good morning everyone welcome to the th circuit and we're delighted to see here judge smith and i would like to extend a special welcome a special thanks to judge selma who sitting with us by designation from the central district of california we're very grateful that you're willing to sit failed to include an argument that would have won his client a new trial that's a classic strickland violation despite that the state court on a reasonably denied relief and it did so in gauging and post hoc rationalization which is prohibited yes your honor but one i would point you to hinton versus alabama as one which talks about the duty of counsel to understand still i understand the duty of counsel but i guess here we have a situation where it's a state evidence rule the state had suggested that the evidence rule ought to be one way in santa cruz and wilson and then they changed their mind said it ought to be another way when they came and looked at it in the supreme court you had the opportunity to challenge this in front of them and they denied relief every time full well looking at the same arguments are now looking at me and it's a state rule i'm trying to figure out why then i have a federal violation i have several points in reply your honor st of all this court has confirmed that an ineffective assistance of counsel claim which is decidedly federal of concern to me when i didn't make the rule and i've got absolutely no federal case which suggests that there is such a because your honor at its core this  this is a situation in which the attorney chose a path well i understand the attorney chose the path i'm not trying to get to that because we can argue about that too but i'm just trying to take an overall look at it look and i'm saying to myself it isn't as if the state didn't understand what you're presenting it isn't as if this state didn't understand that this the court of appeals had gone one way and this is why counsel did what he did and we changed it and then we're not going to allow this looking in strickland the same way i would look at strickland then i'm supposed to say it's an unreasonable determination and i got no one federal case suggesting it your honor i disagree that the state court understood the claim and ruled on it correctly underst because when they ruled they ignored the council's explicit statements about what he did and why which were in the record and they invented arguments about them ballots have merits of the claim that counsel never made strickland and all of the cases after have repeatedly said and this court has repeatedly said that post hoc rationalization and ignoring what counsel has explicitly said is not permitted counsel didn't say i made a strategic decision in his pleadings to the oregon supreme court in a last ditch effort to gain mr mestre the relief he deserved counsel said i tried i thought i did what i thought i recognized the souther issue i tried to obtain relief on the basis of but i framed the issue incorrectly please don't make my client have to bring a challenge of ineffectiveness assistance  not the st time i mean i'm not at this for the st time it seemed to me that many times when they were after ineffective assistance of counsel in my trial court after they've come in and argued what they've argued and they want to save their client they come up with all kinds of ideas why their conduct was bad at the time but at this particular instance it isn't as if they didn't even say there was a problem he did he suggested that there was a problem he just went at it from a different point of view he went out it saying that it was a permissible comment on the credibility and that seemed to based on the cases in front of him to be the best way to approach the situation your honor once the oregon supreme court granted review and s that analysis what that which was not what counsel dead that analysis no longer holds but just a minute when you say once the supreme court announced that they would review once the supreme court renounced it would review it said there were three different things it would look at correct does it say it would come out in any one of those ways no and did he not in his direct appeal and then he is other appeals suggested him permissible comment which was one of the ways the supreme court announced they were going to look at it didn't he make that appeal he raised any one of the preserved challenges to the harmful testimony laughed the other one on the table for no reason and your honor the fact that he didn't know is actually even more a problem because the attorney is not the decision maker it's this court the attorney doesn't decide how the case comes out the attorney's job is to present the issues to the court and so what do i do with the press release that came out with his announcement where it said practitioners should not rely on the statement of issues to be decided as indicating the questions the supreme court will consider two answers to that your honor st of all the oregon court of appeals and mr masters a published opinion relied on that as  something that an attorney could know that could rely on excuse me in terms of what the issues were but nd and most importantly counsel was aware of the southern issue and the litigation because it originated out of his own public defender's office this was not some kind of a tangential litigation happening in a separate state or in a different court system or some this was interglacial to what was happening in coun left and they did it on plain error view which to my to my theory generally goes to this general strickland claim was not only denied by the court of a was denied by the oregon courts because it was significantly untimely they did not reach the merits of what he was presenting and if he had truly tried to be an effective advocate he had multiple other timely way as including twelve days after his opening brief was filed he could have filed a supplemental brief or he could have filed a motion to amend the brief to include all of the issues that he knew were now under consideration by the state supreme court if that court was my best or we overdone you know what's my best theory or case for the idea that counsel should have honor i would submit that this is not a case about anticipating a change in the law it certainly is a change and it certainly is something that he should have anticipated or at least your argument seems to be should have anticipated based on especially not a change critical in this case and that's what i think is also incredibly important for this court to understand is that this is a unique factual situation given the timing given what counsel did given what he said yes larry is completely distinguish e on the facts and then it's my argument your honor is not that he failed to anticipate the law that's that's routinely rejected by the courts this is  no i would not be doing the fact of the public advocacy if i was doing that your honor but what i'm saying is that this is actually this is a failure of ad of advocacy on a claim you chose on it he chose to challenge this incredibly damaging testimony he recognized the harm that this caused to mr maestas trial and at the time he chose did he use the only thing based on state the mill brand state be killer that he could have used it's only after put everything this frame cord was this broom cord announcement come out that he could have changed that is that correct no your honor i disagree with that he had the opportunity when he knew that all of these issues were now before the supreme state supreme court which is like the united states supreme court a discretionary review when that court reaches out to take something that's telling appellate advocates hey wait something is going to happen whether it's a clarification of the law whether it's a change in the law these issues are now in play that that's the difference that's distinction and that is critical for appellate advocacy to know what's happening with that counsel for failing to raise a state law evidentiary argument that he admits of page thirty three of us breeze was controlled by unfavorable case law from the very court to which counsel was appealing on post conviction review the state court here concluded the appellate counsel performed reasonably by omitting that weak argument in favor one of one that in the state court's view of state law was at least marginally more viable in our view that that conclusion was reasonable enough to warrant deference under ed in our view that if you handed you now sits there any doubt in your mind that the secondly constrictor i'm satisfied here namely prejudice both the state court and you in your brief argued this namely as a failure to anticipate a change in the law kind of case and seems to me that's the exactly the wrong framework with the wrong lens through which to view this particular case not the forty three issue when you're talking about the organ court of appeals if that's all we were talking about i think you would be in a very strong position but what is different from about this case is precisely what your point was stressing is that the grant of review by a higher court just twelve days after filing the open opening brief so i guess my question to you is what possible strategic judgment could council have made once he saw that oath that there are actually three different questions present so i  nine it wasn't clear from the briefing or the petition that the always before three issue which is the issue that was omitted was really going to be a large part of the analysis most of briefing most of the attention was devoted to this other issue and on that other issue there was already case law there was  work where the organ supreme court had already said this type of testimony is inadmissible whereas no court in organ had ever made this kind of ruling under always before three with respect to this type of evidence and so most practitioners in the court of appeals you know if you have the two judges who  appellate counsel said i was trying to raise a southern issue what he means is i raise the issue that i think so that was going to be decided on and everybody was blindsided by the way this case ultimately did it was decided but that doesn't mean it would be one thing i guess if the grant of her view from the organ supreme court didn't make clear that actually there were these two distinct routes again if that were the case i think you'd be in a strong position but once the organ excuse me the organ supreme court itself says there might be in fact two separate totally distant grounds on which we might rule in the defendant's favor and you as a tele counsel know this was debatable but the organ organ court of appeals resolved this against you and you know that your trial  both of those grounds and you've only raise one there in my mind is no possible strategic downside to asking the organ court of appeals to amend your opening brief so you present both maybe add only three pages of additional argument just like i guess occurred in the south or case but there's no downside the only thing you are doing is trying to preserve the upside of because you don't know which of the two grounds the organ supreme court m more prejudiced or more probably than prejudicial and in that context or going court's apply always before three as a matter of law in order to achieve uniformity because for scientific evidence they want particular species of scientific evidence to be either admis i don't see how this helps you because that goes to prejudice and you conceded that precious would be shown here right all i'm saying is that he failed to preserve a ground on which under your concession he would have gotten a new trial so all everything you just said for the last two minutes it seems to me is totally beside the point on the deficient performance problem i think prejudice always a for inform is deficient performance even if we can say now today looking at souter disses a viable claim stepping into the shoes of coun at the time he was making this decision he would have seen this as a claim that at best would have interviewed for abuse of discretion because he was unable to present it in a way that it would have been reviewed under any other standard of review but ok but all i'm saying is that he had a nd ground on which to get the exact same relief all he had to do was add a couple of pages of argument to his own pening brief and i would submit to you there is zero downside to doing that because you are not diminishing the it's but but but but the organ court of appeals here said that he had in fact her serve trial counsel had in factors are two distinct grounds which mapped onto the to destry to the grounds that the court ordered court the supreme court said it was going to review it so i got returned to this distinction that i'm making between a naked for a three objection which was preserved that's what was preserved for a naked forty three objection as opposed to one and you're saying that's different from the four hundred and three issues that the organ supreme court said it would review that's different from the rested on some totally different grounds you're saying exactly the opposite which is why i'm given that you conceded prejudice you can't possibly win on this issue performance on this basis the reason that i'm conceding prejudice is because as well there has been applied in future cases southard the court seems to have have agreed that a naked for three objection is sufficient so today a naked for three objection would be sufficient but what i'm saying is at in two thousand and nine that would not have been apparent and so and so  on that question ultimately of state law our state court looked at the issue and concluded that it was not clear and i would point the court to footnote six where they talk about how how how this for three claimants other fit into the existing framework of the law as it existed says that this analysis under the brown test as a you know relevance scientific evidence and then prejudicial than probative why on earth would you leave out one of the elements of a three part test that have to come together and i will point this court to excerpt of record page two hundred and thirty six counsel says his speaks about his familiarity throughout the life of this appeal with  ent's argument that at the time of the grant of review in south or not from today's vantage point given what we know about how the law progress but at the time review was granted reasonable pele counsel would have looked at the preserved for all three challenge that his drug counsel compared it to the four or three issue that the south or court ordered granted review on and would have said these aren't the same thing so i basically don't have anything to work the nuances of the standard of review under which that claim would be reviewed were not either were not important to the court or were not something that the oregon court of appeals and mr mastiffs case discussed and that kind of dovetails into my nd point which is a potentially unfavorable standard of review whether it's oh this is going to be abuse of discretion and that's going to be you know clear error again if you don't know how the court is going to rule but you know they've taken review on a claim that is preserved and tied into what you are raising effective appellate advocacy demands that you also raise them because what you are doing is preserving your client's chance for a new trial it doesn't it's not the nuances come later they don't come before ok thank you very much appreciate your arguments the case just argued is submitted