please the court i'm randy schaffer rick what saloon i represent jetted on murphy i will spend the first half of my presentation discussing the procedural issues the second half discussing the substantive issues and i'm going to lead with the punch line bunk ninth circuit recently hailed in detroit versus ryan that in a similar situation the habeas petition or must show that state k b s counsel failed to raise and i eighty see klein that has intervene you know require record development including an evidentiary hearing to establish cause for the procedural default more importantly perhaps the supreme court about a month ago heard oral argument and i asked as versus davis from this circuit and the issue and i asked this was whether a federal hate b s petition or was entitle to funding to develop a procedurally defaulted i a t c klein the government took the position that well why should you give them funding because even if they come up with new evidence to show trial counsel was ineffective they had no procedural vehicle to present that evidence under twenty two fifty four easy to do so the supreme court could doesn't have to but could decide that threshold decision of whether new evidence would be available despite twenty four to fifty forty two in light of martina's intervene yet the  claim are you talking about guilt innocence right i mean i'm really talking about both but i'm going to focus of the want to about this silence use of his silence silence opinion on credibility improper argument that the judge has to acquit on the charge defense to consider the lessons i'm focusing on matt because that's the one that has the most legs but for our purposes today which is do you grant a c e o of a we have certainly presented debatable issues that would merit a c l a in view of the allow record development of the coin most importantly in a death penalty case this court has said time and again that any doubt as to whether to grant a c o i must be resolved in the  we grant a c e o a then the question is well did was hey b s counsel in effect of not raising these ineffective assistance of trial consequent and then do the ineffective assistance a trial claims and ultimately you've got to win those even if you get cause i would have i would have to do two things would have to have an opportunity to develop the record whether by depositions or obviously months preferentially hearing where the trial judge could could see the credibility of counsel i would have to show number one state has counsel was ineffective in failing to investigate and develop and raise the claim in state court and number two that the claim has legs that there were deficiencies in performance that there was no sound strategy and there's a reasonable probability that the outcome of the trial would have been different but for these errors i want to take a moment to discuss the state maybe is proceeding to demonstrate to the court the enormity of the ineffectiveness that occurred here things well and no because any court ever said i think you do have the ninth circuit opinion but ever said martinez applies to an underlying claim of brady you have that problem so we got we got much bigger hurdles to jump on that way to get that issue before the court he took the appellate brief about another lawyer copied those nineteen claims filed them verbatim of course you can't raise an issue on habeas that has been raised and rejected on appeal to the state public answer appropriately pointing out that all the claims are procedurally defaulted the case lay dormant for five years during that five year period of time the court of criminal appeals essentially disbarred abbott from representation in haiti as cases because he failed to follow a timely application in a death penalty case they kicked him off the rolls of lawyers qualified to handle the cases they appointed a new lawyer and gave him two hundred seventy days to file a proper application they did not evaluate the case we quickly determined the application was untimely and subject to dismissal and clearly would be dismissed had the c c a followed his own case law and additionally even if they considered the claims there was not a single client that stated even a ground for relief so we persuaded the dallas district attorney's office to join us in a motion to substitute council condition on a two hundred seventy day extension to follow proper application well i'm telling you we kicked the hornet's nest when we did that because the first thing the trial judge did after these this case and lay dormant for five years is he pulled the file he took the state's findings it fell five years before he signed i'm saying procedurally defaulted time with that and bode well for us because if they followed their law they done the same thing they did in the ward case they removed him they did allow the new counsel come in they be given his time to follow proper application they ask him for an explanation so he gives one he says and made an honest mistake and if he quit they are he to quit while he was ahead of his client was a hit but instead he went a little bit further and he said i don't understand why the state is agreeing to do a do over murphy is using the system to his execution if you allow him to do it you're going to open the door for all these death row inmates to do it you should rule on the application i filed even though it doesn't state a basis for relief and oh by the way i want to get that was his response the only work he did on this case was to advocate for his own plan of execution and if you want to do some interesting reading i commend to you to read his affidavit cover to cover it seven or eight pages you'll read it the first time and you'll say it out really just read that and your we did a second time and then you write a note in the margin it'll cite whose side is he on that's the representation that murphy got in state court so here's what the c c a does they biting return to state court follow the same claims we have mail in state court it has to go to the c c i of course they quickly dismissed the i t c claims they remanded the misconduct claim for a hearing and once that hearing was had they dismissed that one as well without addressing the merits so we come back to federal court and ask for an evidentiary hearing to develop the procedurally defaulted i t c claims now we're asking for this two or three years before martinez moment to give you all the arc of the development of the law in the supreme court in this circuit on the procedural issues that will inform your decision was that there are interesting and they're important and i believe the district court and in my eminent colleague here is perhaps taken them out of context so if you will give me just a second to lay this out twenty eight u s c twenty two fifty forty to you which sets the rules for this type of proceeding says if the petitioner failed to develop the factual basis for a client in state court there is no federal evidentiary hearing unless and then he gives three exceptions none of which really apply here so if you just read twenty to fifty forty two by itself  that in that case had been filed in state court williams v taylor which is the case the district court and respondent ride to the finish line the supreme court two thousand said no federal evidentiary hearing is required or the defendant failed to develop the factual basis for the claim in state court nail that case was decided at a time when the ineffective assistance of state habeas counsel did not excuse a procedural default it was a no consequence the theory being you don't have a right to counsel on haiti is therefore you don't have a right to effective counsel shrit reverses landrigan supreme court two thousand and seven no federal evidentiary hearing required where the state court can excuse a procedural the fault and allow the federal court to consider de novo an i d c klein just like the state court could have done works properly raised in state court so that brings us for to dietrich versus ryan the most in fact no it's from the ninth circuit and i know their track record but but it's the most reasoned opinion on the subject it was in bunk and the supreme court declined review so you would have to say at least on its face that's strong support for what it says and what it says ios the district court should allow discovery in an evidentiary hearing to determine if there was calls for the procedural default and if it's excused were there whether there was ineffective assistance of trial counsel and the defendant must be allowed to introduce any new evidence to develop the clothing and they correctly reasoned that if pin holster applies in this situation the martine i is dead letter it means nothing and they say why if you assume that so you can assume there's cause to excuse the d fall because everything you said about an hour off will he be as counsel was why can't the court then look at whether there's anything debatable as to the underlying ineffective assistance crime well they can but i have to look at it correctly and yours and there's no record developed a record and so what what dietrich it is that there is an exception to twenty two fifty forty two because what we're doing here is we're not making a claim for relief or seek an equitable ruling to excuse a procedural default so that's how they distinguish it i think so let's get to the merits because obviously that is of some consequence here can we show that there that this claim has some merit the district courts merits decision is debatable because it pursued the tromp council was effect used and rejected i a t c claim not to a defaulted one and if that decision by the district court is correct and here's why this issue is potentially cert worthy if you will uphold that decision not only are you creating a conflict with the ninth circuit but you're telling the supreme court chance to rebut it so guess what on a silent record you lose just like every defendant lost on a direct appeal where they didn't have a chance to develop the record which is why more team isn't trevino came about in the first place so here's what we need to do here we have to analyze two things number one what was the defense theory at trial and number two how did the errors of council adversely affect that theory the defense theory was very simple it was that murphy is guilty of murder instead of capital murder because he didn't have the specific intent to kill the deceased that the gun discharged accidentally as he was transferring it from one hand to another and indeed the prosecutor argued during summation the only disputed issue in this case is what was the defendant's intent at the time the gun discharged the determination of capital murder or murder depended on the jury's assessment of the credibility of the explanation and murphy's confession  gets life for murder instead of death for capital murder but it's a plausible theory and it's evidentiary biased and it's the only evidence in the case as to how the gun actually discharged with the statement in his confession that errors by defense counsel in this case went to the heart of that theory and there were three other first is post arrest silence and the back story is murphy gives a confession after he's arrested where he gives this explanation for the shoot the state introduces evidence that a week later the detective tries to question him further and visors him is rights he refuses to talk that's clear post arrest silence that's not even visible under supreme court case law there's not any question about that but the district court says that this evidence was proper or that the council's failure to object could be justified because it showed that the confession was voluntary as the detective respected murphy's rights when he invoked them on a subsequent occasion that she was not record but sed murphy did not contend before the jury that the confession was involuntary indeed he relied on that confession to support his position that he was guilty of murder instead of capital murder that he did not he wasn't the defense trying to show he was cooperating with law enforcement and then it would be allowed as a rebuttal to that whale no first of all they may have been shown he was trying to cooperate but that's there's no evidence in this record that that's why the lawyer didn't object to the evans post arrest silence that's just something that's concocted by the state and the judge as a possible reason for not objecting nobody has said that's what we didn't object secondly that's a punishment ishi but that would make it if if in fact that they'd open the door to his level of cooperation that would make it in the midst of the rebuttal to that not at all i mean now you can disagree that if that were the case law says you the clearly the you know they introduced his confession evidence his confession by itself shows he cooperated with the police this is showing he didn't cooperate on a subsequent occasion it's offered by the state to dispute the confession to not objecting or to counsel just miss it just flat missed it you can't make up an explanation like they do in their break this in with your prejudice it doesn't matter what the reason is if it would have been a few tile objection so that's what i'm getting at will i don't i don't think it secondly the opening the door to police opinion testimony that the confession was not credible he confesses on day one they drive him around a couple times over the next week to try and figure out the  locations of the abduction in the murder he says i don't know can't find they can't find it and the defense lawyer asked the detective did you believe he was telling you the truth at that time and the detective said yes and then of course in robot  redirect the prosecutor brings out well did your opinion change over time yes it did have it in chinese will you know i decided what i'm telling the truth because he refused to answer some questions and parts of his confession were false just a out opinion i didn't believe his confession the district court said that sounds great a g to show he's remorseful uncooperative now we don't know that that was counsel strategy at all they might get up there to hear him say you know we never even considered the fact that asking this question would open the door to evidence we really didn't want in on it just happened we didn't intend to do it it wasn't strategic at all you can't just assume it was strategic and make up a strategy for them secondly remorse and cooperation of punishment issues not guilt innocence issues the guilt innocence issues how did the gun discharge and they did put on evidence of cooperation in remorse at the punishment state third it can never be sound strategy to elicit a detective's opinion that the defendant told the truth time be it his ultimate opinion is that the defendant lied at a time of day and time eight is what counts i want to address the lesser included offense because i think this is the worst  all the prosecutor argued that the jury could consider the lesser included offenses of murder and manslaughter only if the state did not prove capital murder beyond a reasonable doubt is what you call an acquittal first argument the charge was if you have to acquit him first i think what he said is you can consider the lesser included offenses only if the state doesn't didn't prove capital murder beyond a reasonable doubt which is the functional equivalent of you have to acquit him of capital murder to consider the lesser is just saying in the negative instead of in the affirmative the magistrate that the district court said that a case called boy yet supports this argument boy it does not support it boy it had a charge essential and same as the charge in our case and the defense was arguing as fundamental error on appeal that that charge you know was improper and authorized a conviction without  said this instruction properly inform the jurors to consider the defendant's lesser defendant's requested instructions on lesser included offenses so boy it does not support that in acquittal first argument is proper the  criminal appeals acknowledged our interpretation of boyett in a case called barrios where the charge instructed the jury to acquit the defendant of capital murder before it could consider the lesser there was an objection after this trial i was after the trial the objection was overruled it went up on order to get through the procedural bar in here there is simply is no valid brady claim these are pretty claims where there were there were witnesses from trial who were essentially  later and they made substantially similar statements all of the information was available at trial counsel during the trial during their cross examination none of it was material none of it was suppressed by the state these are all simply paraphrases of what these two witnesses remember from their from dedication and none of it was suppressed what about the prosecutor going to the house and there's a debate about what he wrote what he was referring to but confirming what she said i get the right guy it's clear from the record in the state court found that he did not confirm that she got the right guy it's very clear  but was not asked counsel they use evidence in the record to show that it's that murphy and it had a very troubled childhood that he'd been abused that he was an alcoholic and oppressed counsel also  very sympathetic picture of murphy for their mitigation argument however what's clear here is that there was overwhelming evidence of murphy's future dangerousness i think that murphy in his briefing is kind of trying to downplay offense was easily enough to get him capital murder to get a future dangerousness finding in texas second there were multiple extraneous offenses that were presented where murphy had a weapon where he had a deadly weapon and where he committed violence against women there was an assault against is ex girlfriend was he bloodied her nose and he was wielding a knife when the police sh up there was the situation with a coworker a female coworker where he threatened to knock her head off in front of lower away and there was there was another incident where he held a gun to a young woman's head and asked her if she was afraid to die and i think this evidence both when you look at brady materiality and when you look at prejudice punishment is a strong indication that this this will home kidnapping was not actually what god's the death penalty here and would not have been had there been some more impeachment evidence or more alibi evidence that was presented that would not have saved her from the death of either still a reasonable probability that the outcome would have been the same impossible and i don't think it would have been an effective strategy to tell the jury that instead they concentrated on the identification that they concentrated on attempting to see put the diary of his girlfriend on to show that he was always at home during the day during this period of times and they focused on the stock that his description did not match the description of the person who committed the crime which topples i'm not a sound trial strategy having dr crowder admit given murphy's given murphys the violent history and the nature of this horrific crime that he would be concerned about him on the outside but i don't think murphy can show be possible to have to call an expert that  wouldn't agreed about and this is certainly a reasonable trial strategy to call dr crowder to deliver effective mitigation evidence no further questions about these the fact that these tests were not administered by the people who confected that ass is that did that really not amount to much or what is your take on that i mean you know the creators of the test are the ones who the state urged had had done the test and they  had no they were done they were the people who created them is this was this is not a big deal or what i mean now what's your take on well all the relevant evidence and all the evidence explaining these tests was before the jury  this was a witness that was called by the by the defense against show murphy how difficult childhood that he blamed himself for things to present very sympathetic evidence and during that case  their forte i respectfully suggest my colleague falls into the same trap here that the district court fell into and that is he's arguing the merits of the klein and he's basically saying this is not a winning claim the issue before the court is are the merits of the c l a his argument did not say this is not an arguable klein and all we're deciding now is is this an arguable klein i'm not suggesting the evidence is not legally sufficient to uphold the conviction indeed there's no challenge to sufficiency i'm not suggesting mr murphy is not criminally responsible indeed he is the only difference is whether he should be executed or since to life in prison that his argument is basically that the jury wouldn't have acquitted murphy of capital murder even had the lawyers not made these mistakes and my point is that is subject to debate and you me for a moment if you will let's assume i ask you said there has to be a hearing on counsel strategy and tactics is are getting there is to be a hearing on the prejudice analysis because we can look at the record and see all the evidence that was born against right prejudices that is a legal conclusion right deficient performance is law applied the facts let's assume the hearing goes like this let's assume you remain for a hearing let's assume the trial counsel takes  stand and listen the trial counsel tells the truth without trying to manufacture some strategic reason for the complained of missions and let's assume this is her testimony i'm i knew from reading the office report that there was evidence of post arrest silence a week later and murphy have been advised of his rights refused to talk i never considered filing a motion and eliminate in retrospect i should have filed a motion in limine and had it been sustained that evidence never would have come in had it been over opinion that murphy was he thought murphy was telling the truth that time be that the state would come back and deliver the money shot and that is that the detective didn't believe murphy was telling the truth at time a and time is what counted that never occurred to me it wasn't on my part if it was it wasn't well thought out i would not do that again and number three i thought texas law was that the jury did have to equip of the charge defense before considering the lessers if i'd thought it was otherwise i would have objected the prosecutors argument or i would have stood up in my argument and corrected him and said he's wrong you don't have to acquit first this charge doesn't say that that was not strategic on my part if texas law doesn't permit that type of argument i was in  wasn't strategic if she took the stand and testified to those three things the undercutting of the district court's opinion would be gone there would be no sound strategy she would have basically confessed if you will to deficient performance and then it would be a legal question of prejudice so i'm sorry and i'm entitled but opportunity to try and make her tell the truth and if she blows up and rares back at being claims she has strategy i'm entitled to cross examine her on it maybe  get you that i mean granting a c e o a just means then we have to consider the merits here that just gets you want to granting of a c e o i had to remain for the lack of a hearing the c e o is my thought is the c e o way is to send it back to the district court for the record development a fair shot and he's not going to get it in state court so if you all don't give it to him he's not going to get it at all i want one fair shot to convince an honest trial of fact that there was no sound strategic reason for what occurred here that the lawyers fla out made mistakes and that there's a reasonable probability that it impacted the judgment of whether it was capital murder or murder you get a set opportunity we fail to meet it you call a sale on prejudice what about the testimony talked about where the wounds the forensic examination it was that's that's all subject to argument and there is no forensic testimony that can determine whether a gun accidentally discharged based on the location of a bullet wound because you don't know for sure the position of the gun the position of the shooter's arm the position of the body at the time that there's or was it was that impeached a trial i mean was there was no other there was no expert to offer different i don't i don't recall anything like that but at the into the day all we want is one fair hearing with day no vote merits review by a court of conscience i don't think that's too much to ask in a death penalty case