by intent holster that the judge can or cannot consider new evidence to resolve the claim because the state court has rejected it so the question is whether the state court decision rejecting that claim was reasonable and i think the core question mr atwood i'm sorry mr hammond at some length about why the claim was not speculative and i don't think we've really heard an answer to that or at least i haven't  because the way i look at this claim is that there are a set of photographs which mr out would have admitted this morning i'm sorry mr hamad and then morning were not dated and they have not in my view been authenticated in any way i understand mr out was trying to authentic it them through the level of of dirt on the bumper but that to me is not terribly persuasive and then we have another that that isn't really authentic asian that's just well you know it does you know the  think this is what the strat would consider the most critical photograph which is p s t are thirty two which is the reflections so or the alleged reflection and i guess the question really is was it reasonable for the state court to look at this photograph as well as the others that mr hammond submitted and conclude that they don't support the inference that the that the police planted the evidence on this bumper and i think that that is a eminently reasonable correct dr who look so testified here affidavits so i guess it's do do you believe the expert or you're lying i think is the question i mean if we have an expert testifying as to what can be seen by the photo are is that dispositive for the for the court for the state court no i don't think that is dispositive i think the photograph speaks for itself especially when it's something as big us as this is reflection the bumper on the bicycle we still don't have any credible evidence of when it was taken and it would seem to really defy logic for this scheme to have happened i don't understand how it happened in the first place because the bumper was in the custody of disappeared excuse me on september seventeenth my name for and mr atwood was arrested on september twentieth and mr out with his or mr hellman is correct that the agent initially did not notice the pink paint on the bumper when the car was impounded in kerrville texas and i think that there is a statement i believe it's and it cost a statement which is in the p c r record saying that he did kind of a cursory photo photograph of the car and that's a car had been pulled forward and something so the front bumper was and is evidence on september twenty second the car is towed to an impound facility in san antonio where it is thoroughly searched and that's where they find the same day and i had actually check my notes did go out to san antonio on september twenty second and they observed the pain on that day as well and the f b i scraped it and set it off for testing and so the theory is car was currently in the f b i agents custody so right they would have had to permit the pima county officers to remove and then the bumpers get to tucson on sunday the twenty third yes and that and then they go back to san antonio on the twenty fourth is that right i'm not sure the precise date they go back to san antonio but at some point before before the car is moved back to tucson which i think was on the bicycle goes the bicycle goes to washington d c to the f b i lab on the twenty fifth yes so they're saying between in the interim period the bike was in the same vicinity as you know i think that's a fair characterization but but but simply because that is that small piece of plastic is is dislodged does not in any way signify that that bumper was removed in mr larimore  reconstruction expert in his post conviction interview he explained that that piece is actually fairly easy to to to get out of whack f b i or or a state employee or is he has an outside reconstruction expert you know he was contracted by the prosecutors and outside i believe the determination the state court made with respect to mr hill's competency because he was at least in the qualified yes interesting question i would i would think that would be a question of fact and i also think it would be a question of state evidence jury law really whether he was qualified as an expert under under state law but even apart from his qualifications the court said no images were reflected that supports the conclusion that he's drawing so the court view the images himself as well and made that finding i do want i want to come back and just finish my comments on and on in response to your questions which callahan about about the motives given that there were was already now it's not in dispute that there are already was pink paint on the bumper of this car and given that this child had only been missing less than a week at the time or maybe about a week at the time of the allegedly evidence tampering and given that that the detectives had been advised that california has started parole revocation proceedings against mr atwood which would seem to rebut mr hammond suggestion that they were motivated to make sure he stayed in custody because the federal government was going to release him on the kidnapping charge  i simply see no basis why these officers would risk their careers and in fact commit a crime to paint a plant additional paint on that bumper when for all they know that paint that was already there would have matched and also for all they knew the child could have been recovered either alive or her body be recovered with significant evidence on it to connect someone to her murder so this point we don't have the child but they also have the witnesses who saw him in the area understand right yes that they do you have been talking about physical evidence collected and correct correct and you know but i think it's critical that they do have some paint that appears to match that bicycle on the car that has been sent off  for testing so you know given that that seems why would you can plant additional paint on the bike if there's already paint there that may very well match the match to the bike and then there was there was discussion in the trial there was what there but it's not before us but there was testimony in the trial about the paint yes and i can't remember exactly what the comment was but the date that's not part of this record it's part of the trial record and they're not contesting that part it didn't sound like they were contesting that i believe mr hammond said that the lab report and i don't really recall i apologize that the lab report that one of your owners asked about was in the the record on appeal believe that was his answer that was the f b i pain report but there's certainly testimony about it there's testimony that there was in fact not only paint from the bicycle on the car but there was nickel from the car on the bicycle shows across transfer and also another notable fact for this claim is that the paint that was on the bumper was that precisely the height it would have been was carbon weighted down heavily which it was the day of the offense during the reconstruction mr alarm or weighted the car down with an equivalent amount of weight that it was carrying at the time of the collision and it matched up perfectly which would seem difficult to do with the bumper removed from the car by by having his whole mental health story told particularly this sexual assault he sustained when he was a trial if you read the pre sentence report which is both an arizona pre sentence report and one from california  i think the answer is no and the real question today is why would it make a difference to a trier of fact and i think even in light of ring we try to assume that the jury is still in place and you have cases in the ninth circuit that say that if this goes back it would go to a jury it just seems to me that a jury would be really pretty significantly inflamed by some of these things as opposed to a judge perhaps not as inflamed and i'm just not sure how that fits in or doesn't fit and well this is why i mean if a jury he to decide you just said we analyze it the same whether it's a jury or a judge well and i think that that's what our cases say but in bed in fact the situation stanton bloom was facing was one in which had he had a judge and he had to take into account all the things that the judge already knew having sat on this case for like three years i think it's  find it hard to believe that any defense attorney would enter do some of those things in front of a jury if you went back and had a penalty phase in front of a jury well i can assure you that that a death penalty lawyer would do exactly that you need anti social personality all of those comments if all of those things are that kind of i'm sorry that's not my point my point is that a defense lawyer would produce the information of his sexual abuse as a child not on one occasion but several and that that occurred at a time that was formative in his life and then whether these other things get into evidence under arizona law as proper rebuttal are questions for another day i think there's a very good chance that they would be kept out and even if some of them hide that you can open that door and then that everything doesn't come in  that seems that seems difficult but it's an important part of arizona law on this question that a rebuttal must really rebut the mitigator it's not just an open door to put in anything that the prosecution would like well but i guess how could not the fact that if you put in that that that the event at fourteen caused p t s d how could not the comment that i actually liked it and how could that not come in direct i think that might come in but it would be put in context by a competent mental health professional who would say those kinds of remarks by people who have been sexually abused as children are not all that uncommon and i think the jury might well understand that ok he could tell himself just looking at the pictures that the dead in fact the damage done to the underside of the car now we're talking about they're talking about the gravel  done at the time of the events in question and not at the time of the reconstruction but we have blown up the two of the pictures that the judge talked about in his opinion and i would suggest to you that anybody looking carefully these would say they are not the same the pictures taken on the the the list in san antonio show a very  lots of other photographs that were in the record of the underside of that car taken in san antonio that that show there really was no damage but that's why it's so important to have an evidentiary hearing thank you