you know so for opponents even if you've already reserved your rebuttal time let us know if you've done that or help us keep track make all the case that afternoon and may please the court i would like to reserve five minutes for rebuttal but the district court abused its discretion in this case in denying the sixty b motion on the basis of law the case the reason that this was a clear error of law was that there was intervene in supreme court authority and we presented new evidence to the district court regarding from post conviction trial counsel to establish the ineffectiveness for failing to develop and present evidence in pos conviction this court did not have the benefit of the trevino versus taylor decision of the last time we were before the court and by definition there cannot be law the case because trevino didn't exist this court didn't have the opportunity to in this court intimated the same and mcguire when it noted that there's a distinction in ohio law regarding claims that are dependent upon evidence outside the record which i think is a knowledge as to the twenty to fifty five of the us supreme court where you if if if the record doesn't have the basis for the claim then it's more amenable to post conviction and that's a critical distinction in this case because as we noted in our brief the the prosecutor during the direct appeal in opposition to this claim noted that it was an amenable for direct appeal that this is something that should be raised in post conviction and part the house supreme court's ruling while it did address the merits to the extent it could it noted that this is worth this these arguments are based on pure speculation and there's nothing in the record that supports the sort of the then what do you want to do well then what to do court would do was conduct a plenary review of the sixty six standard and determine whether or not we've we've demonstrated extraordinary circumstances which we believe we have  if they go that far then they would look at the entire our record including what the parties agreed to in the federal court that was not analysis so both of those analysis would have to be conducted by the district court we have to demonstrate extraordinary circumstances to reopen the case to allow the post conviction in effect in this claim to be heard and then only f some of the others your honor again you know we have a finding by the magistrate that we were diligent in presenting the sixty be so that's a factor that's in our favor we have a threshold finding from the magistrate that supreme court decide this issue that you have this claim that you have that deer doff invited the jury to impose the death penalty and argue no as far human do the jury before they retired to consider the sentence in the case did the supreme court of heigho or any or how court specifically address and discuss that issue the deardorff closing argument yes i'm you got a claim as i understand it i don't know what was it called to court the claim was that dear doff invited the jury and impose the death penalty when he said in file argument before they retard what was the exact language there are no i wouldn't want to go to jail for seventy five years i'd rather you put me to death and you've got a calling but based on that right and that's a different claim than to to be it is o dr chip to pony's testimony that it was i think that their position reads that they were didn't know what to do and they didn't know how to react so they were so surprised by themselves that that impacted an unsworn you contradicts what you pony just and then they get up in closing and argue would what you just said and argue other things that we we felt were ineffective so the depositions and the evidence we developed that was not developed by post convention trial counsel the claim again and this is sort of a hybrid situation i believe you got back down to the district court you're trying to do you would have  who post conviction his declaration indicating everything contacted him or securities records you know this court the first time through relied on defense counsel attempting to rehabilitate dr of fix what went on if they'd had the records they would have really been able to go after doctor to pony now are our claim on to be is that if if they knew what dr pony was going to say he'd never had to stand because added nothing to their case and what he did is blew up their case and if you look at the prosecutor's closing arguments they they relied especially the rebuttal closing relied quite heavily on d rebut almost every piece of mitigation that was offered and if you look at the trial court's opinion the sentencing judge judge roman relied quite heavily on doctor to pony's testimony to to minimize the mitigation that was presented and this was a case that had mitigation it was there was remorse there was sorrow and there he was nineteen years old there was evidence regarding bullying i mean there there this was an appropriately applied here and when you go to the sort of the opportunity i guess to have to have this evidence to be heard and we do them in i know  we've we've asked for remand but just to to to to sort of highlight what we would would be presented at the district court is as as judge merit noted this is a death penalty case so there should be extra process that's due because of the nature of the case and the finality of of the verdict and we do have a finding of diligence by the district court what is it going on which  but i'm trying to figure out your claim is that the defense counsel were you know just totally surprised by what dr soprani said but is your claim that they never talked to  so where the problem with your pony is they according to their deposition testimony they had no idea that he's going to testify to that and there is according there's there's a conflict which which was never resolved because the evidence wasn't considered defense counsel my recollection is they said that you know we we didn't really meet which point before he testified and we were totally surprised soprani says yeah i met with him and i had to have told him so how were we said as far as that that dispute doesn't doesn't hurt us either way it helps us either defense counsel didn't talk to him and he put on an expert that they had no idea what he's going to testify to or doctor to pony's correct i met with him and i told him what i was going to testify to and they were ineffective for putting this expert on him when he added nothing to their case so that's where we that's where we are and what's critical and that's why we think it's an extraordinary circumstance is the last time this case was in front of this court you echoed what your higher supreme court said the house cream court said it's pure speculation we don't really know why they did what they did and and talk about deer doff and their dorf in the other gentleman same excuse me i apologize so when trial counsel and we were able to obtain discovery and explain the why and get into the nuts and bolts of how it went down that led to doctor to county testifying and that's that's where we lost this claim the first time that this court couldn't look at that evidence and that that's why this is this is a very unique extraordinary circumstance compared to the other cases this courts consider one of the things that interest me  if the ohio courts have not specifically addressed this problem of the deer dog in the invited the jury to impose the death penalty the way he talked to this final argument if that's not specifically asked in there is a question about whether that issue has been exhausted in the state court or if they haven't addressed it where you can tell exactly that they've specified that issue and addressed it then you've got an issue here which i consider to be very important issue myself more important than your pony and all that other stuff in the in the because as the last thing the jury heard from their daughter was inviting them to impose the death penalty on his client or words to that effect and that's why i think that it's important to know exactly what the ohio courts have said about that because they may think that's a pretty important i don't know my your honor if i may on the exhausting question my recollection is that that that was addressed and  a part of our our appeal last time and this court noted in it was an address in another claim that there are no longer available remedies this court held that i think it paid seven sixty six of this mr moore's original opinion and then a footnote to that the fill your of availability available remedies is a political to every claim in this appeal so this court jurisdiction of the court below in order for there to be a jurisdictional problem it has to be a new claim or or a claim and we're not talking about claims we're talking about facts and i think the best indicator of that is when they jointly stipulated to expanding the record before the district court we argued these those facts in support of our claim and they never asserted that this was a success or that we were trying to amend the petition through our pleadings or anything like that and in fact they relied on trial counsel step is ition and other elements of the expanded record to argue against some of our claims so this is about facts it doesn't change the nature of the claim and all it does is it fills in the gaps this evidence fills in the gaps of what the supreme court said was pure speculation which is why how and the how and the why doctor to pony testified it does it doesn't change the nature of the ineffectiveness claim it just explains provides facts on whether counsel were deficient and whether they met their sixth amendment obligation this same goes through for the closing argument claim it goes to why did they argue what they argued in the depositions bear out that they it's a ripple from that your pony bomb that went off at the mitigation here and it would be different if we presented like a new entirely new expert and said oh council were ineffective because they didn't get a ballistics expert and that would be a new claim but all we're talking about is facts that support an already existin claim and that's a very critical distinction and why it's an extraordinary circumstance in our case is that when this core overrode the district courts grant a release this court indicated we don't know w pony was was call what we do but this court felt constrained by colin versus pinholes or from considering that evidence and reason that evidence couldn't be considered was post convention trial counsel had not presented it as was their responsibility and we have a declaration to the state court to the state court and we have a declaration from post conviction trial counsel indicating that it wasn't a tactical reason that this was  i'm familiar with this because i worked at the way way back when twenty years ago now the public defender's office won ohio modified its post convention statute in made it a sort of concurrent direct appeal post convention proceeding and it had a grandfather clause in literally thousands of post conviction petitions and i think close to one hundred capital post convictions were doing the same day on september twenty first one thousand nine hundred six and it's as the record bears out and i think we'll be successful in front of the district court on this because you know we have the threshold for finding by the magistrate that it appears to be ineffectiveness but we can we can add much more to that record before the district court you know mr mr klein was only contacted to represent mr moore in the in the post convention petition the process eighty days before the post convention petition was due he had never done a post conviction petition before he would he had been the one training session for a couple of hours he i was not given an investigator or a mitigation specialist to help in the assistance of of the development of the post conviction petition until we received a letter approximately a month before the post convention petition was due which said you know we'll help you out if if you have a claim of actual innocence which again is is is actual innocence under slip is not what this cas the issues were dealt with in post conviction proceedings in the state co work we reviewed apply at the gaffer and that specific statement is mentioned in  was one of a number of statements that  the the other equities in this case and that we feel demonstrate extraordinary circumstances are especially when it when it when it relates to claim to be this this was this was a close case  judge recommended granting relief judge the lot affirmed it in it was a two to one case here so so this is a close case and when the basis of of this court's opinion is we intervening sort of changes that context that ruling this is a close case that does demonstrate an extraordinary circumstance especially when the basis of this court's finding was that we don't says that they're trying to you know so you're bill of goods they're trying to sell you residual doubt remorse and what do we know from doctor to pony doctor to pony demonstrates that mitigation just just has no effect whatsoever that that there and it creates the impression with the jury that your client is is lied to them and the unsworn and is not being honest and is not being sincere in their expression of remorse and not being in remorse minus two ponies bum remorse is a very critical mitigating factor it's something the jurors want and this took away that off the table it's two things that occurred here it minimize the mitigation that was presented and put a very very harmful ballast on a scale in favor of death charles worley assistant attorney general arguing on behalf of the board not hers the core issue presented here is whether the petitioner presented genuine grounds for relief discord reached on the merits and denied relief he is saying that this court can do so under rule sixty be the answer to that is the supreme court of the united states has said no the supreme court of the united states and gonzalez versus crosby has said that a rule sixty b can be used in a news corp is case consistent with the anti terrorism effective death penalty act but but it must be use of the discussion in the preamble decision about pinholes or and and how all of this other evidence is not to be considered and is not being considered i mean it would that that is somewhat contrary to the point you're making it is not your honor let me explain why in this in terms of a rule sixty b there's a threshold question and that threshold question is incredibly important because in most cases the jurisdiction of the work will depend on it because the a d p also requires that before district court can consider a second petition the petitioner must meet certain standards in a court of appeals this court must approve it before it is a district court can consider a second petition so the bottom line becomes what's a second petition and what do we mean by a claim that was previously presented  crosby the supreme court answered that the supreme court said that when the petition contains a claim which challenges the state courts conviction  that's a claim and so when a prisoner in a rule sixty be essentially asks to again revisit the claim again pretty or present a new claim for that matter that challenges his underlying conviction  he's what he's done is he has filed the equivalent of years and i think that if the decision of the district court got half of the facts that are now available based upon or third or ten percent or whatever of the facts that are now available on the issue that that would mean that every time that sa indeed the pinhole strick case precluded the consideration of evidence not presented to the state court now mr cobb's argument that he's making here today the argument that he made to the to the district court was the argument that he made to this court on appeal as a matter of fact mr kopp in his petition for rule six or in his motion for rule sixty b relief said the six circuit erred by holding that crosby the court said where the supreme court has said one of petitioners says my rule sixty b is based on the court's previous error in denying my first petition that's a second petition and that is consistent not only with the a d p a but it's also consistent with preity d p a law it has been well established the rule sixty b is not a substitute for an appeal rule sixty b is not an opportunity to present new arguments what about the argument that trevino somehow changes pinholes well first of all in the first time of appeal trevino was pending this this court permitted supplementary briefing on the issue of whether martinez versus ryan affected the application of pinholes to this court permitted supplementary briefing on that question and after that supplementary briefing the court held that martinez versus ryan was not a an end around if you will yes expansion of the right to present these facts i mean there's no question about that that's correct your honor as a matter of fact during after his a during his appeal this court the petitioner argued because trevino had been decided in the petition for writ a search yari to review this court's previous judgment the petitioner argued that trevino changed the case in the supreme court of the united states denied cert now i recognize not as you know that will get you a cup of coffee maybe but you're exactly right your honor it's not has no presidential value but it's very important in this case because what does it show and shows that and your honor if this were if we were if we were on appeal if this was the first time around then that would be pretty important but this is a rule sixty b it's filed after a judgment has been rendered and this and or says that should ryan could change all that well martinez versus ryan is not relevant here because martinez versus ryan and trevino are an exception to the u s supreme court's procedural default doctrine that is what those cases apply to this claim was not held to be defaulted this claim was adjudicated on the merits so those cases really have no applicability to this case now as the co the court correctly recognized that in its decision in this case this court held that martinez versus ryan is not after ball two is not it is not an exception which allows for the consideration of evidence outside the state court record when a claim has been adjudicated on the merits in state court this court rightly recognized that the a d a the statutory foundation of pin holster is the a d p a standard of review which is statutory and not made by and is not a part of the procedural default doctrine martina's case  we said was not inconsistent with penholder and the court applied the penholder case to not allow us the evidence to be considered as correct in that and that and that's still is that still the same after trevino trevino in essence expanded it is true that trevino expanded the scope of the procedural default exception that that that the supreme court recognized in martina's but let's let's but let's go back to the basic point and that is it was an exception to allow for the merits consideration of a claim that was procedurally defaulted this claim was not the petitioners ineffective assistance of counsel claim regarding dr shu pony was not held to be procedurally defaulted not by this court and not by the state court direct appeal to petition to raise this claim on direct appeal it was decided on the merits now it is true certainly it is absolutely true that one can debate ohio's procedures for raising ineffective assistance of trial counsel claims one can debate whether that's an appropriate rule perhaps the rule should be you know i know that these claims are best reserved for post conviction which is my understanding of the federal rule but the fact remains then in ohio oh i thought the ohio rule was that you could present it if you had the facts on ineffective assistance of counsel and you didn't have to have a post be fiction or collateral attack to present new evidence you could present it and the court would adjudicate on direct appeal but it didn't preclude the other so my understandable how low is it permits if it's indeed apparent from the record now this does this does present frankly it does present a dilemma for council because a council must make a professional judgment as to whether he's going to run the risk of later attempting to raise the claimant post conviction and have it be found race judicata so that it has doubt is a judgment that has to be made by counsel but in some instances that judgment is reasonable certainly forces the lawyer to he's got and then it forces collateral post conviction counsel to raise it again after they are able to go out and square up and file the additional evidence that that's what's happening in ohio it in a way your honor this there is there are some there are maybe not so much of late but there have been instances in which council made reasonable strategic decisions to raise such claims on direct appealing i point to state versus johnson which is a case which in haiti is corpus which this this court found in the council and the kill claim was originally raised on if you're going to run you want to allow the evidence that is not yet been developed on direct appeal now simply for the court to order that hearing the conducted yes you that's a that's an option yes right that's an option on direct appeal and also does have an except we're not we're talking here but the basic ohio's basic raised your guy in ohio if you don't raise a claim on direct appeal which you could have succeed in overcoming the race judicata bar now my experience has been most attorneys in capital cases if they believe that they would they are run the risk of bringing in effect this is the trout counsel claim on direct appeal if they feel that there's a risk that somehow they should have brought it they will bring it in then they will bring it in post conviction in an attempt to support a vote in southside to record the part bunyan and been in this particular but however in this particular case and it's not disputed but the claim was decided on the record by the supreme court of ohio on the merits in this court most importantly this court held consider the merits of the claim and held that the supreme court of ohio that you didn't look at the whole record that was before the district court and you know your honor to think what the american entered terrorism effective death penalty act is there is no exception for there is no exception for claims that were once raised in adjudicated in the first petition and decided on the merits there are there is no exception for those claims the statute is clear the statute says a claim that was presented previously cannot be presented again now are we saying that this is a new clime of course not we're not saying it's a new claim it's obvious it's the same claim that was raised before the district court previously at the which the district court granted relief on in which this court reversed it's the same claim and as a result because it's the same claim then at the same evidence if that's the that's the that's the rub your honor in this is that a claim there's many instances in which a claim can be supported by new evidence yes but the anti terrorism effective death penalty act and the supreme court of the united states have b in which you're not challenging the merits determination previously by the by the court of appeals but you're challenging some defect in the process for example like at the a believe this was an example was given in the perhaps a rule sixty being might be a way to challenge that determination because that would be a procedural defect if it was in error but that's not what happened in this case the did this court did not hold that his claim did not merit relief because it was defaulted this court held that it did not merit relief because it had no merit and so under those circumstances under the anti terrorism effective death penalty act there is no room for the petitioner the petitioner did make an argument now it's not it's absolutely it's not it would not be binding in any sense when the supreme court denies search yari we understand that's not it merits determination but what it does show is this the claim was raised the claim was adjudicated the claim was denied on its merits and as a result it's under the under way d p a it cannot be the subject of a second guy as argue saw before that pin holes are for bid any consideration of any facts other than those that were in the record in the us why did you if you were if you didn't care if it was all the same crying all the same facts why did you argue so harwood you did you did a good job of arguing at our core accepted that that pin holes are forbid that said so i don't i think is a little is you know you know your one thing then a completely different thing now you're in the arts not inconsistent in this sense the issue in terms of whether something is one or different claim is important the first time around for a lot of reasons for example is is the prisoner presenting it claim it is and we're talking about the first petition what is he saying what claims he presenting it is he is he presenting when he presents new evidence other words evidence it was not presented to state court is he simply presenting evidence in support of the claim that he actually presented or easy changing the claim because that does have important implications as you brought up yourself your honor as the exhaustion implication many implications default implications but once that initial havey is corpus procedure is done once it's over and then whatever claim was presented was adjudicated on the merits then really what it whether it's whether if it's the same claim at that point there's new considerations involved under the a t b a there's new considerations and obviously if it's the same claim for the purposes of the a a second petition it is a catastrophic consideration because it's an absolute bar i mean that is it is the statute in and that is that's the law now i have to tell you this i can recall in this case the law was somewhat i'm so old i had made the arguments i think our office had made the arguments before pinholes that under the standard of review you really should consider only the evidence that was presented to the state courts i think i used the example i said at the end of example used is when my son came home one time and he was late and i said you know i find out later i chewed him out i find out later that he had a good reason a why didn't you tell me you had a flat tire because while you were pretty upset when i came in at two o'clock in the morning didn't get around to tell you well i mean i thought well that would be it was pretty i'm reasonable can't say i was unreasonable and jumped on because he didn't tell me that he had the reward of the pearl they are well that's true although he probably felt the i was angry enough to do it but but but at that time it was unsettled we took a look at we took a look at the the evidence from the depositions in contra the petitioner has i mean we understand that he's arguing that this really supports his claim of ineffective assistance of counsel we took a look at it and we thought that it did because we thought that the prisoners that the petitioners strong military he explained that he indeed talked to the doctor he indeed interviewed him and he was shocked he was surprised when the doctor said but he did not give the impression that he did not prepare and in his deposition he did he said he did talk to them the doctor and he was quite shocked at the doctor said what he said but at that time so we thought perhaps this in evidence is not so compelling and indeed this court in a footnote in the in the original decision discordant note that that the court said it didn't look like that the evidence that was presented outside the record really did show that the claim had merit so the court did notice it in passing that even the evidence outside the record was not compelling the b that as it may appear holster changed everything you can holster came down and flat out said that you can't do it because of the statute now mr kopp is made a pretty good argument i think i thought was a pretty good argument when he kenya versus tomato regress the supreme court applied the cause and prejudice standard and test not only that they had used for default claims also apply that to  prisoner's failure to develop evidence in support of a claim that was presented to state court and mr kopp has made an argument well you know that because i'm prejudiced martinez versus ryan does talk about that but there's one critical distinction the default doctrine was a judicially made doctrine the statute is the statute as this court pointed out it's not it's not and it is not the procedural default doctrine is subject to supreme court's changes and exceptions but the statute is not the that is the objective there jane you interpretation that is true your honor that is true in this but in pin holster the court interpreted in such a way and in recently in the shawn carter case that as an example the issue of the sean card case was whether there was a reason to abate the proceedings to look at the a petition was competent and almost as an aside the supreme court justice thomas said oh you know really you would really need to state his case anyway because these claims were decided on the record in state court and so regardless of whatever the prisoner could add now he would do would be irrelevant because underpinned holster that the federal court would be limited only to the record evidence that was presented in state court so does the pin holster case have grave consequences yes it does but we go back to our original issue here our threshold issue here is this before we even look at these these issues in detail can we say that this prisoner presented a viable or a genuine claim genuine ground for really fun to rule sixty b and we can say he did not because again and mainly because he's actually really requesting a second bite at the apple for a claim it was decided on the merits arguments in support of a claim that that was already adjudicated that's and that is what we have this is what we have here now is term in terms of law the case you might say this is the law of the case it is a legal pigeonhole that you can put this all of my arguments can be put in the law of the case pigeonhole as well i mean typically the law of the case the arik the exceptions to the law the case ex new new law intermittent decisions yes but no done of those things apply here because martinez versus ryan intervene oh we're an intervening decisions because they didn't involve claims that were decided on the merits so you can put in the law the case pigeon hole or the a d p a jurisdictional or the abuse of discretion i mean here the district judge didn't abuses discretion for denying sixty  supplemental report recommendation that the magistrate judge essentially held that the issues the arguments will all the case that's yeah and all well and he he held specifically that the arguments that were being made  were words essentially addressed by this court then other words that somehow the the martina's versus ryan exception for procedural default was also an exception dippin oldster and he said that this court essentially found that it wasn't and the trevino did not change that because trevino was an extension of martina's versus ryan but that extension did not initially or the original rule did not apply in this circumstance we hear here the situation is simply this is the martinez versus ryan talks about defaulting claims and this claim was not held to be defaulted it simply it simply was not and as it isn't except the  court in trevino or martina's suggest that the ineffective assistance of post conviction counsel to be faulted for the facts that were accumulated after the record was made in the state court involve default but it's a default based on a statute and a standard view i mean this court held believe me i can tell you this i i i i stick i mean i stipulated in jointly filed them that information i did that so there's no question that if it would have been a question of default i waived it but as this court held you can't waive the standard of review and in my it in my justification i didn't realize the standard of review at that time i didn't i didn't have a supreme court that said that the standard of review didn't limited the federal court to to the state court record in holster did did supply that and that of course occurred after a those those facts cannot supply relief under rule sixty b if you just ignore it a d p a look at that and if you nor both in you looked at those the merits of those facts they would not show that the attorney trial attorney was ineffective so on all levels yes you're on i guess i am arguing it those facts no matter how you slice it don't don't make a difference but in this sense your honor we would ask that the court to affirm may please the court to a just judge given this question regarding state law in ohio it's under state versus ishmael and his court recognized richie versus bradshaw that a direct appeal record is limited to the record it was in front of the trial court you rod so so you are correct you can expand the record but only with materials that were in from the trial court like jury questionnaires or let's say a motion gets misplaced that kind of thing second point  if i heard the attorney general correct if you raise it on direct appeal then you pick up a person you will default if you re raise and impose conviction in this case where a direct appeal denies it on the basis partly saying that this is pure speculation any post conviction attorney from doing their job regarding the statute vs keeney vs to mile race i would point to court williams versus taylor which noted that which is a dead put case and relied on keeney to note that you that demonstrates our diligence and our client's diligence in trying to litigate this issue doesn't demonstrate that it's law the case the attorney general is trying to have it both ways in the sheppard sixty b motion sixty be appeal they argued that the failure to file a search was a basis to demonstrate lack of diligence and that became a basis of this court's to now the sixty b the lack of diligence so the attorney general can't have it both ways we what it does reflect is that we were diligen and timely filed this in that supports what the magistrate judge held regarding our diligence on the sixty b regarding their gonzales argument i would point to court to a page five thirty two footnote four i think mr willie did did reference that what we're what we're talking about is in again i candidly admit we admitted in our briefs we admitted it before the district court we're a hybrid situation we're talking about facts that support a claim  so you know i can't hide from that i have to embrace that and we our position is is that ten hosts are acted as as a proof a bar against consideration of these facts and all we're asking in this touches upon it consolidates question is were we're attacking that impediment we're not here litigating the merits we're saying that post conviction counsel were ineffective and because they were ineffective that procedural impediment prevented this court from considering all the facts and that's all we're doing and once we get through the light in response a judge merits questions earlier if we survive that if we go back to the district court and we survive the sixty b analysis the extraordinary circumstances and then we survive the trevino analysis then we get merits review and those are high hurdles to meet causing prejudice is not met every day so we understand that but we're just asking for our opportunity to have a with the full full record that's it it's this is a death penalty case we have a very unique circumstance and all we're asking for is the opportunity to have our sixty be heard and if we survive that extraordinary circumstances standard to have the opportunity to to satisfy trevino and lift that procedural bar that prevented this court from considering the merits if there are no further questions i want thank the court i know your time is much more valuable than ours for moving the argument and i know it's later in the day than you usually argue mr o'hara myself appreciate you coming into conflict actually accommodat