truck counsel abandon michael watts worth my client and left him left him at the mercy of the state's case leaving the jury no option but to find guilty of first degree murder mean let me take you back a little bit yes it was a timely well it's not timely but it relates back to relate back well it relates back because there's a common core of operative facts well just a minute even if the court at the term and it's timely why doesn't that third amended petition have to be dismissed because it was an exhausted claims at the time was filed well although they may have been an excess to well if they're on exhausted then they can relate back well and that's the problem you have you are you haven't exhausted claims in your third amended complaint the dischord says it isn't timely then after this record says it isn't timely then you're saying no they would have related back but the broad line is you don't really talk about why they were late back when they're on exhausted the problem is that contained on exhaust the time filed and if they're on exhausted they have to be dismissed anyway you admit they're on exhausted no at the time tell us why you don't think they're well at the time the motion filed a least one of the cleaners was technically exhausted that would be the claim that acme glee technically tell us why you say technically because i think that's pretty bored which one and why was that tech technically ineffective assistance of coun for proffering an unconstitutional june instruction was technically exhausted and was technically exhausted because although there was no remedy in state court there was no waiver to the default under imposed by the court in terms of what the operative facts need to be is extremely narrow and your in this case in applicable if you look at the cases that were previous whether they be males till or when or schneider in all those cases the operative fact is never determined to be the argued that you didn't previously raise this whole line because of dixon well you're right well you know there was just no good reason why this wasn't previously r here and ask you was there any reason why you failed to raise these claims that you're talking about regarding instruction self defense instruction earlier than the third amended complain was it race previous to that one the second one in the first one ok so the instruction is actually asserted just in the original amended petition which was timely it was noted as part of the insufficiency of the evidence claim was pled or a look strongly alluded to i would argue as part of the ineffective assistance of counsel for his choice of defense claim which is claim six b in the un julie amended petition and sorry i didn't mean to interrupt you know your it's quite ok and i was just going to try to go to this thing about the refusal of the instruction yes it seems to me that under nevada case law courts are permitted to refuse to give instructions if the jury is properly instructed regarding reasonable doubt right and i've found no united states supreme court decision that says that is clearly wrong so at that point if in fact there is no supreme court decision that suggests that is bad law then how can i give you relief while you know you're correct that you have to assess the t joint structures that were given to the jury well in fact and so therefore at that point it is as long as i can find that there the jury has been properly instructed regarding reasonable doubt which is what exactly what the nevada supreme court has said then i i'll have to i'll have to not help you right while your honor and that takes me back to the unconstitutional enjoy instruction the jury was not properly instructed on how i understand what you're saying but all i'm saying is nevada law is pretty clear as to what they have to do and the battle interpreted their own law saying it was just ple plenty good and that those were very good reasonable doubt instructions and the supreme court has never said the nevada law is wrong so me giving at deference now i'm stuck that's what i'm trying to get evidence to support a second shooter theory right yes well then how can it be clear that relying on a different defense would have produced any different result well we honor because there was  substantial evidence of all you're suggesting is i've got enough evidence to go to the jury on a different theory but there's absolutely meaningful evidence that would to the jury on the theory presented and all you're saying is let's second get this everybody because you have some other theory you could have presented that's the one you should have done and you should have ignored the second shooter theory that's not argument  present an alibi defense right but then you want a self defense theory and the alibi defense doesn't work out well thing and it is it you can't really claim it there really wasn't any evidence of self defense that's the problem and but now we know in hindsight that the second shooter theory didn't really resonate with the jury but that's not really what you can't build a case for relief on the basis that your theories didn't work out you have to show that there's some of the case and at some point you look ridiculous it's sort of like if you say well my client wasn't there you know and i've presented all this evidence that he wasn't there but even if it was there i think he should look at you know you should consider self defense well you know i don't believe that that is analogous to what occurred here the the evidence a trial was my counsel shot a gun he maintained that in his conversations with counsel at all times  counsel the the criminal lester that the ballistics expert was really kind of a wash and so and that was part of something else that was raised that you know he said well i can't say  to say you know i can't say it was the defendant's gonna cancel it might have been it might not have been so that's good you know and that supports the second shooter theory it supports so it wasn't unreasonable for him to come up with that it was actually pled then regarding the self defense jury instruction i know there's a lot of overlapping claims here but i want to know what you think is actually pled regarding this self defense jury instruction  you mean in our brief yeah in your in your amended ok so in our timely amended petition it was pled the counsel tendered as a last minute brought in correctly do you agree i agree ok so which one make sure and so i guess i'm trying to figure out because your brief focused on the dixon are that it was because of dixon that you it's like to  this for you to bring up this sort of new claim or version of this claim and it seems like you're only talking about martinez in passing here and oral arguments i'm trying to understand what it is that you were arguing dick's in dixon or why dixon was so important well you know there came to light because the state argued that there was lack of prejudice as the the instructions were not faulty or incorrect they argued that in their answer to our petition for hippias and that's what caused our office to come to the realization that there was an unconstitutional jury instruction defense is redundant is insignificant without properly instructed the jury asked to do a lot of that defense without a proper instruction you might as well not present any evidence of that theory so that's why it will lead to order arises out of the same transaction or occurrence as a timely or originally amended claim that you said that happened in state hey b s in the state petition what the you were just arguing right now i know that as part of the federal petition i guess i'm just trying for out why is all this coming up in the third amended complaint again it's it was argued as part of the prejudice prong by the state in the sense that the argued that there was no prejudice because there were no incorrect instructions plat in the in the petition you two thousand and fourteen when this court ruled that it was an unconstitutional joins russian and it's a troubling structure an honor because it prevented the jury from finding mr wadsworth guilty of anything but first morning please accord jeffrey connor on behalf of the respondents good morning your honors i think i'll try to get to some of the questions of the court as answer but i think i'd like to start by first addressing the issue response raise with respect to the certificate of appeal after it was granted but did not object when the application was filed so why should this court consider your challenge in light of catlin p matting where we held that when the state fails to file a timely response to a motion f arguing the narrower to narrow the certification i think gatling is distinguishable from this circumstance your honor what what my argument is based on with respect to the surface search of a can of appeal ability is that the certificate of appeal ability on its face is  we could not have raised that issue before the court issued the order granting the certificate of appeal ability it doesn't identify which claims in the petition actually meet the certificate of appeal ability standard and for that reason it's deficient on its face found that the same erroneous self defense instruction that was used in this case was pressured to shul and reversed on that basis why should we not do the same here well first of all your honor it's not part of the operative petition in this case they they raise the issue in a third amended petition when they saw believe that issue did not come forward until after we had already briefed a motion to dismiss an answer and they sought leave to file a thir petition and raise that issue for the first time relate back why doesn't it relate back i think the district court is directly correct on that point that that the question of whether that instruction is erroneous or not which is a central operative fact each of the proposed amendments is not an operative fact of any claim pled in the original petition or the amended petition and so the district court was  and it's not an operative fact of any claims that were raised in that the first the men of petition the second amended petition or the original petition in under the male standard in this court's decision in schneider that therefore does not the claim that th and offering the self defense instruction correct so the attorney offered destruction i guess why isn't that related back to the instruction why was that wrong either i don't kno what part of the how that's and that is an operative fact of any of the claims that are raised in the prior pleadings wrong instruction this it was an instruction error in the instruction has nothing to do with counsel's actual presentation of evidence related to that defense those are separate operative facts related to completely different legal theories and they don't relate to each other in time or type and so on of the male standard they don't relate back and to get to your honor's question about why this wasn't raised until the third amended petition council conceded at the beginning of his argument that there was no good reason for them to not have raised that before and the reason it didn't come out until then is when this when the respondent was addressing the claim with respect to the rejection of his proposed instruction about the consideration of  conflicting evidence we allege or you know we responded that by saying look you have not pointed to an error in the instructions that were given that has that would potentially be cured by this proposed instruction and then in their reply brief was when for the first time they raised this dix in theory which they cannot do under this court's decision in cock apart over system os and these you cannot raise a new claim for the first time in a reply to an answer and then it was at that point that they filed the motion for leave to amend and propose the third amended petition so that acknowledged that the instruction in dickson was wrong and that case was decided before mr wadsworth direct and direct appeal was decided this claim was long available to them and they just didn't raise and i think beyond the relation back issue there are all the also other reasons why the district court didn't abuse its discretion and denying leave to amend that had multiple opportunities to amend the petition they didn't raise the claim it's an exhausted now it's been procedurally defaulted in state court well it also seems to me and i guess i'd like you to comment these claims that are in the third minute complain even if the complaint was timely they're on exhaust correct or are you agree that well they were they were an exhausted at the time that that he proposed the third amended petition it does appear that mr wadsworth has since gone back to state court and the state courts have proceeded halted those claims but the question of exhaustion is controlled by the status of the claim at the time of fil that's what i wanted you go and this you know council now raises for the first time reliance on martinez versus ryan i think this court shouldn't consider that argument because it's either forfeited or waived  but even even then this raises the an issue of significant disagreement in the district in nevada right now about when technical exhaustion where a claim has not been exhausted through fair presentation but would be procedurally defaulted on or return to state court when that occurs the thing is about that perhaps unique to nevada is that the vatican has exceptions to its procedural defaults that largely mirror the federal exceptions the only exception that exists in federal court that does not exist in state court is the martinez exception nevada has rejected martinez's rationale but  there is a cause and prejudice exception and there is a fundamental miscarriage of justice exception it is the response position that a federal court should never assume that the nevada supreme nevada courts will procedur default a claim in light of those exceptions unless the petitioner expressly concedes that he cannot meet either state exception and the nevada district court has generally agreed with that and said that they will not technically find a claim technically exhausted unless the petitioner basically concedes that his claim would need to be dismissed as procedurally defaulted now with the exception of being able to meet the martinez exception and i think that raising that argument now they could have raised that before and they didn't so i think it's forfeited if not waived if the court has  questions on the merits of any of the claims here and i'm happy to address any of that deal with the jury instruction in general deal with his the instruction or the the dixon issue with respect to the self defense and structure that rowley raised that in the in his reply brief what if your answer is certainly or no i think even if this court was to send that back to the i mean it probably would be better first addressed by the district court but i think it would certainly not beyond the pale for this court to conclude that the did the instruction here didn't really impact the outcome of the trial there's no prejudice here because of the fact that there's a there's a factual distinction between this case and dixon the reason i ask you about that is i'm really troubled there's no question under about a case law as long as the jury is properly instructed there would be a problem but given our subsequent law now we've got to nevada if you will the jury instruction from nevada is not correct well it's unconstitutional so i will therefore what do i do about that i think if it's not if it isn't just true just if you will raised in the reply brief how do i deal with that i think my question i think there's there's a there's two different claims there your honor one is the rejection of his proposed instruction with respect to the consideration of conflicting evidence that goes to whether or not the jury was improper properly instructed on the burden of proof in the presumption of innocence there is no challenge here to those instructions those instructions were correct under nevada law and so the rejection of his instruction on the conflicting evidence stuff there's no error there ok at all now with respect to the dixon issue which is a separate issue about whether the jury was properly instructed on self defense i don't think there's a problem there in this case in this is why dixon dixon was only can convicted of second degree murder and the and the error there about the reasonableness versus the unreasonableness of the belief or the need of self defense is the drawing line between manslaughter and second degree murder in this case we have a jury that's properly instructed on the elements of willful premeditated and deliberate first degree murder and the jury found that the state carried its burden of proof on those elements and convicted mr wadsworth of first degree murder that error in the instruction on self defense has nothing to do with the drawing line between second degree murder it separates second degree murder from manslaughter so here where the jury instructed properly instructed on the elements of first degree murder found the defendant guilty of first degree murder this this or first degree i think i think that also adds into the analyse it says here when you when you look at the verses maguire standard on an iranian instruction kind of thing that you have to look at the jury instructions as a whole and consider the you know what  there's really just not evidence to support the self defense theory here wadsworth friends were the initial aggressors in this case and they were already running down the street and gone when was w fired his fired his gun in the direction of the victim after he had first file fired a warning shot into the air and so there's no evidence here to support the necessity for self defen you know it's going back to the rule fifteen standard motions will you come in must be granted with extreme liberality here there were no repeated failures to cure deficiencies the only amendment with that was filed would leave a chord with the second i'm in to petition the first time in the petition timely claims third there's no pat faith involved in this case and fourth it's not futile their claims are not futile in this case there are substantial evidence of self defense in this to it during the evidence or hearing state court when he said that he presented a self defense instruction which was unconstitutional worth point pointing out when he stated he did so at the eleventh hour