when i was seven five which are the jury instructions that discussed the admission of the voluntary intoxication evidence when specific intent is required and what that jury would have been considering and in connection with which counts a conviction and in reviewing that it's clear as i stated that the voluntary intoxication evidence would have been admissible on the issue of specific intent as to the murder one murder hideous relief was warranted under twenty eight u s c twenty two fifty four d with respect to petitioners claim that he received ineffective assistance of counsel when his trial counsel failed to investigate prepare and present a diminished capacity defense  well if it's not a clerical error in inserting the word capacity in lieu of the word actuality i think that for people who have been practicing for a very long time well so are you asking us to fashion a new certificate of  suicide bombing on our own motion i don't think that the district court had any jurisdiction or authority to grant a certificate if it was diminished capacity if that defense did not exist at the time your certificate of appeal to work with well if the court would either be man to the just or court for him to correct the error i'm sure the magistrate judge block nant actuality i think it's clear from the record is this court either the magistrate judge got it right and a footnote referencing the fact that about the standard in the law which is diminished actuality being that the voluntary intoxication defense can no longer be used to show that you had to not have the cup half empty to form the intent but rather that you did not actually form specific intent and i believe that i discussed it in those terms in my briefing does the certificate of appeal ability even as and it's a very good point and perhaps the court would allow me some time to think about it quietly and to submit a letter brief to the court very briefly with my suggested language i do know that the court has recently held i believe it's th court that judge actually does have jurisdiction to issue a certificate of appeal ability so to the extent that the magistrate judge used the correct language and i can review that and suggest something to the court i would like time to review that more than ten look at the complete record in terms of the first prong of strickland which is the reasonableness of counsel's investigation his failure to retain an expert on his failure to understand the law as it applied had to push it or not force was found thank you makes i just thought that the the rebuttal on the acted issue by the people with certainly a rebuttal and that given the the testimony that we now have the fact that can be impaired even when motor skills appear unimpaired and that that is something that possibly you know is not obvious to a lay person or to a jury that expert testimony given to this jury a jury who was with very little evidence in the r i think that in this case with all of that evidence had that evidence been before this jury who clearly saw that there was an issue with regard to whether he was or was not so drunk  that maybe his cognition was impaired and he couldn't afford the that the fix in town that they were directed to find that that evidence on the facts of this case is exactly what defense counsel need to present in order to prevent a murder verdict which is act i think the witness would have said it was too gnawing which is really high but how do you know i think this really gets to just been it was me how do you get over the prejudice even if we would assume that there was deficient performance both as to the first degree murder charging the intent to kill and as to the accident theory we answer the question thank you your honor your honor the standard once we get to that point if we get to that point rights where they are the standard for prejudice is not actually as high standard as many of the other standards abs petitioners have to meet it's whether you have confidence the outcome is there a reasonable probability that have i got the right thing then done you know the outcome would have been different it's less than preponderate what was the client's position on this with  i'll have to check that your honor i'm not sure that that is whether whether the client did not i don't believe the client said he did not want an expert to testify or did not want to be examined by an expert when it was active he was adamant that it was an accident but his testimony in that regard your honor is if i may say to not something i would have been comfortable presenting as defense counsel in a murder case without some sort of supporting evidence that she could have it could have been an accident because we have as a to have yes have i have as summarized a fairly compelling case that he was acting somewhat deliberately it appeared it appeared that he was acting somewhat deliberately and in terms of the on the outcome the prejudice prong i think we have in this case and unique fact one that the prosecution did point to the absence of this testimony is in their closing argument and i think that that has a fairly distinct fact in our case that possibly doesn't exist in some other cases and the other is the jury question new jury was clearly concerned based on the evidence that they had heard that seemed to them a relevant fact and they wanted to know what was the blood alcohol level do we know that and they were told no you don't it was stricken don't consider it own mouth that he was very deliberate in this execution style murders sensually said he was moderately drunk or that's the word modern you know i think the record can fairly be read that he was pretty insistent that he was moderately drunk  i think that in itself that his own admission that he could form that intent to scare that alone virtually torpedoes any kind of voluntary intoxication defense i think is the court is focused in on that defense is an extraordinarily narrow  under california law it's kind of an after show that was actually unable to form a specific intent on this record i think it was entirely reasonable for the state court to have found not only that the stricken claim fails the prejudice probably i think this is a good example of a case where the so called overlapping occurs where the same reasons why this defense wouldn't have been viable and therefore there would have been any prejudice inform the council's decision as to why not to raise this defense in the first place that's why i think it was entirely reasonable for counsel for example not to press the issue of the blood alcohol test i think petitioner would like to say that all counsel had to do was get in this evidence of the point one seven and that would have sway the jury but i think that's only half the story you know i think that in order to get that evidence  and a lot of other baggage so to speak would have had to come in as well i think what the court actually ruled in this case was another reason it was excluded was because defense counsel didn't have the appropriate witness there to explain t alcohol test in other words there would have had to have been some discussion beyond just the number itself the jury would have had to have heard testimony about concepts like tolerance which clearly was would have been a big issue in this case so as the state court said we're sort of getting into the realm of speculation there and i think the strickland claim fails tell me about their tolerance or i was i figured they would have to not only put in thousand and one challenge six hours after the event but approximately i believed yes but they'd have to put somebody in the back they're not going say so at the time of the event it must have been somewhere between two five into nine exactly experts said it would have been to nine i think or whether we're talking about the mistake defense i want to stress however that i don't think ineffective assistance of counsel based on the state defense alone is really included in the claim here i think this is been litigated all along as simply an issue of voluntary intoxication now i don't think it will surprise the court to hear that i would be my mistake which is what we term accident right accident yes i think the trans accident mistake were used somewhat in their interchangeably here in the district court as as were the terms and i think this is where the problem arose with a certificate of appeal ability the term diminished capacity i was really sort of used as a proxy for what i think everybody was discussing which was a voluntary intoxication defense and we did certainly point out in the district court that of course diminished passage doesn't exist any longer in california  it is your honor sometimes referred to as diminished actually and i i guess that's the same thing i'm referring to as a voluntary intoxication defense just to be particular about these these statutes in california and of course as we get it and it's certainly not in the cia i agree with that but to answer the court's question i think the problem with intoxication defense even in the context of the accident theory is essentially the same one is essentially the same problem that arises in the context of voluntary intoxication defense which is that we have a record here that undoubtedly the petitioner was very deliberate in his actions and his thoughts leading up to this execution style murder you don't buy into the segregation between mechanical act and i don't hear honor and i don't think that petitioners expert was able to explain that theory in a particularly coherent way in the district court in fact i think the major  problem with the dishes the experts testimony was his entire theory of how alcohol affects a person's cognition really is directly at odds with the requirements for an intoxication offense in california him there's not an aspect to this case the troubles me somewhat and that is that the case seems to be getting better as we go along meaning things are added to the record that weren't there in the state if you look at the opponent has not met his burden to show present prejudice we do not know when an expert would say as to the level of calls and talks occasion at the time of the crime or its possible effect on appellants ability thus we cannot conclude we refuse to accept the suggestion that expert testimony in effects of alcohol has become generic so it seems to me that no attempt was made in the state court to build a record on this issue i absolutely agree with that your honor i don't there's no record with given the deferential standard of review how can we say this is a reasonable wrong you know all the usual labels that we have to attach to this and certainly comes over to federal court now all of a sudden all the stuff appears that these kinds of do overs aren't favored by the law are they absolutely not you are that is that is certainly our position often we see in cases like this  little bit by saying that it's appropriate to develop facts in federal court only in rare a rare cases i think in the vast majority of hideous cases from state prisoners what congress had in mind was that the state court would resolve these things i think twice before even to requires that petitioners develop their claims in state court i think it does this isn't new information that couldn't have been developed examined as it couldn't have been found exactly and i think for that reason  required to have developed this in state court and that's why i think as i stated in my briefing the only quite the only question that matters is the supreme court has said is whether the state court is what the adjudication was reasonable on the record the state court had before it under twenty two fifty four d and i think that that is really even a close question in this case of course i think the question of the standard of review  the hearing and he was stopped at every juncture why i'm getting to that point on the basis that it had already been decided by the california court of appeal so after the california court of appeals said it's not here when you decide to do it over know it was not a do over yonder he was represented by counsel on a direct appeal who raised this issue i mean there is no requirement that you re file involving one expert would say and what that testimony meant but what happened in the court of appeals decision because they were limited to the record is that they looked at case law where you know intoxication words was discussed and tried to argue and i would have but they tried to argue that therefore you can sort of just generically grab that expert testimony from some other case law and imported into our case and on that basis you have enough evidence court of appeals to make the decision that my counsel w ineffective the court of appeals i think correctly declined that invitation and said no we can't do that if there are facts outside the record like an expert opinion on you that needs to come to us in a wrecked and so he filed it's attempting to get that type of evidence asking for that kind of discovery asking for an evidentiary hearing where he could develop that and he was denied that opportunity by the california courts what court the california courts which one skills and tolerance he turned general was invited by the district court and asked several times are you going to present an expert and they declined to do that so the evidence that was developed in the district court is the expert testimony that was presented by petitioner and now we're engaged in respondent now speculating about what their expert might have said or what evidence might have been developed and i think that that's inappropriate in this court should not accept that invitation to help respondents speculate on evidence they