the one and only case clear procedural default that argument is laid out in our brief in detail and if the court has questions i'll be happy to answer that but given the limited nature of the time i'd like to concentrate on the second two fundamental errors that the district court made the second error that the district court made was to conclude that there was clearly established a law when in fact there is not a law or relied upon by both petitioner and the district court is at the highest level of generality and is no more specific than the fundamental or than the notion of fundamental fairness itself i mean you can have clearly establish principles that a high level of generality of right you know you and i would say that's not you you can have a general legal principle that may in very limited circumstances be extended to a set of facts that is not identical to the one that's at issue in the supreme court case how about this way of thinking about it it could get you two different ways to upset a state court ruling one is to contradict supreme court decision point ok so the generality stuff might matter matter a lot and the other one is to on reasonably apply supreme court press and i'm thinking of this is a case about the unreasonable op location of clearly established shipping court precedent that's not exactly correct your honor you must unreadably apply clear clearly established supreme court law i know that's what i'm saying so in this case he has to both show that there is clearly established supreme court law and that it was unreadably apply you don't think it's go his style bush that you can have stated for the entry rulings be so flawed in prejudicial that they violate due process i thought that principle was established i think there is an established principle of due process that says that evidentiary may be fundamentally unfair and violate due process rights but cases united states supreme court cases and other circuit cases are clear that that is not enough for clearly established law the tenth circuit house versus hatch said it was something akin to a point holdings before it could become clearly established and the supreme court has illustrated this has drastically limited the universe of law that can be deemed clearly established law and so i would disagree that there is clearly established law although there is a general principle that fundamental fairness fundamental unfair result in due process and here what we have with this first fundamental error that the that the district court made we have no supreme court cases at all applying a due process analysis to the admission of a her this rule exists we have to follow it even though and going be denied relief to the criminal defendant dowling to not involve the admission of a hearsay statement made to made spontaneously voluntarily without intent to curry favor to a compatriot or  friend that is not what talent all the facts are in opposite and in fact dowling sat in there that outside of the specific enumerated bill of rights that the category of infractions that would constitute a due process violation are very narrow and it's not just said limited but limited doesn't mean a non existent that's right that's right and there could be a category of facts and which the supreme court has spoken which could give rise to due process but this is not  one of the forty cases that were cited by petitioner in the district court not one involved a factual scenario remotely like this most of the one cited didn't even involve a due process analysis some of them weren't even united states supreme court inadmissible violated or was fundamentally unfair and granted carol e g hey vs really that case it is of no import because the facts are completely dissimilar there's no similarity between the admission of evidence of a scientific nature that the state court has already ruled is inadmissible under their state law that is not not only is that not an on point holding that's not even a  quite relevant i mean i thought the point was that most usually state court evidentiary rulings are not going to be the grounds for due process claim that's the rule but each is an exception it shows that well abbot was an ad case but this court did not hold in e g that fundamental fairness was violated by the admission of evidence pursuant to state evidentiary rules what it ruled was that evidence that the state had already deemed was in under their rules prejudiced the defendant to a degree that he was entitled to his relief that's not what we have what we have here is a very lengthy in fact couldn't even be applied to the evidence for a ruling because the court of appeals itself in the state court had ruled that it was inadmissible what we have here is a state court engaging in a very thorough fourteen page opinion analysis of why the evidence was reliable why it should be admitted under under law but due process of law and that decision is given ad deference there was no add deference to be given to a decision of the state court e g to admit the evidence because the state itself had ruled it was inadmissible the question was limited to whether or not it was prejudicial to the fact that it constituted due process so it can stand for the proposition that a here's say admission made voluntarily spontaneously to a compatriot in crime violates fundamental fairness when the state court has indeed admitted it pursuant to its own rules and in which a decision is given deaf or which the book orders chambers is a case where the state court because mississippi state court admitted the evidence evidence rules they that was a case in which the evidence rules of mississippi allowed the state court to do exactly what it did could that's the point i'm making and that's like our case it is it is like a case in the sense that involves the admission of evidence but it is unlike our case because it does not involve a due process analysis of a here's state statement which has always been analyzed and considered under the confrontation clause chambers the rights of presented offense which is what they found in that chambers had has always been a wound that is clearly established law that if you are not allowed to present evidence in your defense which in chambers was a confession or a repudiation of a confession of the defendant that petition was not allowed to present that had to come in the right to present a defense to fourteenth amendment guarantee has been around since chambers that is clearly established in the states not arguing that there is no fourteenth amendment clearly established law but the argument is is that there is no clearly established law proposition that it has to be very limited before this court can say that it's clearly established so that it then overturns or reverses what the state court has done because remember ed is a backward looking standard and the before the state is in essence punished for an evidentiary ruling it has to have been clear to them that they were wrong when they did it no cases ever apply to due process analysis to what has traditionally been under confrontation clause now whether that develops later or not whether that is something that the law is headed in the direction it's headed it is irrelevant for purposes of whether the michigan court of appeal should have known that it appeals made the decision people versus pool it was at that point that the state law say about it maybe they knew about it from the beginning well they didn't think it had an impact on the charging decision until this change in state evidentiary rules in your i'm not sure knew knew about eighty four because my understanding the record was he was interviewed by police and he denied any knowledge it wasn't until later that he was brought up in front of a grand jury testimony that he then said under oath that he had the statement then he was really interviewed and he confirmed it now there is some indication the record that he did talk to another compatriot not gorski adams that it or course that is and made some indication that he had been told made the statement but to authorities no statement was made until later but  even if that even if that was true even if the forty's knew about the statement early on they could have used it in trial until people versus pool came along to let them use it and nancy alberts who was the county prosecutor at the time indicated that certainly the admission of that or the appropriateness of using that evidence became a factor in the charging decision but so did other things the two thousand dollars check to adams written after after the murder ok but like that's my my question why and shortly after i don't know the exact within weeks is the point it could have been within weeks or months with the checks am it that made it clear it wasn't such a classic payroll check or i don't believe there is anything on the check that made it clear it wasn't classic payroll check his claim was that he had done i think painting or some kind of maintenance work in order to get that check the prosecutor's theory obviously was different that it was made in payment or partial payment of services rendered for killing in a touretzky that all of those facts are placed in front of the jury was he paid on the payroll in the sense he got paid every two weeks i don't know if you get paid every two weeks but he was an employee of the clinic yes adams that one trying to figure out if the two thousand dollars check if that amount is similar to the paychecks he regular got that's all i'm asking i don't know i don't know if that's true i do know he was paid by the clinic and he had been employed in fact he was the one that got larry gorski his job and that he had worked and was in was an acquaintance and a friend of a doctor to size i don't know if the two thousand dollars was the same as he was weekly or monthly or whatever getting around or sorry he was working at the clinic where the  testimony was that he had worked with and knew the victim because of the association with the clinics yes please the court matthew lightman on behalf of doctors say let me start by thanking the court for x but i'd be in this hearing it's very much appreciated given doctors i circumstances and my own let me jump in with the clearly established question that mr moody spent a substantial time at the judge and i think you're exactly correct that a general principle can establish clearly it can supply clearly established federal law that's exactly what the united states supreme court just said in marshall versus rogers a two thousand and thirteen case one thirty three supreme court fourteen forty six  fourteen forty nine and in that same case the supreme court said there does not have to be a factually on point supreme court decision to have clearly established federal law now what do you what do you do about the other thing the u s supreme court has said which is that the more general the that even with the deference that comes along with the general principle that i'm not going to deny for one second that this was by any measure wholly unreasonable that's what i hope to persuade the court let me just say a few more words on the clearly established principle that i'd like the court to apply this court has repeatedly apply the principle that a fundamentally unfair evidentiary rule can violate due process in such a way as to entitle a petition or to relief under ed but that's what happened in egypt we've repeatedly mentioned it it's not it's a pretty suggest carries the day here what each stands for i respectfully suggest is that it is clearly established one that a fundamentally unfair evidentiary ruling violates clearly established federal law namely the chamber's decision that's what the panel held there and to that it's a violation of their clearly established federal law if the ruling at mit's fundamentally unreliable evidence that unquestionably makes the difference between conviction and acquittal that's exactly what happened here so i wasn't thinking you guys were invoking chambers i didn't think of this is a chambers case chambers is one of the cases we are invoking judge sutton because that i mean that's a that's about cross examination of one witness excluding other witnesses  is the admission of evidence what i'm relying on judge sutton is what this court said about chambers in each and i'm asking this panel to follow what that panel did and that panel indicated what it did it could only have granted habeas relief in that case if it concluded that there is a clearly established rule barring exactly what the trial court did there namely admitting fundamentally unreliable evidence that made the difference between conviction and acquittal it found that rule in chambers you may or may not agree with that reading of chambers but i respectfully suggest that's what the panel that's how they read chambers and i'm invoking chambers as determined to be clearly established by this court in each but i'm not relying only on chambers and i'm not relying only on each i think it's equally instructive to look at two other bodies of supreme court law before we move beyond i guess we call it each that's what it's a pretty serious distinction between the seven entry record and the allegedly flawed admission of this evidence and evidence where there's no foundation and it says there's a three point five million to one likelihood that the criminal defendant is the murderer i mean that is a so prejudicial have been swung it has no foundation and you have a poor jury sitting there going did you hear what he said three point five million to one there's no that's beyond a reasonable doubt there's no doubt that the scientific evidence in  kind of has a special place on the spectrum and i'm not going to suggest to you that this evidence was just like that but what this evidence was was so powerful that it gets in that same universe of powerful evidence that has to be reliable before it's admitted and we know that just this morning every read to bruton case and what the bruton case is driven by is a notion that the hearsay confession of the accomplished is so powerful is so damning that we need to take extra special considerations it's so powerful that the court in britain said even a jury instruction isn't enough to undo the harm if it comes in so are we in the scientific evidence realm three point five million to one we're not quite there judge sutton but i think we are over a line that that of the type of evidence that is so strong and so prejudicial that even if not scientific it better be awfully darn reliable  it's going to make the difference between conviction and acquittal and this evidence not only made the difference between conviction and acquittal it made the difference but being being charged and convicted that's a huge difference and the clearly established issue let me invoke two other bodies of supreme court law one is the manson versus braithwaite the line of cases and what those cases stand for i suggest is that where there is government culpability the due process clause requires reliability here that is culpable in the state is not charging steve adams they say they couldn't of charge dr decide because the alleged confession by adams wasn't in this will against decide it's certainly admissible against steve adams the minute they find out about it and they wait and wait and wait in the testimony but what i don't know why i say obama and they could make the choice that we're either going to try them together not at all well it's culpable in this sense judge sutton by itself could be outrageous to  just get the hit man and not get the person allegedly behind the hit man it's culpable in in this sense here culpable in the sense that it deprives dr decide of the ability to cross examine adam's on the primary piece of evidence and when that state makes that decision whether you're going to make a normative judgment that it's culpable they bear some responsibility when they make that tactical decision and it's albert said there was a benefit to them in trying to gather an economy of scale when they make that tactical decision judge sutton it's not fair then to allow them to insulate the key piece of evidence from cross examination because adams invokes the fifth amendment the other body of law i want to talk about for a moment and clearly established is the transformation of the confrontation clause jurisprudence and how that helps us here in the clearly established issue if you go back to really a key decision this line of cases white versus illinois that's a case where there's a confrontation clause question and the court splits seven to two and the seven justices in the majority say reliability is a confrontation clause question is a confrontation clause issue we're not going to revisit the test for confrontation clause the two concurrent yes this is thomas and sc no reliability is a due process concern the key takeaway is nobody on that court suggest somehow that reliability is not a constitutional concern the only fight is what bucket are we dagon in when we're looking at the reliability of hearsay and ultimately what happens is the thomas scalia approach the one that says reliability is a due process concern wins out it wins out in crawford and it explicitly wins out in davis when the court adopts the exact proposal that justice thomas put forward if it's testimony and if it's testimony but the story behind justice thomas approach part of that story part of the reasoning is the due process clause already guards against reliability that's what he said in white versus illinois so i suggest when you put the three cases together the trilogy white crawford and davis you come up with a pretty fair principle that the court has determined that reliability questions of hearsay are to be evaluated under the due process cause i think i'm i'm with you on that i just think the problem you have is there's an awful lot of other ways to put reliability to a crucible you know so of that stuff and that's what brings out reliability right cross examination adversarial process evidentiary rules state evidentiary rules when properly applied and no one saying this was either an unconstitutional state of an inch or rule or unconstitutionally applied evidence or rule or improperly applied under state law those things help you with reliability so it's not the due process has no role it's just that it's the backstop behind a lot of other things and then we're doing it said i think that you have raised the precise issue raised by the perry versus new hampshire case where the supreme court said pretty strongly just what you're saying that due process generally doesn't come in and apply reliability check because we have all these other tools that serve that purpose the problem here is that the primary tool to serve that purpose with respect to testing the reliability of adam's alleged confession namely cross examination of adams was not available for the record i think it's pretty clear that had anna's been called to testify he would have done two critical things he would have denied committing the murder and he would have denied confessing to gorski we know that because he denied committing the murder many times under circumstances that suggest it was truthful primarily when the state offered to dismiss all the charges against him if he would only come clean and admit the murder at that point on the record in a page cited to you he said no because he didn't do it that's almost a statement against his interest because it would have been in his interest to get out from under a murder check so cross examination of adams the tool it's missing here would have gotten us to the truth and because  was cross examination wasn't denied him for any unconstitutional reason it was the way the case came out it was denied the fact that it was denied allowed the admission contradicted of this fundamentally unreliable piece of evidence and that was a violation of due process even if the the state rules even if the state rules allowed the admission of this confession and the state rules did that doesn't mean that the due process cla e allows you a lousy decide to be convicted without the ability to confront this fundamentally unreliable evidence so let me talk just for a moment and try to get over my high burden that i don't want to deny and i want to accept how do i show you that this court of appeals decision was so unreasonable i think it starts with this premise almost fifteen years ago the state of michigan salvage this prosecution by persuading a panel of the michigan court of appeals that included judge griffin now in this court that it could not have charged dr to say without adam's confession because the rest of the evidence was so weak that it could even get past her pulling an exam the court of appeals panel the michigan court of appeals that decided this case completely ignored that concession didn't even acknowledge it and decided without citing any new evidence since the prosecution made that concession that the evidence here was so strong that not only did it establish probable cause which the state of michigan it didn't it was actually sufficient to prove guilt beyond a reasonable doubt that gives a flavor to me of an reasonableness of a court that is not willing to face up to the difficult facts that get in the way of its conclusion so i think you start there in terms of how the decision was unreasonable they didn't face up to the difficult question of what would cross examination of adams have reveal the supreme court tells us and idaho versus right that hearsay statement is unreliable if cross examination have more than marginal utility and i just explained this would have been explosive this would have been a game changer and the michigan court appeals never touched on it the michigan court appeal said that the alleged confession was consistent with the autopsy if they didn't acknowledge as we cited in our brief that it was fundamentally inconsistent with the original autopsy that ruled out ligature strangulation and the alleged confession includes how did the dissolution agreement house that i so i take it decide it was going to open a certain amount of money what was the amount owed and when was it due in connection with the timing of the murder i'm not certain about  what i know is that with respect to the motive here i think we've put forth and doctors i put forth the trial a pretty persuasive case that it was in his interest to keep mr esky exactly where she was running a clinic that was generating enough money idea before it was even presented to doctor to say and this is standard key man insurance that most small businesses have because they could be in very bad shape if one of their owners passed away or was unable to participate in the business and then that there wouldn't be a way to buy them out to afford to buy them out it wasn't nearly this strong evidence of motive that it's made out to be so if his close relationship he was afraid she was would die and both relationship led him to be very anxious about a fear of her length that pages fifty to fifty five of our brief and if you go through there what you see is the mission core appeals repeatedly ignoring facts that are at odds with their contact with with their conclusion and when you add it all up this refusal to step forward and acknowledge the prosecution's concession about the role of this confession in the case and the fact that their opinion contains so many contra record and confort factual conclusions i think the only conclusion we're left with is that the michigan  i'd like to start with the point made by you judge thought in that the more general the standard the more leeway the state court is given whether or not there's clearly established law which the state asserts can be dispositive there is a huge question of whether they are recently appl that fundamental no or that notion of fundamental fairness and the state supreme court has been clear that there is an extreme deference that's given to the state court's opinion the michigan court of appeals here in  when the cover says lead and other cases like that from the supreme court i think were largely ignored by the district court when it granted here she disregarded all of the recent admonishments from the u s supreme court when she second guessed not only the jury's verdict which is clearly you can read that in the district court's opinion and disregarded and second guess the michigan court of appeals lengthy analysis the reason why the michigan court of appeals found this statement did not violate notions of due process where many they were in fact they found the confession was reliable because it was consistent with the evidence the fact that he knew the body had been moved the fact that he knew that the time of death could have been placed earlier which in fact the time of evidence or the the evidence showed the time of death was november third like he had indicated it was consistent with the victim's injuries the collapsed windpipe the bruises in bruises in the scratches and the fact there is nothing under her fingernails he admitted to washing out the fingernails it was consistent with how she would you say about dr to size very bad luck and this case had he been tried in a before we would have had a state of an entry rule which would been very helpful in eighty four he would have been governed by robert's not crawford and i think it's i think it's just as the evidence shows he clearly did it that if he had bench if it had been it inadmissible i think it would have he would have been convicted anyway the that evidence of his guilt was overwhelming things he could not explain how did he know they would find a body before he knew she was that how did he know where to go where to find the body that evening he was followed by police to the exact spot where he and i'm going to admit that the prosecutors themselves didn't think they could do this without the change in state evident truth law that seems doesn't prove they didn't have a case that's not my point my point is you just look at their actions they seem to that seem to have a book for relation to this case they clearly did want the admission of that statement that is true and the faith in their refusal to charge him until they had all of their evidence in place is certainly an indication that they wanted all of the evidence they could possibly have before they charge him what i'm saying is what the michigan court of appeals relied on to find that it was reliable was extensive and even if in crack certainly wasn't unreasonable they looked at the circumstances of the can be conscious of but counsel tells us laced with with misinformation there is no misinformation the misinformation  that he that petitioner and the district court talk about to make the circumstances of the confession inherently unreliable are conjecture the fact that there was people coming in and out of the bathroom that's not true it's nowhere in the record the fact that adams had a hearing was irrelevant gorski didn't have the hearing loss of course he was the listener adams was the speaker the fact that there was loud music playing we have no indication whether the band was on the break or they were closing up to gold we have no idea that there is any loud music that there were other people present the bathroom that gorski wasn't fully able to hear and the circumstances of the confession or the statement were reliable they met at a bar they were compatriots in crime before decider who had been asked by adams to be a hit man adams had confessed his prescription fraud to gorski they were high school friends this is somebody he would have spontaneously and voluntarily admitted this action to he was aware of all the parties there at a bar they went to a bathroom had a private conversation with the district court i think i think good times going well over i'd let mr lighton go a little over you've now gone a little further as other other questions unless you know i'll give you one more sentence with no depending clauses no i  even if there is clearly established law that governs this due process the nail assess there was at the very least a reasonable application of it ok thank you very much thanks to both of you for your excellent police and very helpful oral arguments be appreciate the case will be submitted and