[00:00:00] Speaker 04:
Council come forward, we're ready to hear 24-6166.

[00:00:08] Speaker 04:
Fuston, Fuston, I'll be told what the correct pronunciation is versus quick.

[00:00:15] Speaker 00:
Good morning.

[00:00:16] Speaker 00:
May it please the court?

[00:00:17] Speaker 00:
My name is Callie Heller and I represent the appellant, Mr. Ronnie Fuston.

[00:00:21] Speaker 00:
I'd like to reserve about three minutes of my time for rebuttal.

[00:00:24] Speaker 00:
Thank you.

[00:00:25] Speaker 00:
Your Honors, Mr. Fuston's capital trial and sentencing were unconstitutional in two different ways.

[00:00:32] Speaker 00:
First, the jury wasn't instructed on second degree murder, although under Beckley, Alabama, it should have been.

[00:00:37] Speaker 00:
And second, Mr. Fuston never should have proceeded to a capital trial at all, as he is intellectually disabled.

[00:00:44] Speaker 00:
The OCCA unreasonably applied the clearly established federal law to deny that Mr. Fuston was entitled to even an Atkins hearing.

[00:00:52] Speaker 00:
We ask that you reverse

[00:00:53] Speaker 00:
The district court's decision is denying relief on these grounds.

[00:00:57] Speaker 00:
I'll speak first to Proposition 1, which is the denial of Mr. Fuston's due process rights under Beck v. Alabama.

[00:01:05] Speaker 00:
Mr. Fuston's trial included multiple pieces of evidence connecting him to the crime, and his attorneys didn't present any witnesses.

[00:01:12] Speaker 00:
His jury faced the exact dichotomy that Beck highlights, evidence of guilt of a serious and violent offense

[00:01:19] Speaker 00:
but doubt with respect to an element that would justify a capital conviction, but no third option.

[00:01:25] Speaker 00:
Mr. Fuston's trial also included evidence of an act imminently dangerous to another person regardless of human life and evincing a depraved mind, but without premeditated design to affect death.

[00:01:38] Speaker 00:
The shooting came on the heels of multiple days of fighting between friends of Mr. Fuston and the victim's niece on the phone, on social media, and in person.

[00:01:48] Speaker 00:
with the latter including acts of vandalism and a gun fired into the crowd.

[00:01:52] Speaker 00:
The state's star witness testified that he and Mr. Fuston received a phone call in Enid, Oklahoma about the fighting that had been going on, traveled to Oklahoma City, and then the group that at that point included Mr. Fuston went to the victim's niece's house for, quote, another fight.

[00:02:10] Speaker 00:
And the state's crime scene reconstruction evidence showed that the shooting occurred almost simultaneously with the front door being kicked in.

[00:02:18] Speaker 00:
There was no evidence that it was known that anyone would be directly inside and in the bullet's path.

[00:02:24] Speaker 00:
And despite Appley's arguments to the contrary, all of that evidence can be considered by this court in analyzing the OCCA's opinion under the EDPA.

[00:02:34] Speaker 04:
Well, wouldn't you say we analyze it under EDPA?

[00:02:38] Speaker 04:
Under what standard?

[00:02:40] Speaker 00:
Under D1 or D2.

[00:02:41] Speaker 04:
OK, so we are differential.

[00:02:45] Speaker 04:
Do you agree with that?

[00:02:46] Speaker 04:
Absolutely.

[00:02:46] Speaker 04:
OK.

[00:02:49] Speaker 00:
On the other hand, Mr. Fuston does not need to prove that there was insufficient evidence to convict him of first degree murder.

[00:02:57] Speaker 00:
As this court has said, focusing on the strength or presence of the first degree murder evidence would deny a lesser included offense instruction precisely where it is most important, where the evidence would support a conviction of first degree murder, but would also support a conviction under the lesser included offense.

[00:03:16] Speaker 00:
The OCCA nonetheless made the evidence supporting first degree murder the focus of its inquiry, as it has done repeatedly.

[00:03:23] Speaker 04:
Well, but it did state the correct standard several times, did it not?

[00:03:28] Speaker 00:
Yes, it did.

[00:03:29] Speaker 00:
It did.

[00:03:30] Speaker 00:
But that nonetheless does not suffice to make its opinion a reasonable application of BECC, similarly to this Court's opinion.

[00:03:38] Speaker 04:
OK, so it did apply.

[00:03:41] Speaker 04:
We can assume it applied BECC, but just didn't apply it correctly.

[00:03:45] Speaker 04:
It invoked the proper standard.

[00:03:49] Speaker 04:
It didn't apply that standard.

[00:03:51] Speaker 04:
Correct.

[00:03:51] Speaker 04:
Is that your argument?

[00:03:52] Speaker 00:
OK.

[00:03:52] Speaker 00:
It recited the standard correctly, but then applied it unreasonably.

[00:03:55] Speaker 00:
OK.

[00:03:57] Speaker 00:
In one of his earlier verses on this issue, this court explained that the distinct questions under Beck are, the sufficiency of the evidence of the greater offense is distinct from Beck, which asks whether the evidence might allow a jury to acquit on the greater and convict on the lesser.

[00:04:12] Speaker 00:
The OCCA here collapsed these inquiries

[00:04:15] Speaker 00:
holding that the evidence clearly supports a finding that when an appellant fired the decedent, he did so with the intent to kill.

[00:04:22] Speaker 00:
Therefore, the evidence would not permit a rational jury to find the appellant guilty of second-degree murder.

[00:04:29] Speaker 00:
In other words, because the first-degree evidence supported a finding of intent, therefore no second-degree instruction was warranted.

[00:04:37] Speaker 04:
Well, that would be the wrong standard.

[00:04:39] Speaker 04:
That would be applying the wrong standard.

[00:04:41] Speaker 04:
And there is one sentence that suggests that.

[00:04:44] Speaker 04:
But there are other sentences that state the rule is there may be sufficient evidence of first degree murder, but no reasonable jury would convict for second degree murder under these facts.

[00:04:59] Speaker 04:
And isn't that what we have to review?

[00:05:00] Speaker 04:
Was that an unreasonable decision to say that on these facts, no jury would have convicted under second degree murder?

[00:05:10] Speaker 04:
I want to make sure we have the right standard of review.

[00:05:13] Speaker 04:
Do you agree that that's the correct standard of view?

[00:05:15] Speaker 00:
Yes.

[00:05:16] Speaker 00:
OK.

[00:05:16] Speaker 00:
Yes, Your Honor.

[00:05:17] Speaker 00:
And so the OCCA did set out the correct standard, the correct standard for reviewing the evidence.

[00:05:24] Speaker 00:
But they made this statement, which brought the opinion in line with several of the opinions where this court found that the OCCA was not entitled to deference in Williams and Phillips and Taylor, where this court made some variation of finding that the OCCA

[00:05:42] Speaker 00:
did not explain why the evidence didn't support second degree except that it did support first.

[00:05:47] Speaker 00:
And the OCCA again explicitly said the evidence supported first degree, therefore the jury could not have found second, sandwiched in between, reciting all of the ways that the evidence would have supported first degree.

[00:05:59] Speaker 00:
The OCCA did take a bit of a different step than it had in some of these prior cases by saying a review of the evidence, a review of the record shows that there is no evidence that would have supported a secondary murder instruction

[00:06:12] Speaker 00:
But in light of the substance of its opinion and the conclusion it makes, as this court stated, the inquiry focuses in Grant v. Royal, the overall substance of its opinion was clearly focusing on first degree evidence just as it has.

[00:06:30] Speaker 04:
I thought it was saying that the evidence here of intent

[00:06:36] Speaker 04:
is such that no reasonable injury could find that he didn't intend to kill.

[00:06:43] Speaker 04:
There are two steps in the murders, as I understand it.

[00:06:48] Speaker 04:
The evidence apparently shows that he broke in the door and just started firing.

[00:06:53] Speaker 04:
But then he saw the victim move and fired two shots after that.

[00:07:01] Speaker 04:
And I read the OCCA opinion to say

[00:07:07] Speaker 04:
that given the second shooting, there can be no reasonable person could determine that the murder was not with intent to kill that person.

[00:07:19] Speaker 00:
So the state's crime scene reconstruction evidence, we don't believe can be read to show a second shooting.

[00:07:26] Speaker 00:
So the statement that Mr. Butler, the state's star witness, made was that

[00:07:34] Speaker 00:
Mr. Fuston after the shooting said, I fired multiple times because I saw movement, I saw the victim getting up or reaching for something.

[00:07:44] Speaker 00:
So is it possible that that can show intent?

[00:07:48] Speaker 00:
I don't think it's impossible, but as this court found in Phillips and in Hogan, we can still have plausible alternative inferences and that's not intended to

[00:07:58] Speaker 00:
rule out providing the jury what's in their purview to weigh the evidence and decide which verdict best fits it as long as that low standard of some evidence is presented.

[00:08:09] Speaker 00:
So a crime where someone kicks the door open and simultaneously, as the state's evidence showed, shots were fired across the threshold, some of which missed entirely and went into the fireplace.

[00:08:22] Speaker 00:
This is an act that could also comport with, like in Taylor, shooting

[00:08:28] Speaker 00:
because you saw movement, and that doesn't necessarily have to mean intent to kill.

[00:08:33] Speaker 00:
It could mean intent to harm, intent to disable what you, in the heat of the moment, perceive as a threat.

[00:08:39] Speaker 00:
So there are alternative inferences to that.

[00:08:43] Speaker 00:
And so in a case like that, that means you cannot only have a first degree instruction.

[00:08:48] Speaker 04:
But we're not reviewing that de novo.

[00:08:52] Speaker 04:
Our standard is what you're saying is it was unreasonable for the

[00:08:58] Speaker 04:
to hold that the evidence, which you're challenging here, of intent was so strong that no reasonable juror could have convicted just on second degree.

[00:09:14] Speaker 04:
The standard of view is so important in these issues, so I want to make sure that I'm stating what our job is in this case.

[00:09:26] Speaker 00:
I agree, and I think that's absolutely correct, Your Honor.

[00:09:29] Speaker 00:
And I think that's exactly in accordance with what the OCCA said.

[00:09:35] Speaker 00:
And that is unreasonable, either under D1, which is right in line with the way this court ruled in Ritchie, where this court said that it was an unreasonable application of Beck to find that the evidence was insufficient to raise a reasonable doubt as to intent.

[00:09:50] Speaker 00:
Or it could also fall under a reliance on an unreasonable determination of fact

[00:09:55] Speaker 00:
Under D2, in Boyd, for example, was a D2 Beck case in this court.

[00:10:02] Speaker 00:
And there, the evidence of intent where a gun was placed directly to, I think, either the head or the chest of a police officer and the defendant's evidence for a second degree instruction was that he blacked out at the time.

[00:10:17] Speaker 00:
And the OCCA said, there's no evidence presented that would support a second degree instruction.

[00:10:21] Speaker 00:
And that was not unreasonable under D2.

[00:10:24] Speaker 00:
But because this is such a mixed question of fact and law and looks at the evidence presented, we would contend that that not only overcomes ed-pedeference because of an unreasonable application of BEC and or an unreasonable determination of facts, but also is an entitlement to BEC relief under de novo review after the ed-pedeference is overcome.

[00:10:49] Speaker 04:
And as I'm understanding what you're saying, the key

[00:10:52] Speaker 04:
to your argument about it being unreasonable inference is that the OCCA must have inferred, decided that the evidence that he shot at the moving person was weak enough that a jury might have or could reasonably have rejected that testimony.

[00:11:20] Speaker 04:
Is that the essence of what your argument is here?

[00:11:23] Speaker 00:
I think that's right, Your Honor.

[00:11:24] Speaker 00:
And I think the reason we have to infer that is because, like in Williams, we don't know why the OCCA found that the evidence could not give rise to a second degree murder.

[00:11:33] Speaker 04:
Well, I thought it was because I thought the OCCA was relying on the evidence that the defendant, after bursting into the building,

[00:11:51] Speaker 04:
saw someone move and it was no longer just random shooting.

[00:11:55] Speaker 04:
He was trying to kill the person who moved by shooting two more times.

[00:11:59] Speaker 04:
I thought that was its reasoning.

[00:12:01] Speaker 04:
And what I understand you to be saying is that reasoning is based too much on questionable evidence.

[00:12:10] Speaker 00:
I think that was in a larger context of an adjudication that proceeded solely on

[00:12:17] Speaker 00:
examining and reciting and relying on the first degree evidence.

[00:12:22] Speaker 00:
So the OCCA found that the group met to formulate a plot to kill Brittany Dillard, which was not, that was not the only reasonable view of the evidence.

[00:12:32] Speaker 00:
And we would argue that's actually contrary to the evidence that they went to her house and then Mr. Fuston kicked open the door.

[00:12:39] Speaker 00:
Also is not what the evidence showed and that he then, yes, fired

[00:12:44] Speaker 00:
multiple times because after the fact as Mr. Butler testified, he said he saw the victim.

[00:12:50] Speaker 02:
Kind of a variation of that.

[00:12:53] Speaker 02:
Let's say that he kicks in the door and the first shot was intended to scare whoever was in the room or in the house.

[00:13:09] Speaker 02:
But then he saw a person and

[00:13:14] Speaker 02:
fired three shots that entered the body.

[00:13:18] Speaker 02:
Even though the first shot could support maybe a depraved murder instruction, can that be dissipated by the subsequent acts that were intended to shoot directly at the victim?

[00:13:37] Speaker 02:
Or do you get second degree under my facts either way?

[00:13:42] Speaker 00:
I think it can be.

[00:13:44] Speaker 00:
And I think, again, that those facts are not that different than the facts in Taylor.

[00:13:48] Speaker 00:
That was also multiple shots.

[00:13:49] Speaker 00:
And I think what's very relevant there, also just related to Taylor, is that that was not uncontroverted.

[00:13:59] Speaker 00:
So the defendants said he shot multiple times because he saw movement.

[00:14:03] Speaker 00:
And the state argued the path of the shots, as shown by the forensic evidence, contradict that.

[00:14:10] Speaker 00:
And still it was found that that should have been submitted to the jury to make that way and determination, as this court said, I believe in Taylor as well.

[00:14:19] Speaker 00:
That's the purview of the jury.

[00:14:22] Speaker 00:
It's not for courts under Beck to decide which best fits the evidence, or it's just stronger.

[00:14:26] Speaker 00:
Unless there are further questions on Beck, I'll move on to our second issue.

[00:14:38] Speaker 00:
Our second issue is the state court's violation of Mr. Fuston's rights under the Eighth Amendment.

[00:14:44] Speaker 00:
The Supreme Court has said again and again over decades that those with intellectual disabilities are exempt from capital punishment and that states must use clinical guidelines to ensure that everyone entitled to that protection receives it.

[00:14:57] Speaker 00:
After Andrew V. White, it's more clear than ever that these governing legal principles have the force of clearly established federal law.

[00:15:05] Speaker 00:
In this case, that means that applying a strict statutory cutoff in a way that necessarily violates the clinical guidelines unreasonably applies the clearly established federal law.

[00:15:16] Speaker 00:
And it violates clinical guidelines to deny even an Atkins hearing to someone with a historical, quote, mild mental retardation diagnosis, multiple qualifying scores under prong one, a lifelong history of adaptive deficits under prong two, yet a single score above the statutory cutoff.

[00:15:34] Speaker 00:
We know that from the guidelines and we know that from clinical practice because none of the experts involved in this case made any kind of decision based solely on the 81 outlying score.

[00:15:46] Speaker 00:
It's true that Hall applied the clinical guidelines to a case where the underlying decision revolves around a cutoff that was lower than that used here and where the standard error of measurement was also an issue.

[00:15:59] Speaker 00:
But crucially, Hall specified that it was doing so because the

[00:16:04] Speaker 00:
Clinical definitions of intellectual disability were a fundamental premise of Atkins.

[00:16:09] Speaker 00:
And barely a page of Hall goes by without reference to or reliance on those clinical guidelines, medical standards, and scientific definitions.

[00:16:19] Speaker 00:
Hall made clear that where a state ignores those standards, it risks executing a person who suffers from intellectual disability.

[00:16:27] Speaker 00:
That risk is all the more intolerable for someone like Mr. Fuston, who has denied even the chance to present his evidence.

[00:16:34] Speaker 02:
The idea?

[00:16:37] Speaker 02:
Was it a misapplication of clearly established law?

[00:16:42] Speaker 02:
And it seems like there's a lot of question about what clearly established means in these circumstances.

[00:16:49] Speaker 02:
A couple weeks ago, the Supreme Court had oral argument on a different case, but a similar issue.

[00:16:58] Speaker 02:
How can we say it's clearly established here when

[00:17:02] Speaker 02:
the Supreme Court's still out there, grant and cert, on related issues.

[00:17:06] Speaker 00:
Yes.

[00:17:07] Speaker 00:
So I think a critical distinction, and I think, are you referring to Smith v. Hamm, but a critical distinction there is that this case involves simply passing the threshold without which you are precluded from even presenting your evidence.

[00:17:23] Speaker 00:
And so that is in line with the situation in Hall v. Florida.

[00:17:27] Speaker 00:
Smith v. Hamm revolves around

[00:17:30] Speaker 00:
how courts then must make or may make their weighing determinations in making the Atkins decision and how they weigh the evidence.

[00:17:41] Speaker 00:
But in cases like Hall and Mr. Fuston's case, the defendants are not allowed to even present their evidence.

[00:17:48] Speaker 00:
So when it comes to a case like that, however Smith v. Hall comes down, we don't think that that is going to change what the CEFL

[00:17:58] Speaker 02:
says in that... So we can still find it was clearly established here, regardless of what the Supreme Court does in the pending case.

[00:18:07] Speaker 00:
I believe so, Your Honor.

[00:18:09] Speaker 04:
Well, the defendant can't put on evidence without some threshold showing.

[00:18:15] Speaker 04:
Do you agree to that?

[00:18:17] Speaker 04:
Yes.

[00:18:17] Speaker 04:
The Oklahoma statute sets a threshold that you may well challenge, because it just requires one test score over 175.

[00:18:27] Speaker 04:
But in the opinion

[00:18:29] Speaker 04:
of the Supreme Court in this case, the Oklahoma Court of Appeals, excuse me, Criminal Court of Appeals.

[00:18:36] Speaker 04:
It addresses the five tests administered and really challenges the validity of four of them.

[00:18:50] Speaker 04:
One was in full scale.

[00:18:54] Speaker 04:
One everyone agrees was not taken properly.

[00:18:58] Speaker 04:
and the other two were after the defendant knew that if he did poorly enough, he couldn't be executed.

[00:19:05] Speaker 04:
And are we stuck with what the statute says or can we look to what the OCCA actually did and decide that in this circumstance, it wasn't a denial of due process to say,

[00:19:25] Speaker 04:
that the defendant hadn't passed the threshold for putting on the evidence?

[00:19:31] Speaker 00:
I think that if we were here after an Atkins trial or hearing and arguing that the fact finder did not properly weigh various findings in a battle of the experts, that would be a very different question.

[00:19:48] Speaker 00:
But I think here, the OCCA making findings like that

[00:19:53] Speaker 00:
That is not why Mr. Fuston was disentitled to a hearing.

[00:19:56] Speaker 00:
So the 81 score is what disentitled him to a hearing.

[00:20:02] Speaker 00:
So if the OCCA, if he didn't have what was found to be disqualified.

[00:20:07] Speaker 04:
Yeah, that was disqualified under the statute.

[00:20:10] Speaker ?:
Correct.

[00:20:12] Speaker 04:
What if the OCCA goes further than the statute, is more lenient toward defendants than the statute is?

[00:20:21] Speaker 04:
Does that make a difference?

[00:20:23] Speaker 00:
I don't know that it would make a difference because the OCCA is not the fact finder.

[00:20:30] Speaker 00:
So the OCCA, they weren't making a determination of whether he is intellectually disabled.

[00:20:37] Speaker 00:
So even several of those pieces of evidence, that's refuted.

[00:20:44] Speaker 00:
Several of those scores were after the developmental period and after he was charged with capital murder, but that's not supposed to be relevant under clinical guidelines.

[00:20:54] Speaker 00:
And even aside from that, he was administered several malingering tests, including by the state's expert and was found to not be malingering and making good efforts.

[00:21:02] Speaker 00:
So the OCCA kind of cherry picking certain facts that have questionable relevance.

[00:21:09] Speaker 00:
Again, I think if that were

[00:21:12] Speaker 00:
If those were findings made by the fact finder after a hearing, then the argument could be whether that was proper under Atkins or a denial of due process or the standard for making an Atkins determination and was that met.

[00:21:27] Speaker 00:
But here, those questionable facts, I don't think that they entitled Mr. Fuston to any more protection than the statute.

[00:21:40] Speaker 00:
I think the way that one of Mr. Fuston's prosecutors put it before the trial is very illuminating here.

[00:21:46] Speaker 00:
He said that the idea that there's some score that an intellectually disabled person could not attain and that what that score is is subject to debate among professionals underscores this violation.

[00:21:58] Speaker 00:
Because all the professionals involved in this case either found that Mr. Fuston meets diagnostic criteria despite the single outlying score or had to move on to consider the adaptive functioning evidence, including the state's expert,

[00:22:11] Speaker 00:
despite the single outlying score, which also illustrates again why all of this evidence should have been before the fact finder to make the same determinations and weighing of evidence and facts.

[00:22:21] Speaker 00:
Whatever the IQ threshold above which a professional could not diagnose or even consider intellectual disability, in this case it has demonstrably not been met.

[00:22:32] Speaker 00:
The OCCA applied the strict cutoff anyway and found that this obeyed Supreme Court law due to an unreasonably narrow definition of what that law entails.

[00:22:42] Speaker 00:
The Eighth Amendment prohibits Mr. Houston's execution, and Supreme Court law entitles him, at the very least, to a hearing where he is able to prove that.

[00:22:51] Speaker 02:
You know, just Oklahoma's statutes, I guess, is one of a kind, isn't it?

[00:22:58] Speaker 02:
Yes, Your Honor.

[00:22:59] Speaker 02:
A lot of states have variations on it,

[00:23:02] Speaker 02:
It's the only one that has, like, if you're above once, you're done.

[00:23:06] Speaker 02:
Yes.

[00:23:08] Speaker 02:
And his high score was at a younger, was that the first test he'd ever taken?

[00:23:14] Speaker 02:
And then he was a teenager, perhaps?

[00:23:17] Speaker 02:
How old was he?

[00:23:18] Speaker 02:
12.

[00:23:20] Speaker 02:
And you're not saying, does the Constitution prohibit a bright line cutoff?

[00:23:32] Speaker 00:
I don't think we have to necessarily argue that it does in every circumstance.

[00:23:38] Speaker 00:
So we don't need to say that this statute is per se unconstitutional, needs to be thrown away in order for Mr. Houston to be entitled to some form of relief here.

[00:23:51] Speaker 02:
Would your argument be the same if there was one score below 75 and one score above

[00:24:02] Speaker 00:
I don't know that it would because our argument is so reliant on clinical guidelines and the clinicians who have been engaged in this case.

[00:24:12] Speaker 00:
So I think where you vary those kinds of factors and the IQ scores at issue, you might not have a case where the experts either found that the defendant was intellectually disabled or where even the state's expert proceeded to prong to consider the other evidence.

[00:24:30] Speaker 00:
IQ scores that are so clearly disqualifying or really lean towards that, you might have all experts saying we don't need to consider anything besides prong one, he doesn't have some average intelligence and therefore there's no reason for the rest of the Atkins determination.

[00:24:45] Speaker 02:
But the statutory scheme doesn't require, if I'm understanding correctly, doesn't require any evidence from

[00:24:58] Speaker 02:
clinicians, it's kind of a, you know, the state would say, well, we don't need to look at these examinations.

[00:25:09] Speaker 02:
All we need to know is the score.

[00:25:12] Speaker 02:
And I really, I spot your argument that here we have, you know, experts that have looked at this person and have these diagnoses.

[00:25:21] Speaker 02:
But I think the state might say that's irrelevant.

[00:25:25] Speaker 02:
And I think, but you might say, well,

[00:25:27] Speaker 02:
He had one score of 74 and another one of 100.

[00:25:31] Speaker 02:
You know, you'd be probably making a different argument.

[00:25:36] Speaker 00:
That might be a very different case.

[00:25:38] Speaker 00:
And I think, you know, if the state does say that's irrelevant, I think that only underscores what the problem is.

[00:25:46] Speaker 00:
Clinical guidelines say that that can't be irrelevant.

[00:25:48] Speaker 00:
You can't, like as cited in Hall and relied on in Hall,

[00:25:52] Speaker 00:
clinicians and their guidelines say that you can't simply say an IQ is final, conclusive, standalone evidence or evidence against intellectual disability.

[00:26:05] Speaker 00:
You need to rely on clinical judgment and you need to be able to look at the weighty and substantive, which was the language used in Hall, evidence that those in the medical community would consider probative even with an IQ score above 70.

[00:26:24] Speaker 00:
Thank you.

[00:26:25] Speaker 00:
I'll reserve some time.

[00:26:26] Speaker 00:
Thank you.

[00:26:45] Speaker 03:
Good morning, Your Honors.

[00:26:47] Speaker 03:
May it please the Court.

[00:26:47] Speaker 03:
My name is Michael Trapaso and I am here on behalf of the warden

[00:26:52] Speaker 03:
Christy Quick, who is the respondent in this case.

[00:26:55] Speaker 03:
I'll begin first with Petitioner's bet claim.

[00:26:58] Speaker 03:
In ground one, he claims that it was a 14th Amendment violation for the court not to instruct on secondary murder.

[00:27:07] Speaker 03:
But Petitioner fails to meet his burden under both D1 and D2 for multiple reasons.

[00:27:12] Speaker 03:
Primarily, as this court noted in questioning Petitioner's counsel, the OCA applied the correct standard here.

[00:27:20] Speaker 03:
Petitioner even conceded that.

[00:27:22] Speaker 03:
This is not, this case is different from Williams, Phillips, Taylor, Hogan because here the OCA did not purely rely on the evidence supporting first degree murder.

[00:27:38] Speaker 03:
The OCA concluded that there was no evidence supporting a second degree murder instruction and thus there was no evidence from which a rational jury

[00:27:48] Speaker 03:
could find Petitioner guilty of second degree murder.

[00:27:51] Speaker 03:
Specifically, this is what the court wrote.

[00:27:53] Speaker 03:
A review of the record showed Petitioner did not present any evidence, nor did the state's case provide any, showing he engaged in imminently dangerous conduct and extreme disregard for human life.

[00:28:05] Speaker 03:
Based on that conclusion, the court said that a reasonable jury would not have, the evidence would not have permitted a rational jury to find him guilty of second degree murder.

[00:28:14] Speaker 04:
Well, let me ask you some questions about that.

[00:28:18] Speaker 04:
If the evidence were clearly that all that happened was he threw open the door and shot randomly, and there were no later two shots at someone who he saw move, would that support a second degree murder conviction?

[00:28:41] Speaker 03:
If the evidence supported purely shooting recklessly?

[00:28:45] Speaker 04:
Bursting open the door and shooting, yeah,

[00:28:48] Speaker 03:
Potentially, Your Honor, but that is not the situation presented here.

[00:28:51] Speaker 04:
Well, that's what I want to ask about, because what opposing counsel is suggesting is the evidence that went beyond that was questionable evidence.

[00:29:01] Speaker 03:
It was not, Your Honor.

[00:29:02] Speaker 03:
Specifically, the evidence on which, well, let's talk about what the OCA based its decision on first.

[00:29:08] Speaker 03:
And this is unrebutted by facts from the record on petitioner's side.

[00:29:11] Speaker 03:
The OCA based its decision primarily on the finding

[00:29:17] Speaker 03:
that, I'm sorry, let me get to my right page here.

[00:29:26] Speaker 03:
I'm sorry, just one moment.

[00:29:37] Speaker 03:
Specifically, the court based its finding on the fact that Petitioner had been recruited by his fellow gang members

[00:29:46] Speaker 03:
to find and kill Ms.

[00:29:49] Speaker 03:
Dillard, and that he drove from Enid to Oklahoma City, where they met together to formulate a plan to achieve that end, and that when he kicked in the door, he had the intent to kill anyone in the room.

[00:30:05] Speaker 03:
Let's talk about the evidence, even accepting primarily that, let's say, petitioner kicked in the door

[00:30:14] Speaker 03:
or was shooting as the door was being kicked in.

[00:30:17] Speaker 03:
That actually supports a finding of premeditation, Your Honors, because we have to consider the evidence as a whole.

[00:30:23] Speaker 03:
The other evidence was not suspect.

[00:30:26] Speaker 03:
We have the crime scene reconstructionists testifying that the room, and states exhibit 35 shows the room was roughly from the door to the back wall was about

[00:30:38] Speaker 03:
20 feet, give or take.

[00:30:39] Speaker 03:
We know Petitioner was seated on the closest end of the, or excuse me, Mr. Rhodes was seated on the end of the couch closest to the door.

[00:30:45] Speaker 03:
And all of the bullets were directed north at where Mr. Rhodes was seated.

[00:30:52] Speaker 03:
This is not a situation where he merely sprayed the room or was just shooting recklessly.

[00:30:58] Speaker 03:
Petitioner went into that home and fired five shots at Mr. Rhodes.

[00:31:04] Speaker 03:
And we know that because he said that, because he said he saw Mr. Rhodes move, which shows he had... And the physical evidence supports that.

[00:31:12] Speaker 03:
Yes, Your Honor, because all of the bullets were fired from Petitioner's gun.

[00:31:16] Speaker 03:
The bullet defects were all directed north in the direction of where Mr. Rhodes was seated.

[00:31:22] Speaker 03:
The projectile, the fireplace, and the chair where other bullet defects were found were all north in the area of where Mr. Rhodes was seated.

[00:31:35] Speaker 03:
And moreover, Your Honors, the OCAS decision was supported by the evidence such that fair-minded jurors could agree with that decision.

[00:31:48] Speaker 03:
Petitioner Machelle.

[00:31:50] Speaker 03:
that there was evidence from which a rational jury could convict him of second degree murder and acquit him of first degree murder.

[00:31:59] Speaker 03:
He has not met that burden.

[00:32:01] Speaker 03:
I point this court to your decision in Grant.

[00:32:04] Speaker 03:
There the court concluded that none of the facts on which the petitioner relied clearly and convincingly unseeds the Ocas finding that all of the evidence surrounding the killing suggested a degree of premeditation and that the court could not say

[00:32:19] Speaker 03:
Given the facts in this record, a rational jury could have found the petitioner acted without any premeditated design to kill the victim.

[00:32:26] Speaker 03:
And to the extent the OCA discussed in its opinion a premeditated design to kill, that is based on the definition of second degree depraved mind murder.

[00:32:34] Speaker 03:
Specifically, second degree depraved mind murder under Oklahoma law occurs when perpetrated by an act eminently dangerous to another person in evincing a depraved mind, regardless of human life,

[00:32:46] Speaker 03:
although without any premeditated design to affect the death of any particular individual.

[00:32:51] Speaker 03:
To the extent the OCA is discussing premeditated design in its opinion, that is not discussing the sufficiency of the evidence for first degree murder.

[00:32:59] Speaker 03:
That is saying Petitioner did not meet the last element of second degree depraved mind murder, which is that there was no premeditated design.

[00:33:09] Speaker 03:
And again, Your Honors, the uncontroverted evidence on which the OCA based its decision

[00:33:15] Speaker 03:
was that petitioner drove from Enid to Oklahoma City at the request of fellow gang members, and he met with them to formulate a plan to kill Ms.

[00:33:24] Speaker 03:
Dillard and anyone else in the home.

[00:33:26] Speaker 03:
Petitioner has not rebutted that with facts from the record, and that is binding on this court.

[00:33:31] Speaker 03:
Moreover, to the extent petitioner

[00:33:34] Speaker 03:
if I heard correctly, in his argument, discussed that the evidence did not support a meeting between Petitioner and his fellow gang members.

[00:33:45] Speaker 03:
That is conclusively refuted by the record.

[00:33:48] Speaker 03:
We know that they went to, it was either Ms.

[00:33:51] Speaker 03:
Jordan or Ms.

[00:33:52] Speaker 03:
Pennant's apartment, to discuss a plan of what they were going to do.

[00:33:56] Speaker 03:
So that's, sorry.

[00:33:58] Speaker 02:
Couldn't a jury have disbelieved that?

[00:34:03] Speaker 02:
In other words, discounted the credibility of those planning witnesses.

[00:34:08] Speaker 02:
And if that is true, doesn't that get the defendant here closer towards a lack of evidence of premeditation?

[00:34:22] Speaker 03:
No, Your Honor, because you have to consider all of the evidence as a whole.

[00:34:26] Speaker 03:
You can't just take one fact specifically to the exclusion of all others.

[00:34:30] Speaker 03:
Here, all of the evidence, as I've discussed, the direction of the bullet defects, the physical evidence corroborates, taken as a whole with the evidence on which the OCA based its decision shows a premeditated intent to kill here, Your Honor.

[00:34:47] Speaker 02:
But that's not what I'm saying.

[00:34:49] Speaker 02:
OK.

[00:34:51] Speaker 02:
Witness statements, you know, it's credibility and all that and they say what they say.

[00:34:57] Speaker 02:
But the question, you know, the back question is could a reasonable jury discount the credibility of these witnesses in such a way that would get a possibility of a second degree conviction?

[00:35:11] Speaker 03:
I do not believe they could, Your Honor.

[00:35:13] Speaker 03:
Based on the evidence taken as a whole, I do not believe they could disbelieve that.

[00:35:19] Speaker 03:
especially when you consider the evidence showing that the state presented cell phone logs showing petitioners' conversations with the government phone used by Ms.

[00:35:32] Speaker 03:
Jordan and Ms.

[00:35:32] Speaker 03:
Pennan collectively showed not just leading up to the murder, but the day of the murder, there were calls

[00:35:41] Speaker 03:
It I couldn't even count the number of phone calls between the two cell phones, so we know petition was discussing this extensively with Miss Jordan and Miss Penn and the other gang members and then.

[00:35:53] Speaker 03:
We know as he came down to Oklahoma City, they were still discussing it and they met to discuss it.

[00:35:59] Speaker 03:
And they continued, even though they drove through South Oklahoma City looking for someone to rob, the phone calls leading up to the murder show and the cell location data show that they were driving all in the same direction towards the Rhodes home.

[00:36:15] Speaker 03:
So all of the evidence taken as a whole, I do not believe a rational jury

[00:36:20] Speaker 03:
And a rational jury would not have been able to find Petitioner guilty of secondary murder in this case.

[00:36:26] Speaker 04:
Did you say a government phone?

[00:36:29] Speaker 03:
Yes, Your Honor.

[00:36:29] Speaker 03:
So there was the so the Ms.

[00:36:34] Speaker 03:
Jordan and Ms.

[00:36:34] Speaker 03:
Penland had a friend who would go and

[00:36:39] Speaker 03:
purchase a large number of government phones, you could go to a stand and just, if you were collecting welfare or other government benefits, you could sign up and just get a free cell phone.

[00:36:52] Speaker 04:
Okay.

[00:36:52] Speaker 03:
And that's the phone that they had their friend.

[00:36:56] Speaker 03:
I was thinking someone was acting undercover or something.

[00:36:58] Speaker 03:
Oh no, I apologize.

[00:36:59] Speaker 03:
No, no, that's... Yeah, sorry.

[00:37:01] Speaker 03:
But yeah, basically, if you were collecting public benefits, you could get a government fund.

[00:37:06] Speaker 03:
And that's what they use to formulate their plans for this.

[00:37:12] Speaker 03:
The only argument which petitioner relied at the OCA regards the timing of the shots, and that is the only argument on which he can rely here, Your Honor.

[00:37:22] Speaker 03:
To the extent he points to Mr. Butler's testimony that he guessed they were going back to the Rhodes home for another fight, that is not properly before the court.

[00:37:35] Speaker 03:
And further, it's not even a fact on which petitioners were lying here when he says the timing of the shots.

[00:37:42] Speaker 03:
It's an inference from a singular piece of evidence to the exclusion of all of the other evidence presented at trial, Your Honors.

[00:37:51] Speaker 03:
has repeatedly concluded that speculation is insufficient to meet your burden of showing entitlement to a lesser included defense instruction.

[00:37:59] Speaker 03:
In Darks, which the court even reviewing de novo, there the court concluded that any inference of provocation was, quote, mere speculation insufficient to establish the provocation needed to support heat of passion manslaughter.

[00:38:13] Speaker 03:
And then in Robodeau, the court, there the petitioner pointed to evidence in the record

[00:38:21] Speaker 03:
prior altercations between him and the victim, arguing that the murder could have resulted unintentionally from another such altercation.

[00:38:30] Speaker 03:
And this court rejected that claim first because it concluded it did not square with the evidence and because speculation about what might or might not have occurred, quote, did not constitute sufficient evidence to require a lesser included defense instruction under VEC.

[00:38:52] Speaker 03:
The overwhelming weight of the evidence at trial showed that Petitioner had the intent to kill Ms.

[00:39:00] Speaker 03:
Dillard and anyone else in the home.

[00:39:03] Speaker 03:
Again, as I've discussed, the bullet defects, the physical evidence, the diagram showing how close Mr. Rhodes was to the door, Petitioner's statement to Mr. Butler, that he shot multiple times because he saw Mr. Rhodes move, and it was supported by the

[00:39:21] Speaker 03:
crime scene reconstruction is that Mr. Rhodes was indeed moving when he was shot.

[00:39:27] Speaker 03:
That was also presented.

[00:39:29] Speaker 03:
And we also, again, yes.

[00:39:35] Speaker 03:
And moving briefly to D2, Your Honors, petitioner also fails to meet his burden here.

[00:39:45] Speaker 03:
To the extent he claims that this was a mixed question of law or fact,

[00:39:52] Speaker 03:
the decision.

[00:39:53] Speaker 03:
This court has concluded that even mixed questions of law and fact do not come within the auspices of D2 and that's under wood.

[00:40:01] Speaker 03:
Regardless, he has not shown all fair minded jurists could agree that the determination was incorrect.

[00:40:09] Speaker 03:
He still has not rebutted the finding

[00:40:11] Speaker 03:
of the OCA that he intended to kill at the home, the timing of the shots we submit actually supports that he intended to kill.

[00:40:21] Speaker 03:
Also, I would point the courts, I apologize for not bringing this up earlier, there's a picture in states exhibit 36 of a bullet defect in the door.

[00:40:30] Speaker 03:
And it shows, looking to that, you can see it's not as if the door was closed when the bullet passed through.

[00:40:36] Speaker 03:
The door was clearly open and the bullet struck, clipped the side of it in the direction of where Mr. Rhodes was seated.

[00:40:50] Speaker 03:
Moreover, the OCA did not ignore the evidence as petitioner claims.

[00:40:55] Speaker 03:
It merely concluded there was no evidence from which a rational jury can find that petitioner did not act with a premeditated intent to kill.

[00:41:05] Speaker 03:
And if there are no further questions, I will move to the Atkins claim.

[00:41:09] Speaker 04:
Let me start that off with some questions, because reading the transcript, I didn't listen, but reading the transcript of the recent Supreme Court

[00:41:20] Speaker 04:
Everyone seemed to treat and accept that Oklahoma was an outlier, which in itself is problematic.

[00:41:31] Speaker 04:
But it didn't get any defenders in the argument.

[00:41:36] Speaker 04:
And we'll find out what the ultimate decision is in that case.

[00:41:41] Speaker 04:
We don't know.

[00:41:42] Speaker 04:
You can't always tell by what, as you've learned with this court, you can't always tell from what happens in oral argument.

[00:41:49] Speaker 04:
But put that together with the Andrew case, which I must say I was surprised by the Supreme Court's, I think, reconstruction of what clearly established Supreme Court authority is.

[00:42:08] Speaker 04:
How do you get over those two humps?

[00:42:10] Speaker 03:
For starters, Your Honor, to the extent the petitioner relies on the transcripts of oral argument or briefing in the Henry Smith case,

[00:42:20] Speaker 03:
He did not rely on those arguments at the OCA.

[00:42:22] Speaker 03:
While those specific statements were not available to him, he could have mustered those same arguments himself.

[00:42:30] Speaker 03:
So that is not properly before the court.

[00:42:33] Speaker 03:
And to the extent, I'm sorry, Your Honor, what was your second question?

[00:42:37] Speaker 03:
I apologize.

[00:42:38] Speaker 03:
Oh, Andrew, yeah.

[00:42:39] Speaker 03:
Yes, sorry.

[00:42:40] Speaker 03:
Andrew does not apply here, Your Honors, because we are not arguing there is no clearly established law.

[00:42:49] Speaker 03:
The question here is whether the OCA unreasonably applied the general principles of Atkins and its progeny, Your Honors.

[00:42:57] Speaker 03:
Andrew was specifically concerned with the discussion of clearly established law.

[00:43:01] Speaker 03:
To the extent we are arguing that the Supreme Court petitioner's argument misconstrues the Supreme Court argument, specifically the Supreme Court has never held

[00:43:11] Speaker 03:
specifically that states cannot use an IQ cutoff score.

[00:43:17] Speaker 03:
The Supreme Court has held that states cannot use an IQ cutoff score.

[00:43:20] Speaker 03:
that does not account for the standard error of measurement.

[00:43:24] Speaker 03:
That was the issue in Hall.

[00:43:25] Speaker 03:
The Florida Supreme Court's decision was reversed in Hall because it took the petitioner's 71 IQ score as conclusive, but did not factor in what that score range would be with the standard error of measurement.

[00:43:40] Speaker 03:
That's why Hall reversed the Florida Supreme Court's decision.

[00:43:45] Speaker 03:
Further, to the extent petitioner argues that the

[00:43:51] Speaker 03:
clinical standards mandate consideration beyond just one IQ score.

[00:44:01] Speaker 03:
The Supreme Court has never squarely established what standards apply.

[00:44:08] Speaker 03:
how to apply them, what to do in cases of multiple IQ scores like we have here.

[00:44:13] Speaker 03:
And as such, it was not an unreasonable application of the clearly established law for the OKTA to say, as it did in its opinion, these decisions do not, the Supreme Court's decisions do not mandate a different outcome.

[00:44:31] Speaker 04:
Well, that's the problem.

[00:44:34] Speaker 04:
They haven't clearly established that.

[00:44:38] Speaker 04:
In Andrew, they hadn't said specifically how to review evidence of sexual misconduct by the defendant.

[00:44:50] Speaker 04:
What they said was clearly established was it has to be fair.

[00:44:58] Speaker 04:
And that's not a lot more specific than what they've said in the case law regarding

[00:45:08] Speaker 04:
intellectual disability and the death penalty.

[00:45:11] Speaker 04:
That's where I'm hung up.

[00:45:14] Speaker 04:
I apologize, Your Honor.

[00:45:15] Speaker 04:
No, it's not your fault.

[00:45:17] Speaker 03:
It's the Supreme Court.

[00:45:20] Speaker 03:
to be honest, has not provided extensive guidance on what to do in these situations.

[00:45:26] Speaker 03:
But to the extent they have not, it is not an unreasonable application of the clearly established law for a state court to decline to extend a specific rule that has not been squarely established by the Supreme Court.

[00:45:39] Speaker 03:
And the Supreme Court has said that repeatedly, particularly in Knowles v. Merzansk.

[00:45:43] Speaker 02:
But that's exactly what Andrew disrupts.

[00:45:49] Speaker 02:
you know, unreasonable application of law under the due process clause and, you know, that before Andrew was required some specificity and they amped up the level of generality in that case and you amp it up into this Adkins arena.

[00:46:08] Speaker 02:
There's, you know, a lot of cases that are suddenly at risk that you thought might not be

[00:46:18] Speaker 02:
proper Atkins claims before Andrew.

[00:46:21] Speaker 03:
Your Honor, respectfully, I would push back a little bit on that interpretation of Andrew.

[00:46:26] Speaker 03:
Andrew was focused specifically on the clearly established law, not unreasonable application.

[00:46:32] Speaker 03:
Atkins established the general principle that states cannot execute someone who is intellectually disabled.

[00:46:40] Speaker 03:
It left to the states, however, how best to determine who meets that definition.

[00:46:45] Speaker 03:
Hall mandates consideration

[00:46:48] Speaker 03:
of the standard error of measurement.

[00:46:50] Speaker 03:
And to the extent Hall, Brumfield, and Moore require consideration of clinical standards, but not all clinical standards, as the court said in Moore, it was not.

[00:47:06] Speaker 03:
The more general the rule, Your Honors, the more leeway state courts have in reaching outcomes and case-by-case determinations.

[00:47:12] Speaker 03:
This is a general rule where the Supreme Court has not squarely established

[00:47:17] Speaker 03:
what to do, what clinical standards apply, how to apply them, or what to do in situations of multiple IQ scores.

[00:47:25] Speaker 04:
And for that reason... Our error in Andrew 1 was thinking that because there are no cases involving this type of evidence, there's nothing to give us sufficient guidance to really review it.

[00:47:41] Speaker 04:
So we said we're not going to review that issue.

[00:47:44] Speaker 04:
And the Supreme Court said no.

[00:47:46] Speaker 04:
Now it went back to us to see it was unreasonable application, but there was nothing specific in Supreme Court decisions that gave us any guidance except our sense of fairness.

[00:48:03] Speaker 04:
And that's not that different from the guidance the Supreme Court is giving in the intellectual disability arena.

[00:48:14] Speaker 03:
point the court to the decision and more specifically, while the court noted that clinical guidelines should not be wholly disregarded, it also said that states need not adhere to everything stated in the latest medical journal.

[00:48:31] Speaker 03:
So I would think that distinguishes this a bit more from Andrew.

[00:48:34] Speaker 03:
Further, Your Honor, to the extent petitioner

[00:48:42] Speaker 03:
asserts that the Supreme Court's decisions mandate consideration beyond a singular IQ score in every case.

[00:48:52] Speaker 03:
That is foreclosed by the language in hall.

[00:48:55] Speaker 03:
Specifically at page 723, the court wrote, the court agrees with the medical experts that when a defendant's IQ test score falls within the test acknowledged an inherent margin of error.

[00:49:06] Speaker 03:
then he should be allowed to present further evidence of intellectual disability.

[00:49:11] Speaker 03:
And in Rumfield, that was reaffirmed where the court again reversed a state court's decision.

[00:49:18] Speaker 03:
I apologize for not stating this at the beginning.

[00:49:21] Speaker 03:
It is also important to note the procedural posture of the Supreme Court's cases.

[00:49:27] Speaker 03:
Hall and Moore

[00:49:28] Speaker 03:
were each direct review cases.

[00:49:31] Speaker 03:
The issue of EDPA and the deference required under EDPA were not applicable in those cases.

[00:49:38] Speaker 03:
And to the extent the court reversed in Brumfield, which was the only habeas case, it was because the state court, again, failed to account for the standard error of measurement, what score that would yield.

[00:49:50] Speaker 03:
And notably, the court explained in Brumfield that if there was evidence of a higher score than 75,

[00:49:58] Speaker 03:
that could have rendered the state court's decision reasonable.

[00:50:02] Speaker 03:
So I think that's very important to consider as well.

[00:50:05] Speaker 02:
If you have a record where the score above 75 looks like an outlier, maybe that's this case a bit, but there are multiple scores below the threshold.

[00:50:18] Speaker 02:
One above taken when the defendant was young, every other test even before the

[00:50:26] Speaker 02:
specter of a murder trial was there were low, and yet, you know, some clinical evidence that's presented.

[00:50:35] Speaker 02:
You know, it seems like, you know, the thrust of the case law is why the defendant gets an evidentiary hearing under Atkins.

[00:50:48] Speaker 02:
You know, he might lose that, but, you know, he still gets, you know, a neutral adjudication

[00:50:55] Speaker 02:
the disability question.

[00:50:57] Speaker 02:
And here, you know, it's, you know, you don't get that if there's one good score.

[00:51:08] Speaker 03:
The Supreme Court has not clearly established what to do in situations with multiple IQ scores.

[00:51:14] Speaker 03:
And it is not an unreasonable application of the clearly established law to refuse to extend a specific rule that has not been squarely established by the Supreme Court.

[00:51:26] Speaker 02:
Would your argument be different if we didn't have that difference?

[00:51:35] Speaker 03:
I'm not entirely sure.

[00:51:36] Speaker 03:
I don't believe so, Your Honor.

[00:51:39] Speaker 03:
This court does have that difference.

[00:51:43] Speaker 03:
I apologize.

[00:51:45] Speaker 03:
But the Supreme Court, again, has never mandated that state courts cannot use a singular IQ score to deny Atkins relief.

[00:51:57] Speaker 03:
And additionally, I would also like to touch on this court's prior decisions on this issue.

[00:52:07] Speaker 03:
Specifically, while we maintain that Smith, Tryon, and Postel are still applicable here despite Petitioner's abandonment of his Flynn effect claim, in Smith particularly, this court stated while, yes, there is a footnote noting that Petitioner was primarily relying on the Flynn effect here, Your Honors,

[00:52:35] Speaker 03:
or excuse me, in Smith, the court still concluded that Oka's decision finding its statute constitutional

[00:52:46] Speaker 03:
was not contrary to or an unreasonable application of the clearly established law, particularly Hall, because it excludes, the statute excludes, only those whose SIM-adjusted IQ scores fall outside the generally accepted range for intellectual disability.

[00:53:03] Speaker 03:
So even if, and the court and Smith specifically said that Hall focused exclusively on the standard error of measurement.

[00:53:12] Speaker 03:
And then in Postel and Tryon, the court appeared to indicate or appeared to believe that the issue of the constitutionality of Oklahoma's statute had already been addressed.

[00:53:28] Speaker 03:
In Postel, particularly, the court noted that it had previously addressed the constitutionality of the statute in Smith.

[00:53:37] Speaker 03:
And then in Tryon, the court again concluded

[00:53:40] Speaker 03:
Well, the court concluded neither trial nor appellate counsel were ineffective because the petitioner had an 81 IQ score like the petitioner here.

[00:53:50] Speaker 03:
And that precluded any ID claim under state law, which we would maintain.

[00:53:58] Speaker 03:
And we would maintain that those cases are still applicable here, Your Honors.

[00:54:03] Speaker 03:
If I could just reiterate again, Your Honors, petitioner's argument

[00:54:09] Speaker 03:
to the extent he claims that the Supreme Court has mandated consideration beyond just one IQ score that has not been squarely established by the US Supreme Court.

[00:54:19] Speaker 03:
And it was not an unreasonable application of those cases for the OPA to decline, to extend that specific rule that had not been clearly established.

[00:54:29] Speaker 03:
Unless there are any further questions, Your Honors, we ask that this court affirm the denial of habeas relief as to both Petitioner's Bet claim and his Actions claim.

[00:54:37] Speaker 04:
Thank you.

[00:54:39] Speaker 04:
You don't think we should wait on the Atkins client to see what the Supreme Court says?

[00:54:43] Speaker 03:
No, Your Honor, because we would maintain that that would be teabard.

[00:54:50] Speaker 03:
It would have to be all fair-minded jurists, all reasonable jurists reading the Supreme Court's decisions would have to be able to conclude that the Supreme Court mandated consideration beyond just the singular IQ score.

[00:55:06] Speaker 03:
And as we've discussed, that is not

[00:55:09] Speaker 03:
the case.

[00:55:10] Speaker 03:
And so we would maintain that whatever happens in Hanvey Smith, that would not affect the outcome of this case, Your Honors.

[00:55:18] Speaker 03:
Thank you.

[00:55:18] Speaker 03:
Thank you, Your Honors.

[00:55:29] Speaker 00:
I'll briefly make a few points about VEC before moving on to Atkins.

[00:55:33] Speaker 00:
I first note that the language that Epeli used today and throughout

[00:55:39] Speaker 00:
Her brief about the evidence needing to be considered as a whole sounds a lot like a weighing determination to me.

[00:55:46] Speaker 00:
That's not a standard that has been drawn from any of this court's jurisprudence.

[00:55:51] Speaker 00:
The case in which this court used the as a whole language was in Mitchell, which was a case where one of the cases where this court did not defer to the OCCA because the OCCA did not review the evidence as a whole and excluded a piece of evidence in saying that

[00:56:07] Speaker 00:
there was no entitlement to a second degree murder instruction, which this court did end up agreeing with that determination, but along the way said that there was no epideference due to the OCCA not viewing all of the evidence.

[00:56:20] Speaker 00:
I would second briefly note, we don't dispute that Mr. Fuston met up with the other participants in Oklahoma City and

[00:56:31] Speaker 00:
Many times throughout the shooting occurring, that does not mean that they were formulating a plan to kill, and there's no evidence of that.

[00:56:41] Speaker 00:
Mr. Butler's evidence to the contrary, his testimony was that they were going to the victim's niece's house for another fight.

[00:56:50] Speaker 00:
There's nothing that makes that evidence speculation.

[00:56:52] Speaker 00:
And as we briefly discussed in our 28-J response, that is briefly before the court and nothing

[00:57:00] Speaker 00:
Andrew B. Tinsley or anywhere else makes that not fairly presented to the state courts below.

[00:57:08] Speaker 02:
The trial court sitting there defenses, I want this instruction.

[00:57:14] Speaker 02:
It seems like the trial judge you sat through the trial is going to evaluate the evidence as a whole necessarily to answer the back question and decide whether the Oklahoma

[00:57:27] Speaker 02:
element of not done with the intention of taking a life.

[00:57:33] Speaker 02:
There's evidence that would support a jury conclusion of that.

[00:57:37] Speaker 00:
He was supposed to, Your Honor.

[00:57:38] Speaker 00:
That's right.

[00:57:39] Speaker 00:
And I think some of these court's cases, this court's cases like Turrentine and Taylor, that was part of the equation that there was a decision for a second degree instruction, but it was the instruction itself.

[00:57:49] Speaker 02:
I'm just saying that the trial judge is going to be looking at the evidence as a whole necessarily.

[00:57:55] Speaker 00:
Yes, and then here we contend that he violated Mr. Fusen's due process rights in that decision.

[00:58:00] Speaker 00:
And finally, briefly, I'll just speak to Grant, which was brought up.

[00:58:04] Speaker 00:
The evidence there was disputed evidence that there was a mental infirmity that prevented the intent from being formed.

[00:58:11] Speaker 00:
And the evidence, the defense's expert did not actually present evidence of that.

[00:58:17] Speaker 00:
So that was rejected.

[00:58:19] Speaker 00:
And that's similar to

[00:58:20] Speaker 00:
Bryson, which the state in Williams said was an example of a case showing that sometimes the evidence of intent is so strong that there's no need for a second degree instruction.

[00:58:30] Speaker 00:
And this court in Williams distinguished that and said in Bryson included evidence of plotting for a month.

[00:58:36] Speaker 00:
And similarly here, our case is distinguished.

[00:58:39] Speaker 00:
I'll move on to a brief rebuttal of some points in the Atkins claim.

[00:58:44] Speaker 00:
We would contend that the Supreme Court has provided extensive guidance on how to adjudicate Atkins' claims

[00:58:50] Speaker 00:
Just because these have been in the forms of more general clinical guidelines does not change what the result needs to be.

[00:58:57] Speaker 00:
We saw Mr. Hall who had a high score of 80 receive relief back in state court.

[00:59:02] Speaker 00:
We saw Mr. Moore receive relief from the Supreme Court with a high score of 78 in Oklahoma.

[00:59:07] Speaker 00:
They would have been executed.

[00:59:08] Speaker 00:
Not adhering to everything in the latest medical guide does not mean states are free to disregard clinical guidelines.

[00:59:14] Speaker 00:
Thank you.

[00:59:16] Speaker 04:
Thank you, counsel.

[00:59:18] Speaker 04:
You got a lot in there.

[00:59:20] Speaker 04:
That's helpful to us.

[00:59:24] Speaker 04:
Case is submitted, counsel excused, and court is adjourned, right?