it please the court i'm paul turner representing steve michael cox the account in this case i'd like to reserve two minutes for a bottle of pleased couple of quick housekeeping items i have submitted had been reversed by us supreme court i did not know that until a few days ago but wanted to be sure the court was aware of that with that your honor i'd like to address the order of the court from approximately week ago brief i understand your honor i would like to address them that i certainly don't want to divert the court from what you would like to hear this morning now i would like to address them up front frankly because i think there are crucial issues around for that the that the victim's criminal history was not allowed to be presented to the jury in a case where they were self defense was was at least an underlying theory of the defense those two matters have been  other aspects quite frankly i'm this morning wanted to tell the court that i don't believe our cause and prejudice argument is meritorious and i don't think the court should waste time considering that we did not have under under average the carpenter unfortunately we did not have a not have an exhausted ineffective assistance of counsel claim which which would have been good cause unfortunately we don't have that and i don't want the court to address that and i probably should have withdrawn that earlier but i've come to realization prepared for argument that claim  eight in light of the reagans case it kind of highlights the fact that quite blunt about it in five easy were claiming that the that mr cox as attorney did not adequately investigators case to present anything remotely we all know has been applied endlessly in one death penalty cases and i don't know of any any propensity of the supreme court or any other court to to limit what we're talking about the death penalty cases now admittedly death penalty cases maybe at the  appeal ability now i agree on and i don't i don't want to take up your time on that i think i think you probably can feel my feelings of power what happened at this sentencing and the quote we had in there i think says it all when four i would point out that this court recently found of just a few weeks ago and saying three twenty ninth and third ten sixty nine that's and that a supreme court consistently applies t is adequate and consistently applied in non capital cases how can you say a claim is procedurally defaulted for not being presented when the nevada point just hypothetically that it's absolutely clear it was not presented but the state court of last resort considers the claim on the merits how can you say that's the supreme court declined to hear that just declining to accept the filing of that brief because the because mr cox was represented by counsel on direct appeal so that he was not heard at that point in say moreover we have reviewed the claims and we find that they have no merit but prior to doing that they invoked of course the fault rule and that's all you need to do under coleman versus thompson to just fall those claims and were three different appeals that would be i have that also that's nor does the order dismissing appeals from the think that's the that's the second so the there was a direct at counsel table for the first time somebody in the federal public defender's office in las vegas is not shouting from the rafters that death is different it's the first time i've ever heard a defense attorney say that that mitigating evidence balanced against aggravating evidence only applies in capital cases and the distinction between death and non death cases has been a bulwark of everything the us supreme court has ever said from alone and the floor i wouldn't i would suggest you greg and this does not have any application because the concepts of mitigating evidence and aggravating evidence at their hear advice failure to present mitigators at the sentencing hearing i would point out that and i don't know how much detail you want me to go into but i would point out that actually the claim doesn't have any merit anyway and o way should not be granted and if it's granted the claim should be denied if you choose to hear it on the merits because ninety five per cent and i maybe i'm being too conservative ninety eight percent of everything alleged in that claim that should have been background i would also point out that counsel read a report into the record from the division of them about a department of prisons testing through mr cox's positive institutional were just mentioned when he was involved with a prostitute and ended up murdering her and for the defense attorney to be able to convince the wife of the perpetrator in that situation to submit a supportive letter i think is quite an astounding not have to be clairvoyant judge has to make his time available if the motion is raised but there was no motion i'd also point out one fundamental problem with that claim that the nevada supreme court you don't have that duty you have the duty to make the court available should somebody move to challenge the waiver but that didn't happen here and so again there's a lack of prejudice in the claim and i would that the waiver of miranda rights was either involuntary or that the client could not or the mr cox somehow was incompetent at that time so whether or not the judge did the evaluation is irrelevant even have there been that  was correct as far as the procedural default there was an explicit default cited by the nevada supreme court regarding claims three and four one fails to state a claim because there is no allegation that there was ever a problem with that waiver  fails to state a claim as the least as far as the prejudice prong goes because everything that's kind of like that you may have seen on television that prego spaghetti sauce commercial where somebody is chopping up all the spices statute one seventy five point five five two speaks to all first degree murder cases in fact it says whether or not the death penalty is stopped so clearly this is a statute speaking to both death and non death and in subsection three of the statute in the hearing that is the penalty hearing evidence may be presented concerning aggravating and mitigating circumstances so clearly this defense lawyer had full opportunity if he had to get used it to present a full mitigating case just  car theft and all that sort of thing yeah i think i think that would that wouldn't i don't know that i would think about that i think if i think we're going to deal with cases i would assume it deals with cases where where you know w cocaine use and his mental illness and most critically there was nothing in the record about the ability to have reka rehabilitate a person who has a delusional paranoid mental illness and is also suffering from cocaine addiction that is only in the record pieces and most importantly in his report he notes that  medication treatment decreases the intensity of the individual's delusions and renders them less likely to act on their misconception of reality he notes that many individuals on medications will realize that their thinking was psychotic and give up the delusions completely treatment with anti psychotic medications would decrease the likelihood of mr cox acting on his delusions and behaving violently in the district judge here in the state district judge did not have that information he concludes mr cros is so dangerous that he won't allow him to have life without possibility of parole i would submit that if he had had we would submit if you had this additional information which was not in the record from any source then he would have made a different conclusion highly unlikely that the attorney would raise this procedural issue for no reason all if you didn't have if you didn't think that they miranda waiver was improper why would you ask a court to hold a hearing if you had no idea if you had no concept that the underlying waiver was improper that would be unethical i would think it absolutely inappropriate for a lawyer to argue for a hearing that had no meaning at all and i think a fair reading of what he filed was he saying to the court the judge should have held the hearing and made that finding because it makes no sense in our judgment but the bottom line your honor is that i think we think round three and four should go back for four course on their merits and we would very much felt that the court will