that afternoon may please the court i have already reserved five minutes for my rebuttal i'd like to focus the discussion this afternoon to issue one and two in our brief of course if the court has questions of the other issues i'm happy to discuss those the issue and it point in assignment number one and then related in simon number two is the failure of the trial court to instruct the jury at the sentencing phase what in fact were the aggravating circumstances that the jury was to consider in making the finding as to whether or not a death sentence was appropriate in this case issue number two addresses the issue of ineffective assistance of a poet counsel for failing to raise this issue  the direct appeal as well as the failure to raise the ineffective assistance of trial counsel for failing to raise the claim at the time of the trial because this has the issue of ineffective assistance of a public counsel in it it's clear that no ohio court has ever resolved the merits of the underlying claim regarding the failure to give this instruction and there are three underlying constitutional issues that addressed the merits of the claim in order to evaluate the issue of ineffective assistance of a poet coun we must first resolve whether or not there were merits to the claim that counsel failed to develop and failed to race first there is the sixth amendment issue under the apprentice in ring line of cases regarding the absolute necessity under the sixth amendment for a jury to make all predicate findings necessary to enhance the defendant sentence second is the fourteenth amendment issue vested by the state law of ohio in mr hutton to have a liberty interest to have the jury make the specific finding of death eligibility by making the finding that aggravating circumstances outweigh the mitigating factors and third is the eighth amendment issue of the untrammelled jury discretion that was given to this jury to make the sentencing decision understand  finding had they been properly instructed the problem that we have in this case is that they were never told what aggravating circumstances were in order to do that wing and ohio statute is very queer very clear  twenty nine twenty nine zero three do d two specifically says that absent a jury finding that the aggravating circumstance of the case outweighs the mitigating factors then there must be a life sentence and that's exactly the issue that is at play into the sixth amendment in ring and apprentice that absent that very specific jury finding that the aggravating circumstances either the kidnapping or the course of conduct the attempt killing or attempting to kill two or more people outweighed the mitigating factors in this case the death sentence was not an option the maximum possible sentence prior to that jury finding was a life sentence so you needed the issue to be resolved by the jury both on  moment under the fourteenth amendment as a matter of state law and then also under the eighth amendment under furman and greg that this jury in essence was told exactly what the court found not to be a fourteenth amendment problem in the goff but to untrammeled jury discretion this jury was told to go back into the jury room consider anything that they wanted to consider and decide what to do with mr hutton and in fact the only time that this jury had any idea what a jury instruction or what the aggravating circumstance was was during the prosecutor's closing argument the prosecutor told the jury then you have to decide how much weight you're going to give to the aggravating circumstances of the crime in doing that you take a look at the surrounding facts in circumstances just as we talked about in the first phase was judge marriage you have a question yes  because mr hutton's direct appeal of wright was not completed until two thousand and three when the ohio supreme court decided his direct appeal a print he was decided in two thousand ring was decided in two thousand and two so those cases clearly apply is clearly established concept federal constitutional law stablished by the supreme court at the time that the u s supreme court rendered its final judgment on the direct appeal so both under to when the the supreme court appeal so those two cases do directly apply to this case and it is through those lens that we have to evaluate the decision i'm confused about the director  was still on direct review when it was returned to the court of appeals for the re weighing further review of the sentence it then the appellate lawyer died after the judgment was rendered and no appeal was retaken back to the ohio supreme court it wasn't until an execution date was set that people realized that mr hutton had no lawyer and so at that point the lawyers petition for a delayed appeal of the direct appeal to the ohio supreme court and another set of lawyers filed an application for reopening that became the conclusion of his direct appeal in two thousand and three for purposes of the a pick up a law that was to be decide as to the merits of the claim on the sixth amendment issue it's very clear that the jury never made the predicate finding that the aggravating circumstance in this case outweighs the mitigating factors and  finding there is no possibility for any ohio court to then go back and fix that error because in in a way it has a juror stiction on error that has occurred that the  they did they did that a way that is they're independent review of the sentence again the predicate requirement before you get to the appellate court's review of that is the jury finding in the first instance found all of the relevant reading circumstance they did they found two aggravating circumstance at the guilt phase they found it wasn't like the core was weighing aggravating factors that had not been found by the jury no and that isn't the issue that we are presenting to the core i'm trying to figure out what the issue is there is a second jury finding that most be made in ohio capital cases it isn't enough for the jury to simply determine that there are aggravating circumstances that's the guilt innocence phase decision the jury is required to make an additional finding at the sentencing phase that the specific aggravating circumstances of the case outweighs beyond a reasonable doubt your argument and system with well there are two issues first hofner came to the court often or came to the court with procedurally defaulted ineffective assistance of a  analysis and yes it is the court for it specifically says this issue is defaulted and we are not going to review it in the alternative even on the merits it will lose but again even on the merits hoffner was subject essentially to harmless error review and the biggest difference between hoffner and hutton's case is that in hofner the jury heard no other evidence at the sentencing phase except for the aggravating circumstance evidence in hofner case it a huge amount of evidence that should not have been in front of the jury and could not be considered at the sentencing phase as an aggravating circumstance was giving to them and there are two primary areas first and foremost is the alleged rape of as to whether or not the jury found him guilty because of that improper evidence and every court that has reviewed this every state court that is looked at is agreed that any evidence about in the alleged rape of eileen sweeney for which mr hodden was subsequently acquitted up should not have been could have considered evidence at the sentencing phase that actually is a false precept that is that they were considering the fact that he had raped eileen sweeney doesn't mean all those are probably properly relief on that issue you'd have to show that it was constitutional violation not just a state court direct and it has this state or for that issue or is that if if if we find  troublesome we can reach that issue you can reach that issue because the state courts never addressed it and i wonder how it's a constitutional violation to violate the state law of admitting evidence that the state went through a five part analysis  in the end it was not relevant to another state with another law the evidence might not have come to the same conclusion and it would not be a due process while ation right not in that state but once the state decides that evidence should not be  admitted then it's a constitutional violation to admit evidence that's in violation of the state evidence code if it is severe enough it can result in a due process violation of the defended when it can it can i can't see how when you say it's clear enough it becomes due process violation but in another state the same determination would not be a due process fight the process violation is not driven by the state evidence code as it is in a way yes that's prejudicial if it may have ben elevated it to a constitutional violation under the backs of the case and the circumstances of the there are two places where it would rise to the level first is the issue at sentencing and that's the failure to give the jury instructions about what aggregators where the prosecutor specifically argued to the jury at the sentencing phase to consider the conduct that he engaged in with miss we need the rape of miss we need that's clearly an improper consideration for the jury so the improper admission of that evidence could have been used by the jury as an aggravating circumstance to be used to sentence mr harding to death so that is what do we know i mean we we know they thought of him to death but the jury and the other one then the other is it is it's impacted to go face it so there were two places it was admitted during the guilt phase of the of the procedure either it was constitution to admit it or it wasn't i mean it  understanding the reality of that work well the issue then becomes if it is a violation then what is the remedy and there may not be a remedy might have different remedies correct but still the judge has to determine or and and i would direct the court to a higher versus roberts where the violation that happened during the trial was a violation of state law that then rose to the level of denying the defendant his due process rights to a fair trial because of the magnitude of the evidence that was submitted to the jury that's the exact argument that we have in this case that once the jury heard all of this evidence that everybody agrees should not have been presented to the jury under state law then the jury was at great risk of losing its way through the decisions in this case and deciding either guilt innocence based on the missed the allegations of rape with miss we need or in sentencing him to death because of using the rape of miss weenie as an aggravating circumstance had the jury again this is why all of these issues dovetail back to the first and second issue had the jury been properly instructed that the only thing they were to consider at sentencing face was either the killing or attempting to kill of two or more people aggravating circumstance or the kidnapping as an aggravating circumstance than the issue of the rape of miss wienie would not be considered would not be before the court because the jury would have been told not to consider it this is the exact same issue that was presented judge  do you want to argue about the procedural the whole issue of the sentencing that is to say it is not a bar to consideration  the not channeling the jury's discretion however the majority in that case specifically did not and refused to consider the merits of that claim because it had not been right but a timely and proper filed application to reopen which is ohio's mechanism to allege ineffective assistance of a public counsel was presented to the court of appeals and was appealed and adjudicated on the merits by the house supreme court the hot supreme court simply determined that this was a strategic decision to not raise this issue because trial counsel had not objected they did not however address the prejudice  issue is whether or not the supreme court decision that this was a strategic decision therefore not deficient performance was an unreasonable application under the n i terrorism bill and the judgment in the reasoning of the house supreme court was well that appell winnowing or narrowing of the issues because he raises mall tipple issues that the oh how supreme court simply dismissed in one sentence saying we have previously decided all of these issues these issues are without merit so you can't look and say well they must have made a strategic decision not to raise this claim because he's raising claims that have even less merit to them yesterday the generic you have a question so you're still the sixth amendment and the also the fourteenth amendment under hicks versus oklahoma that ohio law of vested with mr hodden the liberty interest in having the jury make this finding so there are three avenues by which this court should be reviewing the fear to instruct this jury properly the end result of this is that mr hutt now sits on death row all these years later never having a jury make the decision that the aggravating circumstances outweigh beyond a reasonable doubt the mitigating factors and without having a majority of the any of the judges on the on how courts review the merits of that particular claim and that's why we asked this court to review by simply saying we are looking at the sufficiency of the evidence to see if the jury's finding is supported by the evidence there are no further questions i'll reserve the rest of my time for rebuttal thank deal with the trial courts alleged failure to define aggravating circumstances and first now that the issue that mr banta has conceded which is that the trial court failed to define aggravating circumstances that issue was never presented to a well the claim that there was ineffective trial counsel was raised again through the murnaghan claim and it was clear the murnaghan claimed that appellate counsel was ineffective both because they should've raised that the and they applied those cases to find that the claims that the defendant are the claims that percy hutton is arguing now were not clearly stronger than the claims that appellate counsel had raised on appeal in fact some of the cla that get them anywhere on this one might get him somewhere well the claims that appellate consul did raise actually did get him somewhere and the district appellate court and then the ohio supreme court reversed it but the new claims didn't get him anywhere primarily because the appellate courts do conduct an independent re weighing pursuant to revised code twenty nine twenty nine point zero five that happened here i'm sorry through an effective assistance of appellate counsel to reach the merits of his claim that the trial court failed to define aggravating circumstances in doing so he has to as i said claim that cap appellate counsel is ineffective her reason failing to raise that issue the ohio supreme court did review the claim that appellate counsel was and effective for failing to raise this issue and in doing so the ohio supreme court properly applied jones first barnes and sad and the analysis there which requires courts to look at whether or not the claim that appellate counsel did not waive was stronger than the other claims or could have been stronger than the other claims that they did present so that would be the relationship between the cause and prejudice analysis and the an effective assistance of appellate counsel and because as the district court held the appellate counsel was not ineffective for deciding not to raise these claims you don't there is no cause and prejudice to excuse the default of his first issue which is that the trial court failed to define aggravating circumstances what what a malice that the court go through in determining that the  to that conclusion and they did so consistently with jones versus barr and i can't think of another way that he would have gotten that end since he did feel both to object which means it would have been reviewed under plain air and then of course appellate counsel did not raise that issue itself to have failed to define aggravating capital cases a pretty serious issue in that it is a very serious issue and it's one that's been decided by the u s supreme court in clements the clemens decision has been followed by this court question is was was there a discussion of what the proper aggravating circumstances were in the in the arguments to the their wise counsel the prosecutor did argue the specifications  which constituted aggravating circumstances say these are the ones that cause he discussed that he raised them i think he termed it something that from which he would think the counsel for the defendant would have said the only ones you can look at are these this this and this did not or did i know that the prosecutor did i don't recall if the defense attorney did but i know the prosecutor did i believe to use the term mass murder which is the vernacular for the course of conduct understand your posing counsel seems to be arguing over appears to be arguing that the weighing isn't sufficient because there's there's a law initial weighing which is to find that aggravating circumstances out and they do that if they don't know what the aggravating circumstance because even though the trial court didn't define aggravating circumstances the trial court did state that the jury had to find that the aggravating circumstances  weighed the medicating factors and in doing so it was clear to the jury who had found guilty that this is the counsel we were looking at where they contained a firearm specification the course of conduct the clemens case but in this case the thing which about from clemens it's not i it doesn't clearly states that if a if the trial court if a court improperly defines aggravating circumstances then the independent re weighing conducted by the state courts can overcome that on well they the the jurors are not required to specify their findings only that the aggravating circumstances outweigh the mitigating factors so they don't have to state with specificity what their basis for their reasoning was and we know from mean i guess first part of my question is isn't it possible that even though it's a state violation it's not a federal violation and if the state allowed it it wouldn't be a process violation as a person or my question the second and still vs mcquire the court noted and this court has also held on repeated occasions that it's exceptionally extraordinarily rare for a state law evidentiary violation to rise to the level of a due process violation i still case is interesting and i think especially in this case because what we're looking at here is evidence that eileen sweeney was raped shortly after the homicide and shortly after samuel symons the the defendant was on trial for abuse and offenses that occurred against his infant daughter and the evidence that was admitted in a style or injuries that had occurred to her prior to that event but were not did find that one of the arguments that the prosecutor had made at trial but which were was not carried forward an appeal was that hutton had potentially raped eileen sweeney in order to victimize her to make her stay silent about the events of the homicide now that was not carried forward in the appeal and ultimately the ohio supreme court said that that was not supported by the evidence but they did note that had that been the case that would have been a potential way those cases are in a play a couple here we have the jury making the findings this case went to the jury in hurst the most recent case that hutton relies on in his reply brief that had to do with the jury that only makes an advisory opinion to the  court and that the trial court is free to impose death or impose life as the court sees fit that's not how ohio law works here we have the jury make the finding if the jury had not recommended death it would have been completely off the table the trial court could not have independently wade and imposed death on his own so we we do not have a sixth amendment a primary ring issue we also don't have an eighth amendment issue which we know clearly from the i i would say the latter your honor that it should be reviewed as the jury made this finding the jury did find hutton guilty the jury did find that the aggravating circumstances outweighed the mitigating factors and then his sentence of death was independently reviewed both by the ohio it's district court of appeals and five the ohio supreme court and upheld the argument to that area that the jury maybe didn't know what they were doing i don't think i don't believe first of all supported by the record and second of all i don't believe that that's supported by any of the case law particularly clearly established precedent from the us supreme court because i feel that they should be decided on her comments but that's the case it's from directly from the jury verdict wound is not the three judge minority in the supreme court well how rare this is just a flat out violation of gra problem here though because we do have the jury making a finding what we don't have is that nice clarity that we would prefer that the you know that the trial court story instruction said specifically these are the specifications that you can consider but we do have the jury making a finding we don't have unfettered discretion because the class of defendants and in particular mr mr hutton in this case was narrow down it wasn't this arbitrary decision that i mean but he could be subject to the death penalty the jury had already found that he had committed this offense in the course of conduct of trying to tempting to kill a second person and also that he had committed this fence during the period of a kidnapping so i don't think that we're and that eighth amendment range which is why i think that  is appropriate and on point here because at most we could say that the jury potentially considered something improper which clemens allows an appellate court room waiting to correct  has not decided to argue the remaining issues i won't either unless this court has any questions about the rape of atoms yes or no issue  on what we should or should not do with that and absolutely on it so that the the brady claims that issue here which are the bruce holloway statement to the police which admittedly was not disclosed and should have been by the prosecution and became lampkin statement basically just a denial on her part that she had any knowledge of the offense those two issues the district court found were procedurally defaulted because they were not previously raised now then applying tiles versus whitley and brady itself we look at the materiality of the evidence and it's clear that the bruce holloway statement is very consistent with what his actual trial testimony was the difference is that he claims that hutton told him that both the victims were involved in an illegal activity and his police report statement only says hutton says that one of the victims was i don't think that materially changes the outcome of the case and especially because mr holloway at all times had never stated that hutton killed mr mitchell  his focus was on simmons and his focus was on the fact that simmons had allegedly gone out to do this information that hutton was looking for some and so i don't believe that that was material and i think that's supported by  outcome and you look at the admission the improper admission of the the rape ever them and that that you look at that and isolation and that's not enough really and then you look at the constitutional violation i didn't phrase and has potentially a cumulative air argument the district court denied that argument and he has not raised that issue to this court so to argue that the issues should not be two points first as to the application of clemens to this case clements doesn't apply clemens applies in a situation in which a jury is properly instructed about what the aggravating circumstances are and make their sentencing determination and subsequent to that invalid determination at the time one of the aggravating circumstances or were several of the aggravating circumstances are declared invalid and therefore we have compliance with both the eight the memory requirement and the six th requirement in the fourteenth the memory acquirement that mr hutton's did not get that is his jury never was told what are the aggravating circumstances that they were to be considerate all the wrong if they were they were argued that the argument of the prosecutor in clemens they were but they were also given valid ones so we can remove her not to that were described to the jury that's the difference in clemens the jury was told well the difference is we presume that juries follow their instructions and we when they are told to weigh aggravating circumstance the first time they hear that term defined is in closing argument by the says what should we do with mr hutton and their discussion says because he raped eileen sweeney because he has been given all of these other perry expect the criminal justice system we should sentence him to die with no consideration whatsoever about what the valid aggravators that they could have been considering did to this particular case how do we know that that may have happened this is analogous to mills versus maryland which was a mitigation instruction case where the jury was it's a reasonable probability could the jury have misapplied their jury instructions this is the same error but the instruction issue goes to the aggravating circumstances in this case as opposed to the mitigating factors in those verses maryland and we submit that there is in fact more than a reasonable probability that the jury when they went into that jury room and made their finding that aggravating circumstances outweighed mitigating circumstances they were relying on things that they never should have been considering and may not have relied on the things that they were allowed to rely in that reasonable probability renders this the error under the sixth the eighth and the fourteenth amendment regarding the brady issue the issue of materiality goes to the impact of what this evidence meant to the state's case and i think the issue of materiality is proven by the prosecutor's closing arguments when he specifically represents and states to the jury regarding bernard holloway and kim lampkin that their testimony was critical to corroborate in support the testimony of sam simmons absent their testimony and absent the evidence to impeach their testimony the jury was able to then bolster the testimony of sampson which the prosecutor repeatedly referenced throughout his closing as being unreliable and untrustworthy and nobody believes sam simmons in this case but that they should trust bernard holloway and they should per trust kim lampard and the prosecutors the one who lied to the court who lied to defense counsel about the existence of these report because these reports were critical to impeaching his only witness is that he had to make sam simmons in any way credible in order to obtain the guilty verdict that's the materiality issue in this case there are no further questions thank you