today on oral argument and will have thirty minutes aside shepherd versus davis mr wright difficult when they may be going to get worse sorry petition under gonzales versus crosby and that your honor we st believe that it's premature to decide this case until the supreme court rules on bannister i can tell you that that almost always i won't use the word always but certainly generally our court goes ahead and follows whatever the th circuit precedent is and we all know what what that is i'm sure you'd like to see that change but normally we do not wait how just tell you one of the reasons that we don't use it more often than you might think the supreme court takes a case and then decides the case in a different why are some other issue or there's some kind of a waiver such as something else happens such that the issue doesn't get decided so as of now we are bound by our by our existing came up fairly late in the case and we've been studying authorities but we we don't feel like we have an authoritative answer at this point ok well how about if we were to give you  greedy and i know in the history of this case the longer longest one i've seen was six single spaced pages but i think on this issue i would request all right i will give you ten and you can have even have until bat but we dismissed the rest of the case so if it were if we were to conclude that you have four issues here and on one of them for example you didn't file a proper procedural if we want to call it that fifty nine in well we'd only have  over that if we're following our precedent and not you know weighing on bannister and i'm sorry your honor for that mistake and we'll be more careful in our next filing so is it it is it your argument speaking generally i'm not trying to put words in your mouth that it's not a success is because it raises procedural points rather than substantive i think i think i think there's a there's a more fundamental argument and that's part of what we're still sorting through the cases from the other circuits and that sort of thing but the rule sixty motion six set aside a judgment after the time to appeal has expired in the judgment has become final and by contrast the time we rule fifty nine emotion does not attack a final judgment in your honor here i'm citing the united states versus the bar fifty to us one time we rule fifty nine emotion in a civil case renders an otherwise final decision of a district court not final until the district court rules  we believe that's a sick that's a significant difference between fifty nine dollars sixty cents we were also examining the practical issue of what the holding and williams would the notice of appeal had been filed previously so the question well i think the problem here is that you've got potentially a conflict between the statute and the rule and the statute was going to govern obviously we can't have a rule that says you can never file an appeal so if the effect of applying the rules of appellate procedure and civil procedure were to cause you to never be able to appeal then i'd see think the issue that the supreme court will have to address and banister although i agree with judge smith think they do with they do but they did limit it to one issue and that was essentially how far does gonzales go in a fifty nine and i think it's a little different than your typical eight because of this issue that's excessive and not being able to just keeping on keeping on the way a lot of lawyers try to do with fifty nine s in our usual case is that fair i thought i think so  i'm i'll be honest with you hung my head is still spinning a little bit with all of the issues that are roiling around this and that's and i'm still working through it in my own mind but i think but i think i understand your point your honor and it's a it's  and your honor i think that the issue about whether the fifty nine dollars emotion that the shepherd filed was a true fifty nine dollars emotion under williams i do think we pointed out in our letter the points where we were  addressing the integrity of the proceeding in the standard that the court was using i think what makes it a little more difficult generally though is that a rule fifty nine dollars emotion by definition is a motion to alter or amend the judgment and one of the issues that that i am examining is what is the scope of that and how does that play into this analysis about whether a fifty nine emotion is a true fifty nine emotion or not certainly as the state pointed out there was relief requested that would have altered or amended the judgment but the nature of the arguments to the procedure and the the framework at the district it doesn't i mean the problem that i saw with your argument and i appreciate that you're going to far more briefing and i'll keep an open mind to it because this is a very very critical point but the problem that struck me is you could make almost anything procedural in that situation with the argument you were making because what you were arguing goes to the heart of what the judge ruled it's not well limitations bars me from considering this or like in mcdaniels we're not going to have an  evidentiary hearing which really has nothing to do with the merits directly and that could have an adventure hearing i cannot have an evidence you're hearing so get the merits wrong so the purely procedural strikes me as being something that prevents you from getting to the core whereas here the judge address the core may not like how the judge address the core you may think the judge made mistakes in addressing the core but she dressed the core so how can that be something that evades williams assuming argumenta williams is correct so that's what i'm searching i think that's fair and i will def and i know of three of us keep an open mind because you know this is a very critical point if we're just not even going to get to the merits of your appeal we need to be sure that's the right result under the law yes if you would make a note of one thing you have a lot of things to address in your your ten pages one thing i'd like you to address is that paragraph is consistent with the position you're taking now on what all generally called substance versus procedural distinction as far insofar as it concerns jurisdiction you don't need to do that now i'm just learning here that you need to you need to look at that to see whether it's consistent it's a description of the of the of the of the motion to alter or amend that you included on page thirty three dollars ok i understand is that unlikely to have another oral argument however we rule on the five thousand nine hundred so if you want to address what i see is the main issue which was you know your original briefing on the question of the undisputed that trial counsel wholly failed to conduct the necessary investigation to present a constitutionally sufficient mitigation case and there are really two components to that st of all counsel failed to investigate the facts and the fact that witnesses including members of michelle family who could have provided highly relevant probative evidence of her family personal and medical history and nd concerns the experts and this one i will spend a little more time on because this issue is pretty is presented in such a way that maybe maybe unusual perhaps a little bit factual presentation and i'll just go into that right now the the requested that the court appoint her at the court mandated she was appointed and what attorney brown asked her to examine he did he asked her to examine m shepherd's competency and her sanity and he asked her to opine on whether the shepherd was likely to be influenced by men who were in a position to be abusive now dr ray dr ray to evaluate michelle with any psychiatric diagnosis and so she did not do so she testified that her clinical evaluation was not intended as a medically diagnostic interview and that she didn't engage in clinical diagnostic inquiries as she typically would perform she also testified that if mr brown had requested that she perform a medical diagnosis from a shepherd she was qualified and capable of doing so at that time medication case doc mr brown did not ask dr ray to provide a diagnosis regarding whether a shepherd suffered from post traumatic stress disorder or any other trauma related psychosis dr a testified that if she had been asked to diagnose w concern i have with this is kind of where you draw the line i haven't reviewed statistics on this but just in my experience on this court maybe half the death penalty cases if not more they find more evidence that could have been brought up and raised that somewhere in the the federal habeas process maybe even the state hey vs process and so it's sort of always true it seems to me that you could have found more so where do we draw the line because that we have lawyers such as did nothing this lawyer did not do nothing maybe didn't do enough in your view i get that but it didn't do nothing and you didn't do everything so where is that line between nothing and everything setting and they concluded that she that she did suffer from all of these disorders mr brown do there was more out there it wasn't just that the got a limited answer from dr ray what he asked her was very limited and he it was so limited it was it's curious because his motion that he filed with the state district court said he needed he wanted a doctor a to be appointed to assist him in the punishment phase and that he didn't follow up with information that he already had to get her to provide a psychiatric clinical a report on a clinical psychiatric interview so it may be it may be true that you can always find more and i understand the limitations on the appointed counsel in state capital cases but when the evidence is when the red flags are out there and trial coun so i don't think this will be a lot of doubt about that he didn't do everything but he did do something or what how would you i take it if you were writing the sentence in the opinion you want to write how would you articulate that well i think i think the way i would articulate  is that the investigation because of the information that was known to trial counsel from the very beginning of the case issues of domestic violence sexual abuse etc from the very  i had with her counsel and counsels investigator they had knowledge of these issues and they did not follow up they did not develop test any testimony on those issues and the question of legal questions ok sagal and so i mean if we see the world little differently than judge atlas would not have to give any deference to her view on that again maybe as people we do certainly respect a job with a great deal i'm just saying technically what is our requirement is not the same thing as she we did a bench trial and we have to accept or finds a fact i must say clearly erroneous right agree with  reading judge atlas summary judgment opinion she very clearly states for example that she was on able because of the extremely deferential standard she was unable to find that th of criminal appeals finding that the evidence and heaviest was cumulative she was unable to find that was unreasonable she also referred to that same standard you know versus pocket in that lot of cases with respect to deficient performance and prejudice she wrote in detail her views and then she called them findings with respect to deficient performance and prejudiced her view that both of those she called a close question under the existing wall and we think that's probably right roomies not only wrong but wilson versus sellers we believe changes the landscape on you know a jury might do anything but my experience with jurors is they're trying very hard to follow the law in the state court judge i didn't do death penalty cases as a civil district judge but again my experience is they're trying very hard to follow the law and why is it that somebody having depression would be mitigating of the kind of murder that was committed here which was something really planned out for money not any you know anger or this person did me wrong or i thought that i was in self defense or any of those kinds are who's really just trying to get money how does depression mitigate that well st of all  there were some facts that were inconsistent with that the conduct the day before the other woman and so on again i'm not i'm sort of asking this is a devil's advocate if you will not necessarily that i agree with it or disagree with it i'm just asking that how how can we say that these findings of you know mental difficulties are so clearly mitigating that we should undo all of the prior court broad for a reason because the jury the jury is being asked a very broad question and the details of the particular defendant's life including medical conditions family conditions etc those are all going to be under the supreme court's precedents and in that one cases the information is always going to be relevant in and so would it raise evidence be the most critical on that and if that didn't persuade the jury then how would something more tangential to the core of the argument in this case be influential well i don't i don't i don't know if it correct that one of her major problems that defendants major problems was simply low i q and that that just didn't get picked up or looked for at all that that's correct  with respect to the issues that dr ray presented in a report of the admitted and stated abuse hearing that he said just be a report he didn't even draw it out for the jury or try to make an argument from the question of prejudice do you agree with me that the test is whether the jury would have reached a different result not just that it could have that that it would have well i don't think it's i don't want to to find your honor but i think it's got to be more than just a possibility but if i'm if i'm recalling the cases correctly there has to be a substantial possibility it and i will look at the and see if i can give you a better answer on the ball ok we took a lot of your time with the jurisdictional issue and you do you have saved your full time for a bottle if there's anything that you haven't covered that you'd like to cover you can have two more minutes to do perfunctory opinion it did not even address or acknowledge most of the evidence that was presented in state  and it was based on an incomplete analysis of the record because of that it also failed to acknowledge or analyzed the limited scope of dr gray's report and for that reason i believe and and reasonable and they didn't do their job to meditation it and consider evidence of all the evidence of status and from the trial work they they they didn't they didn't cover it you to that because it has a good two or three actually paragraphs explaining how tough the standard is and it includes the statement that you have to show that every fair minded jurist would agree that there was little different in a death penalty case it seems potentially odd to dismiss a case for want of appellate jurisdiction that if nothing further happened would mean this shepherd might be executed before the supreme court rules perhaps that we did after stiction does that a bit cause you to catch your breath is a little different it is bad is leaving someone in prison who shouldn't be there as bad as a lot of other things are at least they're not quite as final as an execution is i understand and we absolutely recognize the stakes of this case that couldn't be higher it does not cause me any serious  n for one main reason and that is that if this court follows its binding precedent dismissed for lack of jurisdiction i would assume the shepherd like many other federal on the merits so if there weren't isn't that kind of funny for us to just hope the supreme court gets it right i you know i i kind of view my role as i'm the last place this person is coming recognizing of course that they can go to the supreme court in certain court may take it in this record can reverse what my court did i get all that but isn't that just more delaying the case i mean other words if we hold the case until beta she was decided bannister said you know the circuit got it totally right then we would be ready to rule on the merits of the b s and move forward if on the other hand they said we got it wrong i mean we wouldn't but i'm sorry we would be in a position to just dismiss it if they said you got it wrong we'd be in a position to rule on the merits instead if they have to g v our takes a while for that to come back or to wait for this in than a twenty five dollars days and whatever whatever so there's a delay in getting back to us so why would it not make more sense to hold it because either way the supreme court goes we can move very promptly upon their ruling either by dismissing or by ruling on the merits  i have to say my answers when did it because my understanding of just the basic jurisdictional rule is that if the court lapsed jurisdiction there is nothing left to do but announce the fact and dismiss however the court does of course have jurisdiction question and how quickly and by what process the court determines its jurisdiction is really not anything that i can help the court with so you know if it were to happen that it just took that long resolve the question but i don't see a problem but i don't think i can tell the court that it can exercise jurisdiction by say holding the state or doing anything else that would be construed as an do anything i've done just i just don't i said ok i mean you can't tell us that she well i just i can't offer any specific authority that in my understanding would allow the court to make an don't think that's an open question but to get back to your original point we certainly recognize that this is a very high stakes case from a sh a very thing they said in court nothing new just you know can't stand that they lost that would still delay the time for appeal and we would have all the jurisdiction in the world once the fifty nine dollars he was denied and they appealed it just not a  regular car wreck whatever so the reason this is different as i appreciate it is because there's a conflict with the statute if we are to rule that you can just keep filing what is deemed a success of hey b s whatever you want to call it that that's the problem right right so it is to me the rule for in the real fit i mean that's not really in play the question is is this excessive procedure all unless and until your st appeal is done and then it's not a fifty nine dollars anymore because of the time so does that make any sense i think it does and i think the the limited point that i was making is  as far as that st the initial federal hay vs petition there is a clear mechanism to protect one's right to appeal and you're absolutely correct if a petitioner comes in whatever it is and files what purports to that's still your correct going to you know would appropriately be routed through the same channels that a subsequent havior petition would be but there's nothing about that that affects the petitioners right to protect her right to appeal i think your honor brings up another point that's relevant to the jurisdictional argument that my colleagues are making and that is they are attempting as i understand it two  application of twenty dollars to fifty dollars for the at the litigation bar as some kind of a procedural step and i just i don't think that can possibly be right for two reasons one is that solid the supreme court specifically took that on it when it defined what adjudication on the merits means for purposes of that case of the rule sixty b motion and in the opinion it's either no for note five i can't remember but it says on the merits means a decision of whether or not this petitioners entitled to relief under two thousand two hundred and fifty four and so i say that because i don't think it's possible to separate the application of twenty to fifty four and make it somehow not part of a marriage something that is merits adjudication in federal aviation to federal and the nd point is that if their argument were correct then in many if not most federal cases it would open the door to it and the series of so called rule fifty nine motions because most of the time the application of twenty five to fifty four means the rehabilitation bars a place and we're not going any further relieved up and so if that were viewed as merely a procedural move then it would leave a lot of federal he's lost saying the judge got the law wrong doesn't strike me as procedural in the sense that is meant in gonzales because as you say that's usually what people are claiming particularly in a b s case because in a b s case you typically don't have a state you don't typically have the federal district judge making a bunch of factual determinations and here in there you might but the bulk of them either de nov review the state court ruling or deferential review the state court ruling but not starting over all right ted and i think here you know i appreciate that in some cases there are complications that arise and hard calls to make but in this particular case it's really the heartland you know merits attack on a district courts rejection of federal habeas relief because it goes directly to the merits of every claim if i could  are now of the court to determine that it had jurisdiction it should affirm of the district court on every claim and i want to start with what i view as the main claim which is the punishment phase ineffective assistance claim that to resolve that particular play and there are two reasons that the prejudice argument can succeed here the st is that it's very simple michelle has failed to carry her burden as this court has repeatedly said most recently and i think it's added he but the recent case the judge smith cited the burden to prove prejudice requires the petition to specifically allege how new evidence well what new evidence investigation would have uncovered and specifically how that new evidence would have altered the outcome if you look at response peel they do not explain how this new evidence introduced and stay vs would have altered the outcome at pages fifty three to fifty four of their opening brief they say it would have made a markedly different case a much richer description might well influence the jury's appraisal of shepheard's culpability and then in their reply brief on page twenty three they say they would have made the mitigation paper the new evidence was quote different in kind in scope from any evidence offered at trial under the governing standard i do not believe that that is sufficient even to raise the prejudice issue because they don't explain how this new evidence pacifically factored into the jury's the liberation the nd reason is in any event it was not unreasonable for the state court to find that miss shipper had not proved prejudice and i think that would be true even on to novo review but here since we're looking at it under we have to say is there any reasonable basis to find that she was not prejudice and i think well but in your brief you conceded that they did reach the prejudice so were analyzing that they know  harboring i will admit our brief was ambiguous on this point i think what we said was it looks like the district court didn't adjudicated but if the court does determined like the district court that  well the district court the district court decided that the t c ca did address prejudice all there and i think we took what i said this is an ambivalent position if you look though that i think the only reasonable solution to draw from the c c a's decision is that it had to address prejudice and the reason is that if you look back at the state of use trial courts conclusions and findings there's no specific mention of when the c c a disagreed with that analysis and rejected every one of those factual findings and the one legal hoosier and it necessarily i mean you expressed we said that they didn't do the stric when we're doing something to you know the right of of course and i would and i don't deny that our briefs us where it's as i looked at the specific rulings of the state court i think the district court was correct and take the claim but there are but to go back to the claim itself there are there are two reasons two main reasons why she can't prove prejudice and i think her claim realistically it focuses on the medical experts who were not discovered because there are two other categories there are family members including the shepherd herself counsel had completely the legitimate reasons for not calling those people including the shopper explaining the record the nd category is there are some lay witnesses family friends people who knew a shepherd and when you look at the testimony they offer it is absolutely humiliated there's not really any argument about it some of it not particularly useful but her main focus reasonably so is on the three experts and i and even if we focus on those the problem is that there is no connection between the specific diagnoses that those experts made and the facts of the crime and the circumstances of the crime in other words what they add to the evidence that was argued before the jury is an expert's conclusion she has p t s d she has major depression she has this so should have disorder but when you think about how would a jury of process  that given all the information that have already had she can't show a reasonable probability or a substantial probability that the outcome would have been different and the reason is that the main reason is that the jury already had dr ra what we're here to talk about i thought that she didn't because she wasn't hired to do that and that they saw the evidence that came up later particularly her the level of her i q which is  challenged that that simply wasn't covered by dr ray wouldn't i thought that's the whole reason we've gathered here today well your honor is absolutely correct and i stand corrected dr dr ray did not address intellectual functioning however i still i still maintain that her report established every essential element of the mitigation case because told the jury that shepards parents divorced the young age she was raised by her grandmother three kids by age nineteen with three different men two of which it seems like were the product of statutory rape sexual of horrible sexual abuse at ages three to five she lived on the streets she was raped by manage knifepoint she had to seek shelter at her home for run away youth she ran from her common law husband and s shelter in a home for battered women the father of her rd child beat her repeatedly threatened to kill her if she left and then also beyond those facts about her terrible background reddy's reporting clude of shepherds claim that at the time of the offense james dickerson threatened her said i will kill you and your baby if you don't go commit this crime with me and dr ray determined the based on her examination she thought that ms sheppard would be susceptible to threats by men in a position to abuse her would be more easily influenced in that situation that is with or without evidence of intellectual functioning that's the core of her mitigation case and the problem for her prejudice argument is that the diagnosis itself doesn't add anything material and it doesn't add anything that would have altered the jury's perception of her claim there are two reasons for that are basically two ways that mitigation could go base our background one is you could offer these diagnoses an as an explanation for her conduct at the time of the offense you know this was a product of her psychological conditions but we have an expert opinion saying that she suffers from them the main problem with that though is that to the extent they go to the directs the early that theory was subject to conflicting testimony and the jury already rejected they had the other problem is it's just not consistent with the evidence because james dickerson her her coach murderer he was her brother's boyfriend there's no basis to think that this was a situation that was had tensional for the kind of abuse that she suffered so there's not really a connection between those the other problem is her confession which was published to the jury and introduced in evidence had contains no statement that she was threatened by james dickerson the other problem with the theory of duress based on a psychological evaluation is that there was substantial evidence before the jury that the offense was planned and thought  was not a spontaneous exercise of poor judgment corey jordan who ended up calling the police after he heard about the crime he had heard shepard and didn't pursue talking about it at shepherd's brother's apartment there was a previous attempt that the jury heard about and the shepherd acknowledged the day before where they tried to rob some other woman in the parking lot and so that that leaves that leaves a serious question about how could the jury have processed this new diagnostic information in a way that was favorable to miss shopper i don't think it could have because what that leaves you with is that she's predisposed in some sense t acts of violence and it might still have mitigating if that if if this were a different cry she had killed her common law husband because he was beating her or if she had you know gotten caught up with a man who was abusing her like there was testimony that she participated in a drive by shooting if you're on trial for that you could reasonably think well of course he beat her of course she's going to go along with it but here it's all random murder of a stranger that seems totally pointless and so where's the connection between these mental defects or psychological conditions and to put it in the terms that some of the experts use one said well this would make her  robotically states but that doesn't really do anything because there's no evidence that for instance she was wandering around the parking lot with blood on her hands not knowing where she was p t s d if there were some indication that she had been triggered you know like a veteran with p t s d if you hear a loud noise you're probably don't you know you may get triggered and you may react in a way that's unconscious so how would you articulate i asked your opponent about the rule because i think just me i can only speak for myself i think we're somewhere between nothing and everything so how would you articulate  the rule of the rule on prejudice i think is very easy to articulate i would just build on what this core repeated again and adequately and say you have to show specifically what would you have produced and how would it have changed the jury's deliberation and i don't think it's hard to imagine how that could work in different circumstances as far as the deficient performance which i think it was more your point we have to start with the presumption that the council performed in a constitutionally adequate manner and here i think we have evidence that counsel did and he conducted a reasonably thorough investigation he hired an investigator there's a report in the record where the investigator discusses all of the family numbers and all of the other people interviewed the only way to get this in investigation included dr ray the only thing that's really missing is a very specific psychological expert evaluation and so i think the rule that should control here counsel conducted a reasonable explanation based on the information available to him then any decision about what kind of of mitigation pace to put on and what further evidence to pursue of anybody should be presumed to be an exercise of strategic judgment and i think that's what we have here because we know from counsel's testimony and say hey vs he made a decision he not like the direct sphere he thought that was a loser he had seen james dickerson's trial he had seen shepherd statements his his decision was i'm going to pursue it mitigation strategy based on age and based on her background and so i think in this record the investigation he conducted was adequate to put on that case let me ask you a question yes i  don't fully understand your argument about the limited relevance or no relevance of the fact that she had this fourteen year old intellectual capability which your argument be the same if they had done that same test whatever it was that revealed that and instead of fourteen it was ten inserted is yes unless they're what i thought your answer is you would be making exactly the same argument if that evidence showed that this woman had the intellectual functioning of an eight or a ten year old and the only qualification i would add is unless there were an atkins claim if there were a plausible argument that she was intellectually disabled for purposes of afghans i would not be making the same argument and they've never raised back and correct but the reason that i the reason that i think the court should consider the evidence of the end of intellectual function in i q as just more of the same type of evidence that they already have is because there was no doubt that ms shepard had had problems growing up she was not a great student ship to drop out in th grade because she was pregnant she tried to get an education but she disorder i just said and perhaps i'm wrong but but i don't see anything in the reverend reports that would allow me to say that it adds something different if i could briefly  and unless the court has further questions if i could move briefly to the bats and claim the review of the facts and claim which was adjudicated on direct appeal is therefore subject to the realization bar the review of the and that question is unique when he within the province of the trial judge because the court the supreme court's been clear that the assessment the prosecutor's credibility is often a critical factor and often the best evidence of whether the ba smiled at so what that does seem like a writer for me that's exactly right because it's but ultimately you're trying to pictures who are favorable and whether they'll be fair and impartial that may not be enough and so here i i just wanted to touch on it briefly because i don't think she's you know possibly over calm the state courts rejection of that claim on the merits and the remaining two ineffective assistance claims both  on prejudice and that decision cannot be determined on reasonable or thank you mr frederick mr wright for  i'd like to st address the question of the issue whether the other state and a b s experts added a thing to doc to raise report we know from previous rum pia they defense lawyers the trial lawyers actually had three mental health experts who testified and the supreme court said that was not sufficient because of other red flags that appeared in the record that they didn't track down so the fact that there may have been one expert in this case dr gray who who gave a small report based on a two hour interview she did two things she had a two hour interview with the shepherd and she reviewed the medical records from the harris county jail for the time period when michelle was there and that's all she did and she explained in her affidavit and say hey b s why why she did that  the referral was so limited that she didn't feel that was necessary to do anything more but i would refer your honour's to the report and our discussion of it from dr miley on the neuro psychologist who spent she went up when i had to say that the brain dysfunction the michelle pretty experienced is greater than can be accounted for by her limited general middle ability alone she goes into great detail on that she talks about the shepherds of all her abilities there they're they're obliged to follow up and they're obliged to at least investigate until they've made a strategic judgment that further investigation is not necessary that is what did not happen in this case broken i believe under and you know versus pocket analysis where you were you could say this argument could have supported the decision well that's not possible anymore after wilson versus sellers wilson versus seller says the courts to trade it  the on the reason stated in the last reason opinion by the state court and defer to them if they are reasonable and not to defer to them if they are not so our view and we and we stated this in our filings to the court our letter advisories on rules and the seller's our view is that duress is not an issue because the court of criminal appeals did not did not make a ruling that addressed it in a way and that's really that's the the all that's the deal