between the interplay between twenty to fifty four d as recent supreme court opinion show the facts as found by the state court are entitled to a presumption of the correctness of the leaves to conduct an intrinsic review of the record before the collins which talks about twenty two fifty forty two and twenty two to fifty four eat applying simultaneously but that's the presumption of correctness applies without any discussion or of the nee intrinsic review of the fast finding process to state court before the presumption applies just like my recollection of the latest miller l decision is that there is some confusion but it doesn't seem to be a discerning reference by the by the court seems to be a bit of a throw away wasn't what the critical ask if your position that in the absence of any additional effort this offered by the officials that the district court simply cannot declare that the factual whether the evidence used to establish that are i should say overcome the presumption of correctness must be chief must have been before the state horrible it would appear that any evidence could come in however going back to twenty two fifty scooped by the lower courts to overcome the presumption of correctness was well before the first and second trial courts and it was also before the state court of appeal as well and so because he hasn't offered any new evidence and the evidence that he has relied upon was relied upon or was certainly within the knowledge of the fact finders of the state court the presumption of correctness has not been overcome  independent provisions however for the same reason step petitioner has been unable to overcome the presumption of correctness we also submit that the factual determination by the state courts was not under reasonable in this case and that's why in asking the question that resulted in the waiver of the marital communications privilege a state court heard all of the state all of the relevant evidence and heard the pretrial i'm going back to the first trial court heard the pretrial argument regarding the scope of the privilege and miers was participating in that hearing as well and then during cross examination of petitioners wife when the hand washing incident was asked about there was another objection by the prosecution or discussion in with the court regarding the scope of the privilege which attorney miers was present for so we have two separate incidents where attorney miers was being advised by the very court who would make the evidence re determination about what the scope of the privilege would be in that case later during direct examination of petitioner he asked the question about the july eighteenth phone call and once that question was asked we know wanker have a mistake by trial question goes more to the reasonableness of his tactical decision rather than when he went out rather than whether he made a tactical decision in the first clip you don't understand how can it be a tactical decision your honor i believe that the tactical decision is the asking of the question to get this particular piece of defense evidence before the jury that was a matter of tactics whether he was misguided uninformed or what have you regarding the scope of the marital privilege at that let's we don't know it's pretty hard to comprehend a graduate of the law school thinking that it would not waive the privilege by getting in your version of the conversation and still be able to exclude the other part of it but your honor i think there's we have to focus on again what the tactical decision was you keep saying every time you've seen a decision it's a tactic yes couldn't it have been stupid well again your honor i think it wasn't stupid for him to try to get this particular piece of defense evidence before the jury that's that's not the role of this that well that's certainly love this weather his thought that he could get half of that in privilege truly was his tactic after so trial of adverse came up and he had the opportunity to do so during cross examination of the wife so here's a different situation at this point of prosecution evidence and he's trying to do whatever he can to get favorable defense evidence and i think one of the trial judges even characterized it as answering close to the run he may not have understood there once the july eighteenth once petitioner's testimony of the july eighteenth conversation comes out you know has direct evidence rather than circumstantial evidence from which to explain why his wife if this court finds that the the the finding of fact the presumption of correctness has been overcome we go back up to twenty two fifty four d two and again we look at prong one of strickland and we look to see whether counsel's conduct in this case falls within the scope of objectively reasonable conduct and here's where and it's hurt here's where a reasonable attorney could have done the same thing again faced with the defense yes all the evidence against the defense was circumstantial except for the confession if i look at it well this goes back to your honor's well this also answers your honour's question as well we have evidence showing that the petition that the petitioner had a motive to kill based on getting his partner out of the way and stop complaining we have weapons evidence that links him to the crime we have the victim's body found in the right by the business of petition unquote fuck him up too and so again if the admission by the why are the evidence by the wife of the admission were the only evidence of the confession well if that were the only evidence with nothing else i would have three taken in cont that's pretty powerful that's overwhelmingly so powerful but we have to hear a different story we have a lot of evidence a mountain of evidence all pointing to petitioner as the shooter now we have the second trial court judge saying that if i'm wrong in letting this evidence in i don't think there would have been serious doubt as to whether that would have been a conviction well your honor it's it's true that the second trial judge made those observations factual finding is what judge fisher is asking us to run or i think that factual findings are it's not even a finding it's not a judgment of any kind once prong one has been found to be satisfied pronto to whatever his statements are very relevant at that point and furthermore the state court of appeal made and made an actual fight are ruled on the merits on the claim and so i submit that the look through doctrine doesn't even apply as to the prejudice honor well even if no prejudice to terminations was made by the court of appeal i submit going back to your honor's question about the credibility of the first trial judge was in the unique position to see what myers was doing and the credibility call comes into play because after the privilege has been found to be waived attorney myers immediately falls on his sword conveniently so and it's at that point that the trial judge says well you know lot about the court of appeal is assuming as i understand that miers is fully aware that if he asks the question that a little bit part of the conversation while he was opening the door to the confession testimony of his former wife as they concluded that that was a reasonable tactical decision because he knew what he was doing and he was opening the door and he did it deliberately coming back to the question of been raised by others what could he possibly hope to gain by what the tactical advantage as i understand what you're saying there was evidence of guilt circumstantial and there was evidence that he was trying to get in which you've only been able to put on circumstantial your violent own testimony that there was a reason for his wife to leave so it sounds like you're saying he made a tactical decision to to me like the evidence that the the thought process may not have been as complex and it may have been more immediate in the heat of the moment a trial but even if we find or even if the court finds that a theory myers made a mistake rather than frankly your honor i don't know the answer to that question i don't believe myer's ever directly i don't believe myers ever testified or provided any argument that would directly answer your question  if you put on blinders as to the waiver as to the privilege and want to just this evidence alone then yes i'd say that's a reasonable tactical decision even if you didn't have blinders on and yet argue because rather limited or or what what was the basis i don't believe he requested an evidentiary hearing however after the first trial before the second trial and after the second trial he was given an opportunity to reject transcripts self and fight with reasonable or we require to except what the state court did even if we think it's wrong unless it's totally unreasonable and i'm not i'm sometimes are you i'm sorry i'm not following the question are you allowed to read the transcripts you know can we make our own independent judgment on the transcript about whether the lawyer acted stupidly or tactically albeit had the tactic that it resulted in acquittal or do we have to defer to the state courts determination that the defense lawyer acted tactically unless it conducted himself in relation to the marital privilege issue in the waiver the transcripts the stablished the state of the record as far as whether or not trial counsel acted in a constitutionally reasonable manner that would be a mix question of law in fact where you want to look at this this is what about twenty to fifty four to that the decision has to be an unreasonable determination of the facts and weight of the evidence presented in the state court proceeding i read that to mean we don't start by reading the transcript and deciding whether we think the lawyer was acting stupidly or tactically we should start by reading the state court decision and then decide if that's unreasonable to the facts presented in the state court proceeding if i understand you right you're saying no you don't do that you start by reading the transcript and deciding upon the federal court judgment about whether it was stupid or tactical well i think you start by reading the decision and then you go back to see what underlies it as far as determining whether it's supported in a factual manner and whether it's constitutionally reasonable which is really it's getting in a conversation that takes place on one day and trying to keep out a conversation that takes place on a different day well that is what that is what mr cook persists in arguing but no one was the t conversation and one of the ads that the phone call conversation well the prosecutor who was for reasons that are unclear to me seem to be mr meyers best friend for a while during during the the issue are they two days or one day well there are two days there is really only if if we're going to focus on the phone call which i submit is the improper focus of still the same rest race just say for want of a better word about what happen witherspoon one day or two days after work and i don't know what you mean maybe maybe i don't either just just the circumstances surrounding the what's at issue in the litigation which is which is the who killed mr thomas it was a different day but if you look at works the first trial court found the first trial court ticked off the conversation about the dogs the conversation about the phone call and also mentioned the conversation about going to the brother's house the court of appeal which if that is the dispositive state that my position is that the the as mr cook agrees i think the trial counsel asked questions trying to elicit favorable defense evidence i told my wife i was just cleaning up after the dog right well that was withdrawn but i think that's really undermines that's it really undermines mr mr myers had read the police reports he knew how miss games was going to testify but the fact that he went into that on cross examination surprises for the prosecution sometimes you don't always know what they'll say well if you don't i think if he thought that ms gaines was going to go south on the prosecution he would have withdrawn the question how would you know that without had i assume that mr harris would have asked for more mr meyer said i made a mistake i made a mistake and i think i think mr tooke is right mr meyers was doing his job trying to elicit favorable defense evidence and and he didn't really know what he was doing coun why should we credit the trial judge who is watching him perform during the trial who immediately said you know counsel that was tactical that was not a mistake isn't that a classic factual fine line in the trial both trial judges ultimately conceded that he made a mistake and that he did not understand the scope and breadth of the privilege and the principles of relevance that is trying to engage in a tactic of listening the most favorable evidence that  mr edwards got on the stand denied his guilt he testified about why the guns were missing from his house all that he'd given them to mr thomas a security against the money that he owed him he explained rather persuasively i thought like he took without you know you don't know these people they'll come and get you they killed the wrong person find tomorrow they'll kill the right one the murder itself took place in the barbershop yes he works there but there was also evidence that it was an area that with the a lot of petty crime his wife there with that he admitted having committed the murder when she came home that night conversation in a different day on a different subject arguably would stay published the conversation about the dog poop is what what did a man that's that's what the first trial court and the court of appeal found up after the dogs and he asked questions about what was said the other night after about phone conversation the prosecutor objected after the after he would start to go into the phone conversation and she she talked about all three things that had been done to waive the privilege in the a prosecutor also say if he wants to ask her and start finding out everything he told her that night he is welcome to the words he was saying reason to take a tactical one but nonetheless we're still if you look at the the evidence code section the case as i say in the opening grief on on the general principle that underlies this waiver issue that we're talking about about how you don't you're not allowed to get into just the  ble aspects of a conversation or writing and preclude the unfavorable ones from coming in the courts construe that fairly broadly in terms of what the subject as in the one subject that we have here is the circumstances surrounding district offices murder was me taking  suggest he given at least some thought well it was an argument and he get it was an argument that he made after the prosecution excuse me after the trial court handed him that case so that he could do after the secure came in with all her authority this it was not an argument that he made a motion in limine a or in response to an objection or anything like it was not in trouble before he withdrew his question he was up to the brink and he got warned by his best friend the prosecutor by the judge you take that step here over the over the line so he pulled back where we got into trouble was where he he took the step over the line on the different conversation and it looked to me like he had in his mind at least the notion there was a viable distinction that he might get away with well first of all again that's not where he got into trouble he got it just because that's where the prosecution finally said threw up her hands and said you know we got it we got to work this out the prosecutor could have objected after the dog who conversation the prosecutor could have gone into at all after the close of defense and prior to re i strongly disagree that he quote got into trouble after he asked about the july eighteenth telephone conversation last night why wouldn't it be from the defense counsel's point of view kind of a night for the night takes your bishop or the  thinks your work from this position and there's no way you can avoid it and i mean that and in this sense that either he wins and the judge says question about one eye doesn't open the door to the other night prosecution by putting himself in a position of pull something out of the fire no matter what happens well first of all looking at his other areas which we discussed in the open agreed which the panel opinion recognizes i don't it was pretty clever fellow well i don't know about that i think the trial judge probably felt we were in the middle of trial you made or you screw up let's move on that's what i think but interest to go back to your chess analogy there is it we're concerned about this trial that that he had as far as what is prejudicial and what is an unreasonable trial tactic and i think it's very strong evidence t mind that there was no if occasion that went on because of all that went on in the jury room and i don't think that the attorney general strongly disputed that in his in his briefs the question is whether or not whether or not that this and the reason for it was objective to put on your case and you've made that decision you put your client on the stand and he didn't really say it was constitutionally informed or constitutionally or constitutionally reasonable but the  appeal oh and the court of appeal also it's finding that mr meyers intentionally waived the privilege is certainly not supported by the record and that's that's a position that the attorney general at least in his reply brief concedes that there was no intentional waiver of the privilege there was just gamesmanship risk taking and a high wire act after having  subject matter and whether any further you aren't can be made into a that series of questions is exactly in that model it seems to me well if it's in that mode the purpose of the on what mr edwards had testified as far as his actions that evening submit you know when we're comparing privileged lives to trial testimony with labor with lay witnesses like mr edwards you know we talk about witnesses going south if your client goes south i think you know mr that mr edwards was also on the record that he never discussed how to answer the questions with mr meyers never discussed how to answer the questions with mr edwards he was on the stand he was asked questions he answered them i submit well he did how do we know that i suppose as a matter of pure on the transcript record we don't know that but we do know that mr edwards that mr meyers asked the question about cleaning up after the dogs to mr edwards he asked the question about cleaning up after the dog games and you know the answer is that good or good have come from that we don't have these games testified in rebuttal that's the same way that she would have testified when he first chance asked the question during the cross and i i also want to i think this issue comes back to there are two aspects of the ruling as you know there's the in form tactical decision and then there's the constitutional reasonable notice and we have no case authority anywhere that says that it's reasonable to allow your client to evidence that your client admitted committing a murder alleged or otherwise and i want to focus on this court's cases decisions important in haste or not in effective assistance cases there brady cases but in a panel decision on decision this court held that that the defendant's constitutional rights had been violated cretan violated prejudicially because some lay person came and said the client committed a murder and that lay person had been substantially impeach was there was testimony taken from some of the jurors regarding a possible racial incident i don't recall off the top of my head what the trial judge's exact findings were however you know we don't really know the full scope of what was going through that juror's mind how i would like to point out however in the report and recommendation of the magistrate footnote eleven which is that page thirty four this is in regards to the prejudiced pro trial could not reach a decision on the murder count and you know looking at that statement although you know it make a point to i believe erroneous lee characterizing the prosecution's case as less than overwhelming it does point out the fact that what attorney meyers did may have had a positive effect on that jury on behalf of his client i would like to go back for a second to judge reimers comments and questions if there was no direct evidence explaining what explaining that petitioners wife knew of the threats the only way that evidence could come in is if petitioner testifies that he told her of the threat against his wife testifies i don't she would have testified to this but if she would have testified about the content of that conversation either one would have waived the marital communications privilege and so unless attorney myers dances up to that line and gets in as much evidence as possible he's not only going to be left with circumstantial evidence on his side facing an enormous amount of circumstantial evidence on the prosecution side and i'd also like to go back to judge kozinski and maybe this will answer your question thinking about the record a little bit more it appears that attorney meyers maintained this position that he could ask questions about one conversation without waiving the privilege as to another this goes back to the worthington case as well as argument by second trial counsel and counsel in the court of appeal on behalf of petitioner who furthered this worthington did not foreclose a transactional approach to the privilege now certainly he lost on that issue but it was not objectively and reasonable for him to do so and it was not objectively unreasonable