counsel may not have been sufficient to ensure that proper consideration was given to that in fact without the benefit of martinez a petitioner including mr fowler would get only one chance to present his trial effectiveness claims in is that i believe in your opening review seemed to suggest that all trial i see i see claims in north carolina had to be raised in post the no problem and just getting back to that point the rule from trevino is that if it's highly unlikely in a typical case the council will have a meaningful opportunity to develop a trial i c claim under oath to be all that martinez interview no apply to that state and the north carolina case that the rich really the main case that addresses this issue state the fair says very similar language that i likely the council will not be council will not be in a position to adequately develop many i see claims on how if it all is that different from the rule of the force or force the guys interpreted the north carolina rule mccarver believe is also on point with that the overwhelming majority of trial i c claims with the exception of this very narrow category of cold record claims that the state its own response refers to as a limited category of claims only those type of claims can be wrong so assuming are you window that correct that what justice bart was doing was simply create create overruling coleman in effect by saying that in effect no more year who represents a defendant go to that second question i think that that may be the case if or that alternatively some third counsel would need to be appointed to look into any martinez here right that is what we're asking to do here and i think as we've looked more closely at this particular case at first we thought that there was no conflict in this case for our purposes but as we've looked at it more closely in this is a new issue i think we've seen that it's it's much more likely that conflict does exist in this case and that the district court would in all likelihood need to appoint you counsel to look martinez issues in this case to me th conviction review proceeding which included that initial m a r and then whatever mr bush an activist pendry did that ever then cheri there was no there was no ruling on any of the issues in the case until after after you're through one stage of an initial the initial post conviction receiving you don't have the opportunity to come back in another proceeding to present that difference that martinez  the difference between a direct appeal claim it is a claim presented post conviction and the fact that he had additional attorneys appointed later during the same post give it a proceeding doesn't resolve the issue so in  don't i think what martinez gets to is not is not the number of attorneys or really you know how many attorneys look at the claims it's it's the type of proceeding it's whether you suggest if they don't so explicitly and they probably do that we don't require twenty to fifty four counsel actually to identify proffer what you think is the most horrible potential claim here sure and i would just preface this by saying that of course i think there may be other claims besides this one just doing it for their investigation but certainly i did it relates directly to the fowler had boasted about committing the crime and then had used the money he got from me in the crime to both go buy drugs and using that didn't come out into a way that did not come out until intil the state post conviction perceived that the fact was discovered but it was never presented as a trial i see why it seemed highly likely to me that it was ineffective for trial counsel not to investigate use mine to send a private investigator or someone to go speak to him i just came out and state post conviction i don't do we know that council did not do that i there's nothing on the record that i seem to indicate the council did that and then when it came out in state police you're not saying the council failed to do that you're saying there's no showing the record or clearly did not take the steps needed to discover this fact because i think it clearly would have come out in the pretrial hearing and when the motion for a program the post conviction counsel discovered this fact they didn't really they didn't do examination of the record to determine if there were other i see claims that could have been made that work you know your i don't think we need to pursue that i can't say for sure exactly what they did but again i th part of what you need to determine whether council work hosting mission council or effective is some sort of outcome and by that point there had been the case was still pending and it still represented only only one chance this specific uniqueness of of this case would be what exactly well i i merely said i can't speak to other cases but i think that would be the likely outcome in another case where you know that causes the a problem whenever i see it as you come out of that the district judge has not ruled on so one explanation or a way around that problem would you say well you know i think this does present kind of a simply from the additional facts that came out in the motion for appropriate relief was that police then told him that follower had boasted about committing the crime so he was his identity was already confirmed once as the correct suspect in the eyes  police in then the police did nothing so they did nothing for almost eighteen months until they called mr guzman in for a meeting shortly before pretrial hearing and told him that fowler was a suspect in the case and where he would be sitting in the courtroom and it was only after that that his mind was able to make this very certain identification despite being very uncertain when presented with these  standard and didn't say first of all that there was no error and if there were the error was not was harmless that is correct  and first i guess to address harmlessness side there are i think five key facts that i'd like to point to with respect to that and i'm not speaking to your merits i'm speaking to the key come what seems to be unreasonable and in fact i don't think you deserve recall raced harmless error in your opening grief while i think the the supreme court has indicated that you know harmless error is a affirmative defense for the state to raise so it was not discussed but if you're challenging you are now would be challenging the north korean supreme court determination that's that's right i've been asked of the chapman harmless are i think we we do discuss the some of the the facts that are relevant to that in the factual discussion related t what the district court calls for self interested felons in this case that really costs the only other evidence and that is that evidence was was very questionable and we know that even with this i wa a very difficult case for the jury they deliberated on the question of guilt for a full day and we know that the evidence in education was a part of their deliberation because they were blasted that these two photographic arrays that included followers photographs be sent back with them and they were sent back into liberation and we also know this was a difficult case viewed as a closed case by the it previously because i i thought in response to my question about whether there was a cultural issue you were toying the potential trevino analysis to the merits of your due process and i think there's certainly separate claim the issue of independent counsel per se martinez is about whether or not there is cause to excuse the default procedural default for failing to raise something that coleman versus thompson explicitly said you could not do in other words martinez is about whether or not there is a narrow exception to coleman versus thompson martinez is very clear it did not overturn coleman versus thompson it just gave a narrow exception and a narrow exception is not to the constitutionality of counsel on post conviction nearly exaction is a if you're in a state that didn't know well you to raise ineffective  trial counsel during direct appeal says that your first your initial review process is in collateral state collateral review and during that collateral review either didn't have an attorney or all because you're not constitutional have to have one  coleman or you have one who failed to raise something deficient in failing to race and they don't state your constitutionally ineffective for racing it they just said deficient for raising deficient and raising the an effective assistance act trial counsel all roads lead back to trial counts it's not the constitutionality of the post conviction counsel it is the defectiveness in failing to raise a constitutional at issue that being trial ca ineffectiveness and if you have those things then you get to you must then raise a substantial claim which is to say you have some merit and martinez has a language about what that marriage is in other words they don't want to put  significant strain on state resources and what i'm hearing in the questions earlier i think with the arguable seven sets of eyeballs we had here before we got to this point that it would be in fact a substantial strain on state resources just i don't quite understand that because once the mars finished what state resources are being expended on behalf of the defendant once the defendant martinez being why there was an obligation to bring a substantial client if i can get back to that with regard to martina's the issue is cause whether or not there's calls on this neuro exception to excuse under coleman then you get to trevino trivino is not about whether or not there's an in effect martina's arrow trevino a to vino excuse me is about whether or not one of the problems of martinez applies in states where they record on the record they say that you're not allowed to bring it's going to be that you are allowed to bring ineffective assistance of counsel on direct appeal but then they make it virtually impossible for you to do so that's the issue that's the holding  applying now those threats of facts to martinez then we fast forward to granger or issuing green juniper was not about martinez error insofar as whether or not there is a substantial claim they never got there for a reason this court excuse me never got there for a reason my team excuse me jennifer and gray are about whether or not they should appoint an independent qualified counsel for the limited purpose of going back to look to whether or not the was ineffective assistance of trial counsel that was not properly addressed by counsel during the first pong hearing excuse me an issue review in virginia which is in fact the  which does appear to me to expand the narrow exception in martina's which you agree with that i don't believe it expands it i think it just gives another explanation of what one of the of martina's is because expanding it in it and in the in the language in the to expand it so that coleman is overturned would mean that you are looking to ineffective assistance of counsel on collateral you're not you're looking at the failure to raise something not on a constitutional level but on a factual level that was not raised during trout council's representation that was in effect  ineffective constitutionally i'm not to the extent that i don't understand what you're saying i'm actually not sure it's either an accurate or b that it helps the the state  brought if they appear in the first instance if they are parent from the face of the record if they require investigation then trevino says you are entitled to independent counsel i guess most of all i'm not quite sure why for purposes of your argument it matters ok trevino's about whether or not it's virtually impossible to bring an effective assistance  balanced council's position that north carolina is a state similar to texas in that it is difficult because you have this buffer creative process to bring claims i see claims do not appear on the face of the trial record like for instance failure to explore an alibi defense you wouldn't necessarily you would need to do a good additional post trial investigation for that but that trevino covers their trivino is is not applicable to north carolina in so far as the reasons that they gave for applying it to texas are not  twenty two days to decide the to file the motion and to raise the claims in the motion where they had maybe forty five days for an extension but they still wouldn't have the transcript in north carolina you don't have that circumstance first of all but you do have you carolina are confined if a if a position if a defendant was in a position to raise a ground zero and on direct appeal because it appears on the face of the record they have to do s if it appears on the face of the record right in that time but that's really all i'm saying but what we're talking about is what does not appear on the face the record which i believe you used an example of alabama right and what i was going to say is in north carolina we have another statute that allow the bringing of a motion for appropriate relief only in the appellate court is the court with the jurisdiction to handle it and that's under fifteen a fourteen eighteen fifteen a fourteen eighteen allows these motions for appropriate relief to be brought in this is what you chance to fall over spots two counties response to your twenty eight jail letter but how many instances can you point to where this procedure has been used in the last say thirty years while i think back thirty years but i don't claim to have an exhaust and permitted discovery yes so for one that we're not talking about this rich talking about where they committed the ineffective excuse me the fourteen eighteen motion to be heard during the pendency of the direct appeal or not the discovery they were specifically seeking was going to be admitted and there was a risk in camera review which happens all the time and post conviction that is no different than under post conviction and during the end can review the judge  conviction is that what you're asking us to yes that the state is required to do certain forms of it's discovery precisely but but there's no equivalency the equivalency is what action stood for which was whether or not something's went in camera review and the judge after viewing camera could decide then not to allow it and the reason they didn't allow it was because it wouldn't be helpful i guess i'm having difficulty finding an equivalency between a procedure on the one hand where has the full panoply of discovery if you were time constraints etc on the one hand and then you can file this thing with the supreme court of north carolina and there's all kinds of discretion for judges to say no why would counsel ever take the second route rather than the first discovery was but one thing that trevino excuse me that trevino looked at again it looked at the time constraints if you add up the the state follows their brief i think you have three hundred fifty three days this if there are no extensions but if we didn't i'm sorry but if we disagree with you on your true vino analysis about the structure of the north process do you do you loose i'm not sure if you if you do i mean i'm having i'm really having trouble following your arguing about the north carolina statute in my for all practical purposes north carolina statute differs from texas it differs it's not big but that's i don't want to go back there because i was i was listening i think i'm sorry i'm still not getting is it critical to your argument i guess is what i'm asking now it's one of many factors that's critical to my argument because trevino raised several factors and in pinpointing each one of those factors that trevino relied on our position is that north carolina is not like texas time constraints being my our response is there is an eleventh hour motion that's not been fully briefed but that the issue that this motion was premised upon is juniper and jennifer being whether or not there is a conflict of interest everything that has been filed since my response to their motion is saying there is no conflict up so now you're going to get the fact as the questions to mr pickett focused on his the purpose of his motion is to have independent counsel independent counsel and juniper and davis is me and grace premised on a conflict which doesn't exist that to one single case where ineffective assistance direct appeal counsel was raised for failing to raise in effect of assistance of trial counsel and in the last it was and there such a show of additional stories that was filed there was a blurb about their not being able to point to one of those cases either and again this is not something that we've fully briefed but i can only go on what i know firsthand in my eighteen cases you would have to go through all  the physical files to answer this question because not all the cases are through the state post conviction processed or not severe court orders in place haven't made it into the federal courts if not easy to search for but in my own cases that are physically lived through i have one of those cases and i submit from talking to mark to my office members that they believe there are others out there i just am not prepared to resent the names but in north carolina with respect to my own case the state versus david thomas garner is an example of the very thing that texas couldn't prove and that trevino court looked at to say ok i'm really kind of confused about why you're so determined to convince us at least here that north carolina is not texas can i ask you this if this issue had a risen in the district court before the district court on the petition let's assume you know martinez intervene or have been decided six months earlier would you actually be opposing appointment of counsel in the district court i'm asking a hypothetical would you actually oppose in the district court and are you opposing in any other cases that are still in the district court the district courts appointment at are already appointed i don't know of a reason to really appoint someone to do something or are you going to come asking then about a separate case not this case have you oppose the appointment of trevino counsel in any other case i person in the district court have not had and look for issues regarding ineffective if we if we disagree with you on that and find that there is a sufficient showing of a conflict and there's counsel for mr fowler conceded in his argument we could rule in your favor on the c e o issue on the due process issue and we could at the same time send it back to the district court for the district court one to determine whether to appoint  least as i understand it there's been no claim that what appears on the face of it to be at least improper if not an ethical behavior by the police to tell an eyewitness  witness potential eyewitness witness in a capital case about how the defendant is seated between his counsel and was bragging about the murder that i don't think you'll find that kind of advice given in any police or detective manual anywhere in this country you don't do that i'm not and no prosecutor wants of law enforcement officer behaving in that way so counsel is now claiming that post conviction coun in them are failed to investigate why trial counsel failed to pursue those avenues of investigation and what he's asking for in response to my question was an opportunity to go back to the district court and have a lawyer appointed to see if there is a cognize a bull forfeited claim in those regards and he agrees that it's separate oppose even in the district court the appointment of fifteen zero because of the lack of a so it doesn't have anything to do with the eleventh hour really it has well actually in the north carolina supreme court y both that the state's procedures weren't the necessarily suggested either and in the alternative if they were that it didn't give rise to a substantial likelihood of your reparable misidentification correct so that's a state that's a finding that that sort that that harmlessness finding has never been challenged supreme court finding in your favor yes that does not appear to have been challenged that there were what correct that in the standard under that the underlying claim the one for the fifty to appear of appeal  k but the but my question is procedurally how does it get to us if it's never been challenged below it has to be in order to challenge it you have to raise a substantial claim that is to say a claim that has some merit and under martina's we are allowed to to to respond that it's not it and it's as if it is an insubstantial claim that it does not have any merit that it's wholly without support why is there before us how does how would how could follow follow preserve it for our consideration he raised the issue which this court granted is difficult of ability on when due process  military on and we believe there's no merit to that claim now the only thing that's been brought up and that's today that's different from anything that's already been heard by both the supreme court and then the  to decide the issue you always look back to the last explain state court judgment that being the supreme court decision and then break versus abramson which is in north carolina gives me the u s supreme court case then held that the standard for determining whether or not a conviction must be set aside because of federal constitutional error is whether there was harmless error beyond a reasonable doubt and in giving deference to the state adjudication that it was harmless beyond a reasonable doubt this court under duncan and you have been discussing regarding the suggestiveness and the arm fullness of the procedure am i correct to understand that the supreme court docket on it never had i'm not sure exactly at all because you know i think his question here is that north carolina supreme court's finding that there was no error in if there was air it was harmless i think the question is was it made by the supreme court is the north carolina supreme court finding when did the north carolina at what point in the procedural posture did the north carolina supreme court make that finding they made the finding after the direct appeal process ended which of course was after the trial procedure which of course was after the pretrial suppression direct  general get to the second prong if there's not impermissible subjects ability suggestibility in and of itself is not the issue it has to be him miscible there's no litmus test for that you have to look to the facts the circumstances of each case and even where there is something that suggestible again that's not enough and big based on the facts and circumstances of each case in which that determination the north carolina supreme court in reaching its final decision said that there was this was not the only evidence against this defendant and his guilt his guilt was was based upon lots of different information that namely other witnesses other witnesses who cooperated not just what mr lee's mom said but also what the  things put and in perspective there was more than just this witness's information and what he testified to that showed that there was no impermissible which is higher than suggestibility is covered by cross examination this witness was cross examined numerous times during the trial and on trial and each time he was cross examined the jury scuse me during the the trial no testified that he focuses attention for at least five seconds and that was this testimony at least the court found that it was approximately five seconds but at least meaning it could have been more than that he stared at him from twenty five feet away from that wall to the end of that table is about three car wittes apart each car being approximately ten feet which means you're looking at less connect distance that he was standing on when he peered through the window and had a what i would contend under bigger is a  good look at this and that if there weren't any and accuracies that that was for the jury to determine and we know now in fact the united states supreme court has ruled that the jury is in the best place to weigh these kinds of issues if they have good fiction and judgment of american juries for evidence of some trust untrustworthiness is customary for the grill of the juries that is are not so the evident in the records supports the trial court's conclusion that identification was not a result of prosecutorial suggestion then it goes on to reject the defended argument window that the process was impermissibly suggestive nevertheless concludes under the second prong that the procedures didn't create substantial likelihood of this identification noting that going well and that's exactly the kind of thing there is that is the  clearly established united states supreme court law on these issues makes two vigorous makes clear that it's about the facts and circumstances of the individual cases biggers makes clear that it's about the totality of the circumstances i think this makes clear that they gave guidelines which means this is not hard and fast if not all of them but they gave god lines in each one of those guidelines that they gave are things that this witness was able to address clearly to the to the point that the real i think we understand your position was here f supreme court disposition did not have the benefit of that fact which is why we see it isn't reported part of the martinez claims that fact is never a because also of state post convention councils are that act was never brought into any sort of  c claim it's a post conviction i think there's not really a discussion of the number of attorneys that you've had just a quote here directly from martinez the court says that whereas here the initial clo overview proceeding is the first designated proceeding for prisoner to raise the claim of ineffective assistance at trial the collateral proceeding is in many ways the equivalent of a curse prisoner's direct appeal as the effectiveness clause this is because the looks to the merits of the claim of ineffective assistance and no weather court so what the clear focus of marching is is not the number of attorneys or whether or not different attorneys came in during the same proceeding it's the number of proceed it's had whe n the state only provides a petitioner one chance to present a trial i c claim in state court martinez applied regardless of the number of coun this room remand disobey demand proceeding in texas it's not a proceeding it's typically used to expand the record i think for all of the same reasons that judge davis talked about there's no o there's no right to discovery in these proceedings you have to present the claim before it even gets remanded for further evidentiary development so you have to deal with the claim it's not a commonly used proceeding in the state supreme court in state v her first which is one of the very first cases to even consider these claims said basically they prefer to hear for the claim to be presented in state posted i think if the state supreme court saw this fourteen eighteen proceeding in some way to expand the direct appeal record they would have discussed it in state the fair are these number of other cases that discuss the proper proceeding to raise trial i see claim and as all of these cases say with the exception these very narrow cold record claims that are really the vision by martinez the proper proceeding to raise a claim is instead was given in more of the fourteen eighteen proceeding is really not expanding the direct appeal at all it's petition or only has that one opportunity to raise that claim is in the rare case that a petitioner chooses to raise not fourteen eighteen claimant certainly on trial if he claims it is very rare  than the final point that i would like to address relates to the conflict i think we it's i think it's true when we first began this proceeding we weren't entirely sure what the scope of our conflict might be in this case  i think on our first glance it looked like we were different from martinez or i'm sorry different from juniper and ryan because we're not precisely the same attorneys but as we looked at the issue more closely we saw more and more problems which is why as it's moved on you know when we file we indicated that notice of a possible conflict and when you say when you use the term conflict you're specifically referring to putting your attorney in the position of having to explore allegations of his or her it in some other claims and there may be further evidence to go to this claim related to