address mainly the course of conduct the vagueness the maynard god for us you given time i'd also like to address the ineffective assistance of penalty phase to begin with and i'm i'm sure the court's aware that in this case ohio at the time of mr scott's case indicted him with the course of conduct for one of the victims in the course of conduct at the time was defined as that the homicides were part of a course of conduct involving the purpose killing of two or more persons the vague concept here which was objected to at the time in which we're arguing now it is what the term course of conduct what does this mean and obviously in looking into briefs the issue is whether there is a plain meaning that the jury could apply according to lee opa or whether it's a godfrey violation that this is the type of case where a juror with normal sensibilities might interpret it completely different action based on the record there there was an objection you did not state the reasons for the objection it was an objection in this case the trial judge obviously was aware there was there was no definition and though how jury instructions as to a course  conduct meant the judge having no guidance created a zone instruction in there was an objection and in there is no reason for the objection but i think it's apparent from the context in from the further arguments that in fact the instruction given by the judge frankly made things more big in the i guess made it less complaint of that could you agree that the argument you're making  it was timely filed in the supreme court denied it not in a procedural fault there was a one page denial saying denied period without any explanation whatsoever that was my question so  spot in the problem in this case and again became apparent we understand that the supreme court has indicated that even if the statute is vague it can be corrected either with a jury instruction or by the appellate courts that's clear it's not disputed in this case the ohio courts did not do that in in scott itself direct appeal boyer argued sufficiency saying look it's insufficient because there's no course of conduct here's two separate homicides direct appeal did not directly address the godfrey maynard issue that was done as we just established on the on the case after this in state first a sample of sept they did define it because the corby then became aware of the problems what is interesting about it the sap definition is not even close to what the the  trial court did in scott's case itself but i mean isn't all that frankly just irrelevant to you or kind of an idea let's say they just clip made it even more let's say it was already constitutionally clear i mean they could have just made it more clear i mean the fact they made it more clear doesn't mean that it was constitutionally their right yes except from direct appeal they did it again because it raised wasn't rais right in in no other case before that had to address the issue so we have a case where the issue then becomes one is this plain meaning this course in conduct the type of plain meaning case or was that was the instruction given by the trial court sufficient to give juries notice the class of people ordinarily why don't we start i guess with the question of whether and how presented this to the courts i mean i understand you you want to argue that it was presented in your by means of your application to reopen his direct appeal those are understand that those are ineffective assistance of counsel  well my understanding and it was it was raised both ways in the petition and this court didn't raise the substantive issue just the ineffective assistance of or excuse me didn't raise the i you just raised the subject of issue one direct appeal to the uk it's ohio the only way this could have been raised in the ohio courts is after wasn't raised in the direct appeal would have been in the in the  twenty six b if you will that's the only place it could have been raised but again i just i mean i am i mistaken and i'm sure mr that you know better now and you know my mistake in thinking that this twenty six i'm getting  again because it's the only opportunity raise that in ohio had it been granted in reopened then the yeshu substantively could have been addressed to the house supreme court but it wasn't it wasn't oblon you that it is the problem we have i would he just didn't do it there's this sort of last chance procedure but it's for a different kind of claim and in any event they didn't reopen it so it would seem that this claim in fact was not presented to the courts and i just i want to give you a chance to explain why that's wrong and that is well i guess kind of the educated how about let's put it that way you know judy i understand the point  we did discuss this in the the problem we had very frankly was this court granted the in effect of or excuse me the direct claim but didn't grant in effect the poet claim and and frankly this would have been i guess we would have liked to have had the effect of appellate claim because that's really the only way concededly we can get that before this court situation where basically there was an impossibilities to do it because of when they did not accept the money and there was no other grounds to raise it it was raised in federal court and you know frankly i think whopping applies because it's essentially a understand but i guess the way that put this in context outside of the procedural default issue is if in godfrey in godfrey's the court knows you know that was the classic vial wanton cruelty issue and what the maynard godfrey both said is look the appellate courts in the state court never attempted to narrow it they did a fact based analysis saying you know basically we don't know what this is but clearly this fits this issue if in this case instead of course of conduct or excuse me and godfrey if they would have said two or more killings committed in  atrocious heinous manner it would have still had the pretty same problems if that element of the specification weren't addressed if it weren't narrowed specifically that's the same thing that we have here because the only attempt in the state courts to address the vagueness was the trial court where they are you know indicated that this is a path of criminal behavior but didn't limit it to the you know the homicides themselves and they said path of behavior in the problem path of behavior it opens up everything you know there's no narrowing at all to each juror patha behavior doesn't even have to be criminal behavior doesn't have to be limited and they said in the instructions on how to be limited to course you know conduct behavior it is but when it was but when the trial court then went on to define it further the right it said doesn't have to be at same time right there was no time limitations that when you get a limitation of the interesting your signature crime if you were so we have killer case ohio's now defines that that would cover that you know there's a psychological connection there is a signature type of killing if you will that the underlying felonies are similar and i think what they use in the sap case is you know sex offense rapes so in that case it is defined in a grant to the supreme court doesn't require a great deal of specificity but there's got to be something in this case of course of conduct two different jurors could mean different things and it's interesting in the dissent in scott the dissenting justice points out that look if it's just two killings it doesn't fit within it doesn't fit within the statute which was why the sufficiency or good in the first place so you know i mean i mean frankly god plays it out as best as i can lay it out in this situation is just the fact that because different jurors have different sensibilities could interpret that in entirely different ways and include lifestyle in this case mr scott was testimony came out that mr scott had threatened witnesses again that's not a specification and it's important to no that in ohio the nature and circumstances of the case cannot be used in aggravation it can only be used in mitigation and so such a broad definition of course of conduct or path to be behavior would it loud the jury to consider all those because it didn't  it did not limit it to the homicide it said path of criminal behavior in in there was no limitation whatsoever but if we could move for the moment to the ineffective assistance of counsel cla i guess i'd like to hear your best argument here given you know the large number of mitigation that was what on thirteen witnesses family members social workers friends because wondering what you kind  the most compelling argument that there was a deficiency in that there's a prejudice for i have to it i mean we stated in our brief that compared to most arguments that we're making before this court the amount that the trial lawyer had done was frankly more than a lot but here's the problem this is square with rahm pia in that the fact that you investigate in aspect or multiple aspects doesn't mean that you've done your job or you've been effective clearly the wigan's requires that you investigate all opportunities in every avenue in this case the food investigate the the theory of the case for the prosecutor's case in mitigation and their argument was look we don't dispute that mr scott had a tough childhood we don't dispute that he wasn't beaten we don't dispute that he wasn't taking away his mother didn't care but then after he was taken away he was put in with another older woman mrs wilson who treated them nicely in then he had a chance to be with his brothers in stay with the religious family that was a great family and pro trade it is frankly i didn't say this but you know we're an ozzie and harriet was a great world and the defendant didn't take advantage of it he had every opportunity because he went to the the scott family in at every opportunity to take advantage of it to have to change his life around and he didn't do so which made it almost it's a proper argument but it really was almost an aggravator in that book look you can't give any weight to all this good mitigating evidence because he had plenty of time from the time he was essentially ten till he was eighteen and left the scots you know he had model people taking care of and that simply wasn't true you know that in fact in doing before get found out that he had been beaten by the scots on numerous occasions that there was mental cruelty in that there would be times where he missed the wilson mrs wilson they used when they'd take him by and have a look in the window the scots actually had a name for their belts and called  think mrs mrs brown you know because of the beatings and so when you look at all that type of you know cool t and continue to be swear he was taken out of one place and then had some stability but because of age he was taken out and put into another indication he what he walked out the door when he was eighteen you know the minute he was eighteen in fact he did stay with the family considerable amount of time he really didn't bond with his brothers and sisters there's an affidavit from a person who had been with the scot indicated that she tried to stop him from being placed with the scotts because of what had happened in was unable to do so so that this is an entirely different presentation to the jury in that look when you're measuring the mitigation understanding that he was given this six or seven year period to change his life around where he had model parentage and he failed to take advantage of it's a much different case when he was put back into the same situation that he'd been originally raised with and he didn't give the nurturing there's indications of when to scott's went to church for instance that they placed dogs on either side of the foster kids there because they didn't want to go anywhere and it was frightening they had indication that the biological children were treated much differently then the foster children were you know michael when his brother so that this turns on a whole different on why he left why he didn't quote take advantage of the situation and what caused him to frankly give up if you will on down the track and that's that's huge because a major argument of the prosecutor was the fact that you know we did everything for many didn't take advantage of it and that is not a mere human will to issue it's not just like in van hook distant relatives that are brought in to do double hearsay the  affidavits for from people who actually experienced and actually saw it in present an entire different light of between i think the love in years old in the eighteen what he was going through and in because of that i think there's more than  reasonable probability that they would come back with a life had they understood the full mitigations case begin because you do sixty percent or seventy percent of it is a a b a model properly but then you fail in clearly the scots you're asking us to hold is that no reasonable yours could and that the omission of this testimony which is you stand it concerned primarily corporal punishment favorable treatment for the via logical kids and sort of forcing them into the religious practice that kind of mental cruelty right that no reasonable juror this could find that  that testimony would not have caused the jury to bring back a life sentence instead of death i'm not sure that's the standard you know i thought the standard under stric under the eighth and fourteenth i mean no reasonable jurors could agree with the ohio court that this omission did not change the result well i will get it at all but here's the problem the higher court would address this it's interesting because one of the reasons that they came to a conclusion they did was based on their conclusion that if it was important to scott  could have mentioned it new and sworn statement and that was part of their basis for finding or for denying this issue that brings us to the second part of the penalty in that the lawyer in the house supreme this did not instruct and told him basically you can't do an unsworn statement for these reasons so we have this circular basis for the the last court on the merits was the appellate court we have the circular basis for denying it in it couldn't have been we're not going to give weight to these affidavits and what's interesting about that is underpinned holster to the defense and the side it was not rebutted none of these affidavits were rebutted by the prosecution during the post conviction when it gets so so that their own rebut it we get to the court of appeals they basically say you know we're not it can't have been an important or we're not giving it the credibility we should because had this really been important scott could have got up on his  sworn statement and testified look what was on a trial was all different and but but he was told by his lawyer essentially don't do it so we have this circular argument that's the merits review of the court of appeals of saying we're not given a credibility because he didn't testify after the supreme court and said look it was it was wrong you didn't show the prejudice but it was wrong for the lawyer to improperly instruct on the on sworn statement will the prejudice is clearly what happened on post conviction that the post conviction was denied the credence it should get by the appellate court because he didn't take his opportunity make an unsworn statement and make all the stuff known so that's why the decision in the post conviction court is unreasonable in so that's why i think it is preserved and we are here and yes i think that no reasonable juror could find that the sentencing decision in scott's case was reasonable dickerson for example because in pretty dickerson's case what happened was the lawyer found thought that this was a strong mental health case so that they did everything based on the mental health neglected part of the background because in the lawyers opinion the it wasn't important and thought he could win on the mental health lawyer didn't nice job otherwise this court found and i think it's totally consistent with wigan's that no you can't make a strategic decision on what to present or how to present in mitigation unless you've done all the investigation on all aspects on all reasonable aspects in by not investigating it allowed the prosecutor to to resolve that issue there but there are two separate issues theoretically in one thousand nine hundred eighty three action what the plaintiffs are doing is saying the protocol as it's now  violation of their due process or cruel and unusual for various reasons it's so fluid but we can't ask judge frost to end lethal injection that's not an option basically our position hundred three is that here's what's wrong with with the protocol here's why we believe it's constitutionally the protocol but it stops short of saying you can't do lethal injection that's not an option judge frost has the only place we can argue that the protocol causes lethal injection to be unconstitutional because you know that's the situation our situation in in a lot of the corporate this up is that it was not developed in  court that the warden is correct but the reason is in scott's case the court remembers the district court reminded scott back to the supreme court of ohio with the question could it have been litigated in ohio in the supreme court i said no the supreme court ohio in this case said there is no place in ohio there's nothing under the legislature or this court that you can litigate lethal injection which leaves it to the federal courts alone that's all you can do it so because  protocol changes constantly i'm sure it's going to change again so it's this fluid position that we're in where it's we're trying to catch a greased pig and saying you know present to you well this is unconstitutional the very frankly the a g is right in the fact that we don't have the facts to present to you and what we're asking based on this is to be remanded and made part of the discovery with the other and we shal junction cases ok but why doesn't you involvement in the nine hundred eighty three case give you that remedy that because why do you do in a separate room in this case because again if i understand this correctly the nine hundred eighty three action cannot result in the banning of lethal injection as opposed to hey vs where it could conceive categorically that's my understanding and if i'm wrong i'll be corrected but that's my understanding and it's certainly the nature of the litigation just keep that issue alive correct until we know what the para good afternoon and may please the court i'd like to begin with scott's first assignment of error related to ohio courts of course of conduct aggravating circumstance specifically with the fact that scott his procedurally defaulted that claim by failing to fairly presented to the state courts he acknowledges in his opening brief that page thirty two that he failed to present this claim on director view and under ohio law that was the only time that scott was able to bring that claim under the ohio supreme court's precedent in state versus perry the court held that post conviction petitioners cannot bring their claims impose conviction if they fail to bring them in director view where those claims are based on the record and scott's course of conduct aggravating circumstance claim is based on the record and should have been brought in director view now he points to his murnaghan petition and says that by raising it in his murnaghan petition he's exhausted the claim that he now presents to this court but the murnaghan petition as a procedure under ohio state law that allows a petitioner to reopen an appeal on the basis of ineffective counsel that's the argument that scott presented to the state court in his murnaghan petition and that's different than the argument that he presents to this court and the u s supreme court and picard versus connor has explained what it means to fairly present a claim to the state courts and it must be the same claim on the same facts in law they then produces in federal habeas petition and that's what scott has failed to do here the claim that he presented to the state court and that he relies on was a sixth amendment claim of ineffective assistance of a online order but nevertheless the merits adjudication after rejecting that then he was unable to reopen his direct appeal but had he prevailed the remedy would have been reopening his direct appeal this is a very similar circumstance in fact an identical circumstance to what this court faced in the case of lott versus quayle in that case the petitioner attempted to rely on a murnaghan petition in order to raise a claim on the merits in federal habeas review in the court rejected that attempt and if there's any doubt that the two cla different one need look no further than scott own he b s petition in which he presented both the eighth and then the claim on the merits that he's bringing today and the sixth in them an ineffective assistance of appellate counsel claimed that he presented them under different headings with different factual and legal analyses because those claims are different if the court were to disagree with the procedural default analysis and to proceed to the merits of what applied to the claim because i assume that the court would have adopted scott's argument regarding the murnaghan petition which means he presented it to the state court the state court rejected it on the merits so of who would apply and he simply failed to show any u s supreme court precedent that the ohio supreme court i'm reasonably applied when it decided his course of conduct aggravating circumstances claim that would be the godfrey and minor cases those are the only times that the ohio or that the u s supreme court has rejected a state's aggravating circumstance and notably as the court laid out into life those two cases are very similar to one another they were open ended vague examples of what conduct would have constituted the aggravating circumstance they were things like heinous atrocious and cruel in the case of maynard and in godfrey it was wantonly vile horrible or inhuman that's absolutely dissimilar from what we have here because ohio's course of conduct aggravator absolutely narrows the number of murders that are eligible for the death penalty that's because it's a multiple murder aggravator the individual has to have committed or attempted to commit one or two or more murders and once there are two murders that's already near road the field of eligible murders there's simply no u s supreme court precedent dealing with an aggregator like this one that narrows first and then arguably if you adopt the petitioner's argument could be vague subsequently because there is no us supreme court precedent on point and at pub plies the ohio supreme court's ruling doesn't violate clearly established law moving on to the petitioners ineffective assistance of counsel claims he first alleges that his defense counsel was ineffective at the mitigation stage that does apply to this claim and it's simply not the case that his defense counsel is ineffective as has already been noted here today defense counsel presented thirteen mitigation witnesses five of them addressed the relevant time period in scot life the time that he spent with his adoptive family one of those was in mitigation specialist hired by defense counsel to investigate to look through child welfare records and interview family members and other people who knew michael scott the other four were family members mr and mrs scott themselves scott's biological younger brother and an adoptive sister and all of them painted a picture of a functional not necessarily perfect but a functional family life in post conviction review in state court scott the types of things that opposing counsel is here is talking about today however first it wasn't ineffective for counsel to fail to find that affidavit the scotts had fostered more than one hundred foster children and it simply unfeasible for defense counsel to interview all of them to find all of them also the callee affidavit is not dated so there's no indication that he was in the scott household at the same time as michael scott in fact it's likely that he wasn't because the scots stopped fostering children and adopted the children currently in their care that was how they came to adopt michael scott and eric callow he was a foster child most likely at a previous time additionally the other two affidavits were from individuals who defense counsel did interview and who did testify at mitigation  the hall and patrice turner patrice turner indicated some evidence that might be considered abusive but she also lived in the scott household at a time far earlier and not at the same time as michael scott she didn't witness any abuse to michael scott and she said in her aff davit that she had told defense counsel this information was disappointed they didn't use it that means the defense counsel was aware of that information then there's also the lisa hall affidavit and it simply does not allege abusive conduct at all she indicates that scott didn't like going to the scott household that was primarily on the basis of her affidavit because he enjoyed the wilson household very previously lived and had to be moved and she indicates excuse me that the scott household didn't celebrate holidays like other families did and that was because of their religion in any event if it was deficient performance for counsel not to have presented this type of evidence to the state courts it was not prejudicial to michael scott there was far worse evidence in front of the jury about truly horrific child abuse in his early life and that information didn't sway the jury and additionally the prosecution could have impeached the story if thoughts council had decided to tell it for example there were extensive records from child services indicating that the scott family was truly generous family they hosted more than one hundred foster children prosecution could have pointed to those records and perhaps most importantly for scott family members who did testify or were the only individuals who testified that they loved michael scott and that wished that the jury would spare his life and if scott's defense counsel had chosen to paint an abusive portrait of that family he likely would have lost the benefit of that testimony moving on to the ineffective assistance of counsel claim as regards the unsworn statement at but also excuse me applies to this claim but although the ohio courts found that counsel erred in the instructions that they provided to michael scott that simply wasn't present prejudicial some of the reasons are similar to what we just spoke about which is that w would be an additional reason that we don't know what scott would have testified to we don't have an affidavit we don't know that he would testify would have testified even if you'd have the correct information i don't know what he would have said and we don't know if he actually did witness or sustain the type of abuse that's in callaway affidavit but even if he had testified to it again the jury had evidence of far more extensive abuse in front of them prosecution still could have impeach the story could have called mr and mrs scott themselves could have referred to the child welfare records and it also would have appeared to contradict the loving testimony that this coffee and the numbers provided on the third issue i'll address that only very briefly it's a murder issue about the kidnapping and aggravated robbery charges or aggravating circumstances that were also charged and of which michael scott was convicted and pup players to this claim and he's shown absolutely no u s supreme court precedent that would contradict the holding of the ohio supreme court his claim sounds entirely in state law which although it's not relevant here is an accurate claim and consistent with the ohio state law that the ohio supreme court has held there must be separate animists in order to charge both kidnapping and aggravated robbery and here there was a separate animists michael scott kept ryan stauffer in the car for an hour and a half on a test drive that should have taken far less time and by his own admission stuffer began to understand that something was wrong and gave directions to return to his grandmother's house on multiple occasions but scott directed his friend who was driving the car to proceed that's a separate and a miss for kidnapping that wouldn't have to be present in order for aggravated burglary so both of those claims were accurate they didn't need to be merged and there was no error of state law the only supreme court cases that he relies on are cases about wayne aggravators in which one of them has already been found to be improper either by a state court under state law or by a federal court on haiti is reviewing that's simply not the case here and finally turning i mean excuse me to the lethal injection claim scott should bring this claim under nine hundred eighty three as i understand the claim that he's raising his briefs it is a protocol specific claim that belongs in the protocol litigation although this court has held that some claims about the lethal injection method are cognizable on his b s review this isn't that type of claim the only case that he cites is based vs reste which was a civil claim not a he has claimed he seems to be bringing his challenge in that way and if so it belongs in section one thousand nine hundred three litigation to the extent that his claim is one that would render the death sentence my first preference or at least as i understand the claim that he's made be to call it a protocol specific claim that belongs in section one thousand nine hundred three but alternatively if the i think dismissed it because it's not  making a claim that's about the conditions of his confinement rather than a claim about his sentence and if his protocol specific claim is only about the protocol that's not something that would be  discusses what types of forms might be available to raise this claim under ohio state law and the meaning of that opinion is somewhat disputed but i think it's clear from the face of it that the court was only addressing various post conviction procedures and held that there was no lethal injection specific ohio procedure in which a defendant could bring that type of claim but the court also discussed all of the other options that are available to the defendant on director view and that's what happened in this case got brought his claim to the fifth district in a post conviction petition and they said that his challenge to the constitutionality of lethal injection broadly belonged in director view he failed to raise it in direct or you can so he default that claim that's an independent adequate state ground hard to say that he's procedurally defaulted on something that didn't exist that's correct so it seems to me that he should have a legal remedy as this new protocol that just went into effect including he ought to be able to but the you know mine are saying a pinhole through is what's developed in state court is what you have in the litigation in federal and you can't develop any more that's what it is in this case the affidavits were absolutely the issue here in basic lee because scott's life from age eleven to eighteen was presented in basically a false light you know that's the situation at some point there's a tipping point you know what just because there's good mitigation doesn't mean that the failed you present other good mitigation is cumulative or what in the matter it's some point because it's a weighing process that at some point if you put enough theoretically if you put d how close that was to echo poise we don't know however this additional factor which went counter to what the prosecutor's entire argument penalty phase is significant and again i do think that some of th guy who now we're going to turn around and say how terrible they were well they both could make him look like liars isn't it or you know save lives i disagree with that ok this isn't an emotion is whether you know nobody could could agree with you know you could do both it's not an either or sit for you know go ahead and really this is an either or situation they could both love him and beg for his life and have done the actually are accused of doing one far is a lethal injection i disagree with the supreme court's and scott it was raised in part of the argument in scott that look direct appeal you can't do this because it's fluid you can't do this in a declaratory judgment you can't do this and they basically threw their heads hands up and said specifically that the ohio ledger has not given us any procedure for a cap we can fix a defendant to challenge the protocol in these cases and that was their conclusion so that that aspect of it can't be procedurally default because it's clear there's no place it could been raised properly there were five different theories of where at the time they said it could have been race procedural default was on the plate before judge adams and that's why certain because five different ways to raise this issue had been okayed or suggested like they would said no you can't reason post notion of doing a declare eternal judgment you can't do in a declaratory you got to do in direct appeal so that that's what the issue was sent back for for clarification he basically said we just simply can't do it a part of the reason was because look we have to appoint counsel you know that you know what court's going to do it in they prank we punted to the federal court to be frank so that aspect was not procedural default