along with my colleague randy bowman we are here representing mr carlos questor andre gets the petitioner appellant in this case there are two main issues raised in this appeal the first involves the ineffective assistance claims and all the procedural hurdles that play there and i will spend the majority of my time addressing that but i do want to spend a few minutes at the end if possible addressing the issue of the  moral culpability boundary for mitigation evidence to start with i want to know that mr quest around three guys has a very strong claim on the merits of ineffective assistance of trial c ounsel unfortunately due to a hopelessly conflicted direct appeal counsel and everything that flowed from that no court has ever heard that claim and mr quest or at regus has never had a fair opportunity to present his ineffective assistance of counsel question this court can give him that opportunity and that's what we're here seeking you know let's start in the hopelessly conflict that element is out that really is the central mr quest has a feel was not that that's a very very fair question your honor right and i believe the answer actually falls somewhere between the two alternatives that your honor proposed it's not completely systemic in terms of every defendant in oklahoma not getting a fair shot but due to new oklahoma statutory scheme that requires every capital defendant in oklahoma in tulsa county to be represented by the same attorneys essentially at both the trial and direct appeal levels we would have now gys the situation very similarly to trevino in that the practical effect of the statutory scheme at issue has the a factor of depriving or home a county and hope the county capital defendants at der our most recent cases would you say well i would say under can then which is the case that most directly addresses this precise issue it's presumptively conflicted what can induce that in this court in remanding it was that there's an inherent conflict involved when the same office represents a person at both levels and the mechanic did and i think this is a significant point can in rema nded the case to give the state the opportunity to ask for never dangerous hearing if the state wanted to try to overcome that presumption i said i thought that canon office where the fields in the trial take place at that that in some sense presumptively conflicted i didn't understand that case at all i mean that there that there's a concern but then you have to look and see what the circumstances are do you as somebody just  is perfectly well equipped for which is what we were seeking were my reading of canon is the dischord identified that there is an inherent difficulty and that you need to work at the specific details not to be clear in canon one of those specific details was a policy canon does it require in our reading that we have to prove that there's a policy and they've got a they've got a trial an appellate people in the same office right correct and we did in this case we established that the trial counsel and the direct appeal council had a jason offices  that this direct appeal council didn't have a habit of raising ineffective assistance counsel claims i thought the evidence was to the contrary based on the cases that were cited there at least one case right where they appellate counsel brought in in effect that the council klein against the trial in the in the nick davis case andrea miller who was the appellate counsel in this case inherited a direct appeal that had already been filed by a different lawyer in the office that included an ineffective assistance of counsel claim that hearing out went particularly poorly and as a disillusionment versus there's i gather there's no policy would have cited as to it that does that office routinely bring on ineffective assistance cases against the trial lawyers in the same office sometimes yes sometimes no but i believe in a point i really want to be clear about it's important for this court to focus on the nature of the ineffective assistance of counsel claim that we're talking about it would be uncomfortable for me to bring a claim that mr bowman didn't ask the right questions at trial or that mr bowman didn't ask for the correct jury instruction or that mr bowman didn't cross examine a client or a witness appropriately that's uncomfortable but lawyers do things that are uncomfortable locked the nature of the conflict in this case is that the trial lawyer couldn't get money from bob ravitz who the head of the oklahoma county public defender's office and therefore didn't call certain types of experts to testify at trial now what direct appeal counsel would have had to do would have been to go back to bob rabbits and say that money that you refused to give at the trial level was so constitutionally a reasonable that i now want you to give me that money so that i can hire those experts to prove how constitutionally a reasonable your past behavior was that's where the conflict in this case comes in so what i'd be comfortable challenging mr obama's performance no would it be exceedingly more difficult for me to have to go to let's say ms otto and ask her to give me money to prove how unreasonable a decision of her to one that's a totally different position to put a lawyer it depends on what the culture of the office is and i didn't understand that to be the rights of your argument at all i mean we're a you're your argument and you're opening briefing to track what was going on in canon and in the notion that there was proximity the fact that there would be an issue of whether she could court i'm talking about your pile of free and that's what counts right now ok well office money to challenge office conduct and that's essentially what i'm talking about is the or is the the use of office money to challenge prior decisions made by the same office if their example however and and as i understand it there are from from the state that exact thing has been done then i mean that's a problem i mean it would seem to me you've accepted the notion you have to make some sort of showing well if if there's if the supreme court in trevino didn't say that no post conviction counsel in texas are ever able to file a new trial motion within the time limits given by the texas statute in the texas rules they simply said that the rules put such an unreasonable burden on that that it didn't really provide a fair opportunity to do that so the fact that in some cases some lawyers might be able to do it doesn't change the fact that in this case for mr quest or rodriguez based on the statutory scheme that he was forced to operate under he had a lawyer that was unable to do it well that's a fair point but you have to look and structurally at what the issues are that would lead to the result you're talking about which takes you back to what in the office structurally would result in making it unlikely would place such a burden on the ability of counsel to be o'boy conflict and do their job and that's what i'm asking about because it seems to me that unlike canon where you to us you had to use your phrase in other contexts bright red flags as it relates to the question of whether they could they would have a structural requires the people in the office that are operating under the conflict to be willing to tell us those things which is what evidence or hearing or what design we believe that we we made the best showing we could make which is that andrea miller was willing to go on record and say she did absolutely no extra record investigation she did no hired no experts looked for no experts and did no investigation but at the time she gave us that up that affidavit she was operating under the very conflict that we're complaining about that you could achieve in that same affidavit that she was in in a in a bit from be careful in giving the sansar so that i'm not being in this even remotely mislead and i suspect that if put under oath and forced to answer those questions that ms miller would in fact say that do i know that for a fact i don't because the same tensions that prevent them from doing it prevent them from explaining to everybody why they couldn't do it in the first place it's a lot different when you're in a courtroom with a federal judge putting you under oath and telling you you have to tell the truth i think the truth tends to come out more clearly at evidence or hearings then when we go to somebody and ask them to please give us an affidavit that then in writing that they're boston then put in their personnel file and hold them through so at a minimum we believe in heaven entry here is required to help determine whether this case falls into the canon category or just let me let me get back to prove be able to get to the point that to act as trevino you're looking at the overall structure as opposed to in that context what did that situation with miller is illustrative of the overall pro imprint because of the structure that says that all go home county capital defendants and tulsa county capital and these are represented by the same office that makes it impractical and it's an easy fix a county knows direct appeals of oklahoma county cases or home county does direct appeal to tulsa county cases this isn't something that's going to require the state of oklahoma to spend a lot of money to fix the problem it's an easy decide that one where the other i believe your honor what you're referring to are small woods and the unpublished opinion in carter vs dips and i think those are the two cases you're referring to in small words and i think this is a significant difference mr smallwood was raising a substantive ineffective assistance of counsel claim as a claim for belief based on his argument that the oklahoma county public defender office had a structural inherent conflict we're not raising this as a substantive claim for relief which is different because since it's not a substantive claim for relief edgar rules don't apply deference doesn't apply boston doesn't apply all of those other rules don't apply so this court's ruling on that on a clean slate in car vs gibson which was unpublished but it was raised in the respondents brief so all addressed it significantly harder addressed this question in two different contexts first the court looked at whether the default was adequate based on the fact that the trial lawyer and the direct appeal boyer were working together in oklahoma county and significantly this court found that yes it is inadequate for exactly that reason because it would put the trial lawyer in a very counsel again subject at the deference and everything else the court said that the claim fails but on the adequacy question which is the question that we're dressing now this court said that it was indeed an adequate for exactly the same reason we're raising that  was that martinez as a general rule doesn't apply in oklahoma because of the existence of a functioning rule three eleven process that allows ineffective assistance of coun claims to be raised on direct appeal our position is there is no functioning three eleven process in this case or another oklahoma county and tulsa county cases as found  canon because in order to have a functioning process you need to have separate counsel and we don't that's right and so your step your same counsel argument willie is the way you get out minor fairchild correct a i would also just to just to complete the point fairchild also looked at and this is a related point but subtly different fairchild with a different if it's you than we're talking about fairchild looked at whether three eleven per se adequate we're not challenging whether three eleven per se is adequate we're challenging whether the functional fact of having the same counsel brings us within trevino rather than mar so for those reasons you just a to summarize the first procedural default which is the procedural default caused by not having raised it on direct appeal it's our position that we overcome  in because what martinez intravenous stands for is the proposition that every defendant every capital defendant certainly has to have one fair opportunity to present in an ineffective assistance of counsel claim if if were correct on the first argument which is there was no separate counsel that then makes first post conviction the first opportunity to it raised in effect assistance of counsel therefore ineffectiveness of post conviction counsel under martinez trevino becomes a cause to excuse that the fall so we overcome that the fall through martinez attribute as far as the prejudice that we need to show the prejudice is i would submit clear just from the strength of the merits of the ineffective assistance of counsel claim in and of itself my going to the first second talking first about the claim of prejudice or related to that in effect of the systems of counsel i am i'm a little struck by or i'm puzzled by how we can ever consider jurors deadman's affidavit for anything and light of caps our decision caps in light of perhaps but perhaps it's good but we can't get there and i mean the impact of that on what the jury does right but i don't think we need that this court is there's there's the victor hooks case there's all sorts of cases from this court that talk about the significance of this type of lack of mitigation evidence that was so easily find the bull if council had simply looked for it well as gran little john to make pretty clear all organic brain damage is not created equal and you don't you need to get it's not just enough to say it's organic brain damage right correct and this is not too certain denigrate in any way the evidence and model john but we're not talking about eighty h d here we're talking about significant brain damage we're talking about a man that has a steel plate and his head because he was thrown through the windshield of a bus we're talking about post traumatic stress disorder we're talking about gold standard brain damage organic structural brain issues well the question is what their impact is on him and his activity and so you know the is that how those that brain damage evidence would affect him right it's not just enough he's ill the tao the effect him and whether it's treatable correct but with the additional piece that we have in this case is the the witness that they did call it trial who to determine that he did the test that he applied was inadequate it was normal through standard that didn't apply to the group of people that mr quest or a group has applied to it was affirmatively not only not helpful it painted a completely dishonest inaccurate picture of mr quest rodriguez's position well what the two age well clipping from a prize is to performance was it the lawyers responsibility is  choker you know your report is inadequate you know you have enormous correctly you haven't used the right stuff i mean that's not the lawyers job isn't well two quick answers to that one prefatory and then i'll get to the prefatory i'm not even sure that this issue was properly before your honor's because in till we got here the state never even challenge the merits of the ineffective assistance of counsel claim so as far as the record shows up until the brief in this in this court i believe the issue was waived from the state's perspective it was it played before the o c c a right well they know who they didn't read it that's right but but the bottom line for that our purposes we confirm on any ground a record can't we well but the but the state can also waive issues which our position is they waived but the getting to the substance sure the lawyer hires an expert in the expert give  opinion but the lawyer has to follow the red flags and investigate and get the information that's necessary to and then interact with the expert to make sure that the expert's opinion is accurate and helpful persuasive well if the expert says a red flag is ringing it is not red and then the lawyer and then the york petitioner doesn't indicate that there's anything resulting from those two things that occurred earlier the the bus or the hurricane where the bus he went through the bus window and and what happened when he fell the other time this car didn't say it is family didn't say it so what is a lawyer supposed to do i mean you know is family didn't give any indication he a organic well he didn't have any consequences from his organ from whatever purported organic brain damage he didn't say had any consequences the experts didn't say had any consequences when does it stop i mean as long as you do the work necessary to prepare your expert to give to do the the work that you need them to do it's notable in this case to the ms hammerstone trial lawyer clearly recognize the need for a n to no problem she had her petition we said no problem at that point was of course well i would assume good lawyers are going to write you know follow early on and make sure that they can get the money while she comes back to this predicated on the medical records right she didn't get the medical records she comes back she has he's interviewed why are we not entitle to presume that at that point picture changed she made a strategic decision i will we don't need it now now are correct so we don't we don't know why she made that decision but i'll tell you what i'd never known jury hearing we would find out but doesn't strickland tell us that we don't we don't need in situations like this we're supposed to and i'll  because there's nothing to suggest that she the denial of the funds was predicated on getting them the medical records and then apparently she never got the medical records so couldn't get them the rights of abide by i don't think you it doesn't matter what marching is and should be no because of the failure to raise the claim on direct appeal and then second even if this court which agree with that council were separate this court is bound where this court has said that might raise a concern but you have to come forward with specific allegations to entitle yourself to another injury hearing for further inquiry into that issue and  on that point too i would like to point out ms miller's declaration in this case as this court has already discussed all she said was i conducted no extra records investigation  and focused only on record issues and so in this case what she doesn't say speaks volumes petitioner contends well this is not the same as being in an evidentiary hearing before being forn in federal court this is just an affidavit that goes into a file to bear but in fact he said i her name to swear under penalty of perjury under the laws of the united states of america and as of the state of oklahoma and the father of the following it's your incorrect that we found that martinez trevino apply here what would be the nature of the evidence that we could consider for purposes i mean they've submitted additional evidence what would and i think were raising it earlier so that the stomach bar it would seem to need deals with it they're not raising it earlier so the question then becomes what was in diligence to try to get this to get past evidentiary i mean get past the post conviction motion would have been timely but even then even the second test conviction motion was untimely under the sixty day rule and and so it can't be diligent to file something at a time when even setting a five year to bar  terms of tree ability or explaining the crime than the perfect storm mitigation case actually presented by counsel based on borderline personality disorder which is a mental health diagnosis appearing in the d s m depression and substance abuse and there are a number of things about this crime and it targeted nature and the link to the episode that show why brain damage in p t s d don't explain the crime first there's the fact that magician or doesn't shoot the daughter he he claims that she had a baseball bat was even feeding him with a bat but the fact that he doesn't shoot her reinforces the cold and calculated nature of this crime d t to kill why does that is what i'm getting at he could be an and he could be an out of control whatever the analogy is truck against the person who's hurt now that doesn't mean what is that b s kill everybody in jury first then we had indications of petitioners intent to kill it early as february of that year three months before the crime he writes letters to his mother in which he calls miss fisher a whore and says that he is contemplating killing her because that's what she deserved hours before than the murder he leaves a note saying s u v and then he uses the floor for women good bye during the murder the daughter asks him why are you doing phrase means i'm interested in someone else and then we also have testimony from the daughter that she was very clear on this understand i saw him take aim at her or and she that's he  and you're right it's got all of this inflammatory language and threatening language and here's what's going to happen kind of language is do you understand the organic brain damage claim the doctors to be that that had something to do with his anger because the anger is i'm going to lose my house this is love where she tricked me into this relationship and now she's going to move her whole family  i'm going to be out on the street that seems to be that henner of it is the organic brain damage only that once he had a certain level of anger he couldn't pull back from that and i'm still struggling a little bit with what does the organic brain damage mean if you're sitting on that your i'm not quite sure if that is exactly doctor here in taiz theory that once there's a certain level of anger beyond the mitigation chase that was actually present and i will say two and one thing borderline personality disorder had over the brain damaged counsel was it well to make the case that  this was limited to his relationships with women and certainly i don't think there's a similar kind of happening with dr u n g a and the brain damage and that's important in this case because continuing threat w and so when we're looking at this from counsel's perspective where she wants to put on this mitigating case that explains the crime but at the same time doesn't contribute to the state's continuing threat case you know the brain damage out of control semi truck it's not great if our continuing threat whereas with the borderline personality disorder she argues that petitioners probably were limited to his relationships with women and here i'm reading from her  also an indication that john karr requests to remain on good terms what you also know is the department of corrections in the department of corrections carlos quest that will not be house with women so even giving them the benefit of  how brain damage might be presented in a way the way you just described that philip to explain the crime council was able to take a borderline personality disorder combined with depression and substance abuse and make the same case for how borderline personality disorder and those other factors explain the crime in that the reasonable decision was borderline personality disorder treatable if you know your hon what what dr took a said basically is that there's no cure but that it can be the hearer it was heavily exacerbated by petitioners substance abuse and depression and he was and dr took a testified that he was receiving psychiatric medication in jail and also again the factor that as a counselor pointed out he would not be how complement not in relationships and so the position of the your position to the that the organic brain damage would not add anything to the trajectory of their argument related with mental condition and if anything it would have been more harmful because it would have been less capital yes that's exactly right your honor yes and i would like to to make some additional points  behavior someone who intentionally commits murder this completely ignores the fact that the petitioner couldn't go anywhere because the house was surrounded by the oklahoma city police department swat scene and and police the police t shield i guess shame on him human shield why isn't the shame on human shield argument improper in the sense that it is an attack on the defendant a personal attack on that then we have our cases because that hue and of course more importan first is the fact that this court is not addressing this claim and you know will review and so the question is not a straight up question of whether it's improper improper but whether the court of criminal appeal could reasonably and conclude that it was comments are proper is because we have to consider them in the context in which they were made and here we have statements by defense counsel in closing that are in appropriately asking for sympathy for the petitioner sanely when when that is not something that is considered to be relevant mitigating evidence and in fact the court has said that it injects arbitrary considerations into capital one of the paragraphs in fairness sympathy and mercy refused the death penalty because there's a family ninety miles from our shores who are rolled away who will be hurt his mother eddie to sister ariel and his brother joaquin and there are about four or five paragraphs that go on in that bank and so these these statements by the prosecutor have to be considered in that context when the court considers whether it's reasonable for the court of criminal appeals to argument of defense counsel that's that's correct your honor and that's the first thing the second thing is i guess what i'm getting at is i get your point that we're not looking at the sunoco but would is there or is there some law that would lead us to believe that there is case well this is that you cannot make personal attacks on on the defendant is their case law that would lead us leave this comment falls without the scope of that i mean it's outside of the scope of that that you're aware of i know this is sort of an amorphous syria with this fundamental fairness thing is what would be the best thing that you would think of the faith that's nothing that that they o c c aig was in clearly right to view that was not a fundamentally unfair trial we are still going to have the question of what to do with these comments for purposes of kimmel's are there because you know carville says that that the rubric of fundamental fairness has embedded in  instructions that we had in granting harris broadening the scope of mitigating instructions the jury consider we repeated comment the prosecutor encouraging the jury to consider petitioner's evidence and we also have instructions this court on three critical and grant informing the jury that it shouldn't treat the moyer's arguments as expressing the governing love the case in opening instructions the jury was told of the trial court's responsibility to among other things instruct them on the wall to wall with the attorneys instruction and argument issue and simply to make one point which in our view distinguishes this case completely from grant and hanson the issue as as judge holmes as you described it in your majority opinion in grant was that the test of constitutional error is not whether the arguments were improper but rather whether there is a reasonable likelihood that they had the effect of precluding the jury from considering mitigating evidence that the page nine thirty eight of the grants opinion well in this case we have a note from the jury and in the danny hooks vs workman case from this court which was six o six at thirty seven fifteen twenty ten case what the court said is this a similar prosecutorial misconduct issues there and a jury note and with the way this court described the jury know was quote a singularly clear indication the prosecutor's misconduct did in fact mislead the jury the same is absolutely true here bias that's well i don't follow that because all that really shows made is the jury now is that the jury re instruction had a question what does that word mean well they read the instruction because the prosecutor kept telling them that they couldn't consider anything as mitigating unless it went to moral culpability and their only question is what is culpability meet what or what is it that we're being told we have to decide and the only answer and frankly that the judges answer made it worse he said it means blame or blame will so it was reinforced for the jury that the only thing they could consider as mitigate sure consider of all you have to consider every piece of evidence that was introduced but you can always give it mitigating weight if you find it goes to the level of moral culpability or how blameable it that's not what lockett said then that is absolutely not what eddings do you think that all sixteen of the medicating circumstances are given in a separate your instruction  then why would the jury think that because of those that was a list of mitigating circumstances that mr quest or i agree just as attorneys proposed but the judge also told them and this is in instruction number sixteen which is one of the standard instructions he said i do not express any opinion whether or not aggravating circumstances or mitigating circumstances did or did not exist so they're told just because we list them doesn't mean they're mitigate they're only mitigating if they go to moral culpability and if they don't you can't consider them as mitigating that's the locket violation and the no makes it clear in this case that that's