the district court abused its discretion in deciding that mr harris did not show ineffective assistance of post conviction counsel and that he did not show extraordinary circumstances what do we do about water you sounded like you said the state courts had heard something you know the state court had heard it ok i apologize to the state court had heard mr mcguire in are ineffective assistance of counsel claim and thoroughly reviewed it according to the decision in the choir and finally in mcquire this court found that trevino did not directly apply in fact it used the word weakly applied here trevino is directly on point i would have those three differentiation between this case in the hope you if that's the key prop obstacle i respectfully disagree that that's the key obstacle with them acquire case those w three important factors that the court decided but also that the with the change in law on the rule is that only a change in law may not become in extraordinary circumstances here there more than just the change of wide issue that's the triggering event that's certainly what has occurred to enable mr pennis to bring his claim now but that is not the only extraordinary circumstance here  your view of the way this works change in law always works as long as it's combined with something else not always works but change in law may work if it's combined with other extraordinary circumstances what it what is up there under your theory but you've already use that so you're saying it's because it's substantial claim but you would think that extraordinary means more than having a substantial claim because we're narrowly people  claims that are sometimes substantial many courts have evaluated a rule sixty p motions and evaluated on several factors the phelps test is the one we cite but those tests have been derived from the eleventh circuit ritter case and that gonzales case the supreme court case also refers to certain factors so if the substantial ness of the underlying claim is one of those factors or the merits of the underlying claim it's an important one there's because if you didn't have that it certainly wouldn't be extraordinary that you would think you would need something somewhat more than that would yes and there are in addition the although your honor the second bite at the apple with brought the claim shortly after the change in law is that which you mean the timing is a factor but also how well this fits under the trivino exception maguire it was it was weighed heavily in the decision that the case did not fit well under it that was a factor against awarding relief in that case but also here going up the merits in the portal of getting the claim council had created this toxic relationship so that's why the term didn't take his advice my re misreading the book there's a lot of talk about toxic relationship that is part of the egregious nature of by not investigating and in fact ruined the chances of a plea by going with this strategy which he ruined the chances you may ruin the chances of the client taking a good deal or trusting his counsel and when his counsel says i recommend this the client says well you didn't investigate you didn't do any of the things that counsel should do so why should i trust you if you underline t underlying argument now all is not that if everything had been done right he would have taken the plea and been splish for the death penalty but plain now if he didn't do it right and therefore if he had done all this investigation they would have been able to convince the jury not to say that he did that the claim now is the same that it was at the time of the petition which is that counsel was ineffective for failing to investigate and counsel was ineffective for failing to vest a gate which would have produced evidence that the primary witness had violent temper was known to have issues and have issues with the law but she was also hannah's correct and and so maybe mr han s with this evidence presented would have been found guilty not guilty or maybe he would have been found guilty of or a lesser included offense to those are all possibilities nothing come out of trial that was most spotless it certainly came out at trial that she was a crack addict but it didn't come out of trial that she was violent that she was the one who  brought drugs into the family rather than as the prosecution tried to paint it as mr hennis leading the way in this life of criminality so it was it was much more from the evidence we've been able to uncover that there was witnesses who would have said no tabitha was out there where's the brains behind the operation here she was the violent one she was the one who controlled everything and with the serious drug problem there also would have been that it appeared that he was tied up after the after the crime the victim was tied up after the crime scene of a little bit far for me that you would shoot a bird in the back of the was likely an easy disposal for the body the body would have gone into the water or the sewage and possibly disappeared one of the ways that to move a body is to tie it up so that's a reason for that to happen much worse than never telling your client you're finding filing a post conviction petition on his behalf and that's exactly what occurred in this case and then the fifth and the fifth reason that this is an extraordinary case is because mr hennessy is facing the death penalty the bedrock principle of our adversarial system is to have six the man meant trial counsel and to have effective trial counsel he's never gotten a chance to have his claim of ineffective assistance of counsel heard and yet he's going to be executed this is an irreversible action and a ways any that does that doesn't mean that he did a good job in this case now i can't speak for his other cases but it's clear that he refused to investigate or if you were ever thought of in any credibl on again that really were actually i would not i'm sorry but i don't want to step on his reputation i just want to pay attention to what he did here and what he did here was not acceptable but now your your client testified not under oath but he was able to tell the jury store did he tell him that that tabitha put him up to it or tabitha shot this man was involved in conducting the murder he again he gave he rested on his fifth amendment a bill his fifth amendment right not to tell exactly what happened and he gave differing finger her at some point but he never did i don't understand that well he said he would never be required to give up his fifth amendment right not over there but if if you're there at the scene of the crime and you think your wife did it  think that he did they say that would that logical yes that's logical but that that doesn't take away the fact that that excuse me that the trial counsel had an obligation to investigate what occurred even if even if tennis had had had confessed to his trial counsel under the beard they still have an obligation to investigate the case fully investigated you could have been peached her trial in the sense of impeaching as to her the accuracy of her testimony and so on but to implicate her trial i would think you would need more than that in the sense a judge seiler is indicating that his story is he didn't tell the jury was he was there and just to say that she was violent in other times or that she was a crack addict before he was because that gets you implicat her as opposed to simply maybe getting the jury to say well we don't believe anything she says because she's just such a low life well in the latter is what we're after so i apologize but the latter is what  that she was the key witness and that bringing out the facts that she was not a scared scared wife as as the state tried to tried to demonstrate she was she was the one that actually mr harris was following and mr hannah's was not controlling her but she was controlling him that goes much more to her credibility that could been before the jury nicked and shown that her her testimony should have been disbelieved so it's secondly other than the extraordinary circumstances is the fact that the  post conviction counsel was ineffective and post conviction counsel was ineffective because again and failed to ever communicate with mr hanna's that he was in fact handling a post conviction case even though m had written him a letter and in fact finally get through up his hands and wrote the court and asked for post conviction counsel to be appointed not knowing that of course his post conviction counsel had already ineffective assistance of trial counsel yes but ineffective assistance of post conviction counsel was not raised in new your original petition because it could not have been under coleman it was squarely foreclosed under coleman and in fact the district court problem with a federal court grant relief based on evidence that was in front of the state court well pin foster is only an issue if the state court had decided that ineffective assistance of counsel claim on the merits and bother to investigate otherwise not only talking to his client but investigating by doing the things a normal post conviction counsel would be expected to do he didn't collect all of the files from trial counsel or he didn't talk to previous claims and in ohio the post conviction claims have to be supported by evidence outside the record so failing to do just this basic step got this petition summarily rejected and your theory of why the lawyers did what what effective counsel should do but he had a way of deciding i don't want to invest a lot of time in this case i want to plead it out and that's what he decided he wanted to do in this case for what reason i don't know but according to mr ed mr edwards was trying to get him to work on the case trying to get him involved trying to get him investigate waiting and mr potter car kept saying no no you're going to ruin a plea agreement no don't get involved no don't investigate  so i can't tell you what was in mr barak has had i can only tell you that that's the that's what we have the information we've received from mr edwards and that was consistent with what mr crayford who calls himself a good friend of mr  discretion in finding that the ineffective assistance of post conviction counsel was not valid the state had never raised the raised any arguments to attack the facts that we put forth if it was uncontested yet the district court speculated as to why are why the affidavit that was uncontested would be wrong however it was clear from the the state never contested the fact that mr grave was deficient counsel now this ultimately prejudiced mr han s p has as a result of this ineffective post conviction counsel he was not able to bring his claim of ineffective assistance of trial counsel for failure to investigate the failure to fire an investigator a failure to investigate tabitha's background and impeach him as a witness and the failure to investigate the crime scene blood stain evidence which would have shown that possibly there was no premeditation but rather that the victim was tied up and thrown into a well or to be thrown into a  whether this the district court decides that the issue of martinez ineffective assistance of post conviction counsel has to be exhausted and it's one that courts have differed on so some courts have said yes will stay proceedings in the district court while you exhaust the ineffective assistance of post conviction counsel underlining the martinez issue if the so that that is a an open question but that is how some courts have had has handled at that point the one thing for you to think about a rebuttal which i'm just still struggling with i just it seems like your your extraordinary circumstances just keep coming they keep piggy backing on the underlying merits that's what i'm really struggling with i say to myself the normal rule is a change in law is not a reason for sixty six ice i start with that i realize in mcguire they you know they say there's this extraordinary circumstance exception to the extraordinary circumstance exception that already exists but when you start telling me reasons to do that they seem to be things that go back to them the merits of the claim that just seems odd to me i mean i could see someone saying oh actual innocence would be the thing so if you have a change in law or normally that doesn't work but if you have a cognize of the axle of actual innocence claim that i would understand but your definitions of extraordinary circumstance seem to go back to the merits of how you would do under the change in law that just seems very odd to me to say oh normally we don't let you bring up a new claim because there's been a change in law exception if you have a good claim under the change in law that's not really you understand what what's actually not much of a the second is that the district court needs an actual review of the ineffective assistance of post counsel post conviction counsel's conduct in this thing you just said i mean it does restate maguire but maguire as this line and even if it does in some truly extraordinary cases this is nothing to case so you know even mcguire your key case says that there is that's the rule but well let me ask you this the one of the one of the claims of ineffectiveness is not having examined this blood that was under a locker and they seem to say that well maybe if the affidavit he refers to a police informational summary number thirty eight of d n a testing results do you know what that's about is that stuff that was done long after or what was that my understanding that it was done years earlier but i'm just asking because this exhibit b lists these as quote police informational summaries which makes it sound as though it was something in police files not just in  own creation do you have any information on that unfortunately maybe your adversary will to my colleagues have anything else they want to ask you your adversary says that they could've raised some of same claims that were raised previously and you said it couldn't have been race previously i thought because of the decision in code which was overturn ineffective assistance of post condition counsel there is no such thing it's only ineffective assistance of trial an appellate direct appeal council so that's partially overruled in martina's which is why these claims could not have been brought in state court that's what judge asking you you know they didn't they didn't try to raise these claims they court because coleman would have said no you can't do this so what's your answer to that point will be in effect assist fashion said it would consider those sanctions was that put on the record or anything of that nature i think did i think it should have been you know raised in front of the  answer judge fox question about the informational summary number thirty eight first quickly that that that's a police investigation report so that was at the time of investigation and do you do we know what it says i mean obviously apparently it was available to m because he says he looked at it do we know what that d n a analysis none of the d n a analysis came back came back with any any implications whether it's mr hanna's or anybody else so how could that have been prejudicial or ineffective if they looked at it the way the police say they would get the same zero information i mean if i read the brief your theory was if they had tested the blood and if the blood had turned out to be mr hemis is then it might have indicated that he was a victim not a perpetrator although of course you can bleed well perpetrating but even giving you that it looked to be like somebody did tested and now you're saying it didn't show anything oh i'm sorry that was not submitted for testing so didn't come back with implicating anybody but it was not submitted for d n a testing and i think that's referring to the car all i know is that that's why i asked you it says d n a testing results yet that from what i understand that was of the car and so you think it's d n a testing of something else yes at least went to the trouble of testing the car but not the blood in the in that would obviously help his case but there was no testimony that she was shot or anything there are nor norquist any about him to get to judge sutton your question that you left off with  are been several cases including the can solace dissent which have said that you go to the underlying merits and i think that's to prevent going to the underlying merits reopening a case where the underlying merits of the claim to be reopened is just going to lose anyway if that makes sense so if the reason and as part of the factors you look at how strong is the claim is to say well if this was brought under the new change in law then they'd win then they then they would have a different result but if it were so if it weren't six it seems to me in terms of flips the rule changes in law do allow for sixty six unless you would lose are you talking to us but it but it's not the only extraordinary circumstance to be examined also the settled ness of the law that was overturned was this that this was this a law that was likely to be overturned anyway and so you should have been more diligent in in seeking appeal or cert or was this something that was well settled and  had been overturned surprisingly something that you could have expected which is the case here with coleman i think but after twenty years if if i may sum up judge her after twenty years it had been  police informational summaries is there an argument that that's brady material or are these things that you know were in the defense file from the beginning they've gotten them from the police there in the record they're there in the