thank this court for the courtesy of granting our request to expedite the briefing in this matter as originally scheduled our reply brief would only have been due a week and a half ago and i also want to thank this court for key she's not here from lack of interest her mom had a serious stroke the other day and she's taking care of those responsibilities and given our responsibilities to mr tyler and to this court we thought it was important that we go forward as this court noted in thompson versus bell citing really the often quoted blue diamond coal company the decision to grant a rule sixty b six requires an intensive balancing of two competing policies one obviously being the finality of judgments but the other is the incessant command of the courts conscience that justice be done in light of all the facts it is an appeal to this incessant command both that i want to address and that i need to speak mr tyler is scheduled to be executed in just under four months and it cannot be just that mr tyler should be executed when two of perhaps his most important and very meritori judgments and not opinions and so what that means in this case is there was a judgment which was denying the petition and i just thought that was the way it always worked in so i guess the way i'm thinking about the case but you love me to correct me is it is resolved i mean that might be a good argument to make in responding to that judgment you know the district court was so sloppy they didn't even specifically address why they rejected this claim  but i guess i just thought that was the way it worked we review judgments not opinions and so the issue isn't how much or how little explanation there is in the opinion it's what was the judgment in the judgment was the nie the petitions that means all arguments supporting it were denied court and the initial discussion was if we're presenting claims and there is a judgment then the claim has been presented and in fact there were claims that were not presented to the supreme court the fact  it would be different judge if this were a success or petition it would be different if these claims had in fact been adjudicated on the merits but this is the incessant command of the courts conscience that just these are arguably his best claims well were they ask we don't have before us the the materials that would show this in there not available electronically did brief that issue in the first instance in the district court yes remarkably i mean i could tell like i mean act until it was in the a b is petition but i couldn't tell whether it was in his subsequent briefing you mean in the traverse well i mean there is it was there is the petition there's the traverse but presumably there was some other briefing before the district court in or it order and that was unable to do it and i look at the two documents that appeared to be both his briefing in the state three spot but i couldn't get to the kind of them your honor that there was litigation at the time in the whether it was whether it was brewery in whatever other than the petition form the basis for the district court's consideration of your argument yes that was responded to in the return  addressed in the traverse so it was brief and i ask what i think is a related question but maybe it isn't which which are the claims that were not addressed by the district court it was a coerced jury instruction claim right i understand that that's listed in his table of contents but just as discussed when you go out under the table of contents yes and the district court acknowledges a its its decision is two and nine i think it's eleven sixty nine and the knowledge that that in knowledge of the attorney general is accurate yes it was not addressed but it is listed in the table of contents yesterday it was the other one and testimony of leave or a head wondering about because seems like he does address that your honor age twenty three of the opinion he says tyler claims that the prosecutor improperly defend threaten defense counsel and witnesses here on  in particularly argues that prosecutor to threaten defense counsel but that's not the claim jack redhead with the imposition of the death penalty of head didn't testify against tyler and allege that head had to be placed in protective cus counter threats by tyler these claims were not raised on direct appeal to the house dream core and therefore procedurally defaulted however even where the claims properly preserved for review the court would find them without merit and i look at the wrong issue where you say that's not deciding it judge i don't believe the district court did the analysis on the on that specific claim why isn't what i just read analysis and you just think it's slim analysis is that the idea of the leader or head claim isn't that what you're arguing is that he was that they coerced head threaten him with the death penalty and that's why he testified that way yes or is it then the right head claim there was no there was no recognition that the that the state court lost the record and lost the half we have but but but ok so you're saying they didn't get into it and you know but district court disposed of issues of the tab in a way that other than the way the parties might prefer and there's nothing wrong with district court footnote i did not understand the court's the court's analysis to include that specific issue in terms of being called worse even testify maybe you could just if you have it in your book maybe you could just look argument really groups that would be great and perhaps i could do that everybody that's what i meant and yes and there is the other one which clearly wasn't addressed although then you have there really wasn't an address and you have the argument that judge sutton raises which was a court recognized does not mean that that's necessarily the only ends through which we must look at it and i think the question you're being asked is a more fundamental and really goes not with the district court thought you can issue with the arguments they would say we resolve them badly we would say we resolve them thoughtlessly in need to go to the supreme court and say boy should they reverse they couldn't even there's no way to explain how to deny this so they didn't say anything you do all those things but you would never say it wasn't a judy  under ohio law if the verdict is not unanimous it's an automatic life sentence that instruction went to the judge and the judge said that could have been argued to us four years ago could have brought it to my attention for a c e o way could have brought up to my attention during a rule fifty nine e or could have brought this to my attention in a sixty big and five days after the district court's decision  letter to count so from mr tyler and he says i don't know if you know it or not the judge never answered my deadlock issue we have to get back with him on that we need his answer and him to say at least from the motion to let him know the importance to this so he can grant a sissy a way because you let it pass all die and at that point if he'd brought a rule sixty b motion he  in is long as we're talking about the distinction between sixty one and sixty six this has to do with whether there's a claim for inexcusable maneuver and excusable w neglect right and excusable neglect is that inexcusable neglect on the part of the judge or on the part of the counsel inexcusable neglect on the part of the lawyer all right but they have that at that point there was no inexcusable neglect i have had counts and he brought it timely so this my question i have i'm having trouble seeing how you can get around the one year time limitation judging by virtue judge alito was was this the near total failure to communicate with the client or respond to his inquiries over a long period of time if true establishes extraordinary circumstances beyond his control because the the reference was the pioneer that a general garden variety negligence by a lawyer could be attributed to the client and excusable neglect for sixty purposes that you're talking about yes sixty six sixty six and if the lawyers neglect these garden variety negligence like the pioneer suggested it would fall under be one and if it was inexcusable neglect it would fall on the sixty six let me i don't want to interrupt your finishing the answer to that roger's question are you or i was just going to say that the the difference in pioneer which talked about this sort of garden variety negligence in terms of simple inadvertent simple indifference carelessness with regard to the consequences that was very much the same language that had the supreme court used to find used to distinguish b one from b six and they said the clap pr like two years he didn't get a response from his lawyer it was the docket call the last but in in holland it was this virtually the same thing he couldn't get an answer from his lawyer at the time limit ever expire scott whatever sixty one two three four and they have a one year limitation and you're the lawyer and it's getting towards the end of the year i can decide whether to file it within the year or later than the year  file within the year i meet the deadline if i file it later that's pretty inexcusable and i still meet the deadline well that's just the races this was the one year doesn't it i mean this is justice alito says in holland that if the lawyer the certain bad lawyer and at that point you're not acting is the agent that you're acting in sort of in the in a manner that is inconsistent with you with your client's best interest when mr tyler at least neither the district court had failed to address his jury instruction plying brought it to the attention of his lawyer and two thousand and thirteen the point at which the motion was filed how can it possibly have been the motion filed in two thousand and thirteen possibly have been brought up within a reasonable t each you've got all the you've got other things going on in the case he's represented back count so much of that but he's also trying to do things process a so he knows you can do things pros say i mean happy in that eleven year gap possibly be within a reasonable tab because mr tyler wrote to his lawyer five days after when the c e o where it was possible in the lawyer didn't respond in the sort of you don't do this and get the die he wrote during the course of the appeal saying you need to and twined this well of course couldn't because there was no see a way within two weeks that the appellate process was over mr tyler went back to state court for say to litigate i don't think i mean look in that little piece it's not imagine that looking at the entire hour period of time lapse and providing some justification for that overall neglect on the part of the lawyer in connection with not raising it in the fifteenth motion and not seeking it see you need to the district court of this court let's just say that all of that was error it was still many years after they had to before the motion was filed years during which mr talent was represented back canceled and he also about things pro se i mean it just it's hard for me to see how you get from two thousand and two to two thousand and thirteen and how that reasonable have to assess blame because there was once mr tyrolese pro se litigation was done he came back up to this merit of the jury instruction cly in connection with just a decision to grant a sixty b six motion yes and what is the case law that supports that because we have a good bit of case allied signal talked about in this and in rejecting the sixty six i think talked about the the the fact that the affidavit they were trying to get in was of probable no merit to the case i thought there's there's two claims here one is the jury instruction and one is the you know the primary witness was coerced into testifying to me of the two the one that is stronger if any of them have strengths is the latter all right the jury instruction i mean the jury did what it did but the but the idea that that evidence was suppressed or coerced might have might lead an innocent person to be executed is sort of definitional stronger but as to that one i'm not seeing where this kind of the things that you rely on for diligence are present i mean i'm in c where where mr tyler was complaining about that one not being adjudicated at all every example you give is he's complaining about the other issue and indeed he says this is the only way i can win him so there's really on that issue doesn't seem to be anything in the way of diligent person prosecution is that fair am i missing something or you know you're not i mean he's not a lawyer i mean there were there was sort of all understand did talk to him in the letter he talked about the right head and how their words false testimony is the jury instruction expla jury instruction plane was the one that he went back to the state yes that's in the garage and so forth that's in the cordle of death that jury instruction clearly that was the jury instruction is a is a life sentence i understand i guess my only question is was there the same kind of diligence with respect to the jury instruction claim with respect to this even though his or head claim i mean the mr head claim i as i said before it's a little hard to see that it wasn't adjudicated looks like it was a claim i mean that that was when mr tyler was was all over and it was very clear that i'm going to die if you don't raise it and his lawyer never did and that's why he went back to to do this but on the as a lawyer might have thought it was a if that's your best claim that wasn't that wasn't going to get missed now you're talking about inefficiency ineffectiveness of habeas counsel well the inexcusable neglect is that here was proposition of twenty four or whatever the number was yes and that's his appointed lawyer it's not like pioneer where i mean that's his appointed lawyer and quite honestly judge the government didn't bring it to the good i mean this is what the they want to pursue i mean that is just part and parcel yesterday b s litigation you start out with a very lengthy petition and things fall by the way salary and courts and the study there are are i think they said it was harmless but it's unfathomable that that claim would not be and would not be addressed and adjudicated i think you'll  years before the motion for relief from judgment is filed it's also indisputable that the basis of that motion appears right in the record i mean essentially  ten years go by and numerous opportunities which the district judges claimed failure to adjudicate the claims could have been pointed out in essence what it does come down to th is is there any kind of plausible reason which would fit under say a rule sixty b which somehow could render this an extraordinary circumstance to allow for you going down this road i just can't understand why this case just doesn't turn on the fact that claims are adjudicated whether they're addressed or not in an opinion if it says judgment affirmed every claim in favor of reversal it was rejected and so i just and without that hope i don't there's nothing left because you can't use sixty six for a way around in p or another vehicle for appeal we of course agree with that addressed expressly explicitly by the district court but nevertheless the petition if you look at the nature of this petition it was a scattershot petition at one point many many different legal theories and claims mixed together at one point the petitioner argued that the state courts did not give appropriate appellate relief to mr tyler and the district judge said explicitly i've looked at the state court decisions i've looked at how they handled the claims and i find nothing in those state court decisions which indicate that the state courts and acted contrary to or in a reasonable application of clearly established federal law now the instructional claim  is by is the number one claim and yet the district judge presumably knew what he was doing what he said he looked at the state court decisions and found that there in it we argued that that was implicitly coupled with the idea that as this claim now we also pointed out with respect to the second claim that it was raised as a brady claim and the district judge explicitly referenced it as a brady claim that the claim that the state somehow withheld evidence that had was coerced applied the appropriate standards under brady and denied the claim you know all that being said that was our initial argument to the district court the district c however did not base its his decision on that i mean he went on to analyze it under rule sixty be the better how you slice it should have asked him not to give a reason for granting could say somehow fifty is in to sixty b would be to say well the lawyer was ineffective the baby's lawyer just he blew it he dropped the ball well that runs you smack right into adjudication i mean if there is a danger to cation sixty six or sixty doesn't work but it's still a little odd that post is out there martinez you know post doesn't mean the same thing it did cream martinez says it does post martinez whether that part of it should disappear entirely i don't know i'm just curious what you think we should do with that the question in the sense that looking at what did martinez do martinez made a in the cause is your lawyers here that you have to show that you had a constitutional right to the lawyer who didn't raise to claim and if you don't you cannot because it is misleading written broadly enough to suggest martinez isn't right so just reading a post by itself is not dangerous for lawyers within the six circuit right now i don't think so your honor and here's here's why because if you look at the background of martinez which goes all the way back to coleman versus thompson coleman versus thompson explicitly addressed the argument about when do you use your lawyers mistakes to excuse corpus in the court said going back many many many much precedent hey your lawyers your agent and you you don't the court explicitly reject the argument coleman that hey my lawyer is no longer my agent if he so band his mistake is so huge that you really can't say he was acting in my interest the court said no because he's he's your agent and the only why that makes a difference is in that context is unless the lawyer is constitutionally ineffective then at that point it's no longer the lawyers mistake it's the state mistake for not giving you a competent attorney so that was the context of coleman versus thompson now and we fast forward to martina's what they're looking at is a limited exception to those very well established rules a very limited exception and that limited exception was simply ok if you have the first opportunity sorvino even not quite as limited after  thompson that your lawyer is your lawyer he's your agent and what he does well if he makes a mistake a mistake really is given to you because that's the way that is the general rule now if you look hard after martina's to rely on that statutory provision though is that correct again your honor i would think that because to a certain extent martinez does does  least if you look at it mary i think the word superficially it does seem to indicate that perhaps it's not quite as strong the post is not quite as strong as you might think it is want to respect having to do with the statutory provision that says you can't get relief based on statute known for yes and again you're right i don't think i do i don't see how martina's intervene or really have an effect on i still think if you read that statute strongly those cases are wrongly decided not talking about coleman i understand your point about if you're just talking about that statute it would seem on its face to preclude the result and in martinez me of why you're on it because more doesn't it says you can't rely on the ineffectiveness a views corpus petitioners can now entertain or not say no based on saying it it undermines reliance on the statute is all i'm saying the argument is still there as well as that the statute isn't going to work very well for you because it didn't work very well in martin again and that's where i guess are the disconnect i have your honour's is that it seems like martinez was talking again about the performance of state post over how much would you object to the statement i make it i guess it's dicta depends on how much we think it bears in the case but just a statement that just says before replying and post you oughta read martina's interview no period we're not saying exactly how they interact but it just seems to me highly dangerous to leave post out there without someone saying be careful because i think i think you can look at that and perhaps i should say this is that in capital cases as you can imagine sometimes exceptions that start out limited have a way of expanding and approaching the swallowing the rule and i suppose perhaps i'm somewhat jaded in the sense to always having it and i out there for successions that come along it may actually turn out to be the rule swallowing exceptions after all and i would only just make the point your honor that again all the talk about in martinez we are really talking about a gateway to allow for the the consideration of another claim so in that sense you're really not getting arguments that opposing counsel makes but i want to get a little bit to understand what was resolved what was adjudicated by the district court and i assume that i like to know that when this argument was made even though it was addressed only briefly added if at all that you had a response back then and i'm wondering what the content of that response was to the arguments that are now raised about coercing the testimony of the primary witness that caused this person to be sentenced did not make sense yes it does your honor and what was your argument my recollection i was not going to believe i was on the case at that point but i would imagine my recollection would be that it would nevertheless not meet the materiality standard of brady you know the words whatever whatever was merry witness was was coerced no your honor it's in this sense is that the jury was well aware of heads prior inconsistent statements the jury knew that he was aware of the prior and can suggest they they knew that he initially said he was the shooter i mean they knew though that he recanted afterwards or did that happen after that they knew that too is a matter of fact the my understanding of the evidence was that the reason why the reason for rejecting it is the eyewitness testimony was totally inconsistent with the head actually being a shooter is a matter of fact the way i think the testimony came down to was he thin me and shots are fired a thin man runs away this is the third witness now or another with other witnesses yes and then a heavier set man who was tyler then runs and under the sequence of the shots in the witnesses descriptions of the type of persons they saw it it was extremely unlikely that the jury would have concluded that somehow it was tyler who ran away first he testified that he wasn't even there and that he had actually been in a store trying to cash a welfare check or something and again assuming this is relevant which is a big assumption are you saying that if if we were to be able to come up with the arguments that were made part of the argument would be that all of the stuff the council says should have been given to the jury was except for testimony about the coercion yes about the coercion by the prop the prosecutor said he'll go you may be prosecuted if you don't yes and what about that and the answer you think probably is that even if they'd heard that evidence it would have made a difference yes yes again and that's based on my understanding of of the other evidence which indicated that tyler was the shooter but he answered that looking at the instruction that was well first in looking at the jury's question which is indeed a question and there's no rule that you can't if a jury is indicating perhaps some difficulty and agree there's no rule that because it's a death penalty case you can't go forward and give an appropriate instruction so the error in the instruction is or the clearest error in the instruction is the portion in which there's a reference to the fact that another jury has just sad the case on another day and things like that does the instruction pretty closely here to a typical model that allen charge given in both federal and state courts except this reference which was inaccurate in the context in which it was given yes and one can argue about whether that that error of state law would actually have the tendency to apply less pressure on the jury to agree that perhaps it would have felt had the instruction bit otherwise but what did you say about that and you know you have to just i be i have to go by just rely on the i mean you think you would were allowed i think we would have relied on that very fact that it's a new first again basically an incorrect statement of state law doesn't get you very we would have to find that a man into a deep process yes and again i think the supreme if we were considering this issue which we may or may not be appropriate for our consideration again the sensually my recollection is the supreme court wow said well it may have been wrong but but there was no element of coersion it i mean there was nothing in the instruction that was to could be reasonably interpreted by the jury as coercing them into reaching a verdict i mean it may have been an increase statement what part of the instructions might to my right understanding it's not a standard part of the instruction that's right and of course just to add to what you're saying your honor is that course we would submit that you just can't get to the underlying point i  again that if you look at this really in the big picture i guess it is the the best thing to say is in the big picture the court the district judge reviewed the petition reviewed the many many somewhat convoluted claims issued a judgment and normally that's that that's the assumption that courts big judgments and they decide what's before them and the judge denied relief and in that to the idea that we we felt initially there was enough in the record to indicate not simply that but the judge in fact did assess did do some reasoning in assessing of that of the merits of the claims without simply fled just den given that in given really the barrier although the barrier erected by post is somewhat lower perhaps somewhat weaker nevertheless the barrier that directed by that case and the statute and the general idea that mistakes of counsel are attributed to the client given the length of time involved we would submit all those things together your honour's would indicate that district court did not abuse its discretion in denying the rule sixty b motion and again we get back to the standard view which is abuse of discretion no clear laws here no clear fact u judge their religious yours i agree what you read that's what it says the analysis does not include the analysis of of those claims  of the of the head claim it does suggest it was defaulted i can tell you the it was improperly the fault and there's no discussion me it's improper to say that it was to fall yes and but the analysis from the court goes on to say there was no analysis i will they do sort of to talk about no you are you're correct the issue is stronger on the jury instruction claim clearly it is the district court denied this girl sixty b six petition not because and i would suggest to this court that the district court is the best arbiter to say what it because it found the grab a moment of this complaint was the court's inadvertence mere inadvertence and not the attorney's inexcusable neglect there is a strong line of cases and it starts with holland versus florida where judges a little makes clear that when lawyers don't respond to the clients that we don't constructively attribute their actions to them those were the extraordinary circumstances of equitable tolling and they are the extraordinary circumstances of sixty b six that became the holding in maples in the context of procedural default the language of coleman where we attribute the behaviors of attorneys to their clients is the language of inadvertence and the language of ignorance this was not that the letter from mr tytler  his lawyer you have to address this issue the government says this issue under ohio law is clear if the jury is not unanimous for death then it is an automatic life sentence and the instruction to them is go back and decide whether it's twenty years before you hit the board or thirty years before you hit the board in this case when they come back and say some positive that death is not warranted this was after two days of deliberation according to the supreme court of finding and some say the other ways the instruction is and go back and decide which li going to be killed in less than four months and this claim has not been adjudicated and there is no indication by the district court who in fact the district court in its decision and the pages eleven sixty nine it makes reference to the fact that the attorney general acknowledges that the district court did not address this claim if the court had addressed this claim it is far stronger than any claim that this court has heard in this case it is far stronger than a claim of insufficiency of evidence on the on the brady claim is stronger than any claim because it is an acquittal of the death penalty and that's it further after they asked the judge what if question or is the claim about the constitutional climb about the content of the instruction that was given because only death needs to be unanimous that the jury could not agree at that point or is that the content of the instruction that was given which was really the subject of the ohio supreme court's finding of there about whether a jury is in fact dead law and whether it's a jury hon during the death penalty or one not the trial judge in this case apparently interpreted this question as not a declaration that the jury within that ultimately unable to agree interpret it it as a question about what he had and the end the court answer so the question is was the day you're not to accept the deadlock at that point or was the error the giving of the further instruction in the continent that instruction or both it was both because the content of the instruction is would there be it was there be would there be are both considered separately of constitutional dimension to the extent it's there is a there's a lesser due process claim when you violate state law in this context because arguably it was an acquittal for death the but it is the idea of going back gonzales talks about the virtues of finality as a policy stand alone or given a little weight in the context of sixty billion that in thompson versus belt this court the furring to u death is still inherently different in this case and every response to your your question i would suggest that in our brief we did cite two columns first says miller it's  an old case it's one nine hundred twenty s but the supreme court talked about that in the heaviest context that for arguably for a judgment to be appealable for a judgment to be final it has to include not just the whole subject matter but it says as to all causes of action involved and counsel i just want to tell mr osman i in order to figure this