gedge jordan is in miami and judge branch is in atlanta and we're here for argument and charles clarke versus the commissioner of the alabama department of corrections and here for clark and james roy house is here for the alabama commissioner and we are ready to proceed and i would advise counsel that we read the various and we're familiar with the background of the case and we've examined parts of the record that will assist you in narrowing the focus of your arguments this afternoon mr thomas is the court room deputy and he will let you know when your time is up and he will give you a two minute warning warning before your time expires and  to represent charles clarke in this appeal your honor this case actually involves a very straightforward application of martinez b ryan and sailor however due to some misconceptions by the district court and the commissioner's reliance on language taken out of context from pre martinez cases the issue may seem more complex than it actually is as an initial matter this is not a case where we are asking this court to extend martina's in any way in fact two of the best cases demonstrating how martinez applies here were cases from the supreme court and recently the a circuit where the courts to combine to extend or even apply martinez but in so doing they describe claims to which martinez would apply and those cases were substantive y indistinguishable from mr clarke's looking at those two cases experts like to talk about the a circus recent decision in thomas v payne i filed a twenty eight j letter on that on that case that case is rather instruct walked through two different trial court ineffective assistance of counsel claims focusing on when they were defaulted and that was proper given the central concern of martinez that the supreme court wanted to eliminate situations where no court would ever hear a substantial claim of trial counsel ineffective assistance so looking at the two claims one of the claims was presented to the initial collateral review court and state tavi as evidence was put forth and the claim was ruled upon by the circuit courts and so no state court had ever ruled on it so the a circuit recognized that martinez therefore would apply to that claim so long as the claim was substantial now in that case the claim was a claim that a trial counsel failed to object to the size of the jury even higher and obviously there would have been no conceivable way of demonstrating prejudice from that claim because you can't go back in time and see who would have been on of an i r and how they may have voted so they found that the claim was insubstantial however the key to so we don't have on this record ineffective assistance of post conviction i'm counsel to well actually your honor with with all due respect i would disagree with that and so has the commissioner  if i could explain that a little bit if if i'm taking a case in post conviction counsel in alabama and i file a petition on behalf of the petitioner and later i file an amended petition but i drop some of the claims from the original petition the only claims in front of the court that the court has actually is actually able to rule on are the claims in the amended petition essentially that's what happened here because  conviction counsel affirmatively dropped those claims from the petitions so the petition was not those two claims were not in the petition as it was presented to the evidentiary hearing and the one area and i grant the commissioner credit on this the commissioner agrees with us that the claim was never presented to any state court and that he stated that also in the statement of issues that mr clark has never presented his claim and had evidence put on before it then and then they failed to appeal it then mr clark would be out of luck however this case is really more akin to martinez where they filed a statement saying that they don't have any claims and so once again both the commissioner and mr carter agree that this claim was never presented to any state court as a matter of fact the commissioner in the district court  that is true your honor however given the interplay between exhaustion and procedural default i would i would point this court to three cases from this court and they're pretty martinez cases and one of those claims one of those cases was even that effect if it is clear from the state law that any future attempts at exhaustion would be huge for this court then discussed both kinds of those procedural defaults but what the commissioner of the the district court failed to recognize is that even in that case and i can't emphasize this enough the court then discussed whether the petitioner could establish cause to excuse that procedural paul kelly is even more clear because kelly discussed o'sullivan and stated and this is a quote from kelly that the hay vs petitioner can escape the exhaustion requirement only by showing cause for the default in other words and snowden was made this very clear as well and probably explains martinez  say they agreed with the district court that there was no reasonable possibility that state court would hear the claims and thus treated them as technically exhausted and procedurally barred but again and very importantly this court still recognized that the claims could be works at the very least because the claim was dropped if the district court felt that there was some chance that the that the state courts might still hear the claim it should have stayed the  proceedings allowed mr clark to go back to the to the state court and then almost assuredly the state court would have denied it as procedurally defaulted because it was abandoned and then we'd be back out here but that of course goes to the judicial because if the claim was exhausted then the petitioner could go back and have that claim addressed in the state court however the intertwining of exhaustion and procedural default automatically render any an exhausted claims procedurally defaulted and they could no longer be raised in the state court plus if the commissioner's view of this and the district court's view of this is held to it would completely undermine the central concern of martinez which was that no court would ever hear a substantial claim of trial counsel ineffective assistance and that being the main concern of martinez it is clear that prejudice you would get in a normal shackling said harry and that and and want to be the majority conducted a prejudiced analysis by looking not just at the showing of actual prejudice and not presumed prejudice how can your client show that under martinez given the weight of the evidence against  wadley st off we do recognize and i recognized in my reply brief that if this case is remanded as it should be ultimately we will have to show that the outcome of the that there's a reasonable probability that the outcome of the trial would have been different however right now we are still at the pleading stage and so miller elvie cockrell as the supreme court stated in martinez would be the determinative standard number one the the shackles were only used during the penalty phase which is a massive difference mean obviously at that point the jury knows that the accused has been adjudicated guilty of a violent crime so it's going to be a lot less shocking to see him in shackles as opposed to during the trial when the defendant is supposed to be presumed innocent also as you pointed out judge wadley and the district court also discussed this in jones and mark heard the evidence all involved extremely overwhelming evidence on all of the elements of the crime here the state's own expert witness testified that as to the element of a particular ised intent to kill it was and this is a quote from from him it was equally possible if not more so that mr clark did not have an intent to kill thus the state's own expert testified that as to the element regarding a specific intent to kill it's likely said the the state likely fail to meet even the preponderance of the evidence stand much less any reasonable doubt there were some other differences as well this case was not a unanimous decision it was eleven to one mr clarke had no violent criminal history and so all of those those things distinguish and markers and jones a great deal the other thing that i would point out is in elegy duggar this court stated and i'd really like to highlight this quote that as with when we're arguing about the evidence regarding whether or not physical restraints are necessary and this is the quote from the court only with an adversary process can the reliable evidence be sorted out from the unreliable so we don't deny that in an evidentiary hearing the commissioner of course would have every opportunity to put on evidence that this was perhaps reasonable but even in elegy duggar and even when it involved only the penalty phase this court still made it clear that the court had to have a hearing it had to make it clear that the accused  needed to be in physical restraints that it was the least restrictive alternative it needed to consider alternatives to the restraints and it had to decide that if they were going to use the restraints it had to do everything possible to ensure that the jury does not see those restraints of the trial had an impact on their verdict well we didn't want to ask them that because we were concerned about that going to the jury's deliberative process however there is evidence that that it did because we did also put three juror affidavits out showing that three of the jurors believed that that mr clarke did not intend to kill mr  e know that on this record i believe we may have i'm sorry to say that i don't i mean i do know i know that it was not one of those however we i don't believe that that i believe it may be in one of the one of the other affidavits that the juror to admit is that he was one of the ones and the district court addressed that and said that it is difficult to understand why a trial counsel did not object obviously saying that an evidentiary hearing would be necessary to determine that but he also the district court in this is that document sixty one dollars at page twelve stated that nothing in the record indisputably supported visibly shackling him he also stated and this is also a quote from the district court that presumably because he had no evidence that the jurors saw mr clarke in the restraints beak he dropped the claim because and this is also a quote no other good reason to abandon an otherwise sound claim appears so telling this court is we of course are not asking this court to just simply grant rel relief we recognize that this is not a fact finding court and as elijah pointed out only for an adversarial process can the reliable evidence be sorted out from the unreliable so particularly given the effectively we have your honor because at this point at the pleading stage everything that we plead has to be considered as true and we did plead that counsel failed to interview the jurors and there is evidence to support that because every single juror that we spoke with and all of the affidavits show this stated that no one ever came to speak with them about this case including much less anyone representing there is evidence that it was not as and again the district court agreed with that because the district court stated presumably because he had no evidence that the jurors saw mr clarke in the restraints and again we admit that we will have to call him in an evidentiary hearing but we were denied that opportunity to have an evidentiary hearing to flesh those things out but we did plead that the reason that he that he dropped the claim was because he had failed to interview the jurors let me ask you one thing you know that a couple of times visible sacral certainly we know from the we in the record in the obviously we've pledged that the shackles were visible and so obviously that would have to be fleshed out a little bit more at the evident tree hearing but we do know that it was obvious that the jurors could see them i would also point out that if you look at elegy duggar the court did have to consider least restrict less of restrictive alternatives they also had him in a shock belt and i would note that none of the jurors told us that they saw the shock bell so that would have been a lesser restrictive alternative that would have met the same the same goals for the the initial obligations  the leg brace was actually have and i'm just speaking here from what i know from having spoken with mr clark the leg brace was a rather large object that covered his entire leg so it stuck out from underneath his pants and it would have been visible and again one of the jurors remembered it so vividly that he described him as seeing him in shackles which is of course technically if it is a good afternoon james house appearing for warden cynthia stewart on behalf of the state of alabama martinez was an equitable rule issued in response to the state of arizona's refusal to consider a trial level six a under its successive petition or prior collateral proceeding rule and while much of the decision is devoted to discussing the relative inequities of certain states post conviction procedures at the end of the day it was the arizona court reliance on a procedural default that was potentially caused by an adequate initial review collateral counsel that the court held might be excused so in short martina said were a state court refuses to entertain  ineffectiveness based on a procedural default caused by an adequate initial review counsel a federal court can reach that claim but that is not what happened here in this case mr clark decided that he would altogether forego review of his trial level six the minute claim in a state court and as a result it is uncontroverted that no alabama court has ever been confronted with the physical restraint and effectiveness claim contained in mr because they said it should have been brought in the initial post conviction proceeding and that they would not consider a successive petition where the claim could have been brought previously so an arizona court refused to consider the claim on the merits and relied on a on a procedural default and what's happening here is mr clarke is asking this court to make a procedural default determination on behalf of the alabama courts but this federal state's judicial judgments in federal court i cannot speak on behalf of the judicial branch of alabama or the alabama supreme court and your honors question presupposes that had clark filed an exhaustion petition that today the same equitable concerns announced in martinez by the u s supreme court would not be incorporated into rule thirty two under a decision titled ex parte clarke i know not what i'm asking you i'm asking you what would m go back to state court and file an exhaustion petition setting forth the th amendment ground and asking for the court to consider it because of the inadequacy of the council and i think  in the alternative without fear of quote sacrificing its interests in finality federalism and comity and now that martinez is the law of the and it is probable that many states courts not just alabama would look to the merits of the trial level and effectiveness claim under a martinez type procedural posture even if only as an alternative holding to a procedural default ruling so mr clarke's this is this is judge will send coun and i would even if the presumption which seems to be mr clarke's position is that the state courts would just automatically reject it on a procedural default i would note that prior two thousand and twelve the prevailing federal view was of collateral council were not grounds to ignore or excuse a claim that had been defaulted because of collateral council's representation and thus it was no accident that martinez request to have the procedural default excused in federal court district court level and the circuit court of appeals level it took a decision of the u s supreme court to craft the equable rule that resulted and yet the alabama supreme court has not had the opportunity or occasion to decide whether the equities underlying the supreme court to a determination that it has not made than the district court and martinez could have bound the u s supreme court to its reading of coleman in that case i think without doubt the death but does not support a system that would take away from the alabama supreme court the same type of discretion and authority that allowed the u s supreme court to reach a decision in martina's but that is what mr clarke's rule would do so for example had he filed an exhaustion petition containing the same physical restraint claim as in his hay vs petition it is impossible for this court say that the alabama supreme court's response to the same equitable concerns identified by federal counterpart and martinez again would not i will say this chart if they have i am not aware of it but i will also say that in preparation for today i did not specifically look in that direction you think i don't want to quote the words in your mouth but you think it's a radically possible that mr clarke could have pursued but there are no case law there's no case law that you're aware of that says that it is actually available would mean that if the court the supreme court has said that it wants a certain class of state prisoner claims to be subjected to at least one review in at least one court and if that is true it cannot be said that under a death the preference is for that claim of that court to be a federal court to the exclusion of state courts to not have the opportunity to to correct the constitutional violation  and here's another issue with mr clarke's position asking a federal court to make a binding determination on the alabama supreme court without giving the alabama courts a chance to invoke equity just as the supreme court and without any known impediment to the state prison or presenting that claim and state court and again that's the exact opposite of the deepest purpose this is judge well so if mr clarke had not if his counsel  in the post conviction for seating had not abandon the ineffective assistance of counsel claim would he be entitled to the holding and martinez versus ryan no i the procedural default that the supreme court excuse that could be excused in martinez and the rights of the state's judiciary are the main problem with mr clarke's theory that judicial ping pong doctrine vote in the name of the state i hope we can all agree that had the arizona initial review post conviction court reviewed mr martinez this claim on the merits but that afterwards collateral appellate counsel miss the deadline for filing the discretionary review petition in the arizona supreme court the resulting failure of the claim to be considered by the arizona supreme court would fall under coleman and not martinez you know again martinez was based on the fact that the p applied was caused by the failure of an adequate initial review counsel as opposed to appellate counsel or counsel another proceeding so the type of procedural default and the calls of the procedural default are important in this case the decision to bypass the state courts in the presentation of the physical restraint claim in the hay vs petition it's not attributable to mr clarke's initial review collateral counsel that decision was made after the conclusion of the rule thirty two proceeding the court determined that a martinez esque exception should be read into rule thirty two maybe as a form of newly discovered evidence there is still the question of the statute of limitations was to return to state court now an alabama court and not an exhaustion petition not because of the success the petition or not because it could have been raised in a prior collateral proceeding but based on the statue limitations that procedural default be attributable to hey be a scalpel not mr clarke's initial collateral view counsel in that case the type of procedural default would matter and since we're talking about rules of equity no one could fault a state court in holding that latches recognize the unseemliness of a federal court upsetting a state court conviction without st giving state court an opportunity to correct the constitutional violation but then adopted an equitable rule that does not require any effort to  i would have to say i believe it's i mean hits and we cited in our brief would would come to mind in that in hits and the petitioner had to go back to georgia and follow exhaustion petition before they could come into federal procedurally default that no alabama court has ever made a decision as procedurally defaulted mr clarke's claim he simply never went there and asked does there are there are a couple of other circuit weigh at least a little bit against your reading of martinez right i don't agree or i have not seen a court yet that i think clearly s villa the villa talks about the rules that apply to two fundamental tenets of federal view a state court convictions the st is a state prisoner mystic is also available state remedies before presenting his claim to a federal habeas court to  understand i understand all that but it seems as if martinez versus ryan carves out a very narrow exception to that rule but you are articulating right now then it would make no sense in  villa in that conversation to then only turn to the concept of procedural default and it's the concept of procedural default or the equitable doctrine that allows an independent adequate state or ground for denying relief to be excused or nor procedural default by definition is an adequate and independent state law ground for denying relief an exhausted claim has never been presented to a state court therefore a state court can have never applied a procedural default to that claim but federal courts ever since applied procedural default on their own even when a claim has never been presented to a state court they don't then they don't require petitioner to go back to the state court to then have the state courts tell them under settles state law your claim is procedurally barred because it wasn't properly r point i understand that and you're exactly right about that my point is that better ok b s courts apply procedural default even in cases where claim has never ever ever been presented to a state court and a reason that no one ever presented the claim it's too late to raise it now as you're suggesting for mr clarke and therefore can issue a procedural default and that's just not right i think well the less you can tell me i'm that you can tell me why that's right or wrong because and murray v i read the read the supreme court says a state court has the right to both procedurally default a claim and to enter a judgment on the merits in the alternative without sacrificing its interests and come with finality and federalism and when a federal court seeks to speak on behalf of the alabama supreme court one it takes away the ability to consider an alternative holding on the mare's to it can't be that the supreme court said that they are concerned about but then does not give the states a mechanism to enforce that by st reviewing these types of claims and it was clear in martinez where a state court is confronted with such a situation and the cons to review it then federal court act but how else could the alabama supreme court do exactly what the u s supreme court didn't martinez unless the state prisoner comes to that court and present its claim the underlying claim is the  amendment ineffective assistance physical restraint claim that claim still needs to be presented to a state court and that state court needs the st opportunity to address the constitutional violation and only if it declines to do so happen in this case the state of alabama has done absolutely nothing at this point to prevent clark from presenting his claim to a state court he could have filed an exhaustion petition he could assault stay in a bay and he did not do so district court in martinez and the court of appeals in martinez said you know what you cannot base procedural default in these proceedings on collateral counsel because our reading of coleman says you can't and then the united states supreme court reverse it i cannot i cannot imagine a system of federalism where the united states supreme court is allowed to modify the procedural and equitable considerations that it gives in its post conviction review  but then deprives the alabama supreme court of the same opportunity and let's say the alabama supreme court does decline to issue a merits ruling and stands solely on procedural default or doesn't do an alternative ruling at that point really respect leon i think it would be too late at this point st to stay in a bay proceeding that's something that a petitioner asks the district court for and that did not happen there was nothing stopping mr clark from filing exhaustion petition in state court and the failure to do so is not mr clarke's initial count collateral counsel's fault habeas counsel made a decision when they got those two affidavits to run to federal court a only have a few minutes left that exactly one month ago a panel of this court which included judge branch in dallas the warden decided to dodge a complicated analysis of what it termed a patch of procedural underbrush under somewhat similar complicated analysis because dallas this claim fails on the merits in any event and the same could be said here at its core mr clarke's physical restraint and effectiveness claim is a crystal ball claim of the sort that this court has rejected for decades saw the restraints there's a footnote soli today as happened here and then there is a footnote to two of the five affidavits that were never presented in state court thus there is a reasonable probability that the outcome of a trial would have been different that's it you the holding and hold wrote was that uniformed law enforcement officers visible to the jury could be used as an additional security measure without for having a defendant a fair trial especially where there was a concern about possible flight because the defendants were being held without bond available to him and in the alabama state court system i would say it's much less likely because we're talking about an equitable rule and mr clarke has failed to seek vindication in state court for four years and that's a not initial review counsel so i think it's apples and oranges to ask what he can do now vs what he can do as a result of his habeas council's decision to bypass state court in the st instance but in any event if we decide in this case if we if we enter an opinion finding that he's not entitled to the benefit of martinez versus ryan because he failed to  his claim to the state court and a timely and proper manner he would i mean that would that would make any application and any other application that he would file in state court it would but again that is not attributable to national review counsel that is attributable to a decision that haiti has counsel made when they obtained this your affidavit and decided to proceed to federal court and to not proceed back to state briefing two things i mean these were this was disingenuous at best but this is completely inaccurate st they stated that we relied soley on deck as i pointed out in our briefing we did not rely solely on dac as a seven i believe that's the correct page number i've been looking for that here during the during the break but i also did cite that in my reply brief so we did we did request that  commissioner also says that we could and i actually quoted this as he was saying it that we could have sought a stay in the bay and he did not do so that is also incorrect at dock five  offer the district court that as an alternative we stated that there is nothing in alabama law and of course we cited alabama law stating that they would not hear the claim at this point and so of course it would be irrelevant to engage in the judicial ping pong but if the court does and snowden makes this clear if the court does feel that there's a reasonable chance that the state courts would hear the claim then they are free to send the case back  but we did ask for that so that was also a misrepresentation of the record also he cites that that this did not that martinez do not abrogate the exhaustion requirement once again that shows a fundamental misunderstanding of and i believe this court was articulating that well how this court even pre marked seen as discuss these cases and i would point this court to to kelly vea secretary again  courts those claims as barred by the state courts as no basis for had a role for federal relief however it then went on just like all those other cases that i cited to determine whether the petitioner could demonstrate cause for failure to cl raise the claim kelly is a particular interest particularly instructive because it was talking about exhaustion and procedural default and the way that those that those two claims work together cause was unavailable because kelly was pretty martinez the case of the claimant at issue was even a case of trial court ineffectiveness but he was out of luck at that particular point because martinez had not come down so  basically as this court was pointing out court after court after court and i did not want to just keep filing twenty a j letters to this court and i'm sure that this court you know obviously your clerks and you yourselves are updating martinez cases all the time so i'm sure you're well aware but i cited cases out of the rd circuit and the th circuit that that apply this entire principle exactly the way that mr clark  did in cases that were indistinguishable from his but since that time there's basically been a tsunami of other cases the th circuit and therefore circuit have sense joined on to that as well and i'd be happy to to file a twenty eight day letter on those those were not quite as on point as the thomas the payne case given the thomas also talked about when the claims were raised so i didn't want to inundate the court with those cases  in the federal court and that he did not exhaust those allegations in federal court nonetheless they granted a ceo way in that case recognizing that martinez could serve as a cause to excuse the procedural default agency principle i would just point out that i think most of that was addressed in my briefing but i would just point out that coleman itself stated without qualification that a prisoner must bear the risk of attorney error in other words whether appointed or retained or hired in any way because of course if you retain counsel if you retain a volunteer counsel you're still retaining counsel the court card that exception out what alabama is essentially asking this court to do is cut martinez in half and say that it would only apply if if the petitioner was proceeding pro se and failed to raise a claim not  counsel was ineffective because in as maple's pointed out alabama is one of the only states that does not provide post conviction counter and that would result in the best justice scalia called it the utterly perverse situation where those states providing post conviction counsel would be subject to later martinez claims while those not doing so would be immune unless the proof the petitioner perceives pro se i think the rest of that was addressed in my brief