you in your honour's get after me and please the court my name is heather fraley and i represent the appellant john snow i would like to reserve eight minutes for well we simply don't have time today to based on a confluence of factors that his amended petition would be timely if filed in accordance with the court's scheduling orders nd mr snow's trial counsel was ineffective for failing to investigate present mitigating evidence and rd the district court clearly erred in failing to give mr snow the benefit of martinez versus ryan as a mechanism to overcome the default of his remaining ineffective assistance of counsel claims unless this court would like to begin elsewhere i'd four point seven two six is not independent from wall as applied to mr snow's brady claim why should we also find that it is not independent as apply  his and well your honor because the facts that went into the nevada supreme court's consideration of of all of those claims was very much into really and just as the court would have been looking to the evidence of the state's failure to disclose its relationship with mr morelli in connection with the brady claim it would have been looking to that same evidence in connection with the review of whether the messiah claim was  and similarly with review of that improved claim that he that the state knowingly presented false testimony as it related to his the fact that he didn't have allegedly there was no deal given so because of the factors that are considered under brady are so analogous to the factors that are considered in the merits of a messiah claim and then the claim we believe your honor that the default are would not be adequate as to the us either and in particular iran or in the us supreme court in dismissing those claims does pacifically state that there was no materiality issue and certainly those the issue of materiality would have been relevant to those other claims as well so because the the holding that there was no prejudice was direct plea in a related to the court's assessments of materiality for the same reasons under cooper b neven at this point should find that the default was not adequate as to those claims and slightly different question but on a related topic and that is in reading the main text of the opinion it seems clear that the the footnote and the order then seems to direct that footnote on each of the evidence that was not available and a for the trial court or was available prior to the trial so i'd be interested in your thoughts as to whether in fact if by separating that out we should look at chaunge evans was was not material generally so we do think that the court was referring to all of the evidence but i hear you but then the court really starts out in a footnote we know that some of the evidence didn't exist before the trial and then goes on and talks about materiality it seems to me with respect to that him and them so why wouldn't we want to make that distinction as well well you are even if the court was to make the distinction that the post trial evidence was not material certainly we can demonstrate that the other evidence that was available was material and that and so that is an example of something that was not turned over to mr snow he did not have access to based on the state's open file policy he had no reason to believe that anything like that existed certainly mr morley testified that there was no deal but when we look to that evidence and also when we look very importantly also for tolling arguments to the evidence regarding the c c c logs we see that mr morel it was being visited multiple times by the primary detective in the case and that certainly goes to supporting our argument that this that there was a deal going on and as to whether the evidence was material mr miller's testimony takes up the bulk of the state's penalty phase presentation and certainly evidence that mr snow had allegedly solicited the murder of one of the state's witnesses would have had a reasonable probability of affecting the outcome of this case where it was supposed call in the penalty phase when it came to the aggravating evidence the prior convictions that were presented in this case weren't particularly bad a lot of them were very old and so when you look to the evidence that mr murali received to deal that he gives this very harmful testimony about what mr snow allegedly did certainly it would have been relevant to the jury's determination of whether death was appropriate and whether mr snow would present a danger in the future and indeed the same  because the fact finding process was inadequate based on the post conviction court's failure to provide mr snow with any sort of process in addition we can demonstrate that the supreme court's holding was both an unreasonable application  law as well as an unreasonable determination of the facts so the best cream court held as the mitigation claim in this is that one war one hundred and eighty one that quote the failure to obtain other possible mitigation evidence must be attributed snow's lack of cooperation not to houston's life and to this holding was an unreasonable determination of the facts because trial counsel himself admitted at the hearing that he only ever asked mr snow for the names of people that could say one good thing about him he admitted he never asked for the names of teachers coaches pryor lawyers doctors he never sought out prison records of the prior convictions that he knew the state intended to present against him in the penalty phase of this case it was simply not reasonable of the reasonable terminations of the facts for that aspirin or to hold that it was mr snow's fault for failing to provide basically volunteer mitigating evidence where the record is clear that trial counsel never asked and that holding is particularly unreasonable when we look to the sports recent analysis and the andrews davis case where this court held that where counsel did not need the client's help it's not reasonable for him to fail to see calc evidence and in this case in never tried to get it he never sought it out and he certainly did not need mr snow's help to get that evidence which clearly would have been relevant for him in trying to rebut the state's aggravating presentation in the penalty phase so in addition we can tell from the record isn't it true that you didn't know until this morning when i told you in the hallway that you were here to testify in a capital case in other words she elicited on the record that she did not know until the morning of her testimony that her son was facing the death penalty so because we have satisfied the deficient performance prong this court's review of the prejudiced prong is to know who court never moved on that issue and when we compared the evidence that was presented which again was four pages of it that was really the sum total of mitigating evidence that was presented if all we do is compare that to the fifty pages of mitigating testimony that was provided in the one thousand nine hundred and seventy drug conviction it will be done with a team that transcript and present that evidence there is a reasonable probability of a more favorable outcome here remind me counsel once once i'm not seventy pages yes your honor so in that seventy pages we have testimony that mr snow was raised in a in a d economically disadvantaged area and that and transcripts indicate that mr snow's mother was addicted to diet pills and that as a result mr snow became addicted to drugs age of twelve despite that drug addiction mr snow went on to go to high school and to college he ended up having to drop out of college due to financial out of prison from that mr snow was able to get a job at westinghouse he was fired from that job due to his involvement in a civil rights committee in that business after that he received a back injury in one thousand nine hundred and sixty eight which led him to be given pain medicine that against what might have been presented so we're looking at basically no mitigation versus some medication nd the court must compare the sort of the aggravating nature of the crime itself and then a lot of the cases like andrew's for example what we do have sort of this crazy mountain of mitigating evidence the crime in that tape was so much more aggravated than the crime in this case where we had a triple homicide involving rape and sodomy here and we have a murder of an adult male victim by a single gunsho certainly all murders are tragic but when you're looking at the prejudice inquiry it is relevant the crime and also the fact that no mitigating evidence was presented and your honor i would direct you to this court holding in smith versus steward which was also a capital case that was tried in ninet and in that case that this type of mitigating evidence that this court found to be relevant to the prejudice that inquiry was precisely the kind of evidence we have here you are so in that case we have this holding and this is that one  thirty sixty nine this court says quote we know that counsel could have at least pointed to smith's sociopathic personality his bad drug history his changing personality after a large drug overdose and his fine set of family relationships that was it that was all that this court had to see to say that there was prejudice in that case similarly here we have the doctor's testimony at the one thousand nine hundred and seventy proceeding that mr snow had a psychotic personality disorder we have the testimony regarding the disadvantaged upbringing that he attempted to go to college and have jobs that he became addicted to drugs as a result of a back injury and it was that drug addiction that led to every single one of his prior convictions and so again when you're comparing no mitigating evidence against this mitigating evidence and you're comparing it against the nature of the crime in this case not to mention your urine you're looking at all of this stuff together with the harm from the arguments that the prosecutor wouldn't wouldn't have been able to make here if patrol council had presented this and if you look at it in conjunction with the what happened on the record with a jerk you can in where that particular jerk got called the prosecutor during the penalty phase closing argument to warn him that the jury was going to quote mr snow go so we know from the record that the jury was leaning towards a life sentence and in fact it was only after  made a list of top ten reasons outside the record when mr snow should be sentenced to death that the jury then sentence mr snow to death so when you're looking at the cumulative impact of all of these things and you're looking at the comparison of no mitigating evidence versus evidence of drug addiction pelligrini decision in two thousand and one held that people had until one year after the in the thirty four seven to six so by the time mr snow was on notice that he could have filed something under that statute the time had already that chapter one hundred and seventy seven and thirty four seven hundred and twenty six are interchangeable so mr snow would have been she would have been subject to the exact same one your time bar at the time of his st a post conviction not only that he was also subject to the success of petition time court must look to the petition that was filed in one thousand nine hundred and six and that is because whether we're applying thirty four seven to six or we're applying chapter one hundred and seventy seven both of those statues are clear a petition must be filed within one year of the plan none of those has anything to do with anything that the state or the district court is talking about whether it relates to a causal nexus or whether it relates to an explanation of all of the time that supposedly elapsed n word during his penalty phase closing arguments as well as the claim i referenced earlier regarding the juror who injected extraneous information into the jury mr snow has never and will never receive the merits judy cation of those claims because they were dismissed time left on their file that they needed to make sure that they file their amendments within their at the time by the time it was decided mr snow was already long after time there was nothing instructive in that case as to what he needed to do now you wish but you wait i'm sorry but you waited because mr snow did not think that his case was being governed by the at the anyway based on the wording of the nine hundred and ninety seven dismissal order mr snowden didn't believe that his case was going to be governed by and he did brief that the nature of the dismissal order stated that the at the didn't apply indicated that the court wished to retain jurisdiction over the case so mr snowden thing yep applied to him to begin with nd of all he had just been granted discovery at the time that mail was decided in june of two thousand and five the court had just in april of two thousand case like this you could continue with discovery people are asking was discovery but the fact that the court and for hannah discovery makes no substantive judgment it seems to me whether you have a lamer you don't have a claim or you're too late or you should have done it before so i have some trouble with that argument and maybe you can dig me out of this hole because i think i read and re read those district or orders and they seem to not be very about the topic you're talking about or misleading you are the reason that they're misleading is the same reason that the orders were misleading in sosa and in williams and that is because they can in they conveyed to mr snow that if he filed his petition in accordance with the orders that he would be timely so when the court granted discovery it ringback it it did so on the basis that the state had twice failed to comply with prior discovery orders that have been issued by both the state and the federal court so you therefore you get to discover all of this stuff and indeed mr snow did not receive his st exposure of evidence from the state until april of two thousand and six nearly a year after mill was decided it's simply he didn't have any reason to believe at the time that mail came out with the discovery order ringback just issue number one number two with the standing scheduling order of that stated you shall file one final amended petition containing all of your claims for relief after discovery is completed mail had any impact on mr snow's ability to file an amended petition otherwise those orders wouldn't make sense just as they didn't make sense in williams similarly the state clearly didn't think that mr snow's amendments would be untimely because it did not assert the time because it acknowledged he had good cause to do so certainly if the state thought it two thousand and seven that mr snow's petition was untimely it wouldn't have stipulated to allow him to return to state court for further proceedings thereby extending the proceedings for so it's clear from properly alleged messiah claimed in two thousand there for your honor because we had no idea that the lead detective in mr snow's case was communicating with mr murali prior to him giving his statement in this case and prior to the action that happened on the record where seaton represented that certain things would happen it was only after we found out that those pre or prior communications were happening that we had any indication that they had actually sent him in to talk to m but we did not know that there was a a potential messiah claim until we knew that the lead detective was going in to solicit this information from mr morel it was our understanding that he simply came forward with this evidence it was only after we saw that the detective went in to speak to him before he gave his statement and then after that and then right before his testimony that we were able to figure out that they had probably sent him in to obtain this information thank you thank you thank you mr connor supreme court determined was that mr snow had had discovered the basis for the reallocation and did not raise it within a reasonable time which he was required to do under state law rise to a basis for cause to overcome a procedural default has to be raised within a reasonable time and so that was the basis for the investment court's decision as to the absence of cause was that mr snow knew about the evidence and didn't raise it within a reasonable the problem because the rationale you just offer does not extend to the point given what we just heard from your own or it wasn't until two thousand someone that they discovered the critical piece of evidence that allowed them to them to be able to make a messiah claim that they could not have alleged or that but to the extent that's true if that would have been if the separation in time for the discovery of bad evidence would and the raising of the messiah claimant state court was made within a reasonable time that would undermine the nevada supreme court's decision now but that that been there just becomes an error of state law kaunas and then it goes on to the materiality i hear the case that you're quoting but how is it if the court is actually in determining that these disclosures were not court if a state court is analyzing a question of federal law for purposes of purely for purposes of determining prejudice and a cause and produce analysis that doesn't play with application of the bar and i think that that  comes to a very fundamental point in how state procedural default rules work and how or at least how nevada's rules work is that you have a state procedural bar and then there are exceptions to the bar so there is a decision to apply the bar the bar is applied by the court in the venn they do the analysis to see whether or not cause and prejudice can be established to get beyond the bot the decision to apply the  itself is not dependent on any federal question about what it is the federal question is whether or not they can show cause and prejudice to get past those are two separate knocks i understand that but in iran of course the court was quite clear what it was doing and then you know the goober case no how does your argument fit with the well with respect to cooper i think that potentially you having the circuit conflict between moran and cooper that cooper would say that that does intertwine the application of the bar with the brady analysis moran says it wouldn't so you potentially have an interest or complex there that's that's a problem and that and i can't tell you guys how to resolve it because at least with my be happy to provide that what i can say is that if you look at the polling the decision itself it breaks breaks down this goes back to a very confusing aspect of nevada law from the from the seventy's and eighty's that there used to actually be two different post conviction remedies that you petitioners could file a chapter one hundred and seventy seven petition and the chapter thirty four petition there were two separate things but they were both petitions for rid of p b s corpus so the chapter thirty four are under thirty four and twenty six was newly put into place in the early ninety's when they got rid of d chapter one hundred and seventy seven to streamline state hey b s in nevada and make it a singular remedy so that the cause standard for prejudice when you're applying martinez is a federal standard that being the case though martinez is an equity my alternative response to this is  is an equitable ruling it's not a hard and fast rule and it seems problematic to me that martinez would create a situation where up to shirt could discover basis for cause to overcome if that that seems like a problematic result to me that martinez is posed to be an equitable war in that for a petitioner to wait twenty some odd years to raise additional claims of there has to be an end to litigation at some point you know you may be right about that because you raise a lot of the arguments that would counter the filing of the titian but on a more precise level isn't that her decide that issue i think especially because that is a pretty background issue that would be appropriate for the district court to decide in the st th if the court doesn't have any further questions on that step i would like to address counsel's argument with respect to ground ten k and the ineffective assistance of counsel with respect to investigation of mitigating  covering the plot to murder a prison guard and then also there was some reference to to two doctors from a prior criminal proceeding had made some about mental health evaluations for mr snell one significant problem i see with that though those two aspects of the claim excluding the procedurally defaulted evidence certainly you know of the martinez issue is going to o find documents that haven't been and i haven't even been created yet and when you look at those documents the information that's in those documents is actually information that counsel would have needed snow's  be able to identify and find that information we're not talking about counsel's failure to go find a court record or you actually look at the district court record in this case and poll that postcondition counsel's affidavit that was file and eighty six that he acknowledges that he talked with the doctor in the doctor wasn't sure that his his testimony had ever even been transcribed and i don't know that they pointed to a transcript from a court records or anything like that where that information would have been available additionally the information about under covering a plot on the murder of a prison guard that wasn't in how it is that counsel could be expected to find those things without mr snow's assistance which was the basis for the nevada supreme court's decision on the deficient performance problem with respect to the claim that was raised in that  apologize for that but i think the merits of ten k as it exists before this court fails because there has been court was reasonable in determining that counsel could have been expected to find that evidence moralise probation hearing and the letters of the prosecutor and detective miller wrote to the poor who are on his which he discovered i guess in march of two thousand and four to follow him in a petition is pretty significant but i think there's another aspect to this not being addressed and that is that duncan burst walker case which was decided in the earlier earlier in two thousand and two i believe where the supreme court acknowledged that a pending federal he's petitioned does d not hold the actual asians and so why it was reasonable for them to rely on a scheduling order when they know that a pending federal decision came out this changes the way that our understanding about how this back works we need to follow as i'm in a petition now to protect our client's rights and you know that the district court would not allow them to do that and then subsequently file another petition one when just every was complete i also find that would be hard pressed to find that a panel of this court would would conclude that it wouldn't have been an abuse of discretion for the stronger argument for equitable towing that they had this court decided in williams that the the combination of the missing you know all the ones all these cases are getting decided that that was because there was a lack of clarity in the law that was a basis for them to to seek equitable tolling but once all these decisions are being made and that put them on notice the other thing is that two thousand and four the supreme court  decided plyler versus ford where the court acknowledges that unless there is something that's affirmatively misleading in the order then it's not a basis for tone and so honestly that that's how relation back to work is that is should they should have filed an amended petition through in everything that they did they knew that and you have to understand like when you when you compare like combine this also with the standard of what they're supposed to do to get discovery not to mention that you read that those discovery orders very closely judge pro was very specific about they were only allowed to do discovery on things that were to hide the things that were actually in their  instance if you look at if you look at you know they've filed a motion for judicial notice in this case and all the motions to dismiss where our office didn't raise the statue of limitations with respect to the relation back issue they sought after two males decided in two thousand and five the last one i think was from october of two thousand and five where the attorney in our that  but it's an area where i think that all collapses together and i don't know that it's that the standard is that the only conclusion to reach is that it has to be reasonable for them to rely on that and i just don't i just don't see that that was judges do judge do as analysis is and system with this court's decision and williams and so because of the lack of clarity in the law with respect to duncan and  representing him for three years petitioners would be untimely and there was still a lack of clarity for petitioners like mr snow who is at the time expired before mail was decided as to what they were supposed to do to ensure relation back here it was reasonable for m support its argument that the claim was untimely mr snow did not and could not obtain the visitation long term c c c until january of two thousand and seven and i would note that is only after mr snow was forced to file multiple motions to compel the state to turn over the evidence the state cannot hide evidence and then blame a petitioner for failing to raise a claim on the basis of that evidence any sooner similarly present relates to the messiah claim whether he would have been on could not get the logs until the state finally was forced to turn them over and as soon as the discovery proceedings were completed we filed the petition within less than two months after we received all the discovery so for that reason that claim ought to be  y and when it relates to this issue of the intertwining clearly under cooper v nevin the issue was intertwined also we would argue the foster be chapman and the supreme court's decision and indicate that what the state said in mirpur what th anyway the transcript from the one thousand nine hundred and seventy proceeding that we're primarily relying on today was presented to the nevada supreme court state post conviction counsel obtained that transcript and presented it to the state court if you look at your fifty seven to two you will see counsel's motion to the state district court where he attempts to present that transcript the state district court refuses to consider the transcript and then if you look at you know our five th five you will see the appendix that staplers conviction counsel attached to his briefing to them about supreme court and in that appendix you will see that transcript is included so the transcript would rely on was contained within that and so for all those reasons the state has conceded were title to remained at least on the martinez and pulling issues and we would ask this court to do so and to also find that mr soames and hamilton county and thank you thank you both counsel for the argument today and the