may please the court counsel but i would ask to reserve ten minutes of my argument time for the purpose of her bottle in denying miller's rule sixty motion the district court abused its discretion in five main areas the first of these was it it attributed only limited wa to the united states supreme court's decisions in martina's sin trivino notwithstanding the fact that even though procedural in nature those cases were founded in the bedrock martin has been handed down by the supreme court before this came up in our court martinez had been handed down by the supreme court your honor however the law in the sixth circuit at the time even at th time well the law in the sixth circuit was up until just i believe three weeks prior to the time mr miller filed his petition was that martinez did not apply in tennessee that was the law in hodges the after after martinez resort had no they had no they had not but he was controlling case law in this circuit it was not until after it was not until after the court issued its decision in trevino miller filed its petition mr miller actually filed his sixty p petition before this circuit ever affirmatively held that are that martinez was recognized or did control cases coming out of tim the c in fact when mr miller filed his petition the state responded by saying again martinez does not apply in tennessee that was their defense know you know martin is in through provide you an opportunity but they did not bad grant you any relief and i'm mostly concerned about whether you can make the appropriate show and to obtain really well and i appreciate that opportunity your honor because i agree totally with the court i think the the law is is pretty clear that discretion in this case because the next one is actually the most important factor which is that because it's one that a lot of the a lot of the district court's opinion is based upon the district court found that mister mr miller's underlying ineffective assistance of counsel claim was insubstantial because according to what the district court said mr miller's trial is and what the record shows is that is simply incorrect the district court sided no basis for that finding in its opinion and the state in its brief while again repeating what the district court said could point to nowhere in the record where mr all if requested the assistance of mental health expert to assist him in the presentation  t like you two i'm going to regularly do this because this is my concern let's assume the court totally wrong about martinez it absolutely applies court's wrong about the timing your client absolutely is in there he's entitled to have this claim considered let's say counsel did or didn't do it so don't do one misunderstand that the underlying claim is the same act claim or actually claim that it still is a claim that counsel didn't get the independent expert that your client was entitled to an independent expert and didn't get it no ok absolutely not your honor the claims are completely different the claim which this court has actually previously considered and contrary to what my pinion was at the time the supreme court has affirmed which is that a was not a political at the time of  miller's claim is not that he was intitled to anything more than what a collaborator him his claim is that trial counsel was a bligh because they could aren't been decided took what eight provided him not that it was necessarily an independent expert or accord expired any other kind of ok so tell me you saying ok he didn't have an expert at the resentencing that is absolutely correct your he didn't have an expert in three sentences he didn't request an expert with a recent cd it's not that he had an expert who examined  your honor i know what your experts say right and what would this experts say the who use the neutral expert if indeed ed and i and unless we are to assume that psychological testimony is simply really has no value whatsoever we must assume that it has an objective basis if indeed mental health testimony has an objective basis then all experts should reach at least similar conclusions sure don't they they may not but in most cases where we see that we see experts presented with different background information with different resources at their disposal for example we will see a state that's where we'll often not have extensive family his family histories will not seek them those kind of things here the evidence we have is the evidence the younger but it evidence in the record which is provided by which is provided by mr miller's the during federal court proceedings to rebut the opinions expressed by the experts who record there's not the not the expert that he had access to during the first sentencing or is he expert on your behalf would give if we if this were well i mean in order to have value why whether this was prejudicial we would need to know what evidence you could have  your in order to establish that it made any difference whatever but you've not made an effort to do that your honor that's that that's not correct we submitted we submitted reports from each affidavit in those reports or in the record the last hour around in this case but it was never considered drawn or because we never reached that issue it was never considered which is an important part because the court which tries to rely on maguire decision and mcguire decision the entire evidence that he relied on had actually been considered for the very purpose it was being submitted which is just outrageous here the evidence had never been considered that contents of those things had ever been considered by any court because this court determined because you didn't give me an expert at the time of trial and now i've got this a decision i'm entitled to a new trial when it came time for him to present his case to for mr miller's life he didn't even ask for one ok so so he relies on a for a new trial right ok and then on appeal never raises the issue except in the context of i'm entitled to a new  ok but we still have to get to prejudice in your arm when you're assuming that patty the judge would have given him what he refused to give him before but your honor in between trial and we sentencing the difference the situation every sentencing was completely different than the situation at the original trial at re sentencing eight had been rendered and eight was controlling and the judge yes we are presuming that the judge would a fall of the directors of the supreme court when i was already decided that eight doesn't give you the right to an independent expert in your honor it's we're not we're saying these in effect for asking for any expert not an independent expert any expert he failed to ask for any expert whatsoever not a corn expert not a neutral expert not an independent expert for no expert assistance whatsoever at the time recent but didn't he already have all right again i'm sorry if i don't really understand the facts but i was under the impression that he earlier asked for an independent expert that was denied right and it was denied on the basis that the trial court believed he wasn't entitled to one in the truck and wrecked and it early on in the proceeding an independent expert was appointed in stated correct and at the time of recent unseen as counsel states in his affidavit submitted in federal court in support of this motion counsel never returned to that expert and said hey now well of course he had been appointed to represent him he was no longer assisting him because his his assistance was over it ended at the time of the trial and he didn't go to the judge and even say hey trial because at sentencing the issues are different now as it turns out as it turns out a an expert who were probably provided proof of an expert who was provided with who counsel they actually cooperated with to counsel provided information to as one of the things mr all state in his affidavit which was i never gave the court to independent expert anything never did what he never provided with background information he didn't tell the court appointed expert about mr miller's last history here yes that that's not the i understand it's not the claim are you let me ask you sort even when he's previously been an independent expert has to read it or write that at every stage of the proceedings without regard to his own professional evaluation of the likelihood of success or have the extent to which that would be helpful at this point and that's basically the argument correct during this entire period of time from basically from the time of trial all the way through recent unseen mr all of that is repeatedly telling the court i was i was denied the assistance of an expert the time of trial and i needed one he knew that he needed an expert and he knew the needed an expert and he still didn't get one at the time of trial but if he to call this doctor at the time of re on you know whether he may i mean he made an evaluation of dr d and thought that dr di had done an adequate job or he thought that dr gay was a competent expert th he thought the jury more likely to believe dr di maio alos things would have figured in to his evaluation of whether or not he should read it or write his request for an independent expert at syncing affidavit was mr all of the affidavit submitted to the federal court states that at the time of at the time of pre sentencing he knew that he needed the assistance why do you think the judge would have granted it to him that's what i don't understand again your honor and and i'm i'm not sure what i'm i'm not making clear here but at the time of recent unseen unlike at the time of trial when he when he was denied at the time of free sentencing the judge was required to provide him with the assistance of a mental health but he already had it that's what i'm not understanding he had it to be because he had the assistance of a mental health expert for the purpose of guilt phase well same what i would buy for the other there's not a difference between the two there's a difference in the way the evidence can be used but there's not any difference in the expert yes ron because expert expert testimony going to guilt and expert testimony going to the mitigation of a sentence of death are two distinct things and the testimony of course they are but you've got the experts you've got the gal who can give both and your time is up so why don't you talk about this during rebuttal can i just as long as we're i don't ok when he was recent and yes did either side introduce any psychological testimony no no you neither so no one used anything from that no person however is a supreme court recognized in c errors as well as many other decisions the assistance of a dealing with this type of evidence in death penalty proceedings most equally clear eight also states that the assistance of a mental health expert is critical to critical to defend its right to trial so that's in a it's in you're saying that prior expert was completely absent from these proceedings so wasn't a matter of having his own expert it was having any expert at all his assistants was not resawing mr all of didn't receive didn't ask with the tennessee attorney general's office representing the warden the district court did not abuse its discretion in denying the rule sixty b motion in this case and in fact very closely followed multiple decisions by this rule sixty b the district court actually cited the mcguire decision and gonzales for that for that proposition but the court which even further than that and weighed a number of equitable factor of recognizing mcguire's instruction that  other factors could tip that scale and to be clear the petitioner comes came to the bar in default already so already the scales are tipped against him so he so what what he has to do in order to get relief under rule sixty b is to show equitable circumstances extraordinary circumstances that would warrant relieving the buy in default already he's in default because the claim that he that he wishes to receive federal review of was defaulted when he came to federal court to begin with so already comes to do but it comes to the table in default i don't know but it's only because we had not recognized but martina's supplies provides an exception to the default but that doesn't make him not in the file but i don't know that that's right but that's the whole purpose of the question is whether he's saved by more tina's trevino by definition he's in default otherwise we wouldn't be talking about it i would i would suggest that the question is and i agree that that you know if he was before the court in the appropriate procedural posture then the question would be whether martinez would allow him to avoid the consequences of his default by relying on some deficiency the post of his presentation counsel the question here is not whether martinez allows him to avoid default the question is whether he presented in a post judgment posture appropriate extraordinary circumstances to warrant relief from my final judgment and that's the question of the district court considers it's more than just whether martin is a louse you believe the question is whether all of the circumstances martinez in and of itself doesn't do that in this court has said that he's got to come to the court with more so our position is the district court first and foremost recognize the controlling authority imma go in and dollis considered a number of factors the fact that there were no new factual developments there were a couple of affidavits presented of mark all of and trial cancel and of post conviction counsel but the district court looked at the content of those affidavits and found that they really didn't present any new allegations other than what they had already said that counsel said i didn't i didn't fully investigate this i didn't ask for this when i should have  on recent saying so so that's not not really anything new in terms of factual development there's no new constitutional law this is clearly an equitable proceeding that part of what he's saying is that his lawyer i think it's exactly what their position is that's what it sounds like best that's my understanding of their position your honor and i but a long way that i think that the problem with that is and i think a district court recognized this as well and this is a this is the way i read the record about what happened so at the original trial the original capital trial petitioners counsel went to the court trial counsel went to the trial court and asked for an independent expert so bear in mind early on in the  he wasn't a trial expert he was an independent expert for the purpose of competence that was dr that was dr g that expert came back with a conclusion that there was no mental disease or disease or defect that rendered him incompetent and the tennessee standard so he came came found him to be competent for trial and not insane at the time of the offense that was the that was the determination of the expert even before given that that scale that that what that report was in the form of a letter so that was provided to the government and the defense counsel even before that report dr gay had actually evaluated him before that and came back with it with a conclusion from that that david miller was a sociopath and was competent to stand trial so that trial asked for an independent asked for funds for an independent expert not to number one establish insanity because he decided that insanity was his best defense given the circumstances of the crime and counsel argued that just the circumstances of the crime in and of themselves demonstrated insanity has no sane person would do these kinds of things the state presented the testimony of dr g in in rebuttal that was  that the to use his expertise to talk about the effects of l s d on the system and the fact that it can cause you to act in certain irrational way so the defense counsel was actually able to use dr de it to to buttress his his theory of the defense as denial of the request for expert services and the tennessee supreme court rejected that argument i want to explore another kind of another avenue of you just sort of  well what was the day of mister miller's recent unsing recent thing happened i believe it was in eighty five ok nine hundred eighty five and evidence the vast majority if not all of them come post eighty fab is that right or wrong or do you know i don't know i mean i  eight but bad pression from you know man years on this court is that there's been very much a developing the supreme court sort of started it perhaps in wiggins and then there's been very much a developing standard of competence for death penalty cases which typically includes both lay an expert testimony about difficult childhood traumatic experiences mental health issues as a result of that and pression is that that has all come about subsequent but i'm not sure enough of that to say well mr mr  e recognized even in the initial trial even before aki was decided the need for men to the importance of mental health to his case he was aware of  background difficult childhood he presented latest monye to develop that he was aware he was he was aware of the potential benefit for an expert that's why he asked for it the first time around  decided ok so at that point mr all of went back to the trial court armed with this new supreme court decision that he viewed as is giving him the very relief that he had asked for the first time around and he said to the trial court your judgment is not final this is a new decision of the u s supreme court my entire conviction is illegitimate invalid because it's based on a due process violation according to  i would like to basically he really needed his aki request by asking for a new trial he wanted the whole barrel of wax right there so he didn't so i agree with mr kissinger that he didn't come back on retrial and say your honor i would like an expert i need funding under aki for an expert for syncing he went back to the trial court in say your honor my entire conviction is invalid under aki because i'm  to expert assistance i want a new trial one second so when the judge unusually denied the expert was it because the judge concluded you're not entitled to an expert or was it because the judge concluded that you already got your  he doesn't make much of a difference but if the judge is saying you don't have a title you know you're not entitled to an expert then it seems that makes all the difference in the world and  why wouldn't i mean that's one question and then the other question is if you're saying you know we we now it's now clear that we have this constitutional right and we didn't you didn't honor in the trial why wouldn't counsel also say but you know even even if what we had is enough we're we're at sentencing now and i need the help of an expert i mean are you saying that there was that it wasn't clear that he was entitled at that point to the help of an expert or are you saying he already had it well he did already have it just as a matter of fact he did already have an expert at the first trial but but to answer your question i mean i think when when counsel is faced with the iraqi decision you're looking at at a question of how am i how how best do i present well i mean i think that's a way to look at it i think he viewed aki as as a as a landmark decision and something that he could travel on for the entire conviction and that's the that's the i mean i mean what you're talking about is a strategic decision how best to i present this how do i go about this he decided he was going to attack the whole thing and he was going to present it in that way he was going to present in a way that this this completely undermines my conviction i'm entitled to independent experts and i'm going to ask for everything and that's exactly what he did now i guess he could have come back after the that decision was not an unreasonable application of law so it just as a matter of law this court has already determined that he wasn't entitle to it well or that he didn't they didn't  mean when i walked in here i thought it was the same issue but kelso's sort of arguing differently you saying it's not the same issue because one is a decision whether what he got was enough constitutionally in the other is simply going to the recent unsing phase without any expert it's it is a it's a different issue i agree but there but they're related i mean the petitioner's complaint about counsel's performance is that counsel should have asked again for an expert after he had asked previously at the trial on appeal and then again for retrial and been denied he should have asked for more time and that's really that's what it boils down to should asked again and said well what i really want is just the sentencing you're admitting he should have now sir i mean man what i'm saying is that that armed with this new decision of the supreme court counsel made a strategic decision that this was the best way to present this to the state courts i could have to take to attack the entire conviction because the conviction wasn't final at that point that was that was that voice that he may not under attack here the decision that's under attack that is what that decision is what's under attack because that's the choice he made on how to deal with aki he had it wasn't this wasn't an informed decision this wasn't it wasn't an informed action to go recent thing without an expert it was a it was because he didn't have the money for it and he had asked for the money over and over again and when he went back and re sensing with aki in hand he decided that the best way to use that case was to attack the whole conviction why he was aware of the law and we needed we are why he denied the motion in the first place then i don't understand how you there's nothing conflicting and between the two arguments i mean why don't you get why go back to recent and saying without some sort of an expert because he was says you have a right to an x and he does but he presented that he presented the arche argument this is the difference between saying judge vacate the conviction and give me a new trial and say judge you know i have this case now i need you to pay for an expert become totally confused my understanding is that mr kissinger is not complying about how cancel handled the aftermath of  because mr kissinger sin is that that's the case that that should have made him go back and ask for the money again that's the whole basis for his argument that he should have gone back and asked for money but he did he had that decision and he decided the how he decided to handle that they testified as a post conviction that they were strategic decision that he was going to try to win the way you didn't because that's why it's defaulted the case that the issue of default that he didn't i thought it was decided after work decided before was decided between the tennessee supreme court's decision and the recent as seemed to be capable today of getting totally confused about what everything but i mean that's what it comes so so  er mr olive did much like mr kissinger did in this case mr kissinger's entire the his his his primary argument in his hey b s corpus case was that he was entitled to funding under aki that was he almost all of his eggs were in that basket and that was in fact one of only two issues that the committee actually found a motion for summary judgment on that issue so mr kissinger thought it was strong as well just like mr on this tour to have summarized in connection with that aki issue has got to be taken into account in considering whether he departed from any standard of professional conduct in connection with the recent  martina's was decided in march of two thousand and twelve this court decided the original case in september of two thousand and twelve so the case was actually before this court when martinez came out ok did we hold separately hold that this claim was defaulted that issue was not among the appeal issues because it was found to be procedurally defaulted was below and there was no certificate  again the ineffective assistance claim claim thirteen was denied needing to re sentencing right lated to councils performance at rate related to councils failure to present an expert ok so it was there was defaulted was found to be defaulted by the district court and no certificate of appeal ability was granted on it it was resolved by default on the district court it was not before this court the first tavish corpus the first a b is corpus so martinez came out while this court still had the case petitioner may no effort during that time to raise any of his previously defaulted issues i see issues and that was one of the bases that the district court dismissed found that there was a lack of diligence that he didn't bring this to the attention of the court and just by comparison in the mcguire case mr mcguire brought his martina's decision  when those leaves approach to the trial court asking that the conviction be tossed out because of a what point does that occur in  it it would have been the law of the case it would believe that it would have been the mandate the court the trial court wouldn't have had the authority to deviate from the supreme court's mandate ok and then the court of appeals did address this right the state court of appeals the supreme court addressed it on the second appeal they said we've already ruled out we're not going to re we're not going to reopen this issue we've already addressed it and we said that that week was not clearly established law at the of the decision not to appoint an expert for mr miller was that it was an unreasonable application of clearly established law right right so and we said that in two thousand to a right but in denying the denying the motion in terms of the substantiality what the district court found was looked at the record and said mr all of asked over and over again for expert was aware of the need for the expert  but was denied and that the suggestion that somehow counsel was at fault for not asking again wasn't didn't amount to deficient performance that that cancels that real complaint was had to do with th the state court denial of funding and that that can't be shifted to counsel in terms of a deficiency so that was the district court found that it was not substantial for that reason the district court also found that petitioner wasn't diligent circuit ition was denied and yet petitioner made no effort to seek a rehearing of that denial in the court actually pointed out pointed to another tennessee inmate who had done just that so he used that as a basis to find that there was not a diligence in in presenting the claim to the district court the court found that number number three that this was not a constitutional rule of law what this court has already held the court found that the public  policy for in favor of the finality of judgments weighed very heavily in the states favor the fact that this case was many many years old actually more than twenty five years old and in terms of the finality of the judgment and had already been considered many times in the both the state in the array of factors and certainly in and applied the appropriate rule of law was not based on any erroneous facts so we you know our position is that that decision is entitled to great deference by this court that the court scrupulous y applied the correct legal principles and that the court was it was it eighteen months between were tina's in this motion or between trivino in this motion or the way of the a number of months  martinez was decided in and it was eighteen months from now no it was six months between martinez and this decision or two years and it was decided six months before this court decided the original case no no i'm saying the petition the the motion what was the time between trivino in this motion the motion was filed in twenty september of two thousand and thirteen i believe so there was a span i think the no was released in i believe may of twenty twelve twenty thirteen i'm sorry so martinez was march of two thousand and twelve this court decided this case in september of tw honor perhaps just to clear up any confusion about timing i wanted to really quickly address the sequence in terms of how quickly mr miller came to this court september in september of that of two thousand and twelve this court issued its opinion in march of two thousand and thirteen that this court issued its decision in ho that martinez did not apply to cases in tennessee ok and on may twenty eighth of two thousand and thirteen  withdrew that controlling opinion in hodges aug fourteenth one thousand are two thousand and thirteen september twentieth two thousand and thirteen mr miller followed the i'm concerned about a couple of things that were brought up during my counsel's argument the first is this idea that mr all  somehow had some strategic plan to raise his a claim only in connection with guilt phase because he wanted that new trial and he didn't want to mess it up by asking for an expert in  sentencing phase i i think i hear from the court's question that the court's fairly skeptical that that's an either or kind of decision i also want to point out to the court mr olson affidavit is in the record he specifically states he had no strategic strategic basis for that there was never a hearing so we never really had an opportunity to delve into that when you had the hearing we did not have an evidentiary hearing on the sixty motion it was denied based on the pleadings yet but is it ok for you to if the court were to reopen it would be ok because then would would we would be dealing with a claim that never been resolved by the state courts that's another issue that i really it's a at least a somewhat legitimate concern although i'm not sure that they're at a or strickland or these kind of decisions are these kind of decisions about what trial counsel have have evolved failed to do so and you're basing that on his original request on his original request up on the history of christie's he knew that mental health was an issue in this case at the time of  he knew that unlike at the time of trial he knew that a could been decided he knew that he was entitled to the systems of the expert provided for any and he didn't request one but now one thing to keep in mind you're the expert in your own if if we have an extensive discussion the last time this the case was before the court about this independent expert versus versus court expert one thing to keep in mind about dr g at the time of trial is dr g was not a mitigation expert at all as counsel informed the court during her argument she's correct dr g was provided for the limited purpose of determining insanity and competency to stand trial ok but the not to determine mitigation when mr all of went to the court in again i don't want to get off on this tian about whether it was an independent expert or not when he came back to the court and said hey i need an expert for to help me prepare for the penalty phase dr goose that was to no before trial yes counsel said i have dr g s report and he's not there's no mitigation testimony in there well i mean that isn't in his motion he says yes we have dr g s report now i need mental health expert to assist me a trial at his sentencing ok his i'm so i just want to get this is so he says that before trial yes and the judge just says no do you think that is a stam wishing the proposition that every defendant is entitled to a mental health expert or is establishing the principle that if the court appoints a mental health that work this the state has to pay for this the trial court retain any discretion with respect to whether clearly middle health was that issue in this case from that standpoint yes but from the standpoint of being dear and the counsel not necessarily was decided when it was brought when and motion was made to this judge before it could not been decided we cannot forget the fact that a was decided that when mr all it went back to recent he had the right to have that and didn't exercise it i see that my time is very short which you know what i do this what you're basing this case on is you're saying with post conviction  i think it's important to remember in this case that and i wish we could have talked about those opinions the courts are now aware of the expert opinions what's contained in those opinions is not slight amounts of mitigating evidence it's overwhelming evidence of mitigation the expert opinions undercut the only aggravator that the jury found but they add weight to the only mitigator that they were instructed on and they establish the mitigator that counsel wanted to have presented but had but was denied because you've failed to do present the very evidence which is contained in those affidavit is contained in those affidavits would have caused a reasonable juror there is a there is a reasonable possibility that a juror upon background that mr miller went through at dawn hurin the profound mental diseases he suffered as a result of that would have come back in this case in deficiency we've still got a prejudice in deciding whether there's anything extraordinary whether the you know with the proper equitable circumstances and that means we'd have to go back and consider exactly what the crime was in this case and what the evidence of and i think that's appropriate and i think that given that the court mentioned the fact that we have to show the to that extra weight to that because of an execution date that execution date was not sought until after mr miller filed his petition it was and it was not scheduled until ten affidavits the the subsequent experts those were provided by our off the shot are those were federal defender is the pointed did you all have consider it very carefully