we're happy to hear argument in our first case number thirteen seventy nine fourteen leavers are sorry lee had was that he acted in the heat of passion unfortunately though the jury wasn't told what he had passionate and so the question as framed by this court is was counsel constitutionally ineffective  failing to request a jury instruction which to find it of passion the lengthy description of what heat of passion is not common sense is not something that this jury would naturally know or understand and it's really the meat and potatoes of what heat of passion is and what it means mean it's true the jury was instructed that the difference between murder and manslaughter was malice but the jury was giving no other indication or instruction as to how to make that evaluation the lengthy the definition of the heat of passion instruction as cited throughout the materials so that so i think the and you want to well i think that it's an unreasonable application of strickland versus washington that's the bottom line and i don't mean to make that statement lightly i mean i understand that there are facts that are against us of regard to the trial itself  this jury was given the allen charge twice so at least two times during her jury deliberations there are unable to come up with a a verdict not only that but the instructions that they were given that they were told is the difference between murder and now i mean murder manslaughter was mouth but the instructions that they were given basically told them to infer malice it's the instructions that were given a trial date you can i deadly weapon used well there was a knife used here so the jury could certainly infer malice you can infer malice if there was an unlawful killing well you know there's no defense today there was an unlawful killing and again the only defense in this case was heat of passion of the manslaughter correct so they were told about your argument they were told that the sudden heat of passion upon reasonable provocation was a defense part of the defense that your argument was that they weren't argument was there was a lot of talk about you know passion for he used those words on answer by the government is i mean it's you know it's so it's so easy to look back and think of how you would do it differently and better and so forth but that that is the record as we get it so to go back to my friend judge wins question i think for our purposes now you not only have to show that there was a violation of really established law as established by the supreme court to which no reasonable man can differ even if he did it not unreasonably different but also it's important to know that the jury was told what malice says and what they can infer from malice but they weren't told all the additional language so yes trial counsel did use the words heat of passion was so to sit so to judge and did use the words reason provocation but does not judge but did not use the words emotional state of mind no it's just not bloodline if passion and where you or your argument lie yes and those those words are very important because the the facts of this case are pretty simple mr lee was attacked he was attacked by mr plummer who was high on cocaine who wanted to try to get a gun and wanted to obviously had an intention to kill the mr lee in the first place he was later they go at it again is the testimony they go at it again if you look at the prosecutor's argument in response to the motion to strike he says well if the fight had been the fight was over when they separated the first time and if he didn't go at him again this would be a manslaughter case but that what the jury didn't understand was that going at it again is exactly what we're talking about here in the definition of this man this heat of passion the fence and specifically hot blood rage anger resentment terror or fear there's clearly no time for him to have a cooling off period which is the other component here so the jury didn't know any of that all the jury knew was that he was likely stabbed the the victim the deceased in this case was likely sad after they went out a second time and that's really where the focus of the commonwealth was and if you look just a few pages after that one ninety nine the instruction that was given malice instruction that was given say malice rare may result from any unlawful and justifiable motive including anger hatred or revenge so they can  that he had malice because he was angry they did not know that heat of passion also uses that exact same word anger and very similar words hot blood rage resentment terror fear how did this happen that they were given if they could come up with instructions for the just of course i couldn't really mean that from the record not only had front of us all i can say your honor is that they clearly missed it if you this instruction that we're referring on page one ninety nine that is the beginning of the definition instruction that we refer to should have been given and i included it on that but i just want to be sure you understand my question and i am interested in your answer to but my question is did they present at the each cyprus is off as usually happens present jury instructions to the court they were agreed upon instructions they changed extra instructions and then they had the court ask if there's any disagreement instructions and there wasn't any with regard to this and these are all state model juries in the so we have in maryland monetary sections of that with these are exactly yes ma'am except that the model jury instruction a part in it that was missing here this is the second paragraph of instruction number five that we just referred to the one that told them that malice can come from anger and you were just about to tell me where and that is why i included the entire  ok so you know when you're making a factual determination as to whether it's heat of passion apply it's the question really becomes did he have justifiable reason for engaging the conduct  mean he's not not guilty we're not saying that he should be fifty quid it that it was a self defense claim or any what we're saying is that if the prosecutor even himself admits that the first stabbing event without the jury being present that's what he argues to the to the court so essentially he admits that this is this is a case where he's convicted based on the second stabbing event and that's where the jury had no way of knowing that this regime anger and resentment that those are components of heat of passion and that there's nothing that separates the two events there's no cooling off period they were given any instruction about that in perhaps even more importantly there wasn't any argument to the jury as far as the closing arguments are so the jury was completely left in the dark is what heat of passion means all they hear is heat of passion provocation we'll think about that if your common juror and you're sitting there and you hear well he was provoked yes he was it was reasonable provocation yes it was but once they separated he wasn't provoked again a jury could easily make that conclusion is matter of fact i think that's exactly what they found here that there was no additional provocation that it would justify the second stabbing but they didn't know that this raised this anger this resentment this terror and fear can continue over for lack of a better word excuse the second step and you know this is not a situation where the defendant had done anything wrong i mean he is a sensually i'm sorry if he didn't do anything for long before this altercation happened he didn't do anything to bring upon the conversation he simply sitting in a truck discussing with a gentleman about working this  fellow who's high on cocaine who the medical examiner shows was not only had acute cocaine use but also he had nuts cocaine in the system tried to acquire a gun went after him and started beating him  g pull him out of the truck essentially those are the facts of the case what do you think is your best case we're finding that there is enough here for a stick of relief under as well there's no doubt that there was sufficient performance that's not even disputed so when we talk about prejudice you know i understand the stricken versus washington is a difficult standard but the standard for determining prejudice is only reasonable probability of a different result and i stink that that gets you don't want to reach here right and so that's why i'm asking you if it's just right so he's saying that well how do we write this so how do we write the opinion that goes your way what supreme court case the two that would be the argued before the same facts that were argued at the district court level and that's the erroneous view of the facts that i've also put in the brief and in that case they are basically used the recitation of facts from the court of appeals who is only considering the s sufficiency of the evidence and therefore had to view the evidence in the light most favorable to the common law so those facts are heavily skewed in the in the column will favor that was their factual basis so you could say number one it was an unreasonable determination  facts i mean to look at the facts is is not what strickland versus washington tells us the way they did it is not what strickland tells us strickland tells us totality of the circumstances not take the court of appeals opinion discussing sufficiency and use that as your factual basis for determine whether there's pressure and that's what the state court did that's what the lower court and this federal the federal district court did as well they both looked at the case using those facts that's unreasonable determination of the facts it's also an unreasonable application of strickland versus washings prejudiced wrong because the standard is not as high as those as as many would lead you to believe s supreme court just took up the case of ayala and in that case the question was if there is a constitutional error and then the question is whether that was harmless or not does the court have to give state deference and the ninth circuit found that you did not have to give state deference because there's already constitutional violation so you could look at this and say that it is a constitutional violation for counsel to to be completely negligent in requesting this jury instruction and if that is the case then the only question is you know obviously the prejudice prong and the question i think that allow you will actually resolve as whether you give state deference in that regard as well as to whether it's an first or second degree there's only a very subtle difference between for second degree and first degree murder i mean if you think about a second degrees of deliberate killing and first degree is a premeditated deliberate killing so those are concepts that are very closely really and in to that is an unreasonable application to look into the jury box to say i know what these jurors were thinking because afa single question is i think a under reasonable way of looking at the facts that that that assumes so much and puts the court in the position of the jury and that's the wrong court to there's a wrong entity to be making that decision so we don't know exactly we don't have any information directly from the jury we know that deadlocked we know that they were having a hard time deciding the case and i would say that given the facts and circumstances if the jury instruction had been given there's not only a reason a likelihood of different result that is unreasonable to conclude otherwise good morning your honor saying please the court before i get started i'd like to direct the court's attention in response to a couple of questions from the court about the jury instruction appendix pages one forty two three one parties and offered to the court without objection the trial judge said spencer number of those instructions and they became on her wor that they're not binding what we were asking was if it seems like a central part of what's involved in this case was omitted and how could that be where asking you for a little help with that what we're talking about here is not that the jury wasn't properly  d on the elements of each offense what we're talking about here is a definitional instruction of the term speed of passion and if you look at that part of the instruction which was left out there are parts of that left out instruction which are actually detrimental to the defendant we did not argue sufficient performance but we simply argued prejudice that we have pointed out it talks about heat of passion excluding malice it talks about heat of passion involving anger or causing one to act on impulse without conscious reflection but it also goes on in the last paragraph to say if a person acts on reflection or deliberation and has his passion has cooled or he's had a reasonable opportunity for ruling then the act seasons save the world construed by which the court must construe about the law and the law is a need to be guided by the law not by a lawyer who's obviously biased putting his or her spin on it i can believe  this is a model instruction it is the cynic won all of his defense it defines what his the problem is this case i think is very simple if you take malice the definition of malice is anger includes malice includes anger they had nothing to counterbalance the fact that also has a passion includes anger is like having a one man fighting up to our man and say well you know you lose because you only made a blow with your left on last because i don't have a right on he wasn't it was a defiant form is not about the law you are hearing it's about the law and the say that's not prejudiced he didn't have a chance because they said well the state is right here malice includes anger  morning that is exactly what was that what that's the argument that was made to be hey b s trial court when this case was brought in state court and the court aspect well it doesn't mean i mean i think if you're fifty four when all of this is that even if you say yes to the answer here that does it in this case because it's another part of is whether mark we have shown by clear and convincing evidence that the state courts determination on the strickland prejudice issue was not just wrong but it was unreasonable and we submit that the facts of the case where this defendant and i disagree with other counsel statement that mr levy had nothing to do with starting this altercation mr levy rides into mr palmer sure but i get your point on it because i mean we've got to look at this in his call and he's right in by i don't know what you mean by he makes a call to someone to come over him out i mean i that's how my i think you really would be helpful for me if you didn't start with your weakest argument but starting if your strongest which is the application the review that we're giving this  only discussion of this claim and why it's rejecting this kind you're you're with me yes wrong with regard to claim it ok what we have that here is that the state he at all of the evidence in the case and he also considered the inferences that could be drawn from the jury deliberation process and the state court found that the record supported the inference that the jury was this well since we don't know if one juror said you know this is definitely a first degree murder and all eleven is that oh no it's best this is manslaughter or second degree murder and  just before the court read jury instructions that evan which told the jury that if it had a doubt if it had a doubt to the grade of the offense then levy was unsubtle the benefit of the doubt and thereafter the jury deliberated only sixteen minutes before returning a verdict a second degree murder at the sentencing phase the jury deliberated less than an hour before fixed inglesa sentence at forty years and present the maximum that he could receive for second degree murder those it was the facts of the case that there was an altercation that that mr palmer was unarmed that  being beaten on poles his knife and starts winging manages to stab this mr plummer seven times manages to stab him in the chest to the point where he backs u the instruction that was given to the jury did not include the whole model instruction but omitted the heat the heat of passion explanation yet act yes or on that's correct that i still  i'm so i'm a little slow if you could still go back to jail to ninety five and i know what you told me but i don't track it with what the district court did i read the state he scored there seems to me that i mean that must have been some memorandum if that's being you know good for you but for the entire rationale higher now the court finds upon review of the trial record that's what it says that maybe you can say that's an adoption or something and then it  what that something how much i can rely on that something for your honor i apologize i haven't gone back and found in my what you think you're to be using the transcript of your papers it looks like it's from the the defendant also nice start swinging to get to get mr plumber office him he stabs him there every witness every witness says there's no that mr  instruction that's the only way you can have a chance if i hauled off and hit you in your face almost knock you out right now and you had a gun and after i took ten steps away from you with my back turned you shot me that's clearly would be a heat of passion that's the whole point of it you are disengaged but passion continues to engage you and matter of fact you know from law school people passing can last for days with those cases we talk about we know that at the take that the determination of whether it's reasonable and you call that substituting your judgment for their judgment but it's essentially following the law of the dictates that we have i would like to point out just the record does include the  start with the model jury instruction is on page two fifty three that first paragraph on page two fifty three is the model is the instruction that was given that's the instruction of the five that up that mentions my anger and then the rest of the jury instruction was not given in state court the motion to dismiss that was filed by the attorney general's office is included on pages two fifty five through to sixty nine of the motions hearing that was held in state court where we argued to the court these aspects of the law and those that motion hearing is found on appendix age to seventy five through to ninety two  the the argument that mr lee is somehow at fault here i have to disagree with it's a little ridiculous he lives in the same neighborhood nobody went looking for anybody  the suggestion that he made a facial expression that would have set anybody off is not what the facts are the facts are mr what mr drayton said was that anything is little as a look could step off mr  not markedly so that it's completely different and that's where we get this you'd look at the facts when you start looking at the facts in assume that everything that is in the comma favor and we exclude everything that's in defense favor chris you're right your honor your on top of it is two fifty five the motion to dismiss starts on two fifty five and if you look over to the statement of facts on two fifty eight what it cites is a statement of fact they did say they reviewed the entire record of course you're going to say you review the entire record when you decide in a case so all we have is that brief explanation for what the court did and we know the court agree with their argument and so you can easily conclude that the court also relied upon the statement of the recitation of facts from the court of appeals and if you look at it as we've pointed out throughout this entire process it did not include all those facts favorable to