this is the first time the sixth circuit has sat in the theatre or levon courthouse we're very pleased and privileged to be here i want to thank i'd chief judge hood for letting us use this historic courtroom as more special that we have with us this morning truly iconic judge from the district court bench judge avram cohn and we thank him for his assistance in his wisdom as we work through these cases call them the first case without parole as a very circumstantial case based on not so compelling evidence well i mean i don't know if you really want to get into that but there was some pretty incriminating evidence it would seem you know handing shell to his neighbor while they're searching the crime scene that kind of thing that's correct your honor and mr non word found his mother's body undisputedly hours and hours after the murder what he did was really a lapse in judgment i can't even begin to understand the irrational acts that someone would take when they find their mother's body but again that's your facts and yeah you never got to that because of the merits of repeal takes us to our procedural default issue now state post conviction counsel conducted a f investigation revealing that trial counsel was constitutionally ineffective in failing to request mr non word cell phone records despite him specifically asking his trial counsel to do so and they these records showed some expel the tory evidence that was presented to the state trial court he was unable to get relief and when he proceeded in federal habeas the state district court in this case found it was procedural the fault finding that because he failed to quote first the transcripts that the court never got to the  merits the case and found that found it was the fault that under moppin the district court was in error as ohio political nine is neither well established nor regularly enforced well how is it not well established when the ohio supreme court it seems flatly held that it is the appellant's duty to send the trial transcript to the court of appeals rather than the trial courts to do that that was nap right had requested the the transcripts but they were never furnace they were never actually transcribed and right then sent it back they did not miss the pumps case well that's because they had requested them they had tried to comply but the court reporter was sick for like thirteen months that's correct and in this case mr own none were already did a state direct appeal and in doing that direct appeal he had requested the transcripts they had been furnished they were in the record then when he went to post conviction he presented a motion and the state judge denied it without a hearing made no reference to the transcript and then on appeal his appellate counsel filed an appeal simply to the fact of whether there was evidence to deny the post conviction there was no hearing therefore no transcripts were actually required this is the practice i mean it seems like you're arguing a point to state procedural law at this point i mean the ohio courts you know it's their prerogative to interpret ninety's they have it court of appeals praga they have to apply it consistent with now i mean how are we able to to say either of those things is somehow improper as a matter of federal law well this court has a duty to determine whether the ohio rule is well established irregular enforced and i'll direct this court to a case in which this court held that ray versus holland which is two thirty s third thirteen fifty nine in which this court looked at  tennessee's appellate rule requiring a petitioner to file the transcripts this court looked at tennessee laws that we have all these tennessee law cases that say that this is a well established and regularly in force law and therefore th attach to the transcript from that previous trial he also attached failed to attach any exhibits therefore that transcript was never even prepared but i mean didn't our court in that case say that the rule itself is stablished and applied in ohio under those facts well i mean this question we're asking is not specific to a particular case and how it applies in a case it's right i mean this part of the test whether it's  sad or i forget the terminology we're talking about is something it's just whether that rule is regularly enforced or not it doesn't turn on whether somebody did something or not in that particular case in england solace our court or had in fact had the transcripts transcribed and had they were in the record and they were actually in the court house counsel let me just get this straight he he has had an appeal and then he filed his post conviction do i understand the law correctly that in such circumstances the trial judge then gets the transcripts from the hell of court and they share it when you have a post conviction motion isn't there a statute that governs what the court shall consider in a post conviction motion and it includes the report as transparent that's correct ohio revised code twenty nine fifty three point two one post conviction statute deals with the procedures in which the trial court is supposed to assess the post conviction petition and in that statute it says that the court shall consider the trial transcripts now this all leads us to to and everything is for sexual online the actual courthouse has the bound transcripts and it's my understanding that the trial judge is supposed to request that they be brought over now judge first order does not actually address and he to the transcript therefore one can believe that maybe the trial transcripts remain in the appellate court i'm not aware of that but the specific facts of that were i do know that attorney can lift did make i have a reasonable basis to believe that the trial transcripts were part of the record as she had previously done state post conviction appeals where she had not physically attached the transcripts and it was never an issue and those are noted in her motion to reconsider at page sixteen zero nine so it's unclear whether the trial judge got the record that's correct but the trial judge this week wired to get the record we believe we believe that's the understanding of ohio case law yes or the statute and that brings me to a point that just just one second but but counsel did i think the rule provides for filing the request for the transcript right that's correct and that's done by pressing the is that correct that's my understanding from in in a traditional appeal the trial counsel didn't do that in this case you know and because she believed that it was there anyway correct and we asked the court to consider attorney come let's efforts after the case was dismissed on appeal in fact she did a motion to reconsider in which she included an affidavit and we've tash those our petition this petition her at motion to reconsider set forth cases that she had done previously where this was not an issue and i would direct your honor judge white to a previous opinion that you wrote in hilversum carleton and which you concurred on an issue of procedural defaults and you said in that case that when a petitioner does everything in his power to present the issues to the state courts it was troubling when there was procedural default and this brings us to an issue that  which we will not concede but assuming that this rule is well established and regularly inforced then attorney conflicts error the simple error of failing to file the press of your task the transcript constitutes cause and prejudice and this cause and prejudice is a defense to procedural default how is that true when you're talking about martinez now well martinez is somewhat different in this procedural posture right talks about in the pen ishall sense of so i mean i mean first i mean i understand your point about procedural default and sort of the injustice of it is what you're implying that said it's a doctrine we have to apply when it's political now martinez if the lawyer is ineffective in the initial post conviction proceeding initial then and that ineffectiveness is cause and help me martinez by its terms doesn't apply and in that instance why doesn't coleman which two to which martinez is an exception why doesn't the supreme court's decision and coleman b martinez the facts before the case were whether at the initial post conviction counsel was ineffective and that was in prejudice that was the before the court the court has not been faced with a whether post conviction appellate counsel's ineffectiveness  fault it is a matter of equity is a matter of what we're trying to get to which is whether mr another word should be faulted because his lawyer made a mistake sure and that's what happens in procedural fall and it's troubling but that's kind of what happens well but it is a violation of constitutional rights and we have a six not a right to counsel it doesn't make sense that we might say that coleman says there is no six and then right to counsel in post conviction proceedings and martinez says ok will recognize an exception for the initial proceeding and that's the problem we have i mean coleman otherwise says there isn't a right so the stage we're talking about now i mean i'm just trying to give you a chance tell me why this is wrong would seem to be one where there is no right six man right to counsel is wrong because the guidepost is at that we're trying to look at what the sixth amendment interpretation is equity i think martinez martinez talks about as a pretty broad reading of martinez  can't consider the fact that she made reasonable efforts to point out her mistake and that this mistake just falls to the defendant because of that we have to score to consider vacating the district court's order denying the petition and rema like there is any published cases that apply this rule in a post conviction  state cases you're talking about pardon these are state cases these are state these are from the eighth appellate district the district where this post conviction petition came from and these are both actually pro se appeals of titian's or post conviction relief and in both the situations ninety and nap were applied and do we know whether the transcripts had been filed in those cases on the direct appeal your honor i'm not i'm not sure if they were but i know in the instance of the of the post conviction petition the reviewing court said that without the necessary transcripts they weren't able to address the assigned errors but we don't know whether they were there and some that they were we don't know that they were filed previously on the direct appeal are not sure if they were filed under i don't you do you dispute that there are times when the court seems to get it on their own i mean first let me ask you do you agree that when there's a post conviction proceeding it's the trial court that is responsible for getting the transcripts assuming that they've been produced well pursuant to twenty nine fifty three twenty one during the initiation of the petition for post conviction relief the trial court doesn't need to review the transcripts when they're making an initial determination as to what their substantive grounds for leave ok and the trial court has does that proactively right like i'm asking the defendant doesn't say here's the transcript it's it's there because there's been an appeals so right i get it i believe so so why is it then that if it if it's something the court has a duty to procure or what why why is counsel's interpretation i mean it seems to me that if that's the case it's plausible what she's saying that in many cases you don't violate because they haven't wouldn't go up with the record relief that were appealed that i just brought up but a quick search and you'll find many many cases in this if the pellet districts where ninety was applied on different types of appeals two thousand and fifteen cases two thousand and twelve petition doesn't cite any cases there are two cases cited in her motion for reconsideration and both those cases were appeals of post conviction petitions but the claims in those petitions were barred by rescue to kata and the only way to overcome that bar in those cases is to bring in evidence outside the record so in both the cases that post conviction appellate counsel cites to stand for the proposition that she somehow didn't need to file these transcripts neither of those cases were decided based on transcripts so essentially her negligence in those cases were able to go unnoticed is this all just one courthouse where this trial court in the ace district to file the transcripts their quote from counsel as i understand this record there's no dispute that the transcript existed is that correct yes  exactly exactly so what you ahead is a group of lazy judge who didn't understand who didn't take the time to find out where the transcript was actually in real life and say we want to see if this is that what this boils down to well no your honor because the judges don't have that affirmative responsibility to make sure that the  what is the responsibility of the judge when he's sitting there and part of the record that he needs is not before him but he knows it exists and he just sits there and wait and say well it's not my job to get it either you produce it for me or you're outta luck when all he had to do was find out where i was have you ever heard of a i mean you know sherlock holmes had all kinds of fancy titles he'd written about this case he would have called the case the lazy perhaps he would be on the line right well your honor i mean i guess i just i just go back to ninety i mean really the reviewing court did not have that transcript which the patent was required to file and so they could not pass upon the assigned errors in the post conviction appeal well your honor i guess even if even if this was the case of the lazy judges there isn't causing prejudice efficient to excuse the default in the shit you ation because there is no constitutional right to counsel at a post conviction  so i think it's clear that ninety is firmly established and regularly followed the attorney's failure to furnish the transcripts here could not constitute cause under federal trial court under the statute have to get transcripts i believe had a duty to review it i suppose that in if if that also means that they need to furnish it i'm not sure but the statutes not not clear about providing them responsibility to see the transparent wasn't filed with the collateral because we have a cause of action against his lawyer for malpractise he does not because why because he didn't have a constitutional right to county had counsel and that counsel had the responsibility file a complete record right one would assume yes but but but that it but the petitioner in that situation bears the risks of their attorney  in that situation i'm sorry i'm not on this and i'm suggesting that it's a principle agent relationship between the attorney and the client and the u s supreme court has said that the petitioner in those types of situations this for example this post conviction appellate proceeding where there is no right to counsel that petitioner has to bear the risk of an attorney err or attorney's negligence is saying because there is no constitutional right to counsel he takes the risk of a bad lawyer that's what the clearly established federal law says yes so a lawyer can screw up and there's nothing can do about it well your honor it had offend the first occasion to hear this claim then there would be a constitutional issue but since it was not one of the exceptions apply this is the law or have a guilty conscience have also just like to to quickly point out opposing counsel mention martin as being about equity and it certainly is and you know obviously it stands for the exception regarding initial review in a collateral proceeding of this ineffective assistance of trial counsel claim but that equity extent against efforts opportunity and in this situation mr anywhere did receive that first opportunity when his petition for post conviction released in the trial court was reviewed on the merits and dismissed think some of that evidence was there in that phone but it was not exculpatory and it was not you know kind of a strong as as a parent would make it seem and the trial court did address that sta one of the main witnesses sched said he gave me his phone and before he left and asked me to call it when i called it it was up in the tower bringing i mean that that was the strong evidence that he he has less than he had planned and that was going to be you know he was going to show that he was still at work this is phone was up there well you wouldn't  feel that if there's evidence of real conversations on the phone and calls coming in and out being answers that's being made right at what could certainly address you know maybe the impeachment of some witnesses but it does not it doesn't eliminate the fact that there were full opportunities for him to commit the crime and as the trial court noted and the eighth appellate district even though it did not have the trial transcript it did delve into the phone records it received and just briefly commented on them and it pointed out that none of these records of text messages or calls to prevent the appellant from committing the crime because you know presumably as we all know people can multitask with their phones into a hospital removes a key piece of evidence specifically the testimony that he gave the phone to this person she says it up to be an alibi while he left the meeting totally undermined that well your honor the trial court's dismissal the petition for post conviction relief was an abuse or discretion standard as to whether or not it was reasonable for them to find that there was manifest evidence for the claim and it absolutely was given the other portions of evidence that he was you know gone from work handing his neighbor cetera et cetera there was there was quite enough evidence there that that you know both the state appellate court both the state courts found that the evidence was there for the conviction and the michael my time is on all right thank you for fair to claims when the lawyer makes in the stake and in this case as the court is struggling with from what i understand from the questions is whether this was actually mistaken about what was going on with these transcripts i mean i had to judge cohen's point that these transcripts were actually prepared this wasn't about just failing to request them this was about the actual problematic nature of the physical location of the actual transcripts this is a very technical and very narrow problem and that's why it requires a narrow solution which is an exception which is a narrow exception or an extension of martinez because i don't know if that's so narrow i mean it's a pretty significant thank martinez is a pretty significant thing because landing it now ok your lawyer can screw up twice in post conviction proceedings now and that's i mean that's asking a lot well at this court to consider the facts of this case which is that mr ono more of went made significant extraordinary efforts to try to comply with the rule while he failed to furnish the transcripts and the appeal was dismissed his lawyer filed a motion to reconsider detailing cases and her good faith belief that this was not an issue then after that was denied and the high supreme court denied that mr  rules but ohio has a rule which ohio rule twenty six b which says that you can raise an ineffective assistance of appellate counsel he tried to avail himself of that therefore he's made every effort to try to rectify this technical and somewhat confusing problem with the transcripts the state courts gave no relief we're now looking to this court to assist us to it so that he can have a merits review so that someone can hear these claims because these phone records are substantial and they go to show that he did not commit this crime that he was provided the ineffective assistance of counsel and that there are significant other issues that do not justify this man who was twenty two years old at the time this crime spent his entire life in ohio prison without the possibility of parole therefore we asked this court to vacate the order denying the hague its motion and remained a lesser other questions thank you very well thank you for your arguments and your briefing both of you case to be submitted clerk may call the next case