good morning and welcome to the court of appeals we have three cases for argument going to start with the case of mosse versus ballot and professor waters that take it you're going to introduce someone to n p r interview this is the kind of members of the court strickland it is up to this court to ensure it than strickland is finally applied to the facts of mr moss this case well there was a decision on the merits maybe not directly on the contours of strickland but the case was decided the claim was decided on the merits by finding that the confession that you confessions at issue in this case had been deemed admissible because of a prior state court ruling isn't that a decision on the it is a decision on the merits how it is then is it in title to the deference that at but requires that we give it this are you speaking of the state court decision or the federal district court decision here at all i'm speaking about bow well twenty two fifty four applies to state court decisions where a federal claim has been decided on the mayor has been adjudicated on the merits that's correct so in this particular instance it's apparent that the state court explicitly refused to address the merits of mr moss's claim the state court specifically stated in that quote directly from their opinion let's make sure we're talking about the same state court we're talking about the west jenea so west virginia slickly you that's correct and the first case was one in which the court effectively said that these two  of mr moss confessions which has been previously raised considered a denied on the merits by the supreme court of appeals and this court in mr moss's prior petitions on appeal mr moss had never raised before raised an ineffective assistance of coun claim in any of his prior heaviest petitions or in any prior state court proceedings so ok well that's suggests that perhaps the court got it wrong but it doesn't suggest that the court didn't decide the case you're complaining about the correctness of that decision that decision still is or deference under this relevant is that you under twenty two fifty four and the supreme court recently decided a case on this very question your honor johnson v williams that we didn't have an opportunity to brief but you're correct on our twenty two fifty four there is a presumption but it is a rebuttal presumption that the state court decided the strickland claim on the merits however the court in johnson v williams recently in march justice alito in that decision stated that this presumption can be a robot it by evidence in that the state court did not consider a claim on the merits we think reading the state maybe this court's opinion that it's clear that the state court explicitly refused to hear mr moss's stricklin claim they didn't provide any stricklin analysis they cited no federal law and they apply no federal law to mr moss's claim for ineffective assistance of counsel clearly state the state court must have made an error or they claim that this this claim lemaire that's correct your honor and we think we can meet the even the heightened standard or review even if the district court had given deference to this particular state court decision we think that you know there was no  application of federal law in this particular decision this the state court made explicit that it was not going to adjudicate mr moss's claim moreover and now turning to the to the strickland alice's that the district court in the state court should have performed moreover mr moss's first trial counsel was constitutionally ineffective first mr moss's first trial counsel performed efficiently when he failed to object to the admission of two confessions obtained in violation of west virginia's pro that because you say he should have predicted the change in the law that ellsworth wrought upon this case no your honor the west virginia proposition statute was good law at the time of mr moss's first trial it may have been but it may not have been as compelling a version of the law as understood the law back then the failure to comply with that statute was simply one ground among many for determining the voluntariness of a confession now we have elsworth which suggests that it can be the fit accompli of whether or not a confession comes in those are two very different standards so are we supposed to hold counsel to be a pro not the caterer of the law is that your test that is not our test your honor and that's not our test because mr morse first trial counsel actually objected to the mission of the third confession bay as being obtained in violation of this particular statute as i said previously this particular statute was good law on the books at the time mr moss's first trial at the suppression hearing two weeks before mr moss's first trial his counsel cited to this particular statute so his counsel understood the statute was good law but inexplicably failed to object and there was no the sound trial strategy  well he did object and just an object on the grounds that you now find so compelling that's right so is that the test that because he decided that one particular strategy over another was the better course to take back then your hon in this particular instance no hindsight is is necessary he should have objected to all three confessions the first two confession sworn tainted by in violation of the west virginia proposition and statute that much was evident to the west virginia supreme court when  the west virginia supreme court stated it is uncontroverted the mr moss was never taken before a neutral judicial official to not object to these two confessions and to object to the third confession it's clear evidence that the counsel just didn't on it or didn't understand the statue did have a good grasp of the statute but i thought he did the jetty just in objet in a specific way that you wanted him to and that objection was a general objection that actually in compas this just had to be accompanied by some other factors that ellsworth later on said were not necessarily that's correct that's correct your honor however his objection was somewhat convoluted and if you read the transcript of the suppression hearing in the record it appeared that he just didn't have the proper grasp of the west virginia law he understood it existed he objected to the third the third confession in violation of it and moreover the west virginia supreme court found his objection to at least third confession sufficient so we're all we're simply arguing that his performance fell below an objectively reasonable standard and national in every case like this with we hole in your direction then basically we've said it is per se ineffective assistance of counsel or any matter which can also did not object before ils were decision was handed up no your honor i think that's an overt that would be an overly broad understanding of what what we're asking you to hold we're asking you to hold in this particular instance where council knew of the law evidence to knowledge of the law but failed to but fail to object to confessions that pretty clearly violated the law and that the west virginia supreme court eventually held violated the law that in that particular instance certainly a failure to object would be deficient performance formants to fall below a reasonable objective standard of reasonable miss the the state seemed to imply in its breed that if we would go so fine that that would in effect be a new rule that would not and should not be applied retroactively to help your client in this case what he say about that your honor deficient performance is fact intensive  be and stricklin certainly is a something that's not new but the particular circumstances of this case where you have a first trial whose judgment is vacated and that's the the the trial in which counsel's performance is being assessed we've got a new trial now and of course because of the supreme court of appeals of virginia's decision those confessions come in so the question is applying strickland in this unique set of circumstances is that a new rule that under team would not be retroactively a political to your client circumstance that is not a new rule your honor because the sixth amendment mandates that strickland be up be applied to this particular circumstance  amendment states that every criminal defendant is entitled to assistance of counsel and the supreme court of strickland read that to include an effective assistance of counsel so in this particular circumstance mr moss mr moss received ineffective assistance of counsel what is first trial counsel failed to object and that prejudiced i met him at his second trial you're correct your honor that only a few courts have actually extended strickland in this circumstance for example the eleventh circuit in asking to adopt a per se rule that when i have that it's a it's a constitutional violation that whenever an individual whenever trial counsel fails to object to a confession under current state law that that individual's committed a constitutional violation we're simply asking that that this core look particularly at the circumstances in this particular case where it's clear from the suppression hearings the council at least knew of this particular law and objected to a third confession and where the objection to that third confession the west virginia supreme court consider that a valid objection and even though it was quite convoluted your honor so it's a very spac fact specific inquiry and i think this also highlights the fact that the district court had the district court actually done this analysis and this is why we asked the court to remain the case the dish record that it's such a fact intensive inquiry and the magistrate judge and the district judge have such a command of the facts  supplemental appendix that the state has presented that suggests that the state in this case decided the admissibility of these two confessions on their merits elsworth notwithstanding first of all and we consider that fact intensive and that had the district court actually performed the strickland analysis those documents would certainly be pertinent along with the three thousand page record they would be certainly be pertinent to that analysis now those documents however don't ultimately affect the stricklin analysis because the the west virginia supreme court specifically stated that because mr moss's first trial counsel had not objected to those two confessions are had not objected those two confessions those two confessions were per se admissible so if you reverse the logic on that your honour's really what the supreme court is saying is essentially mr moss's first trial counsel performed efficiently he failed to object and had because the resentment in effect was not done correctly then it would not be something you could you could present at this time because it's not retroactive yes that's correct and the district court or i'm sorry the second trial court specifically held as the law of the case but the two confessions were at miscible and those two documents make that the new documents make that clear so the prejudice prong in this specific instance i clear and it's substantiated by the reasoning of the west virginia supreme court and finally your honour's not only did the what did the district court fail to perform the strickland analysis the district court also professor failed to perform the independent miller analysis as mandated by the supreme court in miller and the supreme court stated that in miller a federal court is required to make an independent assessment of the federal law of voluntariness and to apply that law the facts of the  it is clear from the district court opinion you seem to have a problem because this federal court didn't cite a federal case of federal law that's correct and so what would you have the federal court to do i mean it made its determination it said in accordance generally apply federal law to determine whether the challenge statement was that obtained in accordance with the constitution certainly a strict rule that the district court must cite to a k a particular case is not is not what we're asking for we're just asking for the district court decide to some voluntariness principle or law in the in in federal case law or even in the constitution you know voluntariness is a totality of the circumstances situation analysis that's a principle law that most it seems would be appropriate for this report to cite to and then to independently look at the facts of this case to ensure that mr moss mr moss's three confessions were voluntary the court did say that the said which law it's not which federal law it's not actually violating should have explained what the federal law voluntariness was and should have applied that law to the facts of the case as a prerequisite to determining this to determining the wow i today i represent the respondent david ballard in this case i think that this case went off the rails with moss and the case at the mosque case that stated that counsel could not since counsel had not objected to the first two confessions they were not it miscible or they were admissible and since he had objected to the third it was not admissible and i think anyone any reasonable person reading that opinion might say to themselves you know why why why didn't you object to the first two confessions well but that's a matter of state law i mean exactly it is what it is and there's nothing that we can do with respect to the application of state law the question is whether or not the heaviest court reasonably applied the relevant law and whether or not counsel was ineffective or as i see it failing to predict the change in the law in this case absolutely not and to say that the law did not change statute is ambiguous we have a hard time interpret ing this statute we want to issue an opinion setting forth a rule for interpret ing this statute in that appears if you look at the first sentence of elsworth it says a juvenile who was taken into custody shall be immediately brought between before a referee or a judge  not before but not any longer than the next judicial day that's the first sentence in the second sentence is of a referee or a circuit court judge is not available then you take that juvenile to a magistrate in else war which was really just a case of statutory interpretation what they said was the magistra section of the statute which up to that time people had thought did not modify the first sentence did in fact modify the first sentence in other words if the circuit judge for magistrate was not available ref i'm sorry a referee was not available you would take that juvenile to a magistrate the first sentence did not want i think the strickland analysis is very important in this case and i think that the level of deference which has been provided by the petitioner in this case is simply incorrect i mean what we would be talking about here is issuing a writ of habeas corpus based on a claim of ineffective assistance of counsel for failing to a jack to two statements that word miscible under state law which is that if you could look at it if you look at the second appeal that was filed by mr bickley and you see in you read the second appeal you will see that mr b argued he didn't argue law of the case he argued under moss one this statement is not admissible supreme court said we're not taking this appeal and the trial court judge in the second case said it could be law of the case but even if it isn't law of the case the statement still arnot  statements are the bulk room of the ineffective assistance of counsel claim once that issue is  ineffective assistance of counsel claim is also adjudicated if you look at the second hey b s it was the second hey vs what judge bloom says is this issue goes to the admit to the admissibility of the statements it does that is the issue if the statements are admissible hounslow is not ineffective unless they're admissible because he failed to object which case he well be in effect my answer to that question is between one nine hundred eighty well first off let me say this i think the council got a huge windfall in this case if you look at promp resentment rule he never even mentions the statute where you started out by pointing to the west virginia supreme court of appeals case and you said it was unfortunate the way it can be but it is pretty clear that the supreme court of appeals in a case did say that third one is out because he objected first to stay in because he did not object and unfortunately i believe the mister gave mr mckittrick a winfall because if you look at the third confession it is completely taken under different circumstances don't tell them separated from the adult prom presentment statute and you cannot look to the adult prompt resentment statute for clarity of interpretation for the juvenile proper sentence that is a new rule if you look at the syllabus points which is how west virginia announces its law you will see there is no citation to a case in else worth for that provision all moss once said was now wait a minute we have a choice here we can either apply this prospect of late we can ply this fully retroactively which would mean that the west virginia supreme court would probably be inundated with petitions or you can apply this under a limited retroactive standard which is often if you look at state versus gang war and state versus hickman which are quoted in moss one which is often the way the supreme court applies new rules that are not constitutionally based of criminal procedure because the underlying they're balancing the fairness issue which is very important to the west virginia supreme court and the fairness issue to the police should they have known and the fairness issue the disruption of the process if we render this fully retroactive so this is the way you would have written the west virginia supreme court of appeals decision i would have said that he did not preserve his objection to the third well that just makes him even more in effect no i don't think it does because you have to take into account when the trial took place and i think this is evidence of you know and i can talk to you from experience but i won't i've been in west virginia courtrooms and on in homicide cases and i've certainly been in front of judge hey juvenile prompt presentment statute coextensive lee with the adult prompt resentment statute the rights under the juvenile prompt resentment statute did were not your argument it seems as though that's a pretty strong argument from a strictly analysis perspective but in terms of adjudication on the merits of it i'm still not following as to why the west virginia supreme court of appeal forth the law did make it quite clear that had he objected to those first two then they would have said i'm sad i mean that seems to be pretty clear from that opinion but i think that goes back to the retroactivity yes ruling but all address of where you're going now in terms of the strickland analysis which is a wholly different situation we can get there by simply assuming the first two issues that you bring up and simply go to the strickland analysis and says well we even if we do reach there was none to last it was not the kind of situation you can also would know about because this is what you mentioned you said you that this was happening all the time it was it just was not an area of the law and you can't hold counsel responsible for failing to anticipate a change in the rules counsel  maybe if i go into the taking of the statements the first and second statement were not taken under the exact same circumstances as the third statement the third statement first off was not revealed to counsel until the first day of trial and counsel for the state came up and said oh by the way we we haven't gotten around to telling you this but the officers th drove your client back to ohio i also have a confession nothing's written down but they they claim there was a confession that wasn't true of the first two confessions so you have that then you also have the fact that after the first two confessions what does it go to the purpose of proving that the  that well it was it what do you think forget it is a confession but what it means is that the introduction of the confessions was substantially different you can't put one in two and three in the same basket one in two have to be in their own basket and three has to be in any and another basket the other thing is he was there will probably cause to charge hundred eighty the juvenile or and even the adult prompt present rule and i think it would be true even today the juvenile and the adult prom presenting the rule would not have been triggered if we were to find some merit here that because we would be announcing a new rule that is in the context of the application of this claim the fact that we had this earlier trial it was vacated now of a new trial and you reply i see in the context of two cases that that's a new rule that would not benefit the petitioner in this case is that your position it was at the time i don't want to know if it is i since researched more thoroughly and i believe there's a case called state versus man genie which is a pennsylvania case and it discusses ineffectiveness in the first trial and whether it can be taken to the second trial ok so that's not your position or if it was i wish i could say it still was already well known what about the your submission of this supplemental appendix what are we supposed to do with that well what that says is that takes apart their entire prejudiced argument but are we supposed to consider that in the first instance or is that something for the district court to consider i think you can consider that in the first instance and the district court certainly had it in front of them it wasn't something that they because in the appendix the reason i filed that supplemental appendix is because in the petitioners response brief that they said that i quoted a quote out of context bickley brief to the supreme court that quote that says these statements don't violate either the letter or the spirit of the juvenile prompt resentment ru so even if i didn't find it law case they'd still come in and i wanted to put the entire and also the petitioner said the same thing in his he said the judge said the same thing but i wanted to put that in there to assure the court that i wasn't take i wasn't cherry picking a fact or statement that was completely out of context the fact of the matter is the second trial court judge rule that i don't care you know if it's not law the case it's still not coming in therefore the chain of prejudice is broken he wasn't hand by first trial counsel and i think that also goes to the interpretation of mos one you have a state court judge interpret ing state law decided by the state supreme court and saying ok it we could apply elsworth but that doesn't mean that the confessions aren't coming in we're going to say and then it goes to state court again and state court says i'm aware of al of mos one and defense counsel certainly argued moss one but it said don't you know i'm interpret ing moss one as will apply elsewhere but still we don't think that these two confessions satisfy else were first i think it's a supreme irony that the state is arguing that this court should ignore the west virginia supreme court decision on whether or not an objection was made to the third confession west virginia supreme court has ruled that an objection was made under the juvenile prom presentment statute in this court should have abided by that particular ruling as judge when indicated what if we assume all of this turns of hours before us and go straight to the think there is enough evidence around it to establish that it was ineffective assistance and again the west virginia supreme court opinion is critical to strictly analysis the west virginia supreme court decision specifically implies that had mr moss's first trial two confessions so because mr moore mr moss's first trial counsel performed efficiently he failed to object to those two confessions mr moss was prejudiced at his second trial and in some again this is a fact intensive inquiry as we've heard as we previously mentioned and the reason we're asking for remand of the district court is because the district court understands understands very clearly the facts in this particular case at least they they started to work through the extensive record