good afternoon your honor is my name is brad levinson and i represent appellant petitioner zane floyd would like to reserve seven minutes for rebuttal the three issues that we wanted to discuss it's the first one is the ineffective assistance of trial counsel for it i mean any way you're going to get to the merits of the ineffective assistance claim is that right yes that's correct so should we just forget about the procedural to the fall since you're getting their ultimate they are essentially have to get to the  martinez or here i would very much like to argue after the ineffective assistance i would like to turn to seven twenty six because i believe there is a part of seven twenty six that was not addressed by this court in williams but i think the most important argument right now is a discussion of why this case should be remanded to the district court for an evidentiary hearing on f a s t in organic brain damage  so your honour's at trial counsel promised the jurors that they would hear answers to the question why they should spare mr floyd's life but found counsel failed to present two of the most important pieces of evidence and that's that their client suffered from organic brain damage and two that he had a birth defect called fetal alcohol spectrum disorder and this happened because despite red flags an expert reports counsel either failed to investigate or failed to follow the leads and that's what leads us here today i'd like to start with organic brain damage council had in their possession in one thousand nine hundred nine a report from a doctor kartel who had seen floyd mr floyd when he was thirteen years old and dr carter who is a psychologist found the following following things in her report that mr floyd had significant deficits in terms of functional abilities he had delayed visual motor skills he had frontal lobe dysfunction attentional and or processing difficulties perceptual difficulties and a significant disparity between his high verbal skills and his low performance skills which is a sign of brain damage so council had this report in his possession before the trial counsel had your client examined and the people who did examine him didn't think that didn't come up with this diagnosis right that is only partially correct your honor so one of their experts dr paul yes dr paul who is a psychologist did mention in his report prior to the hiring of a neuropsychologist and i think you're talking about dr smith but dr paul did flag for defense counsel that mr floyd had a neurological injury or deficit most likely stemming from birth so with dr carter's report and with d camp's i'm sorry dr paul's report counsel two months before trial very late two months before trial they hired a neuro psychologist dr schmidt and dr smith performed testing and the results that he gave to counsel were your client is not brain damage however it that was the case and everyone moved on i wouldn't be arguing this but that's not what happened in the situation trial counsel was skeptical of dr schmidt's report and he turned to another neuropsychologist with dr cardle that there are subtle signs of neurological difficulty so that's on the table i think what you're referring to your honor is he said i'm not sure of further testing wouldn't uncover any more but we have brain damage there's no question your client has brain damage actually his well i think he said to cardinal say that i mean it was something like settle indications of some neurological problem or something like that subtle frontal lobe dysfunction is i think the exact quote from her brain damage at least in the sense that people think of brain damage which is something that affirmatively damage the brain you could have mild to moderate or severe brain damage but brain damage is brain damage so if you have neurological insults to your brain you have brain damage it depends but at least in my experience there are a lot of kids running around with something that is called frontal lobe does function is that brain damage it is it just depends how it plays out in the case of mr flo we now know that the organic brain damage that he suffers from stems from fetal alcohol spectrum disorder which which is a birth defect so what we know now from the expert on f a s t is that all of the signs and symptoms that mr floyd showed throughout his life is difficult childhood is learning disabilities his intolerance to alcohol his behavioral problems all tie into the fetal alcohol spectrum disorder which is caused by his organic brain damage now whether dr curdle said it was subtle and dr can soar agreed with that we now know through further testing post conviction testing that we actually do have brain damage is it is it the most gross brain damage seen no but there is brain damage that explains mr floyd's behavior throughout his entire life and that's why this evidence is so important and counsel had red flags to look at fetal alcohol spectrum disorder for example they knew that the mother drank their mitigation specialist told them to look at fetal alcohol spectrum disorder counsel even has written a note in their in their has a note in  that we received from them actually stating i think it's fetal alcohol spectrum or f a s dr levin so it's some point they were going to hire a doctor live in to look at fetal alcohol but they didn't do that so recently or actually on monday we to this court twenty a j letter discussing the williams case out of south carolina the fourth circuit and i believe that case is so similar to this case you had five experts brought on board by experienced counsel you had a neurologist you had a neuropsychologist a psychologist you had a socialist or even one other doctor and in that case too they said there was brain damage and what counsel did in that case was they said well we're not going to present it they didn't present f a s and what the fourth circuit said is this evidence is so important because it gives cause and effect to everything in that defendant's life that's exactly what has happened in mr florence case well this is the fifth circuit in trevino also looked at this issue and found it very significant that f a s would not interfere with the ability to tell right from wrong do you agree that it wouldn't interfere with the ability to tell right from wrong i think that is something that needs to be flushed down and evidence or hearing because i don't know that that's something that an expert is going to have to opine on but i also don't think when you're talking about mitigation whether the point is whether you know right from wrong i think it's all the insult said of happened to you over the years that lead you to this final point keep in mind that mr floyd had no prior convictions he had four years in the military he was leading a fairly comfortable life when he got out of the military things started to go sideways so there's not a lot granted this is a very violent crime and it certainly was a crime that made the news in las vegas for quite a while but and with more aggravators than the fourth circuit had it did in one of the aggravators the so we're calling into questions or certainly some of those aggravators but again this is the type of evidence that again i don't  i've not sure how many ways to say this i think it's so important it gives cause and effect to everything what was presented at trial was eighty and eighty deed let's face it eighty percent of the kids in america have a d d or are racing around with that that is not what the jurors were promised in opening argument counsel promise an opening argument i'm going to give you answers to your question this is a penalty case we are conceding what mr floyd did and what he gave them was eighty which was eviscerated by d laro who told the jurors that everything that dr dorothy said was false i'd like to speak a little bit about dr dorothy that us defense expert the council did hire after dr consort so dr consort has told them your client has he was not qualified to a pine about brain damage and the couple of tests that were run dr dorothy reviewed were tests that were run by the defense expert the defense expert actually sat down with our client and administered testing so it is our opinion that evidence of mr mr floyd's f a s t an organic brain damage would have permitted counsel to construct a much more persuasive narrative and giving the jurors a reason other given the jurors a reason to support something other than death and certainly something stronger than a t t which again was another reason a t t was not powerful was there was testimony that mr floyd could have grown out t his frontal lobes could've mature and he was no longer brain damaged so the jurors had very little to connect any of the pieces of evidence that they were given again to learning disabilities behavioral issues social skills jury was told that the mother drank of a connection between the two between her drinking and the developmental at that that's right but there was no context absolutely no context without an explanation that the mother's drinking leads organic brain damage which effects i mean that the problem is that at some point it becomes a naming problem i mean if they were told that she was drinking and that because she was drinking and the child had developmental effects i mean it doesn't take a lot to fill in the fact that it must have been something in his brain that that did that so there was evidence of a brain impact from the fetal alcohol and didn't wasn't called fetal alcohol syndrome i think it's more than an naming mechanism i think it's an understanding that george and i have one related question does it make any difference that the trial and williams was much later in terms of the awareness of fetal alcohol i was well known in being litigated throughout courts but at the professional standards for lawyers had changed by the time williams was tried had they i mean the professional standards that would have applied and that we measure i see against by the time williams was tried talked about looking for a council needs to do i would guess this court to look at rump universes beard which i actually don't know when the trial was but it was certainly probably before mr floyd's trial in two thousand and it talks about  s that was one of the issues that wasn't looked at but the prenatal and birth trauma guideline just wasn't wasn't there so that seems like a significant difference based on when the two cases were tried their worst there were guidelines there were guidelines for scientists and doctors to follow when looking at f a s i'm sorry i don't have it right in front of me but i do believe there were guidelines i'd certainly would give additional briefing the court requested it but this is the type of evidence that we would like to present in the district court no court state court or federal court has had the opportunity to look at this evidence the district court denied it out of hand by saying dr brown hadn't interviewed the client and that was a reason not to have the evidence or hearing but dr brown didn't need to see mr floyd because the four characteristics of f a s were present in documentation and there is no rule saying that you have to have that highest standard of proof you don't have to prove you're a winner in an evidentiary hearing to have an evidentiary hearing it's in our view a small ask your honor is to have this case remanded to the district court for an evidentiary hearing because the states i ask is that you deny his appeal and we proceed to an execution and i think balancing this out some court should hear the evidence of mr floyd's f a s and brain damage if the court doesn't have any more questions or further questions and that i will turn seven twenty six ok so we were right at seven twenty six it is not the argument we're not making the argument from from williams so we're not making the argument that was decided by this court in williams so we're not talking about section one which is a strict one year statute of limitations the or miniature and in the direct appeal but there's an exception because i'm prejudiced exception and the case law developing this crime petition and that allows you to file that you can file that until the first p c r is over and the question is from whence given that when the first p c r is already you have to file this competition and there was no actual log out that at the time this happened that's basically the argument that is the argument right so what all right fine let's say you're all right and therefore there was no pursuit children fault aren't brand and that's what you brought now and so so why i had to sort of dance the ball at all i mean in fact and your argument which i'm not sure flies the martina standard is more forgiving so how does it help you i think because it's more than just i a c claims all the claims that were dismissed there were in mr but if they're not i i see claims oh i see is it's because it doesn't overlap martin is necessarily then would say because you can raise anything it's not you could try but wouldn't anything that could have been raised on direct appeal do you faulted for that reason it could be but these again these are other good like what is an example of a non i a c claim that you have here that wouldn't be defaulted for not being raised on direct appeal  i don't think that so i think in nevada the i think you're looking at thirty four eight ten and i don't think that that is consistently and regularly applied so if we came to court with those issues this court would be able to hear them we're only looking at the seven twenty six issues those raised in post conviction the second post conviction petition and those claims could be anything from trial court error with back to the jury issues premeditation instruction there were ten more claims that were defaulted we could have raised that this court or the federal court could have heard so i think it is more than just i a c claims and that's my second question if if in fact  claim wasn't state law defaulted because of the if there was no existing rule about the timeliness does that eliminate the need to demonstrate that the initial all these i hate all these acronyms but the initial  ineffectiveness understand law of the state p c r lawyer do you get to not do that because you if you didn't file a he filed timely all you care to do under state law is prove the ineffectiveness of you is to prove cause and prejudice under state law in the new meaning you have to prove the ineffectiveness of the initial p c r where you are now saying that if you because they didn't have a consistent time period you don't have to do that anymore no we're not saying that we're just saying that there was rule that's leading to you having to do that but it seems like a freebie if you if you don't have to still do it when the whole premise of the petition is say you're going to do it i may not be honest now i think i know what your answer  is you know and it seems that you're probably right although i doubt it there's kind of a mismatch so now it isn't true that we get directly to the all these issues you first have to prove that the that the as you are now telling me in federal court if the claims were not barred under seven twenty six in this record the new district court would have had the opportunity to hear the merits of claims once we got around  and i'm so like taking the issues for example i had understood you to be embedding those at this point and i see claim that's correct but they would not be embedded in i a c claim of those claims have not been defaulted under seven twenty there's an easy way to explain this that gets to what your honor is talking about really the a how the state courts apply the exception to that time bar here only really matters if this court is going to entertain respondents argument that under edwards versus carpenter a procedurally defaulted claim of ineffective assistance of counsel cannot serve as cause for procedural default rates what what they're talking about here is that the the claim that the underlying claims are found to be untimely they're barred by thirty four seven twenty six but then you look at the procedural default or the good cause exception and what happens there is that there's an asprin court comes back and says your claim for cause is itself procedur why should we care so i understand when the state supreme court says that it's the state supreme court deciding why it won't say there's cause and prejudice but how do we need to look at what they say about their own cause in prejudice an or don't we do our own cause in prejudice analysis under martnez you do you would if you're not going to apply edwards versus carpenter edwards versus carpenter the united states supreme court said that a claim of ineffective assistance that rule in the martinez context this whole discussion about application of the exception is meaningless because we're talking about this the state statutory right to counsel and the fact that under crump into  or on direct appeal any claim right now to slee you cannot bring it as i understand it under nevada law i mean are they you didn't acknowledge this neoprene but it seems to me that they are correct up to this point that at the time there was no adequate or clearly established or whatever rule about when with risp you needed to bring this second successive crime petition i disagree your honor i think they've they there was no one here so it wasn't explicitly laid out as a one year rule that was within a reasonable time and what i haven't seen in this case is an argument that based on the way that the investment court was applying half away that but i read it what i'm saying is that what i haven't seen as an argument that hathaway itself was being was not they didn't have notice that that was being applied in a way that period of exceeding one year i'd been reasonable now certainly i mean i think that's that's a central point to all of this if the court was going to find that it doesn't matter if we look at the ineffective assistance of counsel claim say under even under the you know this martinez substantiality standard this is not a substantial claim else if you do a whole stricklin analysis then the substantiality kind of goes out the window because then you have the second thing we still have to prove that that there was actual ineffectiveness an actual prejudice that there is you know you do have to meet the strickland standard and this is confusing but we're back to the same place again because if you have to be district instead of p c r level then that's the same you would have to do in under the state law so we're all in the same place again i agree your honor in so but one thing i would like to add to that is that when you're looking at a i think a good way to explain this at least from my perspective is this is all it's almost like applying that but double deference to an ineffective assistance of counsel claim because when you take you have to look at this from the perspective of post conviction counsel reviewing trial counsel's performance and give deference to post conviction council's decision making in deciding what are the right claims a raise here and you know if he looks at a claim and says look i can easily identify a strategic reason why counsel might have done this i'm not going to pursue that claim that would be totally reasonable performance by post conviction counsel again the same thing with prejudice if he's looking at a claim he says man i really think counsel made a big mistake here but it i'm going to have a real difficult time proving prejudice on this then you know postcondition counsels not ineffective for failing to raise that claim and i think that judge tom kind of gets to that a little bit in sex and versus cause and i mean he just jumped to the conclusion that the underlying ineffective assistance of counsel client trial counsel claim was i don't think it's a relevant though your honor to the extent that you do have to defer to post conviction counsel's performance you ply that that's strickland deference to post conviction counsel who is then reviewing trial counsel's performance under that same stric deferential standard so i think there's two layers of deference when you're applying this stuff but getting to the merits i would absolutely disagree with my colleagues representation of what of the evidence in this case i think i was trying to not make any noise but digging through the briefs i know there is somewhere in the briefing where they conceded that both dr consort and dr schmidt did not find the existence of brain damage if we just cited the case here where would we been in conflict with the fourth circuit williams case i don't believe honor i think there's a there's a couple reasons why the first is that you know the williams case acknowledges that there wasn't an actual framework for dealing with this stuff prior to two thousand and five this cases predat that as well as the two thousand and three guidelines from the a b a but on top of that this case is distinguishable in that what i'm just what i just talked about with the absence of evidence of brain damage the two phone conversation i believe it's at you you are twelve seventy eight dr smith says you're not going to like what i have to say and he says i've done everything i can to rule out the possibility that your client's a psychopath and had also shown williams that they had their own psychologist and so on there was your honor but but the neural psychologists in that case identified brain damage that didn't happen in this case it seems to me counsel that after reading the fourth rickets case and i appreciate you bring it to our attention as i think we need to with in this case but things that jump out as different to me were the fact that the facts of this case floyd seem not to belittle the facts of williams but we had four murders versus the one and also i think the williams case made a lot of the fact that the jury indicated was deadlocked and i don't think there's one declaration of one from one defense to investigators saying one juror in our case may have gone the other way but nothing is definitive as in williams is that my remembering that correct response that first is yes your honor you're absolutely right the facts of this case are significantly different in williams what the fourth circuit acknowledging williams was that there was one minor aggravator here we've got four murder convictions on top of that to t other aggravators that weren't you know that aspirin court found that the evidence met those aggravators and so this is a significantly different case and achates when you start looking at talking about weighing the aggravators versus the mitigating evidence so that this case is significantly distinguishable on that ground and the a b a standards i think you're starting to get at this to the a b a standards that change too said standards if i understand it correctly at the time of fl trial had requirements for interviewing the defendant about things like birth defects but not about expert specifically in that it changed by the time of william correct right correct and so in and that's to me that's significant here because what w have is that when you look at dr smith's report dr smith knew that the mother had acknowledged drinking during the first trimester that's in his report he knew about it he did everything he could to rule out the possibility that this guy had an anti social personality disorder but that's what he came back with and it's interesting to me that they want they want to try to say that dr schmidt's testing gave short shrift to all the stuff he met with the same fluid for two f days this is not just a passing evaluation where he just breached you know the basically what's going on here is you've got one doctor that the defense hired that reached the conclusion that this guy was a psychopath and now in post conviction they've been able to go out find another aspect sport that just disagrees with him this isn't a failure to investigate case yes which was incredibly far failed and the question is why should we worry about it and the judge kept telling him the prosecutor's job and the defense lawyer kept objecting  about from court look at that you agreed that you know that some of the testimony went beyond the scope of what would normally be permissible for victim impact testimony but found that it did not render the entire proceeding fundamentally unfair that is the governing this person had had a very unfortunate life and she went on about her pages and pages and what the impetus was to say work i know you know this is such a sad story that we have to do something for story about this you know completely sad and non typical life of a child who what what what what how was that a victim impact statement or i mean it just meant that the mother was you know had all kinds of problems relating to our child certainly i think that that goes to the impact on the family your honor and that's exactly what pain talks in those cases talk about is that you know the defendant gets a right to present himself as an individual to the jury but victims also get to do the same thing but now i think you're making an argument beyond what the state court even said the state court said this was an error as i read it but it just wasn't prejudicial right so i think what the state court said was error was that was the discussion of things that happened to other family members during this kidnapping and that was the stuff that should not have  corollary to four o three of whether this is more probative than prejudicial kind of thing but again the standard for looking at something like that is whether or not it rendered the entire proceeding fundamentally unfair that's the standard that the match frank were applied and i think we'll relevant to sentencing when the victim's for example in the victim's mom testifies about the loss of her son or son's life let's assume for the daughter side son's life that is fair game for the jury to consider as long as the aggravators and mitigators are at least fifty fifty actually if you go look at it well i don't know if that they're making an eighth amendment narrowing i understand that they were but if that if that's where the court's looking you know as long as you have a narrowly defined aggravator that's enough that satisfies the eighth amendment and then you can just say to the jury and now just then it's the jury makes a moral determination about weighing and i mean that's that the this i think  maybe gets a little bit closer to their argument about jury instructions and whether or not the you know you have to the weighing has to be beyond a reasonable doubt no courts ever said that including the eight the mimic concerns about narrowing are satisfied if there is an adequately narrow aggravator that's all that's required if the state proves an adequately narrow aggravating circumstance beyond a reasonable doubt that's enough to satisfy the eight that there's a couple things too that i forgot to mention with the ineffective assistance of counsel claim on the f a s t stuff they repeatedly argue in their briefing that you can't have simultaneously or co morbid if you will diagnoses for antisocial personality disorder and f a s the that's wrong if you look at the pages of the d s m that they're looking at what the d s m says is that  you should not diagnose antisocial personality disorder when the characteristics that define that diagnosis are present only during a time when you are psychotic schizophrenia have some other mental disorder going on if you read dr brown's report she acknowledges this point she says f a s type three cannot rule out the possibility of a personality disorder so the suggestion that those two things can't co exist is wrong  and finally there's this year long list of prosecut collective process and there's going to be a more process after john and so on isn't that exactly what caldwell said you weren't supposed to be doing and could be prejudicial because it can get the jury off the hook in its own mind as its responsibility does or are called all this is that i think here in this case with the overwhelming nature of the aggravating evidence it was reasonable for the state court to determine that it did not run or the entire proceeding fundamentally unfair so everything comes back to the fact that this was such a bad crime that i think that the prosecution five s episode was a prosecutorial misconduct we looked at it all together all the episodes of this out what crosses the line and what doesn't and a lot of that is taken in context with argument from the defense as well as a jury instructions from the corps mitigate a lot of any of the problems harmless it makes you wonder why they didn't think it mattered it didn't think they had a problem with it and think they really had to convince the jury they would have stepped over the lot is made times as they get and so it's always been a mystery to me i can't i can't get inside the prosecutor's brain on this one so i don't know your honor but i do think at the end of the day the evidence in this case is so overwhelming and when you look at cases like darden where versus wainwright where the supreme court acknowledged that every court that reviewed that case appropriately determined that what the prosecutor said in that case crossed the line but it didn't impact the fundamental fairness of the proceeding that's you know that's what was reasonable for them to ask from court to reach that conclusion here too specially when looking at a case like darden versus wainwright i was wondering if you could tell us what the status of the alva genda litigation is and whether there is actually an execution protocol in nevada well i mean there there's not there's not an issue with the protocol right now because there's nobody set for execution in nevada right now in litigation of course this all with having to you know at least according to t business dispute over whether or not they should be able to get their drugs back or not but there was an injunction that would have prevented the drugs from being used in the drugs were part of the protocol there there was there was an injunction that was vacated it got set for execution again and then the private business suit was filed and there was an injunction against the use of their drugs but but doesn't the protocol depend on their drugs that's what i'm trying to ask like i mean it's not necessarily their drugs but i mean that's part of al virgins argument is that if we could try to get the same drug from another source  you know i don't represent that are i don't i haven't worked closely with the department of corrections on this so i don't know what the status of any protocols are anything like that is what i do know is that there is there is nobody separates accused at this time in a bad so there is the net result and i i before that what the protocol is is that we're going to end up so well i think that the vatican nevada courts have shown that they're ready to look at this stuff seriously that if somebody does get set for execution that they're going to take a close look at this stuff and you know how how long and then some execution are the one right now that's a claim that that's not even really before this court what's raised in the petition and what this district court procedurally defaulted was a facial challenge to lethal injection but to a particular protocol  a challenge to a particular protocol is completely on exhausted they haven't challenged this progress they're going to bring in a twenty to fifty four x and they get they've got exhausted state court first that the argument that there is no remedy available in nevada state courts is wrong the nevada spring court just in the dozer case said look we won't review this in a thirty four petition which is the that he be a statute we want you to bring this through a complaint so we can have an actual trial where we can call experts proceed under the rules of civil procedure and do this properly yes if there is an actual protocol but if the state corrections  department is going to withhold knowledge of what it is it's going to jail until there isn't a pending execution we're going to end up where i described where swear we've had it up before in arizona particularly they kept pulling the protocols but it again your are that that that to me just plays right into the rightness question here i'm not i'm not disagreeing that we there's nothing for us to decide now i am i am suggesting that it might be nice to go back and see whether you get some order to this so that we're not all litigating with a gun to our heads in a death penalty case when the whole thing when does become relevant if it ever becomes rel a couple of quick points i'd like to undo my confusion to the court about chrome and i apologize for that so under crump you do have to prove that state post conviction counsel was ineffective but once you overcome that then you can litigate any claim in state court and so once the claim is litigated in state court then we can bring that claim it's a federal court now we couldn't do that under martinez for example dav a law says you can't bring in us that there was no not a day not if we get through seven twenty six down in state court we're going to bring to you as a merits how are you going to get through seven twenty six mistake or they've already thrown your way out the only question now is  court because they were procedurally defaulted so would they're not is what you're saying or they're going to be ok i thought the process conduct some of the some of the like to say one thing about i'm sorry i just want to make sure i understand what you're saying so these ten claims that are not i see claims you're just saying we should resolve those on the merits yes if you feel if you find that seven twenty six subdivision a is not consistently applied or regularly applied then you could you could review those claims on the merits or you could remain on them for the district court as your remaining to the district court for the evidentiary hearing that we're requesting on the organic brain damage  everything can go back to the court but that's to be a little more nuanced only some of them because some of them would be enter at anything that's correct right that's correct but the court didn't look at some of them at all we're looking at the mo testimony the nevada supreme court made a statement that it was it was clear that the district court found the mona nala testimony irrelevant and somehow the jurors would have picked up on that and they would not have listened to the evidence i think that is just an erroneous application of any law doesn't matter if the trial court found the evidence erroneous it's what the jurors thought about that evidence so i think your honor you said there might have been thirty five errors it's really hard to tell how many misconduct but they were rampant in guilt and punishment and i think it would it would behoove everyone some of the ones who claimed to be frank seem silly to me and i mean either they're not errands or the something like you know i think such something or things like that i mean there are a few that seem to gracious but mostly they were kind of silly i think whether that's i wouldn't can see that but even if that's accurate these errors were fairly agreed just in even the state district court i'm sorry the nevada supreme court and the federal court all acknowledge that they were agreed just and i think you would have thought you are feeling some of that well more than more than a few i think the supreme court found five in total over the state post conviction in the direct appeal and then the federal district court found at least eleven that that's a lot of errors that run rampant through through guilt and punishment i see the heart of time