Legal Case Summary

The Honorable, the judges of the United States Court of Appeals of the Court of Appeals of the Court Judgment. Darin The Honorable, the judges of the Coast Guard were stated to take care of That's all what I've written. We're leaving you to the part that's been out there about three minutes. Okay, all right, this is a grand, let's go. Now with your notice, I am gonna sit in person and describe it first. this morning. Martinez V. Ryan provides the state cloud will review councils in effectiveness and failing to present trial IAC claim may establish cause to excuse the procedural default of that claim. The court's rationale for this decision is that the initial review cloud will review proceeding, if undertaken with ineffective council, may not have been sufficient to ensure that proper consideration was given to that claim. In effect, without the benefit of Martinez, a petitioner, including Mr. Fowler, would get only one chance to present his trial in effectiveness claims in state court. For this reason, Mr. Fowler's case should be remanded to the district court so that he can have the opportunity to present trial and effectiveness claims under Martinez

. Could I just clarify one thing, Martinez or Trevino? And the reason that I ask is that I believe in your opening brief, you seem to suggest that all trial IAC claims in North Carolina had to be raised in post-conviction proceedings. But that doesn't seem to be the case and you seem to have clarified that a little. Yes, Your Honor. I think Trevino makes clear what the intent of Martinez is, which is, Martinez is not setting this right line rule where if any imaginable trial IAC claim could be presented on direct appeal, and Martinez is not applied in that case, what Trevino says is that if it's highly unlikely in a typical case that you'll have a meaningful opportunity to present your trial IAC claim on direct appeal, then Martinez and Trevino apply to your state. Not only the only purpose, and I apologize for interrupting, but the only purpose for my question was to make sure that actually you're not contending that North Carolina is a Martinez state, it's actually a Trevino state, which I thought was where you were ending up in your response. Yes, and that's correct, Your Honor. Thank you. Sorry for the short. No problem. And just getting back to that point, the rule from Trevino is that if it's highly unlikely in a typical case, the council will have a meaningful opportunity to develop a trial IAC claim on direct appeal, then Martinez and Trevino apply to that state. And the North Carolina case that there is really the main case that addresses this issue, state be fair, says very similar language, that if it's likely that council will not be in a position to adequately develop many IAC claims on direct appeal. How, if at all, is that different from the rule in the Fourth Circuit? Poor

. IAC claim. In terms of direct appeals in the Fourth Circuit, I'm not precisely familiar with the rule in the Fourth Circuit, but I know that the way the Fourth Circuit has interpreted the North Carolina rule in Macarver B. Lee is also on point with that. The overwhelming majority of trial IAC claims, with the exception of this very narrow category of cold record claims that the state in its own response refers to as a limited category of claims. Only those type of claims can be brought in direct appeal. So assuming our U-Indo that the Fourth Circuit rule and virtually every other circuit rule to my knowledge is pretty much exactly the same as North Carolina's rule, does that mean that the dissenters in Trevino were correct that what Justice Breyer was doing was simply create overruling Coleman by saying that in effect no lawyer who represents a defendant in a first post convictions state post conviction can represent that defendant in a 2254 action. Where are the cases? Is that where we end up? Practical matter. I guess I have to, to that second question, I think that may be the case, or that alternatively some third council would need to be appointed to look into the any Martinez claims, but I don't think it means that. That could be pretty messy, couldn't it? But wouldn't, don't you think most courts would just say okay enough of this, you just can't do both? I think that may be the case, yes. And essentially that's what you're asking for here, right? That is what we're asking to do here and I think as we've looked more closely at this particular case, at first we thought that there was no conflict in this case for our purposes, but as we've looked at it more closely and this is a new issue, I think we've seen that it's much more likely that conflict does exist in this case and that the district court would, and all likely, need to appoint new council to look at any Martinez issues in this case. Tell me that again why you think new council may should be appointed. Well I think there's two potential reasons for that, two likely reasons for that

. The first is that one of Mr. Fowler's state post-conviction attorneys, Faith Bushnack, represented Mr. Fowler until June of last year when I was appointed to the case. Until that time, during that time, starting from 2011, Ms. Kenney, my co-counsel, was also counsel on that case. But hadn't the Marvin file by Greenwald and Teach-Out? You had an event in the ones that had researched the record and had determined what claim for going to be filed if Andy were regard to ineffective assistance of council. I think certainly Teach-Out and Greenwald, but also Bushnack and... Bushnack wasn't appointed until two years after or 18 months after the Marvin file. That's true, but that was still part of the initial collateral review post-conviction proceedings that extended Ms. Pendry and Ms

. Bushnack, represented Mr. Fowler for the filing of the amended MAR and during the evidentiary hearing. And as we know from Martinez and Trevino, that evidentiary hearing is very important for the development of trial I.C. claims. But don't the facts here indicate how rapidly you run into the logical limits of the argument, because by my count, Mr. Fowler was represented by Mr. Glover on appeal, and then Mr. Greenwald and Ms. Teach-Out, and then they withdraw, and then Ms. Pendry is appointed to replace, and then Ms. Bushnack

. Mr. Fowler has been represented by a succession of independent council, all of whom had the opportunity to look at and pursue an investigation of of post-conviction I.C. Isn't that not a fair assessment? I think everything is correct except their ability to look at post-conviction I.C. because they were still in that initial post-conviction review proceeding, and that was their only opportunity to present those I.C. claims was part of that initial post-conviction review proceeding, which included that initial MAR, and then whatever Ms. Bushnack and Ms. Pendry did, and then the evidentiary hearing. There was no ruling on any of the issues in the case until after Ms. Bushnack and Ms

. Pendry were on the case, and it would have been very difficult not impossible to present a post-conviction I.C. claim, or claims that hadn't even been decided yet. But the purpose of appointing independent council is so that fresh eyes look at the record, other than the eyes of the attorney whose activities and actions are being examined, and it seems to me that that's happened at every stage, that when the MAR was filed, you have a different set of attorneys analyzing the record and determining what claims are going to be made, and then attorneys are changed so that when the federal habeas action is filed, we've got new attorneys then taking a look at it and making determinations. It just seems to me that the purpose of having independent council has been fulfilled in this case. Well, I think that the purpose of federal habeas, some of the attorneys were the same. And again, those attorneys, not the same as the one who filed the initial motion for appropriately. That's true, the initial motion for appropriately. But again, I think that's the say that they were, there were simply new attorneys coming in to take over during the same proceeding, is very different than from what Martina has talked about, which is a after your through one stage of an initial, the initial post-conviction review proceeding, you don't have the opportunity to come back in another proceeding to present that claim. That's the key difference that Martina's the difference between a direct appeal claim and a claim presented in post-conviction. And the fact that he had additional attorneys appointed later during the same post-conviction proceeding doesn't resolve that issue. So in your view, post council has to be appointed afresh after the completion of any state MAR process

. I think that the direction where Martina is going, yes, Your Honor. My question was to you, is that is not what you think should have happened to? Well, at the time there was, with the hindsight of Martina's, yes, that is what should have happened. But of course, at the time, this newly created Martina's rule was not in effect, so it was not known. But it should have been at the time, if that case had been known. Since the trial was concluded, how many different lawyers is this dependent here? Your Honor, I would say it's been seven, perhaps I should say. Seven lawyers since the trial examining the record for there was which would include I, I see plenty. But I think what Martina's gets to is not the number of attorneys or really, how many attorneys have looked at the claim. It's the type of proceeding. It's whether you have the chance in that proceeding. There's not any distinction talked about with, you know, new attorneys getting on the case, certainly not at the same state post-conviction proceeding. The fact remains is that for any of his non-cold record claims, Mr. Fowler's, one chance to present his trial and effectiveness claims was in that initial post-conviction review of the case

. I know that our great order and the juniper order suggest if they don't say explicitly and they probably do, that we don't require 2254 council actually to identify some state that they themselves might have made. But it would be awfully helpful here under the circumstances because as you just responded to Chief Judge Trackser, I mean we've had a revolving door of attorneys in this case. Can you proper what you think is the most colorable potential claim here? Sure, and I would just preface this by saying that of course I think there may be other claims besides this one which is a need for their investigation. But certainly it relates directly to the claim, the eyewitness identification claim for which we're here on the certificate of a pillability. You know there's this eyewitness identification in this case that the district court itself in its order described as a questionable eyewitness identification. There were some issues that came out with it a trial that called it into question. But what did not come out until state post-conviction proceeding, its reference in the brief, is that after Guzman, the eyewitness, identified or made a sort of uncertain identification of Mr. Fowler in the second photographic array presented to him by police, the police then told him that Mr. Fowler had boasted about committing the crime and then had used the money he got from committing the crime to go buy drugs. You say that didn't come out until when? That did not come out until until the state post-conviction proceedings. That fact was discovered but it was never presented as a trial I see claim. It seemed highly likely to me that it was ineffective for trial counsel not to investigate Guzman to send a private investigator or someone to go speak to him

. This came out in state post-conviction. Do we know that counsel did not do that? There's nothing on the record that I've seen to indicate that counsel did that and then when it came out in state post-conviction. Do you not saying the counsel failed to do that? You're saying there's no showing the record whether counsel did or did that? I don't believe counsel did. I think I would need further investigation to confirm that 100 percent but I don't believe counsel sent an investigator or spoke to Guzman beforehand or clearly did not take the steps needed to discover this fact because I think it clearly would have come out in the pre-trial here. When the motion for probe and the post-conviction counsel discovered this fact they didn't really do anything with it. They hired an eyewitness identification expert who had spoken to Guzman and that's how this fact came out and then Guzman later testified to it at the hearing but they never presented it as a trial I see claim for the failure to investigate that fact and at least based on just my review of the record that appears to be a substantial claim of trial effectiveness. I'm a miss bigot to accept your argument and arrive to new counsel. Do we have to presume that when these new counsel appointed midway through the proceedings that they did nothing on their own they know independent examination of the record as newly appointed counsel to determine if there were other claims that had not yet been asserted and to be specific so you understand to be more specific with my question. For example the Marlowe's filed in 2002 and two years later roughly miss Pendery and miss Bushnager appointed. Before a decisions issue do we have to presume in order to accept your argument that they didn't know independent examination of the record to determine if there were other IAC claims that could have been made that weren't. No you're right I don't think we need to presume that I can't say for sure exactly what they did but again the what Martinez is getting at is the is the fact you have that one chance by meaning the proceeding to present those claims. So counsel could have looked into it further but certainly to determine whether part of what you need to determine whether counsel or post-conviction counsel were ineffective is some sort of outcome and by that point there had the case was still pending and it's still represented only only one chance to present that claim

. So in your view Martinez is proceeding specific. There not only has to be independent counsel there has to be pre-conviction counsel post-conviction state MIR counsel and then federal ABS counsel. It's certainly in this case you're on our yes. And the unique the specific uniqueness of this case would be what exactly? Well I'm merely to say that I can't speak to other cases but I think that would be the likely outcome in another case where you know if under Martinez to have the same counsel that represented in federal ABS the representing counsel represented the person in state post-conviction would be problematic and I think that's where Juniper and Gray have a two previous decisions by this court were already heading in that that direction anyway. Let me switch gears on something we should show it but my next question. I mean you're I I wish I have about two and a half minutes left and I would like to address my COA issue as well. I'll give you the time to do it. With the consent of my colleagues. One of the things that concerns me is that this issue is being presented to us in the first instance that it was not presented to the district court. Counsel and Gray counsel and Fowler knew to raise this issue and it was raised and adjudicated. Here you're we're being presented to it. We're having it presented to us for the first time on a appeal. That causes me a problem whenever I see an issue coming up that the district judge is not ruled on. So what explanation or a way around that problem would you say? Well I think this does present kind of a simply inevitably because of the timing of when Trevino came out that this would come up on appeal. It was not clear that Martinez applied to North Carolina until the Trevino case was decided and that was that decision was made on May 28, 2013. We were already in the fourth circuit by the time that decision came down. So it became and on top of that the issue with Miss Kenney's co-counsel having a potential conflict until Trevino came down and I was appointed on the case. It was not really possible to present that. But on the fresh eyes issue on that issue, why is this coming to us now for first time on appeal? As opposed to I'm sorry. Why wasn't the issue raised in the district court that he's entitled to new counsel because he's entitled to have independent counsel to review the record in the state post-indexional meeting? Well I think that gets to the Trevino issue. It may not have been because of the claim was not discovered or was maybe not known but the fact that Trevino was not decided this claim did not exist in North Carolina until that time. And additionally that conflict issue did create a problem with identifying issues. I think Gray's the first case to address Martinez issues in the fourth circuit says that there's even a problem to have counsel conflicted counsel identify an issue. You wanted some time

. That causes me a problem whenever I see an issue coming up that the district judge is not ruled on. So what explanation or a way around that problem would you say? Well I think this does present kind of a simply inevitably because of the timing of when Trevino came out that this would come up on appeal. It was not clear that Martinez applied to North Carolina until the Trevino case was decided and that was that decision was made on May 28, 2013. We were already in the fourth circuit by the time that decision came down. So it became and on top of that the issue with Miss Kenney's co-counsel having a potential conflict until Trevino came down and I was appointed on the case. It was not really possible to present that. But on the fresh eyes issue on that issue, why is this coming to us now for first time on appeal? As opposed to I'm sorry. Why wasn't the issue raised in the district court that he's entitled to new counsel because he's entitled to have independent counsel to review the record in the state post-indexional meeting? Well I think that gets to the Trevino issue. It may not have been because of the claim was not discovered or was maybe not known but the fact that Trevino was not decided this claim did not exist in North Carolina until that time. And additionally that conflict issue did create a problem with identifying issues. I think Gray's the first case to address Martinez issues in the fourth circuit says that there's even a problem to have counsel conflicted counsel identify an issue. You wanted some time. Sure, and my time is I think I've 10. I may already be over but I'll go ahead. Well you're just to talk briefly about the certificate of appealability issue. And this is a case where Mr. Guzman after he saw got a five-second glimpse of a person that shortly after he heard gunshots in the Howard Johnson's lobby then as he was presented with a series of photographic arrays by police made five tentative identifications of the person that he saw. It was only he wasn't even able to identify Mr. Fowler in the first photographic array. It was only in the second photographic array that he tentative identification. And then well what we also know from the additional facts that came out in the motion for appropriate relief was that police then told him that Fowler had boasted about committing the crime so that his identity was already confirmed once as the correct suspect in the eyes of police. And then the police did nothing, stated nothing for almost 18 months until they called Mr. Guzman in for a meeting shortly before a pre-trial hearing and told him that Fowler was suspect in the case and where he would be sitting in the courtroom. And it was only after that that Guzman was able to make this very certain identification despite being very uncertain when presented with these photographic arrays

. Sure, and my time is I think I've 10. I may already be over but I'll go ahead. Well you're just to talk briefly about the certificate of appealability issue. And this is a case where Mr. Guzman after he saw got a five-second glimpse of a person that shortly after he heard gunshots in the Howard Johnson's lobby then as he was presented with a series of photographic arrays by police made five tentative identifications of the person that he saw. It was only he wasn't even able to identify Mr. Fowler in the first photographic array. It was only in the second photographic array that he tentative identification. And then well what we also know from the additional facts that came out in the motion for appropriate relief was that police then told him that Fowler had boasted about committing the crime so that his identity was already confirmed once as the correct suspect in the eyes of police. And then the police did nothing, stated nothing for almost 18 months until they called Mr. Guzman in for a meeting shortly before a pre-trial hearing and told him that Fowler was suspect in the case and where he would be sitting in the courtroom. And it was only after that that Guzman was able to make this very certain identification despite being very uncertain when presented with these photographic arrays. Could you help me print backing up, I mean preliminarily. How is this issue before us? This issue was raised in the district court in the Federal Navy's petition and this was the issue on which the certificate of a killer ability was put. But didn't the North Carolina Supreme Court consider and specifically address this issue under the harmless era standard and didn't it say first of all that there was no error and if there were the error was not was harmless? That is correct, Your Honor. And first I guess to address harmlessness there are I think five key facts that I'd like to point to with respect to that. But I'm not speaking to the merits. I'm speaking to a key what seems to be the linchpin of your due process claim. Well that's correct, Your Honor, that they did and I understand that I think that determination was unreasonable by the states of the people because they did unreasonably apply the facts and not really considers irrelevant facts. But was that challenged the determination, the harmless error determination that you are now saying was unreasonable? And in fact I don't think you, as I recall, raised harmless error in your opening grief. Well I think the Supreme Court is indicated that you know harmless error is a affirmative defense for the state to raise so it was not discussed. But you're challenging your father would be challenging the North Carolina Supreme Court's determination. That's correct, right? And as to the Chapman harmless error I think we do discuss the some of the facts that are relevant to that in the factual discussion related to what the district court calls for self-interested felons in this case that really constituted the only other evidence in this case. And that evidence was very questionable and we know that even with this I witness an evocation this was a very difficult case for the jury

. Could you help me print backing up, I mean preliminarily. How is this issue before us? This issue was raised in the district court in the Federal Navy's petition and this was the issue on which the certificate of a killer ability was put. But didn't the North Carolina Supreme Court consider and specifically address this issue under the harmless era standard and didn't it say first of all that there was no error and if there were the error was not was harmless? That is correct, Your Honor. And first I guess to address harmlessness there are I think five key facts that I'd like to point to with respect to that. But I'm not speaking to the merits. I'm speaking to a key what seems to be the linchpin of your due process claim. Well that's correct, Your Honor, that they did and I understand that I think that determination was unreasonable by the states of the people because they did unreasonably apply the facts and not really considers irrelevant facts. But was that challenged the determination, the harmless error determination that you are now saying was unreasonable? And in fact I don't think you, as I recall, raised harmless error in your opening grief. Well I think the Supreme Court is indicated that you know harmless error is a affirmative defense for the state to raise so it was not discussed. But you're challenging your father would be challenging the North Carolina Supreme Court's determination. That's correct, right? And as to the Chapman harmless error I think we do discuss the some of the facts that are relevant to that in the factual discussion related to what the district court calls for self-interested felons in this case that really constituted the only other evidence in this case. And that evidence was very questionable and we know that even with this I witness an evocation this was a very difficult case for the jury. They deliberated on the question of guilt for a full day and we know that the eyewitness identification was a part of their deliberation because they requested that these two photographic arrays that included followers photographed be sent back with them and they were sent back into the liberation room. And we also know that this was a difficult case case but it was a close case by the state because they offer Mr. Fowler and a capital murder case a plea deal that would have allowed him to be released in 14 and a half years and they did rely heavily on the eyewitness identification in their closing argument in the guilt case. Just very briefly if I may you probably have already answered this but if we disagree with you on the COA issue . Could we nonetheless remain for the district court to consider your tribino issue the first instance? Yes, absolutely I think. So maybe you didn't answer it previously because I thought in response to my question about whether there was a colorable issue you were tying the potential tribino analysis to the merits of your due process plan. I think there's certainly separate claims. Factually they're just they they incorporate some of the same facts. But one is an IAC claim and the other is a straight-up due process. That's right, John. I'll think we understand your position. Let's hear from Mr

. They deliberated on the question of guilt for a full day and we know that the eyewitness identification was a part of their deliberation because they requested that these two photographic arrays that included followers photographed be sent back with them and they were sent back into the liberation room. And we also know that this was a difficult case case but it was a close case by the state because they offer Mr. Fowler and a capital murder case a plea deal that would have allowed him to be released in 14 and a half years and they did rely heavily on the eyewitness identification in their closing argument in the guilt case. Just very briefly if I may you probably have already answered this but if we disagree with you on the COA issue . Could we nonetheless remain for the district court to consider your tribino issue the first instance? Yes, absolutely I think. So maybe you didn't answer it previously because I thought in response to my question about whether there was a colorable issue you were tying the potential tribino analysis to the merits of your due process plan. I think there's certainly separate claims. Factually they're just they they incorporate some of the same facts. But one is an IAC claim and the other is a straight-up due process. That's right, John. I'll think we understand your position. Let's hear from Mr. Calaway Durham. I guess I'll start with the tribino issue. I'm really not sure if it's a tribino issue or a juniper issue. I see juniper and gray Martinez and then tribino as having separate and distinct issues for this court to consider. First and foremost Martinez is not about the issue of independent council for say Martinez is about whether or not there's cause to excuse the default procedural default for failing to raise something that Coleman versus Thompson explicitly said you could not do. In other words Martinez is about whether or not there is a narrow exception to Coleman versus Thompson. Martinez is very clear it did not overturn Coleman versus Thompson. It just gave a narrow exception and the narrow exception is not to the constitutionality of council on post-conviction. The narrow exception is A, if you're in a state that did not allow you to raise an effective assistance of trial council during direct appeal, such that your first your initial review process is in collateral state collateral review. And during that collateral review you either didn't have an attorney at all because you're not constitutionally allowed to have one under Coleman or you have one who failed to raise something. Deficient and failing to raise something they don't say you're constitutionally ineffective for raising it they just said deficient for raising. Deficient in raising the ineffective assistance at trial council all roads leave back to trial council

. Calaway Durham. I guess I'll start with the tribino issue. I'm really not sure if it's a tribino issue or a juniper issue. I see juniper and gray Martinez and then tribino as having separate and distinct issues for this court to consider. First and foremost Martinez is not about the issue of independent council for say Martinez is about whether or not there's cause to excuse the default procedural default for failing to raise something that Coleman versus Thompson explicitly said you could not do. In other words Martinez is about whether or not there is a narrow exception to Coleman versus Thompson. Martinez is very clear it did not overturn Coleman versus Thompson. It just gave a narrow exception and the narrow exception is not to the constitutionality of council on post-conviction. The narrow exception is A, if you're in a state that did not allow you to raise an effective assistance of trial council during direct appeal, such that your first your initial review process is in collateral state collateral review. And during that collateral review you either didn't have an attorney at all because you're not constitutionally allowed to have one under Coleman or you have one who failed to raise something. Deficient and failing to raise something they don't say you're constitutionally ineffective for raising it they just said deficient for raising. Deficient in raising the ineffective assistance at trial council all roads leave back to trial council. It's not the constitutionality of the post-conviction council it is the defectiveness in failing to raise a constitutional issue that being trial council ineffective assistance. And if you have those things then you get to you must then raise a substantial claim which is to say you have some merit. And Martinez has a language about what that merit is. In other words they don't want to put a significant strain on state resources. And from what I'm hearing in the questions earlier I think with the arguable seven sets of eyeballs we've had here before we got to this point that it would be in fact a substantial strain on state resources. I don't quite understand that because once the mar is finished what state resources are being expended on behalf of the defendant once the defendant comes into federal court the states off the hook. The state's standing here there's still some resources. The assistant attorneys general around the country will have work to do but that's a good thing for the assistant attorneys generals around the country. And the defense are more often than not they're paid by the state as well. I don't think that's true. You contend that defense council in federal habeas 2254s are paid by the state that's not true. They're paid by the federal taxpayer

. It's not the constitutionality of the post-conviction council it is the defectiveness in failing to raise a constitutional issue that being trial council ineffective assistance. And if you have those things then you get to you must then raise a substantial claim which is to say you have some merit. And Martinez has a language about what that merit is. In other words they don't want to put a significant strain on state resources. And from what I'm hearing in the questions earlier I think with the arguable seven sets of eyeballs we've had here before we got to this point that it would be in fact a substantial strain on state resources. I don't quite understand that because once the mar is finished what state resources are being expended on behalf of the defendant once the defendant comes into federal court the states off the hook. The state's standing here there's still some resources. The assistant attorneys general around the country will have work to do but that's a good thing for the assistant attorneys generals around the country. And the defense are more often than not they're paid by the state as well. I don't think that's true. You contend that defense council in federal habeas 2254s are paid by the state that's not true. They're paid by the federal taxpayer. My reasoning and if I can get back to juniper was simply to go down the road how we got to juniper and Martinez being why there was an obligation to bring a substantial claim. If I can get back to that with regard to Martinez the issue is calls whether or not there's calls under this narrow exception to excuse the fault under Coleman then you get to Trevino. Trevino is not about whether or not there's an effect Martinez arrow. Trevino excuse me is about whether or not one of the prongs of Martinez applies in states where the record on the record they say that you're not allowed to bring excuse me that you are allowed to bring ineffective assistants of council on direct appeal but then they make it virtually impossible for you to do so. That's the issue that's the holding of Trevino in applying now those sets of facts to Martinez. Then we fast forward to grand juniper. The issue in grand juniper was not about Martinez error in so far as whether or not there is a substantial claim. They never got there for reason. This court excuse me never got there for reason. Martinez excuse me. Juniper and gray are about whether or not they should appoint independent qualified counsel for the limited purpose of going back to look to whether or not there was ineffective assistance of trial counsel that was not properly addressed by counsel during the first prong hearing excuse me initial review in Virginia which is in fact the state collateral review process. Could I just parse this so that I'm sure I understand what you're saying

. My reasoning and if I can get back to juniper was simply to go down the road how we got to juniper and Martinez being why there was an obligation to bring a substantial claim. If I can get back to that with regard to Martinez the issue is calls whether or not there's calls under this narrow exception to excuse the fault under Coleman then you get to Trevino. Trevino is not about whether or not there's an effect Martinez arrow. Trevino excuse me is about whether or not one of the prongs of Martinez applies in states where the record on the record they say that you're not allowed to bring excuse me that you are allowed to bring ineffective assistants of council on direct appeal but then they make it virtually impossible for you to do so. That's the issue that's the holding of Trevino in applying now those sets of facts to Martinez. Then we fast forward to grand juniper. The issue in grand juniper was not about Martinez error in so far as whether or not there is a substantial claim. They never got there for reason. This court excuse me never got there for reason. Martinez excuse me. Juniper and gray are about whether or not they should appoint independent qualified counsel for the limited purpose of going back to look to whether or not there was ineffective assistance of trial counsel that was not properly addressed by counsel during the first prong hearing excuse me initial review in Virginia which is in fact the state collateral review process. Could I just parse this so that I'm sure I understand what you're saying. The focus in Trevino which does appear to me to expand the narrow exception in Martinez would you agree with that? I don't believe it expands it. I think it just gives another explanation of what one of the prongs of Martinez is because expanding it in the language in the to expand it so that Coleman is overturned with mean that you are looking to ineffective assistance of counsel on collateral review. You're not. You're looking at the failure to raise something not on a constitutional level but on a factual level that was not raised during trial counsel's representation that was in effect ineffective constitutionally. I'm not to the extent that I understand what you're saying. I'm actually not sure it's either a accurate or b that it helps the state because in Martinez you had as I recall state procedural requirements that failure to bring a claim would bar it the claim had to be made act as a rule matter at trial whereas at Martinez reached out a little far Trevino covers a state like North Carolina where it's difficult where you have this bifurcation you have you can bring IAC claims if they're required to be brought if they appear at the first instance if they are apparent from the face of the record if they require investigation then Trevino says you're entitled to independent counsel but I guess most of all I'm not quite sure why for purposes of your argument it matters okay Trevino is about whether or not it's virtually impossible to bring ineffective assistance up trial counsel on direct appeal right and you would you would acknowledge though that North Carolina that at least it appears to be um foulish counsel's position that North Carolina is a state similar to Texas in that it is difficult because you have this bifurcated process to bring claims IAC claims that do not appear on the face of the trial record like for instance failure to explore an alibi defense you wouldn't necessarily you would need to do a additional post trial investigation for that but that Trevino covers that Trevino is not applicable to North Carolina in so far as the reasons that they gave for applying it to Texas are not or distinctive from North Carolina for instance they gave examples I'm sorry I'm sorry go ahead they gave examples of the time constraints to file this motion for a new trial there was an eight day window before counsel was appointed after sentences but sending things followed by 22 days to decide to file the motion and to raise the claims in the motion where they had maybe 45 days for an extension but they still wouldn't have the transcript in North Carolina you don't have that circumstance first of all but you do have you do have a statute that requires is our call I think it's 15A 1419A3 that as in Texas on direct appeal defendants in North Carolina are confined if a if a position if a defendant was in a position to raise a ground on direct appeal because it appears on the face of the record they have to do so if it appears on the face of the record right and that's all that's really all I'm saying but what we're talking about is what does not appear on the face of the record which I believe you use an example with alibi right and what I was going to say is in North Carolina we have another statute that allows the bringing of a motion for appropriate relief only in the appellate court is the accord with the jurisdiction to handle it and that's under 15A 1418 15A 1418 allows these motions for appropriate relief to be brought in this is what you raised in your 28J letter yes and there was a response and the response says like in Texas there's stuff in the books but don't mean anything in real in real world how many instances I mean obviously you didn't get a chance to file a response to counsel's response to your 28J letter but how many instances can you point to where this procedure has been used in the last six or 30 years well I didn't go back 30 years but and I don't claim to have an exhaustive list and I can't provide additional authority to the court but I found 56 cases some of them death cases many of them raising ineffective assistance of trial counsel many of them raising other issues but the point is where the North Carolina Supreme Court permitted and permitted discovery yes well now we're not talking about discovery we're talking about where they permitted the ineffective excuse me the 1418 motion to be heard during the dependency of the direct appeal process but what's the point of that if you need discovery well it could curiously one of the cases they brought up with state versus atkins if you read state versus atkins their premises that state versus atkins says that you cannot that that discovery is not allowed and in fact what state atkins said because discovery was done in state versus atkins the issue with state versus atkins was not whether or not the court had the discretion to allow discovery they in fact did allow it the issue was whether or not the discovery they were specifically seeking was going to be admitted and there was an in-camera review which happens all the time in post conviction that is no different than under post conviction and during the in-camera review the judge said I've looked at this and I've determined it would be helpful to you which is why I didn't allow it in state versus atkins does not stand for the premise that you are not allowed to raise post convict excuse me to raise a discovery during this direct appeal process what it says is that it's basically at the court's discretion so it's not disallowed and it has been done it was I'm sorry the court doesn't have discretion to deny discovery in a mara doesn't the court has discretion and emotion for appropriate relief in post conviction is that what you're asking me to yes the state is required to do certain forms of discovery precisely but but so there's no equivalency the equivalency is what atkins did for which was whether or not some things went into an in-camera review and the judge after viewing it in camera could decide then not to allow and the reason they didn't allow was because it wouldn't be helpful I guess I'm having difficulty finding an equivalency between a procedure on the one hand where a counsel post conviction counsel has the full panoply of discovery fewer time constraints etc on the one hand and then you can file this thing with the Supreme Court of North Carolina and there's all kinds of discretion for judges to say no why would counsel ever take the second route rather than the first discovered was but one thing that Trevino excuse me that Trevino looked at again they looked at the time constraints if you add up the time line and this is just a part of the timeline which routinely gets extended in direct appeal processes in North Carolina specifically with respect to capital cases from the time of the entry of judgment all the way to when the apple either state files their brief I think I counted up 353 days that's if there are no extensions what if we I'm sorry what if we disagree with you on your Trevino analysis about the structure of the North Carolina in May our process do you lose I'm not sure if you if you just I'm having I'm really having trouble following your argument about the North Carolina statute and why for all practical purposes North Carolina's statute differs from Texas it differs instead no but but that's I don't want to go back there because I was I was listening and I'm sorry I'm still not getting it is it critical to your argument I get is what I'm asking now it's one of many factors that's critical to my argument because Trevino raised several factors and and and pinpointing each one of those factors that Trevino relied on our position is that North Carolina is not like Texas time constraints being but one of them the statutory framework under 14 18 I think I'm sorry I think just Duncan has the same question I do assuming you lose on your threshold issue of whether North Carolina is a Trevino state what is your next argument if if this court why you should win nonetheless if this court does not but does believe that North Carolina falls within the threshold of Trevino and therefore Martinez applies my our response is there is an you know 11th hour emotion it's not been fully brief but that the issue that this motion was promised upon is juniper and juniper being whether or not there is a conflict of interest everything that has been filed since my response to their motion is saying there is no conflict of so now you're going to the the fact as the questions to Mr. Pickett focused on the availability of these multiple sets of eyes looking at what happened during the trial process not not the effectiveness of post-conviction counsel per se but the of potential ineffectiveness of trial counsel and I thought that was where you were going initially yes the premise and I kind of sidetracked as I felt like I had to explain the procedure of how we got you defended your first line of attack I understood that but moving on yes moving on the purpose of his motion which I believe is what's before this court is whether or not he's entitled to Martinez counsel under the ruling of juniper versus Davis and our position is that that holding was specific to a conflict of interest issue which we do not believe exists which in his last following he admits did not exist his words were as noted in the motion follow was not represented by understaged counsel shelly Kenny or Mark Pinnick during estate post-conviction proceedings thus no direct appeal no direct conflict exist preventing undersigned from investing in collect vets getting claims that post-conviction counsel were in effect right now there does not exist pending before us a claim of an effective assistance of counsel that is procedurally barred by the state or procedurally barred by rules that Martinez would allow calls to be established for us in order for us to reach he has not raised the substantial claim is that what you're well as I understand there's not a claim now they don't want to go back and look at the record to see if there is right ask you but they're not ones right now that they that is procedurally barred that they need to allow Martinez or Trevino in order to get to I'm not sure when you say a claim his purpose of his motion is to have independent counsel independent counsel on the juniper and Davis excuse me and Gray is premise on a conflict which doesn't exist that's that's the purpose of June even and I wanted to get back to Trevino there were other things that Texas looked at and that were raised one being that Texas said that excuse me Trevino said that Texas couldn't point to one single case where ineffective assistance of direct appeal counsel was raised for failing to raise ineffective assistance of trial counsel and in the last there citation of additional authorities that was filed there was a blurb about they're not being able to point to one of those cases either and again this is not something that we've fully briefed but I can only go on when I know firsthand in my 18 cases you would have to go through the all the physical files to answer this question because not all the cases are through the state post-conviction process they're not superior court orders in place that haven't made it into the federal court so it's not easy to search for but in my own cases that I physically went through I have one of those cases and I submit from talking to my to my office members that they believe there are others out there I just am not prepared to present the other names but in North Carolina with respect to my own case load the state versus David Thomas Garner is an example of the very thing that Texas couldn't prove and that Trevino's court looked at to say I'm really kind of confused about why you're so determined to convince us at least here that North Carolina is not Texas can I ask you this if this issue had arisen in the district court before the let's assume you know Martinez and Trevino have been decided six months earlier would you actually be opposing appointment of counsel in the district court what what we're opposing is what no I'm asking a hypothetical would you actually oppose in the district court and are you opposing in any other cases in that are still in the district court the district court's appointment at federal expense of independent counsel to see if there are any forfeited claims there are already counsel appointed and especially in this case that are independent and qualified for the purpose of going you're not answering my questions they're already appointed I don't know of a reason to reappoint someone to do something they're already appointed to do okay I'm asking then about a separate case not this case have you opposed the appointment of Trevino counsel in any other case I personally have not had as any of your colleagues opposed I'm not aware that any that it's come up in any it hasn't come up in any other case no you're but in this case there's not a conflict so they're already appointed to go back to the record about what happened at trial and look for issues regarding ineffective if we if we disagree with you on that and find that there is a sufficient showing of a conflict and as counsel for mr. Fowler conceded in his argument we could rule in your favor on the COA issue on the due process issue and we could at the same time send it back to the district court for the district court one to determine whether to appoint a juniper counsel and two if so under what circumstances what parameters you would you oppose that if in this particular case which is Trevino and Martinez are about the facts excuse me in this particular case the issue is it's totally different because he's already raised in effective assistance of counsel with respect to this eyewitness issue with mr. Guzman and that was not with respect to what mr. Guzman was at least as I understand it there's been no claim that what appears on the face of it to be at least improper if not unethical behavior by the police to tell an eyewitness witness potential eyewitness witness in capital case about how the defendant is seated between his counsel and was bragging about the murder I don't think you'll find that kind of advice given in any police or detective manual anywhere in this country you don't do that and no prosecutor wants a law enforcement officer behaving in that way so counsel is now claiming that post-conviction counsel in the mar failed to investigate why trial counsel failed to pursue those avenues of investigation and what he's asking for in response to my question was an opportunity to go back to the district court and have a lawyer appointed to see if there is a cognizable forfitted claim in those regards and he agrees that it's separate from the due process claim that we're actually here on the due process claim that we're actually here on though does speak to the issue of whether or not these off the prosecuting attorneys told mr. Guzman where the defendant would be in the courtroom and the north kiana supreme court already adjudicated that issue at the director what about the officers telling him he's bragging about having killed somebody that would be news to me I can't respond to that I don't know anything about that I have no idea whether or not there's any truth to that that's why he wants to have you know counsel that goes back to raising a substantial claim which juniper does not speak to which kravino does not speak to martina speaks to whether or not there's raised a substantial claim and and and and and merely bringing up something at this eleventh hour it isn't mean a substantial claim but you I thought you told me you would oppose it even had it been raised in the district court and martina is it says stay I'm sorry didn't you say did I misunderstand if this very issue had arisen in the district court before the district court lost jurisdiction over this case if I understood you you were saying that the state would oppose even in the district court the appointment of tribino comes because of the lack of a so it doesn't have anything to do with the eleventh hour really it has well actually the north kiana supreme court held both that the state's procedures weren't unnecessarily suggestive and in the alternative if they were that it didn't give rise to a substantial likelihood of irreparable miss identification correct so that's a state that's a finding that that's what that that harmlessness finding has never been challenged as far as as best I can tell that's correct but yes versus uh not a maker says that I don't know why you're going back to a statute to answer questions about the facts here there is a north kiana supreme court finding in your favor yes that does not appear to have been challenged that they're what correct that and the standard under the underlying claim the one for the certificate of a pillar bill not apologize it's hard to go back and forth um is whether or not there that those adjudications in the supreme court ruling were contrary to or an unreasonable yes yes and and we don't believe that that was the case namely because but but the but my question is procedurally how does it get to us if it's never been challenged below it has to be in order to challenge it you have to raise a substantial claim that is to say a claim that has some merit and under martina's we are allowed to to to respond that it's not and it's a a that it isn't in substantial claim that it does not have any merit that it's wholly without support and all of the issues about he was this is a goose mong was crossing they do realize that the state's answer to my question is no they absolutely can't my the answer is not no they absolutely cannot for with some other set of facts but what I'm saying is but I gave you the facts I gave you the facts here and all I'm saying it what I'm basically saying is why isn't this claim with at least with respect to the eyewitness testimony gone regardless you're asking me about the underlying claim with respect to the certificate of repealability being issued and maybe I'm not clear I'm going to ask no I the eyewitness testimony I'm sorry I don't know how else to say it there is a finding of fact by the North Carolina Supreme Court that that has never been challenged why is that before us how does how would how could file did follow preserve it for our consideration he raised the issue which this court granted a certificate of repealability on whether process on due process yes on whether or not the eyewitness identification was unresonably impermissively excuse me suggestive and therefore unreliable that is to say there was a substantial likelihood of misidentification which this court issued a certificate of repealability on and we believe there's no merit to that claim now the only thing that's been brought up and that's today that's different from anything that's already been heard about both the Supreme Court and then the Superior Court can a state find that a due process error is harmless yes that's what I was getting at earlier but in their findings which this court must under at the give of deference to which is a substantially higher degree of deference on my and use versus not America which is United States Supreme Court ruled that to decide the issue of whether or not to decide the issue you always look back to the last explain state court judgment that being the Supreme Court decision and then Brett versus Abramson which is a North excuse me a US Supreme Court case then held that the standard for determining whether or not a conviction must be set aside if because a federal constitutional error is whether there was harmless error beyond a reasonable doubt and in giving deference to the state adjudication that it was harmless beyond a reasonable doubt this court under Brett versus Abramson is allowed to make that same plan based on giving deference to the state court do I do I correctly understand that the finding that Judge Duncan and you have been discussing regarding the suggestiveness and the armfulness of the procedures am I correct to understand that the Supreme Court of North information regarding the statements by the officers after the second photo or I I'm not sure what statements we're talking about and I'm talking about the statements that council mentioned that he says only came to light in the mar proceedings after the direct appeal the the finding that Judge Duncan drew your attention to and my correct was a finding made on direct appeal correct or am I incorrect I don't believe that the argument that council just made about telling Mr. Guzman about how much money you got I'm not sure exactly I don't get caught up with you no I think his question is that North Carolina Supreme Court's finding that there was no error and if there was error it was harmless I think the question is was it made by the Supreme Court as at the conclusion of direct appeal or at the conclusion of the M

. The focus in Trevino which does appear to me to expand the narrow exception in Martinez would you agree with that? I don't believe it expands it. I think it just gives another explanation of what one of the prongs of Martinez is because expanding it in the language in the to expand it so that Coleman is overturned with mean that you are looking to ineffective assistance of counsel on collateral review. You're not. You're looking at the failure to raise something not on a constitutional level but on a factual level that was not raised during trial counsel's representation that was in effect ineffective constitutionally. I'm not to the extent that I understand what you're saying. I'm actually not sure it's either a accurate or b that it helps the state because in Martinez you had as I recall state procedural requirements that failure to bring a claim would bar it the claim had to be made act as a rule matter at trial whereas at Martinez reached out a little far Trevino covers a state like North Carolina where it's difficult where you have this bifurcation you have you can bring IAC claims if they're required to be brought if they appear at the first instance if they are apparent from the face of the record if they require investigation then Trevino says you're entitled to independent counsel but I guess most of all I'm not quite sure why for purposes of your argument it matters okay Trevino is about whether or not it's virtually impossible to bring ineffective assistance up trial counsel on direct appeal right and you would you would acknowledge though that North Carolina that at least it appears to be um foulish counsel's position that North Carolina is a state similar to Texas in that it is difficult because you have this bifurcated process to bring claims IAC claims that do not appear on the face of the trial record like for instance failure to explore an alibi defense you wouldn't necessarily you would need to do a additional post trial investigation for that but that Trevino covers that Trevino is not applicable to North Carolina in so far as the reasons that they gave for applying it to Texas are not or distinctive from North Carolina for instance they gave examples I'm sorry I'm sorry go ahead they gave examples of the time constraints to file this motion for a new trial there was an eight day window before counsel was appointed after sentences but sending things followed by 22 days to decide to file the motion and to raise the claims in the motion where they had maybe 45 days for an extension but they still wouldn't have the transcript in North Carolina you don't have that circumstance first of all but you do have you do have a statute that requires is our call I think it's 15A 1419A3 that as in Texas on direct appeal defendants in North Carolina are confined if a if a position if a defendant was in a position to raise a ground on direct appeal because it appears on the face of the record they have to do so if it appears on the face of the record right and that's all that's really all I'm saying but what we're talking about is what does not appear on the face of the record which I believe you use an example with alibi right and what I was going to say is in North Carolina we have another statute that allows the bringing of a motion for appropriate relief only in the appellate court is the accord with the jurisdiction to handle it and that's under 15A 1418 15A 1418 allows these motions for appropriate relief to be brought in this is what you raised in your 28J letter yes and there was a response and the response says like in Texas there's stuff in the books but don't mean anything in real in real world how many instances I mean obviously you didn't get a chance to file a response to counsel's response to your 28J letter but how many instances can you point to where this procedure has been used in the last six or 30 years well I didn't go back 30 years but and I don't claim to have an exhaustive list and I can't provide additional authority to the court but I found 56 cases some of them death cases many of them raising ineffective assistance of trial counsel many of them raising other issues but the point is where the North Carolina Supreme Court permitted and permitted discovery yes well now we're not talking about discovery we're talking about where they permitted the ineffective excuse me the 1418 motion to be heard during the dependency of the direct appeal process but what's the point of that if you need discovery well it could curiously one of the cases they brought up with state versus atkins if you read state versus atkins their premises that state versus atkins says that you cannot that that discovery is not allowed and in fact what state atkins said because discovery was done in state versus atkins the issue with state versus atkins was not whether or not the court had the discretion to allow discovery they in fact did allow it the issue was whether or not the discovery they were specifically seeking was going to be admitted and there was an in-camera review which happens all the time in post conviction that is no different than under post conviction and during the in-camera review the judge said I've looked at this and I've determined it would be helpful to you which is why I didn't allow it in state versus atkins does not stand for the premise that you are not allowed to raise post convict excuse me to raise a discovery during this direct appeal process what it says is that it's basically at the court's discretion so it's not disallowed and it has been done it was I'm sorry the court doesn't have discretion to deny discovery in a mara doesn't the court has discretion and emotion for appropriate relief in post conviction is that what you're asking me to yes the state is required to do certain forms of discovery precisely but but so there's no equivalency the equivalency is what atkins did for which was whether or not some things went into an in-camera review and the judge after viewing it in camera could decide then not to allow and the reason they didn't allow was because it wouldn't be helpful I guess I'm having difficulty finding an equivalency between a procedure on the one hand where a counsel post conviction counsel has the full panoply of discovery fewer time constraints etc on the one hand and then you can file this thing with the Supreme Court of North Carolina and there's all kinds of discretion for judges to say no why would counsel ever take the second route rather than the first discovered was but one thing that Trevino excuse me that Trevino looked at again they looked at the time constraints if you add up the time line and this is just a part of the timeline which routinely gets extended in direct appeal processes in North Carolina specifically with respect to capital cases from the time of the entry of judgment all the way to when the apple either state files their brief I think I counted up 353 days that's if there are no extensions what if we I'm sorry what if we disagree with you on your Trevino analysis about the structure of the North Carolina in May our process do you lose I'm not sure if you if you just I'm having I'm really having trouble following your argument about the North Carolina statute and why for all practical purposes North Carolina's statute differs from Texas it differs instead no but but that's I don't want to go back there because I was I was listening and I'm sorry I'm still not getting it is it critical to your argument I get is what I'm asking now it's one of many factors that's critical to my argument because Trevino raised several factors and and and pinpointing each one of those factors that Trevino relied on our position is that North Carolina is not like Texas time constraints being but one of them the statutory framework under 14 18 I think I'm sorry I think just Duncan has the same question I do assuming you lose on your threshold issue of whether North Carolina is a Trevino state what is your next argument if if this court why you should win nonetheless if this court does not but does believe that North Carolina falls within the threshold of Trevino and therefore Martinez applies my our response is there is an you know 11th hour emotion it's not been fully brief but that the issue that this motion was promised upon is juniper and juniper being whether or not there is a conflict of interest everything that has been filed since my response to their motion is saying there is no conflict of so now you're going to the the fact as the questions to Mr. Pickett focused on the availability of these multiple sets of eyes looking at what happened during the trial process not not the effectiveness of post-conviction counsel per se but the of potential ineffectiveness of trial counsel and I thought that was where you were going initially yes the premise and I kind of sidetracked as I felt like I had to explain the procedure of how we got you defended your first line of attack I understood that but moving on yes moving on the purpose of his motion which I believe is what's before this court is whether or not he's entitled to Martinez counsel under the ruling of juniper versus Davis and our position is that that holding was specific to a conflict of interest issue which we do not believe exists which in his last following he admits did not exist his words were as noted in the motion follow was not represented by understaged counsel shelly Kenny or Mark Pinnick during estate post-conviction proceedings thus no direct appeal no direct conflict exist preventing undersigned from investing in collect vets getting claims that post-conviction counsel were in effect right now there does not exist pending before us a claim of an effective assistance of counsel that is procedurally barred by the state or procedurally barred by rules that Martinez would allow calls to be established for us in order for us to reach he has not raised the substantial claim is that what you're well as I understand there's not a claim now they don't want to go back and look at the record to see if there is right ask you but they're not ones right now that they that is procedurally barred that they need to allow Martinez or Trevino in order to get to I'm not sure when you say a claim his purpose of his motion is to have independent counsel independent counsel on the juniper and Davis excuse me and Gray is premise on a conflict which doesn't exist that's that's the purpose of June even and I wanted to get back to Trevino there were other things that Texas looked at and that were raised one being that Texas said that excuse me Trevino said that Texas couldn't point to one single case where ineffective assistance of direct appeal counsel was raised for failing to raise ineffective assistance of trial counsel and in the last there citation of additional authorities that was filed there was a blurb about they're not being able to point to one of those cases either and again this is not something that we've fully briefed but I can only go on when I know firsthand in my 18 cases you would have to go through the all the physical files to answer this question because not all the cases are through the state post-conviction process they're not superior court orders in place that haven't made it into the federal court so it's not easy to search for but in my own cases that I physically went through I have one of those cases and I submit from talking to my to my office members that they believe there are others out there I just am not prepared to present the other names but in North Carolina with respect to my own case load the state versus David Thomas Garner is an example of the very thing that Texas couldn't prove and that Trevino's court looked at to say I'm really kind of confused about why you're so determined to convince us at least here that North Carolina is not Texas can I ask you this if this issue had arisen in the district court before the let's assume you know Martinez and Trevino have been decided six months earlier would you actually be opposing appointment of counsel in the district court what what we're opposing is what no I'm asking a hypothetical would you actually oppose in the district court and are you opposing in any other cases in that are still in the district court the district court's appointment at federal expense of independent counsel to see if there are any forfeited claims there are already counsel appointed and especially in this case that are independent and qualified for the purpose of going you're not answering my questions they're already appointed I don't know of a reason to reappoint someone to do something they're already appointed to do okay I'm asking then about a separate case not this case have you opposed the appointment of Trevino counsel in any other case I personally have not had as any of your colleagues opposed I'm not aware that any that it's come up in any it hasn't come up in any other case no you're but in this case there's not a conflict so they're already appointed to go back to the record about what happened at trial and look for issues regarding ineffective if we if we disagree with you on that and find that there is a sufficient showing of a conflict and as counsel for mr. Fowler conceded in his argument we could rule in your favor on the COA issue on the due process issue and we could at the same time send it back to the district court for the district court one to determine whether to appoint a juniper counsel and two if so under what circumstances what parameters you would you oppose that if in this particular case which is Trevino and Martinez are about the facts excuse me in this particular case the issue is it's totally different because he's already raised in effective assistance of counsel with respect to this eyewitness issue with mr. Guzman and that was not with respect to what mr. Guzman was at least as I understand it there's been no claim that what appears on the face of it to be at least improper if not unethical behavior by the police to tell an eyewitness witness potential eyewitness witness in capital case about how the defendant is seated between his counsel and was bragging about the murder I don't think you'll find that kind of advice given in any police or detective manual anywhere in this country you don't do that and no prosecutor wants a law enforcement officer behaving in that way so counsel is now claiming that post-conviction counsel in the mar failed to investigate why trial counsel failed to pursue those avenues of investigation and what he's asking for in response to my question was an opportunity to go back to the district court and have a lawyer appointed to see if there is a cognizable forfitted claim in those regards and he agrees that it's separate from the due process claim that we're actually here on the due process claim that we're actually here on though does speak to the issue of whether or not these off the prosecuting attorneys told mr. Guzman where the defendant would be in the courtroom and the north kiana supreme court already adjudicated that issue at the director what about the officers telling him he's bragging about having killed somebody that would be news to me I can't respond to that I don't know anything about that I have no idea whether or not there's any truth to that that's why he wants to have you know counsel that goes back to raising a substantial claim which juniper does not speak to which kravino does not speak to martina speaks to whether or not there's raised a substantial claim and and and and and merely bringing up something at this eleventh hour it isn't mean a substantial claim but you I thought you told me you would oppose it even had it been raised in the district court and martina is it says stay I'm sorry didn't you say did I misunderstand if this very issue had arisen in the district court before the district court lost jurisdiction over this case if I understood you you were saying that the state would oppose even in the district court the appointment of tribino comes because of the lack of a so it doesn't have anything to do with the eleventh hour really it has well actually the north kiana supreme court held both that the state's procedures weren't unnecessarily suggestive and in the alternative if they were that it didn't give rise to a substantial likelihood of irreparable miss identification correct so that's a state that's a finding that that's what that that harmlessness finding has never been challenged as far as as best I can tell that's correct but yes versus uh not a maker says that I don't know why you're going back to a statute to answer questions about the facts here there is a north kiana supreme court finding in your favor yes that does not appear to have been challenged that they're what correct that and the standard under the underlying claim the one for the certificate of a pillar bill not apologize it's hard to go back and forth um is whether or not there that those adjudications in the supreme court ruling were contrary to or an unreasonable yes yes and and we don't believe that that was the case namely because but but the but my question is procedurally how does it get to us if it's never been challenged below it has to be in order to challenge it you have to raise a substantial claim that is to say a claim that has some merit and under martina's we are allowed to to to respond that it's not and it's a a that it isn't in substantial claim that it does not have any merit that it's wholly without support and all of the issues about he was this is a goose mong was crossing they do realize that the state's answer to my question is no they absolutely can't my the answer is not no they absolutely cannot for with some other set of facts but what I'm saying is but I gave you the facts I gave you the facts here and all I'm saying it what I'm basically saying is why isn't this claim with at least with respect to the eyewitness testimony gone regardless you're asking me about the underlying claim with respect to the certificate of repealability being issued and maybe I'm not clear I'm going to ask no I the eyewitness testimony I'm sorry I don't know how else to say it there is a finding of fact by the North Carolina Supreme Court that that has never been challenged why is that before us how does how would how could file did follow preserve it for our consideration he raised the issue which this court granted a certificate of repealability on whether process on due process yes on whether or not the eyewitness identification was unresonably impermissively excuse me suggestive and therefore unreliable that is to say there was a substantial likelihood of misidentification which this court issued a certificate of repealability on and we believe there's no merit to that claim now the only thing that's been brought up and that's today that's different from anything that's already been heard about both the Supreme Court and then the Superior Court can a state find that a due process error is harmless yes that's what I was getting at earlier but in their findings which this court must under at the give of deference to which is a substantially higher degree of deference on my and use versus not America which is United States Supreme Court ruled that to decide the issue of whether or not to decide the issue you always look back to the last explain state court judgment that being the Supreme Court decision and then Brett versus Abramson which is a North excuse me a US Supreme Court case then held that the standard for determining whether or not a conviction must be set aside if because a federal constitutional error is whether there was harmless error beyond a reasonable doubt and in giving deference to the state adjudication that it was harmless beyond a reasonable doubt this court under Brett versus Abramson is allowed to make that same plan based on giving deference to the state court do I do I correctly understand that the finding that Judge Duncan and you have been discussing regarding the suggestiveness and the armfulness of the procedures am I correct to understand that the Supreme Court of North information regarding the statements by the officers after the second photo or I I'm not sure what statements we're talking about and I'm talking about the statements that council mentioned that he says only came to light in the mar proceedings after the direct appeal the the finding that Judge Duncan drew your attention to and my correct was a finding made on direct appeal correct or am I incorrect I don't believe that the argument that council just made about telling Mr. Guzman about how much money you got I'm not sure exactly I don't get caught up with you no I think his question is that North Carolina Supreme Court's finding that there was no error and if there was error it was harmless I think the question is was it made by the Supreme Court as at the conclusion of direct appeal or at the conclusion of the M.A.R. process is that no question yes thank you for that by his own argument that little piece of information no no no the question isn't the information the question is the North Carolina Supreme Court finding when did the North Carolina at what point in the procedural posture did the North Carolina Supreme Court make that finding they made the finding after the direct appeal process ended which of course was after the trial procedure which of course was after the pre trial suppression on direct appeal on direct appeal not okay but I only have a minute left I would just say that whether or not there is an unreasonable application and whether or not if there is an unreasonable excuse me whether or not is impermissible suggestibility and if there is impermissible suggestibility because you don't get to the second prong if there's not impermissible suggestibility suggestibility in and of itself is not the issue it has to be impermissible there's no litmus test for that you have to look to the facts and circumstances of each case and even where there is something that's suggestible again that's not enough and based on the facts and circumstances of each case and and reaching that determination the North Carolina Supreme Court in reaching its final decision said that there was this was not the only evidence against this defendant and his guilt his guilt was was based upon lots of different information that nameling other witnesses other witnesses who corroborated not just what mr. Guzman said but also what the cold the hard facts excuse me such as the calibrary of the murder weapon and what mr. Guz what mr. Shabarat the other witness who was not available at the time of the hearing to testify to what he also said all those things put in in perspective there was more than just this witnesses information of what he testified to that show that there was no impermissible which is higher than just permissible just then just suggested to ability but impermissible suggestivity and the the Supreme Court North excuse me the US Supreme Court has already said that any level of error left at that point barring the impermissible suggestibility is covered by a cross examination this witness was cross examine numerous times that during pre trial and on trial and each time he was cross examined the jury excuse me during the trial not a pre trial was there to hear everything that he said he was not presented as a a witness that didn't have anything else excuse me what's the word that he was he was not presented as an unbiased witness he testified that he focused his attention for at least five seconds and that was his testimony at least the court found that it was approximately five seconds but at least meaning it could have been more than that that he stared at him from 25 feet away from that wall to the end of that table is about three car wits apart each car being approximately 10 feet which means you're looking at less than that distance he was standing from when he appeared through the window and had a what I would contend under biggers is a good look at this defend that if there were any inaccuracies that that was for the jury to determine and win all out in fact the United States Supreme Court has ruled that the jury is in the best place to weigh these kinds of issues that they have the good sits in a judgment of American juries for evidence of some trust untrustworthiness is customary for the grill of the juries the juries are not so successful that they susceptible that they susceptible that they cannot measure intelligently in way identification testimony that has some questionable feature excuse me I'm looking at the North Carolina Supreme Court's I think it's a decision on direct that although Gooseman never explicitly testified that his meeting with prosecutors did not affect his in court identification the evidence in the records supports the trial court's conclusion that Gooseman's identification was not a result of prosecutorial suggestion and then it goes on to reject the defendant's argument that the cumulative effect of viewing the photographic arrays and meeting with prosecutors caused Gooseman's in court identification to be a violation and then assuming our UNDO that the process was impermissibly suggestive nevertheless concludes under the second prong that the procedures didn't create substantial likelihood of misidentification noting that going on to note that Gooseman's in court identification was by no means the only evidence pointing to right it's going to go so it's a pretty global sort of finding well and that's exactly the kind of thing that biggers which is the clearly established United States Supreme Court law on the issue speaks to biggers makes clear that it's about the facts and circumstances of the individual cases biggers makes clear that it's about the totality of the circumstances biggers makes clear that they gave guidelines which means this is not hard and fast it's not all of them but they gave guidelines in each one of those guidelines that they gave are things that this witness was able to address clearly to the to the point that the North Carolina Supreme Court did not find that any suggestibility was impermissible and that he in fact was able to identify as he testified a trial but this particular defendant was the person he saw based on his recollection not based on anything they said and you answered my question thank you very much I think we understand your position we'll see it from Mr. Pickett thank you thank you the first just to clarify what was being discussed at the end there the the new it is a new fact the the fact that Guzman said that the police told him that the Fowler had boasted about committing the crime it is it is not something they came out until the MIR evidentiary hearing so that state Supreme Court disposition did not have the benefit of that fact which is why we see it is a very important part the Martinez claim is that fact is never because also of state post conviction councils there that fact is never brought into any sort of I see claim on councils trial council performance it failing to uncover that so on page 1663 of the J.A. Fowler or Guzman clearly testifies that the police after that second photo array that the police told him that Fowler boasted about committing the crime the the second point that I would like to address is the issue with the multiple council that Fowler had during state post conviction proceedings I just want to emphasize there that what Martinez is getting at the fact that you only have that one chance in court to present that trial I see claim in state post conviction I think there's there's not really any discussion of the number of attorneys that you've had just a quote here directly from Martinez the court says that whereas here the initial collateral review proceeding is the first designated proceeding for prisoner to raise a claim of ineffective assistance at trial the collateral proceeding is in many ways the equivalent of a prisoner's direct appeal as the effectiveness claim this is because the state habeuse court looks to the merits of the claim of ineffective assistance and no other court has addressed the claim so what the clear focus of Martinez is not the number of attorneys or whether not different attorneys came in during the same proceeding it's the number of proceedings and when the state only provides a petitioner one chance to present a trial I see claim in state court Martinez applies regardless of the number of counsel that may have looked at the claim. In my third point I just want to address the 14-18 proceedings the MAR and the Appellate Division that was addressed in the in the letter that was filed I believe on Monday I have two points to make with respect to that and I think they're covered pretty closely in the letter that I filed excuse me just for a second here the first is that this is a proceeding that is very much like this reman this abatement a man proceeding in Texas it's not a proceeding that's typically used to expand the record and I think for all of the same reasons that Judge Davis talked about there's no offer there's no right to discovery in these proceedings you have to present the claim before it even gets remanded or further evidentiary development so you have to know what the claim is it's not a commonly used proceeding in the state Supreme Court in state v. Hearst which is one of the very first cases to even consider these claims said basically they prefer to hear for the claim to be presented in state post-conviction proceedings first I think if the state Supreme Court saw this 14-18 proceeding as some way to expand the direct appeal record they would have discussed it in state v. fair or these number of other cases that discuss the proper proceeding to raise a trial I see claim and as all of these cases say with the exception these very narrow cold record claims that aren't really envisioned by Martinez the proper proceeding to raise a claim is in state post-conviction proceedings and more over the 14-18 proceeding is really not expanding the direct appeal at all it's just allowing the petitioner to raise his MAR which in North Carolina is the state post-conviction proceeding at an earlier time you still implicates those same issues discussed in Martinez where a petitioner only has that one opportunity to raise that claim because in the rare case that a petitioner chooses to raise that 14-18 claim and certainly on trial I see claims it is very rare they are barred from raising that claim again so there is no second chance it indicates the exact same bar just happens slightly earlier in the proceeding and the fourth and final point that I would like to address relates to the conflict I think we it's I think it's true when we first began this proceeding we weren't entirely sure what the scope of our conflict might be in this case I think on our first glance it looked like we were different from Martinez or I'm sorry different from Juniper and Ryan because we're not precisely the same attorneys but as we looked at the issue more closely we saw more and more problems which is why assets moved on you know we we filed we indicated that notice of a possible conflict and when you say when you use the term conflict you're specifically referring to putting an attorney in the position of having to explore allegations of his or her own ineffectiveness is exactly because of these two issues first that we may have some imputed way have imputed ineffectiveness because of miss teach outs work on the case for us to then she was a employee of the Center for Death Bell Illudigation at that time for us to then go back and attack our own firms ineffectiveness could be very problematic and moreover we even after she was off of the case with Bishop Mac and Miss Pendry were on the case CDPL did consult on the case and advise Mr

. Fowler's post conviction attorneys in meetings on how to proceed on the case so that presents another possibility for a conflict and if you add that to the fact that Miss Kenney's representation overlapped with one of the state post conviction attorneys I think that creates a real problem it's I think the bottom line is this is something that needs to be remanded to the district court for that issue to be looked in further and then for counsel to present a substantial claim if indeed one exists because of course what I presented here today is just what I've seen from the from reviewing the record there may be evidence of other claims and there may be further evidence to go to this claim related to the I've missed an indication when I talked about it. Thank you thank you thank you thank you I know that your court appointed we appreciate very much your undertaking representation of the client thank you but the benefit of the people who are watching is a tradition of this court that fund the conclusion of oral argument we come down and get a chance to say hello to the lawyers because we frankly live such a monastic existence usually we welcome not continue to speak to our colleagues so we'll come down to greet counsel and then I can brief recess