my name is paul turner with the federal public defender office for the district in nevada i'm here this morning to represent ricky foote obviously of my main purpose here is to respond any questions a court has what i would like to do with the court's permission would be to explain as quickly as i can why mr foote was improperly denied an appeal a direct appeal that every other litigant in nevada as entitled to a non conflict of direct appeal as the record shows mr foot excerpts of record page thirty one she indicates that there is a quote clear conflict of interest unquote and therefore cannot adequately represent the interests of the defendant these are not statements by ricky foote these are statements by m the court at that time judge levitt who later went to the nevada supreme court but he was the court in the case at that moment the court accepted her statement and so watered her withdraw all this to put at that point had enough funds to hire a retained attorney mr chair and mr cherry ended up trying the case for mr foote at the end of the trial of her at the end of sentencing mr cherry and advised the court that he would not be retained for an appeal the court now judge white not the original judge but judge white new judge judge white apparently has some concern about a possible conflict here and suggest is there any any progress because mr  cherry in essence offers the public defender office as a as an alternative to himself mr foote of course is there at that hearing but there's no resolution at that hearing and the most critical fact here is that there was no ruling by judge white at that point that any conflict had been resolved or was over with no ruling at all the matter was continued at mr cherry's request of february twenty nine seven days later at that hearing mr foote was not there he was on his way to prison he was being transported at that hearing the public defender's office confirms that counsel now for mr foote unknown to him of course indicates if there had been a problem before doesn't really know the status and this is mr thompson i believe had appeared for the public defender office will advise the cork if you learn anything else again i would emphasize no determination by the court at all that any prior conflict which the court had previously found had been resolved digress and say that judge white may well not have fully understood that judge leavitt had entered an order recognizing at the request of the public defender office that they had a clear conflict of interest matter goes forward to appeal mr foote somewhere along the way learns that he now has the public defender as his attorney he writes a letter which is documented in the file in his state post conviction petition at excerpts of record pages for  five more program for zero eight i would frankly admit to the court i've searched high and low for that letter i do not have it it's not in our file however mr foote in a verified petition indicates he wrote that letter to the public defender saying i want you to withdraw and please advise the court of that as far as i can tell the record shows no advice was ever made by the public defender that they continue on and they appeal for mr foote to issue  one deals with the fact that he was not in that he left the courtroom at some point during the trial there was a comment on it by the court frankly i doubt that would be a winning issue in most cases then there was the sufficiency of the evidence claim which was one page in total is there however and deftly public defender thompson represents mr foote in the record the minutes show that he is representing ricky foote at that point the state is allowed twenty one days to follow response which they do interestingly in their response at ages four thirteen and four twenty one of the record of the exact source of record they say that there is an unspecified conflict that's what remain amazing statement in a record like this it unspecified conflict the district court judge leavitt found that a conflict existed when anything on specified about it at all unfortunately it's treated this that it's a new idea that just came up in the case that's false it was not a new idea the post conviction indicates that the public defender had been his lawyer will now have to proceed ings poisoned here we have mr flix direct appeal poisoned by this conflict we now have his first state hay vs a critical event for him because we need to find prejudice your honor i don't believe we do because i believe holloway i think this is a holloway type case that the the conflict was was not only made clear fact this is this is beyond holloway actually because here we have not only i have jackson by on the record which was made clear by mr foote at the time this situation but we have a finding by the court that there that there was a conflict that was what emerged we have a conflict of record if you will which i think gets us into holloway territory here which means i believe two things one that the state court should have properly reviewed this matter when it came up that there might be when judge  white was keyed into the fact that a conflict could be here he should have properly investigated the situation he should have brought in mr foote brought him back in from prison and and found out what was going on here instead it just sort of cavalierly went forward the other when you have a when you do it when you don't have a conflict first of all the facts of mickens mickens the conflict wasn't even known until pope federal post conviction of john or knows here the conflict was known for the state judge right up front holloway counsel protested his inability simultaneously to represent multiple defendants this is a case where there was a protest not only by mr foote but a protest by the by counsel that they had a conflict he stays pretty clearly in the part of the opinion that there must be a reasonable probability that the unprofessional heirs those of the proceedings would have been different but that's prejudice yes i'm sorry that's  court is put on notice and to supposed to do an adequate investigation that that where that's the breakdown where you have objected and essence you don't get a lawyer you get a conflict in law and that's no lawyer i don't believe you got to show prejudice under mickens or any other should have been removed if i understand macon's that isn't enough you have to show not only that they should have been removed but both for that there would be a different outcome but i understand  will slowly i was slow on that but i know that's our case it's our office this case too i should have been quicker i'd like to say a lot of other things but i think i'd better sit down that will give you a couple minutes for a vote thank you very much and please the court my name is david knighted i'm a senior deputy attorney general for the state of nevada frankly looking at the argument i think we really comes down to this  foote argues plum when he argues calaway he argued the host of cases and those all have to do with counsel representation at trial this case has to do with counsel's representation on appeal where if you do have the absolute right to represent yourself on trial i can't i can't imagine a bigger conflict than a criminal offense and i want a trial and i did all these issues and i did person has counsel completely against their will and that the supreme court's that was perfectly ok because the nature of appeal is fundamentally different then the nature of trial and i think that's  level for there to be an adverse effect on the representation or the conflict i don't think that well but i think that with when you come to the public then you can go and you can look at a result of the appeal would have been different and i think that's where we're at i don't think it's a person a rule now for mr foote advocates i'm not saying that we can just ignore it i'm saying you have to look at it in terms of strictly because i think what you have with respect is in effect a council you got the two lines of cases you've got the chronic line of cages and you've got to strip them one of cases but the but the distinction between those two lines of cases is one where as being valid were not improper either constitutionally or in about a long so i don't think he can show that kind of prejudice but i don't think that's just because it was an issue that he thinks a stronger that was raised by theoretically conflicted counsel but you can't do that to parse stricklin analysis otherwise there's nothing in the record that would demonstrate that council did anything as a direct was not an objection raised during the closing argument which would preserve the issue for appeal i mean earlier today this court was asking about the difference between the kind of deference that we give them by an appellate court the same will certainly apply in nevada whether it's pla  is that joan vs born should not somehow have continued viability with respect to choosing viable issues and i think as a result of strickland and i think really that notion in my brief that jones should be properly read is looking at the first written prong as opposed to prejudice problem that the council by choosing issues is not acting in a reasoned manner and certainly i think the public defender in this case acted in a reasonable manner shows true issues issues even more compelling on appeal than at a trial because at least a trial even if you have conflicted counsel you can farm you can try under for read it to be your own lawyer on appeal you apparently are martinez you're locked out you can't get rid of your lawyer so the fact your lawyers conflict it is now is worse than a trial and i might know that in the march in this case u s supreme court of page one sixty three of that opinion indicated comparing trial and appellate that the overriding state interest in the fair and rights protected on the you could him maybe this has nothing to do the case you're making that comparison there is a constitutional right to counsel at trial for any felony there's no constitutional right don't feel should that make a difference in our realize i could provide for no one then under smith i thank you for your constitutional right to an appeal to a proper properly represented appeal is they i think that it i think as long as there's an appeal that nevada provides then everybody's entitled to one  effect which i really do believe is what nikken is saying there are two quick things i'd like to add to that not only as i said not only did did mr puts appeal get get poisoned but but maybe even maybe even a step in portly here is that downstream at the first state post conviction there are people on the record as his lawyer who couldn't possibly be his lawyer they're all conflict and people that can't be right and it's you as we all know if you if that first state post conviction is ruined under the a d p a in every was in my twenty eight j letter as of this summer two thousand and six it makes it very clear that if you have a lawyer on post conviction in nevada you have a right to file supplemental claims mr foote had a lawyer of record in that no supplemental cl filed he should not have been punished later for failure to do so when his lawyer dropped the ball and it was a conflict of lawyer that dropped the ball well your position is essentially that if somebody gets a conflict a lawyer is as your client did in this case lit that and on appeal it turns out to be one of the country's best appellate lawyers and this lawyer does it absolutely brilliant job but nonetheless is unsuccessful because the record just doesn't support the appeal nonetheless the client is in total reversal if a court is par should say the issuance of a b s petition that's your position if a court has previously ruled that there's a conflict if there's of a record job but nonetheless wasn't successful and your view it doesn't matter gets a new lawyer it's a new it's a hideous if you spent not been treated fairly procedural enough you had a chance to argue earlier if he was in a courtroom with a hearing and he didn't do it gone wait mr foote was not there when that when things counted here mr foote was never there so i'm i'm assuming that all of the facts that you resented you know absolutely no prejudice no downside to him at all