good morning your honor and may it please the court patricia young representing opponent william kirkpatrick jr i'd like to start today by discussing the waiver issue because when the california supreme court held that mr kirkpatrick waived his state exhaustion petition it precluded all merits review of more than twenty federal constitutional claims and yet it did so despite the fact that there was no evidence that the waiver was knowing and intelligent and in fact without conducting any inquiry to determine what standard to a state petitioners waiver of a state petition in genesis versus budge well there is deference apply to the waiver claim no it does not your honor and that's because when a person is waiving his right to proceed that is not actually a claim for relief and so under twenty two fifty four d deference only applies to claims adjudicated on the merits but as the third circuit explained in fahy because this wouldn't give him any entitlement to relief just simply succeeding on the waiver claim would allow his other claims to be heard there's no need to apply twenty to fifty forty you know in this case there's a number of ways to find that the way you're so it's so strange to it's your honor so essentially because the california supreme court never adjudicated the merits of any of the twenty underlying claims there's nothing to apply twenty two fifty four to waiver in this case is really a condition precedent to being able to we think that the california supreme court did make an adequate finding on that why wouldn't the most he would get is a chance to go back to state court or perhaps a district court and have a finding maned why and why is go straight to considering the underlying claims i'd actually like to take a step back and i don't think there was actually in fact a waiver in this case was it was a piece of paper right that's correct mr kirkpatrick began this process with a procedure waiver form with two ball yes and that begins the process because a waiver must be knowing intelligent voluntary there's just simply no way to tell from that piece of paper whether mr kirkpatrick appreciated the finding of the district court and disagreed with then we could decide that question we could affirm the district court on the basis of whether or not the district court was correct in finding that there was a way that there was no there was a waiver yes your honor and we're not depending on what theory we follow intelligent and voluntary and the referee and the california supreme court understood that a call if we was required to ask him questions to make that determination but when the referee twice wrote a letter to mr kirkpatrick saying if you actually intend to waive you need to come to court and answer some questions mr kirkpatrick didn't appear that's an indication that he didn't actually intend to waive the second way to find that there was no waiver is that a valid waiver must be clearly established that it's knowing intelligent and voluntary and because there is no record showing that this waiver was knowing and intelligent you simply cannot make that determination you cannot find a way for absent some the waiver must be knowing intelligent and voluntary well i asked a question about this in the endless yes and so how else are you to determine whether a waiver is knowing intelligent voluntary unless you ask and look at the fact he was mental understand those twenty plus claims in his petition and wish to forego them and there is simply nothing in this record in which anybody ever discussed those claims with him and so we just don't know and in fact we do have an indication that  and just just seems like i'd like a pass to the lower bypass of state court proceedings and your honor i think in that regard this court should be guided by the seventh circuit case in st pierre and there the court recognized it's not unsympathetic to the plight of that the state courts find themselves in when they deal with these obstreperous petitioners however the petitioners behavior does not absolve any court of its duty to apply due process and ensure that an actual especially in a capital case when the consequences of waiver are so dire why wouldn't the fair thing we do send it back to state quite the samak will suspend proceedings go back and try again once for exhaustion purposes the same should apply here the california supreme court had the opportunity to rule on this waiver it recognized that it needed to hold a waiver colloquy the referee to determine that he wanted to court he won't come into court to that's true your honor but they're both conditions precedent to finding a waiver and in fact in the district court scenario the court first told mr kirkpatrick you have to come in for an inquiry nothing ever happened four years later the court said we want an update on competency mr kirkpatrick refused to meet with the expert and so the district court said i'm not considering your waiver and in fact this is happened in other cases where a petitioners refusal refusal to participate in the process results in the court informing them if you're not going to participate then i'm not going to consider this waiver as for the competency determination in this case despite the fact that mr kirkpatrick was ultimately found to be competent that finding should not be entitled to any deference because there were not adequate procedures engaged in to reach that determination mr kirkpatrick had obvious signs of irrational behavior indicating mental illness his letters describe ass conspiracies against him the guards are trying to kill him they're part of a white or jewish  correct but just the one that was wrong what's wrong with our the fact that one competency evaluation that lasted two and a half hours was in adequate based on this record this is did vall get any more yes he did your honor  process does require adequate process and on the facts of this case two and a half hours from one expert simply was not adequate why not i mean  attacked by courtroom staff during one of the status conferences at the reference hearing i mean just these indications of these delusions need to be tested and especially when you have an expert who is only willing to test illusional statements made during the actual inquiry with him two and a half hours simply is not enough because we know that signs of mental illness wax and wane which makes it all the more important to have an extended competency evaluation just keeping an eye on my time here i'd like to turn to the certified issue in which jurors were instructed that they could consider as aggravation the fact that mr kirkpatrick poisoned dogs and threaten property now it's jurors were instructed that they could specifically considering the poisoning of the dogs and the threats against property as aggravating factors when those are not those are non statutory aggravating factors in california and it's also undisputed that california does not allow  no your honor that was the one nine hundred seventy seven version of the california law mr kirkpatrick was sentenced under the one nine hundred seventy eight version which those that you can only consider statutory aggravating factors and the california supreme court in this case held that it was error to instruct jurors that they could consider these aggravating factors because they were not in the statue now this also violated mr kirkpatrick's eighth and fourteenth amendment rights because the supreme court has instructed that when a state chooses to have capital punishment it must develop a system that channels the jurors sentencing discretion in order to avoid arbitrary and capricious sentences california does this via its aggravating factors and one ninety point three this yes this is an actual claim twenty four to fifty four d typically applies however in this case we argue that the presumption out of johnson's versus williams that a state court decides the federal issue has been rebutted in this case the state court treated this as a state law issue it applied the state law harmless error test and it did not rely on federal law in any way it had harmless error tests differ from the constitutional standard it's there are california cases that say it's essentially the same but the fact that they chose the state law standard just shows that they weren't paying attention to the fact that it was a federal law issue however it does not alternately change the analysis because this court must apply brecht under any circumstances but under brecht the state has the burden to show that this error did not have a substantial and injurious effect or influence on the jury's verdict now in this case we have objective evidence that jurors struggled to reach a verdict they deliberated penalty for two days when all penalty phase evidence was introduced in one day they the only defense presented penalty phase evidence was mr kirkpatrick's seven page testimony which contained little to no mitigating evidence and yet jurors still deliberated penalty for today error was harmful than that would necessarily show that the state court unreasonably found this error to be harmless now your honour's i see that i have about nine minutes left unless you have an options for me at this point i'd like to reserve my from dogs and a threat to damage the home of surely j in order to get to her daughter a fourteen year old girl was included as evidence in the in the trial brain factors but merely a top applying the nomination of aggravating factor to relevant at missile evidence was insubstantial there is that the possibility that having heard that evidence of the argument that he is he's was so resolved to injure this girl and want to make that so certain to the mother who he was talking to that he was even willing to poison dogs that was relevant directly to the threat to the girl as you all of come across i'm sure whenever a crime of all to threat the first offenses i didn't mean it i was puffing exaggerating the prosecution put on evidence girl repeated he was going to get hit get some white meat these are these facts were all completely involved in one thing the threat the air which a supreme court recognized an instructional air of california law was by labeling them as aggravating factors that's the air it's not the fact of the theater jury heard that information it's not the fact they her evidence of his threats to kill two into the dogs and injuring the dogs and threatening the house that's all admissible this is very different cases where extraneous evidence is brought it that was the only air was in labeling that evidence as aggravation but we have to get stop there we have to realize that that kid dies he had taken another young man and sexually assault him all night long the back of a van another young man who we were fused to engage robbery with them he beat him up and put his head on a public toilet and then there's the threat again argue bar yeah it just doesn't apply i'm sorry can't go back in time we were dealing with the the law at the time the subtle united states supreme court precedent at the time the supreme court offered him a decision they couldn't see in the future that eleven years later the united states supreme court might can reconsider how it examined weigh in on wayne state that just simply has nothing to do with it but if you take bradley standard for a enduring principle which it will always be available for during principles rather than changes to the law in brown itself there were two special circumstances there misname they should live in their error in and that was in the special circumstance phase in the guilt phase the hardcore hate the memmott narrowing phase not in the subsequent selection phase in california system this is where the rubber hits the road indefinitely narrowing the aggravating circumstances jury was properly instructed have the traction he was there was the fact of the crimes the threat to the girl giving factors what the circumstances of the crime can always be considered ok and then there's the fourth four o'clock lation of the one young man the sexual assault and the physical salt on the other young man relating to his refusal to significant he then assault one young man sexually another one physically and then threatened to get this young girl but the jury said that's not going poured but we're concerned about is concerned about is the fact he temporarily injured some dogs and that's where they made a decision that was the substantial injurious effect to get the ted boys forget the sexual assault boy forget all that he kemper early into some dogs that this standard the no probability standard are the same in substance and effect that's not controversial to suggest because they cite it to a case that they recognize for that's these cases go back twenty years this is not new they cite a case that they  it's the same there analogues that meant they were intentionally avoiding the federal issue that's that violates the johnson and williams principles of making assumptions that the supreme court of california or any state court doesn't know what it's doing is just missing things there's no basis for that mistake there's no basis for them to suggest california was ignoring those principles and of course this is a state law issue which the california addresses but they recognize which is why they have the brown standard the sometimes california federal cases federal law the core extensive that's correct that's not a surprise to anyone and so they have a standard to care covers both and then he went on and find it beyond a reasonable doubt there's nothing more here to talk about i'm afraid the evidence was a minor structural error that california addressed recognize addressed and the court deserves to g to use the new law one of its exceptions is if the evidence can be admitted because of in a miscible special circumstance or aggravating factor that it's ok because naturally you have to tell the whole story and if other crimes inform the aggravating factor that was properly admitted that heller evidence can come in this case this court also recently and ryan vs smith had similar situation where other crimes evidence would not have been admitted dealing with a person's sexual proclivities he brought up a defense that raised the issue of sexual sadism the people without ever to bring in all of his otherwise you're roman criminal history to rebut that this court in fast year said that's admissible he went to an issue that was that was brought up in the arizona  proceedings on the special circumstance that was relevant to address this the actual circumstance although it might not have been if it was just brought it on its own free stand this was not free stand committed admissible and proper far far outweighed calling two facts by the wrong name at this point the state petition was not cashed constitutionally required mr fetch got no entitlement to it this is purely a matter of state law and the rules that apply to it are state law  rules california decided he was going to give him a procedure to test his competency at that point even if he were trying to waive his trial rights again that's the ground zero for constitutional rights  criminal fenice we have fourth fifth sixth eight fourteenth amendments all coming together and trials counsel juries all those important issues this was a successive collateral review in state court bell waiver comes to into the process that california gave them to test about a waiver if california's procedure ok so you're saying this account the california supreme court referred it to a referee to determine whether the waiver was knowing  create a whole new proceeding when it isn't hasn't thought it was required to do so i don't understand why it would have to feel compelled to do something that it felt on its own merits was worthwhile doing the second for no not compelled by able to come to the conclusion that this was a valid waiver but that i'm sorry i was your polemic i'm going to try my suggesting that there was no federal compulsion under any particular rule to get any particular standard has to believe that a piece of paper they receive that the person who wrote that was the person who wrote it and they knew what they're writing and so now the supreme court i think does have to understand that the waiver they received was in fact from the person you know i don't want to know what the california supreme court thought i'm asking what the position is of the state of california today as you stand there is over for the little quiet man that will go collateral attack and state a state all of our time has to be no constitutional law required that the supreme court find out if the waiver was valid that is clearly intentionally voluntarily made and that he was competent and that's why they sent the matter to the referee and the referee said he couldn't make that determination yet we come up with a supreme court decision that says that he was right that he did you know leave voluntarily and intentionally wa i told him and asked him you understand if you waive the state petition that will have consequences in federal court and the issues that you're raising in the situation will be not  exhausted and you'll be barred from addressing those issues in federal court and those maybe issues and it was mentioned number of times that would be the good issues that could save you from execution the judge also mentioned that you know your state petition that successful that prevent your execution so he was aware what he was doing he wasn't intelligent this is a lot of discussion between him and the referee about what the effect of this will on the referee keeps telling him and he keeps saying if i withdraw this i can proceed myself my attorney i can get rid of the attorney and present the kind of case i want and referee greed with him that yes that's in fact if you do this you will be in charge of your case and you can present what you want that's a different issue from whether this well out allows them to let you would draw your petition the discussion was about him wanting to withdraw the petition which the judge said if you were the court supreme court allows you to waive this you would be a fact the attorney and the scotian of the court and at the end of the first hearing with the kurds the judge said i find you perfectly intelligent and there's no evidence of any kind of medalist there's nothing to prevent you from doing time to stay alive that's not the volunteer method no earlier on but he at that point the the assumption was you so you want your execution to be continued to be carried out and it's not the case he didn't mean that that was to get attention in the colloquy with the judge with me we applaud when we explained a number of ways and one of those ways was very specifically even if you think you have a good claim and you change your mind and you go back to judge keller in the district court and you s g might go back to federal court and say the whole petition to be thrown out and that will leave you nothing between you execution but did you understand him to mean like when he said i understand that my right for exhaustion is already filed by s office there was a petition filed at that point in the state supreme court right so he was thinking he was taking care of on that issue which is wrong and that's why i went disabuse them of that he said i appreciate that it's the and it's expected that yes he abandons this proceeding to withdraw that he will lose his rights it won't just be a strategy it won't speak arabic he will lose his right to go back into the california spring at the federal court and then raise those issue alluded to the fact that your position in this court is that the district court may don't turn into findings correct they made finding under and then they made a finding just just to follow up on a couple of the waiver issues mr kirkpatrick did indicate that he was unaware of the claims in his petition he knew of what he was unaware of the claims in his state petition he refused mail does he have to be aware that might keep you from me executed and whatever they are when you do this you give them up because the supreme court has said in whitmore and this court has said and done us versus budged that you need to understand your claims and intend to give them up and so when mr  patrick indicating that he's throwing away mail from our office that he's refusing mail from our office and when he's asking the referee if the claim he's most interested in about the police purchasing the murder weapon from a gang member is in his appeal it indicates the importance of making sure it's explained to him what claims he is for going i did go back and check your honor and the masa news did involve a waiver of nevada state post conviction case and in fact th euro the supreme court has held that a waiver of a petitioners right to proceed is not valid unless among other factors it is knowing intelligent and voluntary now i'd also like to point out that what  the attorney general refers to as a waiver colloquy was actually a status conference to set up competency and the colloquy procedures this was never intended to be a colloquy the referee repeatedly stated intention to hold a call cui following the competency determination and that simply never happened because your client wouldn't cooperate that's correct your honor because my client would not show up when he was told that if you actually intended to waive he needed to show up  going back to the certified issue i would just like to point out that the a g refers back to brown versus sanders as establishing the fact that this was a constitutional error but in fact stringer versus black which hundred ninety two case if clearly established federal law is needed in that case that one thousand nine hundred two case predating mr kirkpatrick's denial and state court clearly states that when the jury is told to consider invalid factors in the weighing process for selection of penalty you must apply federal constitutional harmless error analysis this isn't a new concept stringer basis on firman godfrey greg versus georgia also the ag repeatedly refers to the only error here being the denomination of this admissible evidence as an aggravating factor but in his briefs he relies on zant versus stevens for that proposition and zat dealt with a georgia statute that does allow non statutory aggravating factors to be considered california doesn't and so the fact that this was called an aggravating factor is not simply one of semantics it violated the law  it could still be harmless if the court makes a determination at the proper time what were the proper one the circumstances of the crime the sexual assault against opinion the physical salt against johnson and referred to miss johnson's testimony during his closing only one time did he refer to the fact that mr kirkpatrick threatened her daughter four times he referred to the poisoning of the dogs and so again this is the element he was highlighting this is an element that in fact the judge relied upon as an aggravating factor when he considered the motion to modify the death verdict and it's not simply that you look at what a reasonable juror would do in this case as this court has said in williams or says cal deron you look at not a hypothetical reasonable juror you look at what actually happened in this case and as discussed they are object of clues in this record that jurors struggle to reach  the court looks at what happened in this case with juries in this case but because california only works because california requires unanimous jury it is enough that if one juror would have been substantially influenced