morning your honor may have please the court there are two real issues in this case the first one is jurisdiction the second one is what is an extraordinary circumstance under rule sixty b six i'll talk about jurisdiction first because that plays into the analysis of the second one hundred twenty eight u s c twenty two forty four b two one cannot consider a new claim in a second hey b s petition that was not raised in the first petition except for two circumstances that don't exist here those are a conscious and new rule of constitutional law which martinez is not that the us supreme court has made retroactive to cases on appeal and then the other is a new claim that could have been discovered through due diligence and the proof of actual innocence by clear and convincing evidence we don't have that here i think everyone is in agreement that the claim the district court granted relief on is not ground one that was raised in the first petition  ground one in the first petition was specifically about the biological parents and relatives and background of the petitioner and how that made him susceptible to drug addiction and depression and so  forth that was defaulted and there was a martinez claim raised that that should be raised in a in a sixty six motion put the claim that was actually argued in a sixty six motion was a broad claim of ineffective assistance of counsel for not presenting additional mitigating evidence and that was and counsel below didn't object to that in fact i think he explicitly agreed to that but it can't create jurisdiction either really exists or it doesn't and it didn't exist here the counselor on the record is agreeing the claim that was tried was not the claim that was in the original motion the district court actually said that during the hearing they said we're hearing stuff that that isn't in the pleadings you can't do  the respondents both council i think yes i think both clear when you look at the transcript that they just opened it up to wide ranging ineffective assistance i think they absolutely tried to do that and if they could create jurisdiction they would have been successful but they can't it's excessive claim and you have to get permission from this court to raise this excessive claim and this court can only give that permission if the circumstances under twenty eight u s c twenty two forty four b two are met and they're not they're not even alleged to be met so it's something different the claim that relief was granted on is something that the district court simply couldn't have and i wish council below would have objected but it doesn't matter all then could the district court of gone so wrong i don't know the answer they i guess they did not grasp that it was jurisdictional question that's the only the only issue i can have but the statute speaks for itself or all of the district memorandum very careful detail how in effect of those lawyers were on the first go around and failing to make a clear statement that would have satisfied the claim for relief this they lacked the claim that was actually raised in the district court ground one but what the district court granted relief on is much broader than that it doesn't deal with just the claims and the facts that are alleged in ground when it deals with something completely different and they couldn't do that claim and the district court admittedly granted relief on that but i thought the point is it's not a second there's not a second it's not a second client i believe it is a second and first there is no first one there was never a first line well let me see if i can phrase this correctly rule twenty eight twenty eight u s c twenty two fifty four b b two says if you raise a claim that was not raised in the first petition then the district court shall dismiss it and except for grounds a and b which don't apply here and what was actually presented at the hearing was not the ground that was in ground one which i think we all agree was not a new claim but what the district court actually granted relief on was a new claim and counsel should have gotten up and down in objected and he didn't but you can't create jurisdiction let me move on a little bit it was this was sixty and we can kind of move into sixty by six sixty six in order to get relief under sixty six there must be an extraordinary circumstance this is completely different in the jurisdiction but the jurisdiction plays into it  an extraordinary circumstance i think we can all agree is something more than a new precedent martinez v b ryan is new precedent and that by itself is not an  extraordinary circumstance i think petitioners argument is well the district court should have done a balancing test which they did and found an extraordinary circumstance in that there's a couple of problems with that one of them ties argument essentially that no real claim was ever presented in the first position because it was procedurally defaulted what was presented was so defective that there was not actually any petition presented and therefor nothing's ever been raised i mean the issues were identified never supported procedurally defaulted and isn't that the argument that's being presented here and it's being presented it's wrong because where the dish where the claim was not presented was in the missouri post conviction relief court that is where the claim was defective if you look at their petition and it's in my a dandy i think it starts about one hundred five but i don't remember exactly there is a detailed claim raised in the first petition in the federal court and the district court said that is defaulted because the clearly the missouri post conviction record review court was so bad but there was a first claim in in the  in the district court and this is a new claim because it goes beyond the bounds of the first claim well talk a little bit about extraordinary circumstances and how jurisdiction plays into that and then extraordinary circumstances on their own it's you're analyzing if you're doing a balancing test or extraordinary circumstances which i don't think we do in this circuit that balancing test should be based on the claim that was actually raised in the first petition it's not here it's based on the broader claim that the district court heard evidence on and that goes back in the jurisdiction if there's not jurisdiction to hear the claim there's not jurisdiction to use it in a balancing test but i don't even think we should use a balancing test here i think buffy davis which i spent a quarter twenty eight j letter on give some guidance on what we do there the united states supreme court treated martinez as a prerequisite for a ru sixty six motion alleging in effect if assistance of trial counsel that hadn't been properly preserved and post conviction appeal but not as an extraordinary circumstance i think the dissent makes that clear and it's clear from majority opinion you've got to have something else and in buffy davis they had a lot they had a person in texas who was sentenced to death at least in part because evidence was presented that african americans are more dangerous and more likely to commit crimes than other people and the united states supreme court said that's a big extraordinary circumstance and it's particularly a big extraordinary circumstance where that's happened in five other cases in texas and texas has said this is wrong we're going to admit it's wrong but in buck's case for some reason and i know what the reason is they chose not to do that they had a huge extraordinary circumstance they're on top of martina's here you've got a run of the mill ineffective assistance of post conviction  excuse me of trial counsel claim for not presenting additional or different mitigating evidence trichords certainly didn't consider that as a run of a mill and given the evidence that was admitted finally up as evidence for here no they didn't they did a five court balancing test and the factor that they found that indicated that they should find an extraordinary circumstance was they believed that the underlying claim had merit if that's an extraordinary circumstance for overcoming a procedural bar then procedural bar need not exist because you wouldn't could never enforce it in a in a case where the underlying claim had merit so that can't be the rule so i think they're balancing test was flawed but i don't even think we get to the balancing test because i think it should be like bach but i see your point if the district court felt that this additional mitigating evidence was an extraordinary circumstance like the missouri supreme excuse me the u s supreme court later found to exist in book i think they're mistaken i think they're abusing their discretion because we see these claims all the time these courts see says claim all the time if counsel did x at the penalty phase and it didn't work then he should have done x plus he should've done the opposite of x that's this court's decision in the rope or it's six ninety five the person argued the person put on evidence about how good his family was and what a hardship it'd be on them if he was executed and it didn't work so post conviction he should have done exactly the opposite instead he had a terrible childhood that's the sort of thing we're hearing here is it's an extraordinary circumstance that council should have put on new or different mitigating evidence and that's simply not that's not extraordinary that's every case what happened in buffy davis is rare and is extraordinary and the case in this i cited some of it in my brief there's none of it that supports their position i mean i think they found a case a couple of cases in two different circuits that use balancing tests but that's not something this circuits ever done so i think they lose on jurisdiction and they lose on extraordinary circumstance and i'm not going to talk about statute of limitations and i'm not going to ask you to enforce it here because it wasn't raised below but i just want to mention something they said was raised below but it wasn't raised the first time below but they mentioned something in their brief about it was wa and i want to make clear that there's a difference between waiver and forfeiture waiver is a deliberate relinquishment of a right of forfeiture is you messed up and didn't enforce it on both procedural bar and statute of limitations this court can sue a sponte and force if that if a party doesn't and i'm not asking you to but if you want to you can i mean because you know there's no question the original petition was twenty five days out of time and if you had to talk about relation back under rule fifteen then you have statute of limitations problems on that but i haven't raised that and i'm not asking you to do it i just want to know it's there we're back to your jurisdictional crushed and of course if it says this is an equitable are so bad that it called out for justice i think you've summarized correctly one of the only thing i would say about your stiction is i don't think it matters that this is discretionary either a court has jurisdiction or it doesn't and then from that point one goes to whether or not there was an abuse of discretion but if the statute says they can't hear this claim and they hear it anyway then that's not a question of discretion that's your point it will never get to the point of right and i think if we do get to the point of discretion you know then jurisdiction would play end only in this sense that they would have to do their balancing test that they did based on the claim that was actually raised and i don't think they did i think that opinion did the balancing test on all kinds of other mitigating evidence that was not in the original ground one race of the district court so that evidence has jurisdictional problems as well in the balancing test  and i hope that's not confusing now you know your argument i would counter that be that it was and i don't mean to be flippant about it was that close enough given the whole scheme of votes how this case came out to fall within the jurisdiction parameters and my answer would be no because if it's a separate claim and one looks it's got to be the same factual and legal fairy and this isn't i mean broadly it's an ineffective assistance of counsel claim but what was actually presented was crown so was ineffective for not doing x and what was raised in the hearing was counsel was ineffective for not doing x plus and to evidence that was presented to the district court so overwhelming in its force that it tends to if not obliterate minimize the distinction between their first claim that was raised in the claim that the district court missed  for the record we want you to know we note that you reported on the criminal justice act you were and the court deeply appreciate your willingness to accept the assigned thank you your honor before we before we delve into this procedural issue i want to make sure we know two things until today the state of missouri has never contested the district court's finding that mr barnett was did knight effective assistance of counsel at the penalty phase of his death penalty case and th denial was prejudicial and had a reasonable probability of affecting the outcome all they're saying is that the court shouldn't have got there they've never said until today that that that finding was insufficient that's the first thing in the second thing is and i think this  come up but i want to make sure it's sort of at the top of our forefront of our understanding this is unlike but a case in which the district judge granted rule sixty b relief that means frankly that the thumb is on the scale in favor of mr barnett because grants of rule sixty b relief like denials are refute for abuse of discretion so mr barnett's burden is actually significantly less than mr bud was and mr but what so i think i'd point that out i'm going to talk about this successor issue first mr sperling said that everyone agrees that the claim that was presented was not round one i can tell you i don't agree that to that and i don't think that the trial from the state agreed to that here's what he said what happened was that the the that mr barnett presented evidence through a witness i think was eric barr nash who was his brother in his adopted household and  there was absolutely no objection to that end eventually judge webber invited the state to object he said is it a green we're trying matters not raised in the play thanks and i'll talk about real fifteen and doing that in a minute but before we get there here's what the said the way the issue was decided by the court in zero five or zero six that this district court was a very general ineffective assistance of counsel penalty phase claim and that's the way i believe both sides have been treating it i mean to me that's not a statement yes i've agreed to expand this that's a statement i don't think we're expanding and then they mr mr barnett's counsel said yeah that's that's right that's what we think to and from then on you know for the next you know extensive part of the hearing that was fairly early in the hearing the state never objected to one piece of evidence that was in the that was presented by mr barnett after the hearing the the court invited the counsel to submit hearing briefs the state didn't say word one about oh you know we've decided there might be a jurisdictional issue here so judge weber when you're considering this maybe you should only consider witnesses x y and z and not witnesses a b and c never said that after judge webber indicated that he had considered all of the evidence the state filed a motion under rule fifteen i need all term men didn't say word one about jurisdiction there so i think what you know basically they you know you you asked mr sperling how could the judge have gone so wrong well the state sure didn't give him any help the state had already said yes we think this is ground one and now the state is saying we don't think it's ground wonder sort of feels a little bit like a bait and switch to me but i don't think there's any concession either at the district court level or here that w decided wasn't ground one now what banks versus dread he teaches us is that you know factual issues at least in that aren't presented in the pleadings can be tried by consent under rule fifteen of the federal rules of civil procedure as long as there's been some indication of consent and as long as the respondent has the opportunity to present evidence and both of those things happened here there was explicit  so so i don't think there's i don't think there's any kind of jurisdictional issue here what what we have here is a situation where both the judge webber certainly did say in his order you know i think there may have been an expansion but that's not what the party said and i don't think that's what this court has defined and judge webber certainly didn't think that that was a barrier to his considering all the evidence and i think he had discretion to make that finding and one thing i'd say is if i didn't draft a petition so i'm not going to and you know it i guess i'm not i'm not as any more proud of it i guess than than that mr spontaneous with the way of the way counsel behaved in the hearing but i would say that although the the the the claim certainly is headed he was denied effective assistance of counsel because they didn't present evidence about his biological mother and her family if you read the text of that claim which is quite extensive the the petition says the court has to look at each piece of mitigation evidence the trial counsel failed to present at the entire picture and compare it to whatever evidence was presented so i think there was an invitation in ground one itself for the court to consider the entire the entire conduct of the of the of the trial counsel at the penalty phase two is that ok i'm ok first of all i think the i think the that the state sort of mischaracterized just what happened here the judge entered two orders in this case in april of two thousand and thirteen that the district court entered an order granting a hearing and that was really the order when he first analyzed the extraordinary circumstances that you know that warrant it applying rule sixty big and what he said he did that very carefully and again he exercised his discretion which he has to find extraordinary circumstances and first of all he said ok well there's martinez that's not that's clearly not enough to satisfy extraordinary circumstances any more than the court in b but what the court put him back said was you can use the martina's gateway in a rule sixty be present context and i think what the what the state wanted to argue before because all of this was before back was no you can't consider martina's at all when you're trying to decide about real sixty b i think but puts that argument to bed clearly you that said you know we got year by martinez and that was fine so that was the first thing he said you got martinez so that gives me a door that i can potentially open otherwise i'd be stuck with my you know with the the a circuits ruling in two thousand and eight that this was a false and then he said this is a capital case well as i think you pointed out earlier that's a significant extra you know unusual circumstance in real sixty b cases not clear with this would work if all he was looking at was a twenty year sentence then he said that the that mr barnett had diligently pursued the underlying claim of ineffective assistance of counsel and had diligently attacked the procedural default finding he pointed out that the sixty motion was filed three months after martin as he said that was sort of a neutral factor but it certainly didn't count against mr barnett and then you talked a little bit about finality he said well obviously the state has an interest in finality  but on the other hand will sixty be as precisely as the court later said and bucked a rule that kind of trumps by now any and finally he considered the underlying strength of the ground one claim which at that point was the only thing you had i him so to say you know all that the all the district court it was to consider all the new evidence is just wrong what he did in in ground one was to say i think this is a this is a substantial claim and the fact is that back claim he made that finding back then that is a you know kind of a a yet so so i think so i think what what he was saying is obviously at this point i've got i'm close enough to extraordinary circumstances that i need to grant here i mentioned the minister explained to about the strength of the case but by relying on the strength of barnett's underlying ineffective assistance the district court effect vitiate the meaning of the procedural bar i mean obviously the discordant strong west like phalanx the opinion detailing the evidence and the credibility of leeds witnesses who testified think i don't think and i don't think the u s supreme court typically takes cases simply to decide them on the facts and i don't think that's what it did in back but but again first well i guess you know us we're at least a panel first of all it leaves the panel as i said before but want to say again saying to itself did judge webber abuse his discretion when he granted relief here so that's what you have to decide you don't say ok would we as sitting as a district judge just as i know  done and maybe the other two i'm not sure i didn't but would we have made this decision that's not the question the question is did judge webber have discretion to make this decision and said so first of all martinez is an equitable rule sixty b is an equitable rule what the what the court says inbox is when you're considering those equitable rules you can consider a wide range of factors so obviously to get through the martinez gate way you have to make you know you have to find that the claim is substantial so it's not going to be a situation where we but he gets up and says my post conviction counsel didn't raise his claim so i should be able to raise it now is going to yes you do it i mean i i know if you if you go through the decisions that have been made in district courts and courts of appeals since martinez you'll see that there are many of them that say well yeah that's true they didn't raise it it wasn't substantial and we're not going to consider it now so that's what that's the threshold that's why that's why the procedural bar doesn't just doesn't just vanish and i think i think this case easily meets that pressure as a true advocate a true i'm right you're that you were judges are to are faced with the prospect of trying to apply this in an even manner with a whole bunch of cases and your answer that is that's your job and do the best you can not not to be flippant about it but we've got i'm i'm afraid that's sort of that sort of my answer though i mean i think the problem is that when you're dealing with with the abuse of discretion standard it's always going to be factually based and you're going to have to look at you know what what were the factors to how did the judge come to this decision and i think you know you've observed that that judge webber made him the basis of his decision quite clear and was very thorough about it it wasn't a matter of his that you know writing two paragraphs and saying in my exercise my discretion i'm going to give him a new penalty phase he i think is final order granting relief was one hundred eighty nine pages long it was and and and so so clearly he considered you know he went once he got in through the martinez gate way and it if you look at buck that you know that's pretty much a that's the way they treated it they said yeah it's ok for that for the that court to consider this issue under mightiness and now we just have to see if the extraordinary circumstances morning relief and that and then they went on to say of course in back under the facts of buck which is not which are not the facts here relief was warranted i mean i'm a little i was frankly a little surprised that klain started talking today about how run of the mill this was because i didn't find that anywhere in his brief i think that what he's arguing is that the issue itself is run of the mine right if you just look at it that if you get to a sentencing proceeding and your claim impose conviction relief cases then becomes is that the lawyer should have done more all right in that that just happens all the time and i think that what happened if you look at judge weber's opinion he goes  great detail and says why this isn't just like every other case and they're saying that that balancing is inappropriate because it just it just eats up the entire rule of finality why are they wrong well they're wrong because first of all martinez by its terms requires an analysis of whether the underlying claim is substantial i don't know how you're going to figure out how the whether the underlying claim is substantial without talking about the underlying claim that's number one so it's certainly not the case that the that judge webber wasn't allowed to consider the strength of the underlying claim martinez told him he was supposed to so so so first of all that that's the first day they argue that's the threshold and not  extraordinary circumstance no i agree i agree that martinez itself does not get mr barnett relief what martinez does is to allow judge webber to decide whether mr barnett yes really and in order to do that he has to consider the merits of the underlying claim it's not absolutely clear to me that he asked to consider them under a more strict standard then the strickland standard which is pretty strict but he certainly has to not much i mean the fact is that the district court hears all the witnesses sees all the witnesses on the ground of them found them credible i guess that i have found i think you know he made a point of saying witness by witness who was credible he made a point of saying witness by witness who he thought had evidence which had it been presented to a jury would have made the difference and i think once said a district court makes that that that determination you know it's pretty difficult for this court to say well we're just going to throw all that out the window you know even though we never we never heard any of these people i would want to say before occasionally and it's a troublesome i mean i shouldn't speak that brahmins for anyone else  but i'm sorry for interrupting but yeah i mean certainly if you know you've done it occasionally but i don't know that i'm aware of a case in which you've done it in a in a situation where they evan the the amount of eviden new evidence that was presented was similar to what was presented here are number one and number two a case in which the district judge took such care to explain in characterize how he made his rulings on each of those on each of those points but the one thing i want to make sure i say before i have to sit down is should this court decide that and i'm certainly not seeing this but should this court decide that judge webber considered evidence he shouldn't have considered then i think what th to the the monster that he thought was going to be his final adoptive good home we decided the judge where we can't consider that then i think you have to ask judge webber now that we said that you can't consider this evidence what do you say about prejudice and an ineffective assistance based on the other evidence because the fact that the state never objected to any of this evidence and never made the point that there was a successor before simply just deprived of the ability to do that and i don't think you can simply substitute your your your judgment for him as if that's if that's the way you go and of course what we're saying is you should affirm judge webber completely and i can i ask you in give about a thirty minute or  thirty second little summary just make sure i understand your response to the very first argument that was made by counsel and and that's the jurisdiction argument can you just sink lee summarize what your position is on so make sure i understand you i'm sure there is no jurisdiction argument because the state of missouri and the effect absolutely agreed that ground one includes all of the evidence that was presented and mr barnett counsel agreed to that to the fact that the state that judge webber had some doubts about that doesn't matter because under rule fifteen the of the federal civil procedure the the the ground was properly expanded to include all of that evidence and there is no jurisdictional problem but you're not hiding in your hat on the fact that the that the first t b s petition was procedurally board you know there was this discussion sure this really isn't a second or a success because the first was never the first time around was never considered on the mayor well yeah i mean i think i don't i don't understand judge mr splaying actually to be arguing that it was second or successive because of that i think what he's saying is yes it would have been ok i mean he has other reasons for not thinking but it would have been a problem as a successor problem if judge webber and simply granted a hearing on on the evidence that was specifically set out in the the procedurally barred claim what he's saying  that's not what judge that's not what happened and we in he thinks that what happened despite the state's explicit agreement otherwise makes it a new claim in this court should suddenly decide that and and then  that first of all i mean what he said is i'm not asking you to do that and obviously we're not asking you to consider the statute of limitations i think he's waived it in this court if he didn't waive it before because it's not raised as a point of  mean rule twenty eight the federal appellate procedure pretty much says what you're supposed to do to present issues and you didn't do it and i think this court has failed repeatedly that you can't just sort of start talking about issues that you didn't raise in your brief as points of error i guess  thing is under the unlikely in the unlikely event that you were going to consider it i think you need to consider the fact that it's now been fourteen years since this petition was filed sue a sponsor a consideration of limitations is controlled were a great extent whether by whether the respondent will be able to to present evidence in opposition to that to the contention in this case on the issue of equitable towing which we repeatedly requested and i mean i just think that pretty much puts that issue to sleep and that's all i wanted say about it i'm sort of right you mentioned the time lapse because i look down at my opinion that i wrote filed september five two thousand and eight and that's not quite ten years or no i mean years ago i make an error of law and to consider a case that one does not have jurisdiction to consider is an error of law it is also an error of law to find that there is an extraordinary circumstance when there is not an extraordinary circumstance so that isn't a question about discretion that it's a district court got those wrong it made an error of law and that is automatically an abuse of discretion and counsel below couldn't wave jurisdiction no matter how hard he tries no matter what he says the district court correctly characterize what he has heard evidence on and what it granted relief on as broader than ground one and it was right the next thing i was going to say was i think that balancing test was in and you may want to check me on this is i think it's in my demo i think that balancing test where the district court found that it could proceed under martinez is in the post hearing water granting relief i think they made a ruling on that earlier but i think the actual balancing test and if i'm wrong i apologize please check me on that in the addendum i think there was there's been kind of a mushing together of the martinez standard and the sixty be extraordinary circumstances standard martinez of course you look to see if it's a substantial claim that is part of the mar analysis but martina's is a foundation for that as a prerequisite for deciding if there's an extraordinary circumstance to review a claim in sixty six there's no reason to believe that you look in sixty b six to see if the claim has merit and that makes it an extraordinary circumstance but was truly extraordinary i think judge erickson grass my argument correctly that this is not the always going to see one isn't always going to see a claim that someone was sentenced to death because of their race that is truly extraordinary this is something one sees in every case in other words well in every case we tend to see the horrible childhoods of background every time and make them seem the worst that can be it seems like there's another one this seems to be worse well that's again as i said in my opening remarks not sure questions such as they were to what extent can we even sooner than in your view the the great volume of evidence that came out if the state didn't object i think you can't i mean i think that goes both to hear the claim itself and jurisdiction as to what goes into the balancing test so my answer would be no on both of those and i think they did put in a lot that they didn't put in a trial but if you read the first decision the district court i think went through twenty pages of all the stuff they put in at the first at the trial so they put in a lot to begin with and they put in a lot more at the nine day evidentiary hearing but they always say they should have put in more distinction i'm making from buck and i think once something one sees is that if i'm back it's different because it's an absolute impermissible thing that the state of texas tried to do and that in my argument is you can't even get there into court have any questions i think i've gone over my three man well i wanted you to have the extra minute or so no that was just all i'd say and again i'm not i didn't break the brief statute of stuff that they couldn't conceive scuse me that the district court considered things it couldn't consider so we can't get to prejudice analysis because they should have heard these nine days of testimony about stuff that was not a claim before the court very