good morning your honor stephanie attorney general stephen mercer on behalf of respondent in this case we have a reason state court opinion that the evidence presented in the trial did not warrant jury instructions for the affirmative defense of self defense under california law fisher claims that was an error and that he is entitled the extraordinary relief of federal habeas corpus as a result there are at least three reasons why his relief should be precluded in this case the first and foremost is that this is an analysis in the district court's analysis is whether the trial court misapplied state law in determining of the evidence was sufficient under state law not to give these instructions as defined by inquiry did not but it also goes to highlight the ultimate issue for this court to decide and that is whether there is clearly established federal law as determined by the united states supreme court which required that such an instruction be given a petitioners trial as a constitutional matter why isn't there a commonly accepted federal proposition that if there is evidence that would support still for fans an instruction must be given there is no supreme court precedent to that effect your honor and no supreme court precedent to that effect that would bind state courts to give such an that issue in fact suggest the two things to the contrary number one they said that our president is not settled in this area and therefore our spot would argue it cannot be clearly established supreme court precedent and number two their rights are presented defense precedents but they discussed this the court noted that those are limited to the rights to present evidence that's the part i'm not following what good is the right to present evidence if you don't have the right also to have  instruction explained to the jury with what the significance of the evidence is well when you're talking about the fundamental constitutional issues of the right to present a defense  supreme court hasn't he found that there was a right to present evidence on your behalf i mean like if you think there is a right to present insanity for example but they don't and if the judge doesn't tell the jury if you find him insane you've got to you've got to find in my guilty what would look good as well these are in fact set out for said out of state statutes involved in their formative defenses but that's not the question for this court the question for this court is did the california courts in finding well in here as even as a matter of state law we clearly contend that there is no such evidence to support that instruction because under california law that affirmative defense of self defense requires two components and one is the subjective belief that the defendant actually harbor a fear of imminent immediate imminent great bodily harm or death and here there were simply no such evidence of that component and if i may remind the court very bri y summarize what the evidence did show the police testified the finish shot first defendant testified the only reason i pulled my gun out was to discard it and did not remember firing at all never testified as to and the police pointing guns at him they never seen the shooting they never saw the shooting and they turned away and i would ask this court one of them did get testified to he heard the shooting they both heard the shootings but they did not see who shot home this is that the extent of their eyewitness testimony was the defendant standing here like this then they turned away i would ask the court is this substantial evidence of what i am actually thinking in my mind they saw the hands up that they never saw whether or not he spun around with a gun in his hand now moment or so later and that's in there's no evidence of that as far as i can tell absolutely none and again the question is not whether a reasonable person in petitioner's shoes might have acted in self defense the question is was there any evidence of that component that essential component and appeal code section one ninety eight of an actual fear and here especially combined with petitioners offense that it wasn't in self defense but i never fired my gun the trial court was entirely reasonable to find that the defendant has failed to meet his burden to show substantial evidence that he harbored an actual fear and the second requirement that he must have acted under the influence of that fear alone the fender never offered such a theory i'm sorry i'm that is our situation here and i see i have a little of that under two minutes left i'd like to save the what really happened here the government's brief and its argument today completely leaves out the fact that the jury sent a note into the the court during deliberations stating that they essentially believe that  there was a self defense here but they were not given the instruction the jury sent in a note stating if we find that the police shot first killing still convict him of murder and as the defense attorney vigorously argued you have to give self and stretched the defense instructions that initially denied the jury has found that the officers testimony is not credible even the prosecutor who when he was stating that no you you should tell the jury yes you can convict him he recognized that he was skating on dangerous ground by asking the court to direct a verdict and he said no i mean that's not directing a verdict but that's the only that's the only answer that you can  e and the judge clearly made its own credibility call in and instructing the jury that finding that the officer shot first is not necessarily preclude a guilty verdict the defense excuse me the jury was never given self defense instructions even though they had told the court they essentially did not believe the police officers so what happened here is far more complex than the mere failure to give self defense instructions and in fact the fact that mr black w testified he did not remember exactly what happened that the evidence is clear that he had his hands in the air and he was ready to surrender when he was shot but we don't know that because no one saw the shooting but they hurt the shot well we all know that shots were fired so i don't know what that he adds to the mix but they saw his hands up the the the cops say he had his hands up spun around pulled out a gun and started shooting and no one testified to the contrary as far as i know up and then he turned around and spun and shot and shot at him and as far as i can tell there's no evidence in the record to contradict that but there's still no evidence in the record that in fact he did there was also evidence that in fact he had been shot in the back so it's clearly there the evidence the state of the evidence was such that the jury it was enough for the jury to determine what in fact happened that is the jury's decision to decide  the facts of the case there was certainly enough evidence before the jury that it could have found that in fact the officers were not testifying truthfully that in fact that mr locke was shot first and that is what the jury already indicated t well they didn't really and it's a little bit of an overstatement isn't it they said if we believe that he shot first they didn't say we find that he shot first they're asking what happens if this is the circumstance and you know it's not you don't even you don't even contend as far as i can tell that's a that  the judge gave a wrong answer but the jury was certain yes of course correct about now if we find but they were certainly indicating to the court that they were leaning in that direction they acquitted him of the attempted murder of the other officer and the jury was not given the proper instructions in order to deal with this evidence here and the the state of the evidence was such that the jury could certainly have found that despite the officers testimony that in fact it was self defen e and that's the issue here it's the issue is who is going to decide what happens the jury or the judge and the judge's instruction without the self defense instructions violates longstanding president all the way you know winship and everything else about what who invades the province of the jury and that in fact the what if what the trial is all about is for the jury to find guilt beyond a reasonable doubt and the jury has to apply the law to the facts and that did not happen here it is not up to the judge and a prosecutor to decide that they believe the police officers over everything else and that's essentially the issue here and talk about the jury's role in determining the facts and they survey is in that case the issue was giving the entrapment construction in the face of an in can somewhat inconsistent testimony i believe th questions to the to the state about what how could you passively having you know have the right to present an affirmative defense but not have the jury given any health as to how to evaluate the effect of the evidence that it hurt given that going you know in the fundamental tenet that it is the jury's decision to determine the facts and obviously in a case where you know the you being prosecuted for attempted murder and his defense is is self defense that's the issue that the jury has to decide what what making the decision that entrapment defense could be instructions could be given they noted that they had surveyed not only you know other circuits but they had surveyed lots of state courts as well and then in fact that was consistent so it seems that they're this case well i think it's really irrelevant that he he certainly didn't testify that i shot first and that's actually not an uncommon problem  that people can't remember what happened at the adams and civil rights cases all the time that people can't remember exactly what happened we have to look at these all this the totality of the circumstances and you know given his what he did testified to given the scientific evidence about him being shot you know from the rear given the bystanders were shot it's funny sam right i'm sorry i want shots and it's funny yes yes so yes of the combination of the hands in the air it really doesn't matter whether he can't remember and certainly i mean somebody was standing there and we can tell you it's you know and you've got your hands in the air i mean anybody would be in fear of their life objectively subjective let me just make several points briefly once again there's been no evidence presented here that petitioner actually had actual fear at the time that he acted and that he then acted upon those fears alone and if i were told by the police to freeze and put my hands up i would not necessarily be in fear of imminent bodily harm or death very brave man thank you your honor the shit and again nothing presented this defendant from presenting evidence of self defense it's his burden to do it it's an affirmative defense had he presented no evidence of that or even a theory of it he would have been entitled to instructions on it he did not and instructions were not more or as for the directed verdict claim mentioned by fisher here today the claim is not exhaustive it's been a race for the first time in this court and it's not properly before this court and unless there are further questions from this court