miller's confrontation closer it's at this court is aware attorney mr miller's st trial the trial court incarcerated state witness miss kathy but well because he did not believe that she was testifying truthfully the tr testimony had changed so dramatically pretty incarceration post incarceration she told mr miller's counsel quote because i don't want to go to jail this entire process was deemed unfair to mr miller and require a new a new trial merrill's nd trial the trial court read her dues the same error by allowing the state to use post incarceration testimony from this blackwell but then this is the state court comp out of the air by prohibiting mr miller from showing the jury black was biased against him and striking from the record statement because i don't want to go to jail you know i'm happy to answer any questions the court has but absent the court having a specific direction of life to go now i like to briefly this state court ever addressed the confrontation west yes judge vision it's something we struggle with when thinking through this case on the one hand it's a matter of respect so if we're thinking about this being a confrontation cause right case generally been the state probably good approach it with the state versus canon reference it would just be an unreasonable application of where it is on the other hand there is absolutely exactly right george bush there's no discussion assuming it does apply if you look to and i don't understand state to disagree with so i'll be brief there clearly is established federal law that applies to mr miller's case again as judge bush notes it's the davis and then ours the line that was not addressed by the state and frankly wasn't addressed by the state and briefing to this court and this this court's decision of blacks and makes clear that that is in fact that established law so i'll move on from that unless the court has any questions looking to the nd aspect of it to the contrary two or unreasonable application factor regardless of which way this court wants to take that decision they both lead to the same result which the state violated if we're looking at a contrary to  criminal defendant has the right to cross examine a witness for prototypical forms of bias and that includes undue pressure from the threat of incarceration that is precisely what happened here in the state doesn't oppose that or object look court give any reason for why it excluded that because i don't want to go to jail line you're out of the best the best example are the best discussion of what it is actually comes looks to crawford in and has a very cursory review of what that case requires and says well there was prior cross examination at the st hearing and that's sufficient the dissent points out correctly that the whole problem with the st trial was a procedure used by the trial court and the st the majority doesn't address that at all they don't discuss why it's acceptable to remove that line of questioning regarding mr blackwell's bias but the dissent in fact does discuss tainted problem that came from the st trial effect of the nd trial as well as soon as post incarceration testimony was admitted into evidence so the short answer your honor's no there's not a great example or a great explanation for why we are where you are but the dissent would be your best place to look if you try to understand what was going through the courts thinking back in two thousand and thirteen looking to the other at the side of this just to round out this st thought the other reasonable application if this court decides that crawford actually is the appropriate standard simply because it states confrontation clause in that case i think it's healthy for this court to keep in mind that crawford is a case about when it when his cross examination acquired that's what crawford arsdale and several other cases in that line speak to what constitutes effective cross examination what constitutes constitutionally adequate cross examination and justice scalia you offer the author of crawford was always very clear when he was trying to change supreme court precedent or comment or especially over rule supreme court precedent he makes no comment like that at all in crawford and it makes sense crawford is doing something different in the confrontation crawford was the correct legal legal standard to be get to be on a reasonable location prom if we get there babies are i'm sorry crawford at bottom says there must be prior cross examination but it doesn't attempt to explain what constitutes prior cross examination that is what the davis than ours adult olden cases all hold and they do say at minimum you have to allow the defendant to cross examine about a prototypical form of bias and if that doesn't occur any other cross examination it might have happened is that an opposite to the constitutional violation in each of those cases cross examination occurred to be problematic witness it just wasn't cross examination about that prototypical form of bikes and that's precisely the issue here every case to follow it specifically blasted baskets from this case which i think are probably actually most helpful for this court what the judge is asked to consider is do they have confidence in the result absent the taint a testament that's the ultimate question here it's been framed different ways it's been phrased differently but that's at bottom what the court is asking do we have confidence in this result in your heart as i submit there is no way to have confidence in this result based on the un take to test we have a case where only unbiased witness that can tie my client mr miller to knowledge of the crime is miss black but she is the only person who is unbiased the only other witness at all who can tie mr miller to the crime is called that harris who admittedly was a addicted to crack cocaine was taking crack cocaine at the time of the murder allegedly happened and his story actually falls apart with undisputed evidence and i won't get too deep into that your hours but a story is he was sitting outside a apartment complex in the rain at two in the morning he didn't live there and he saw it point blank shot gun murder followed up by my client getting out of his own car pushing that dead body over a back seat and driving the victim's car away it is undisputed that they found my client's clothes from the night of the murder and there is no blood on they wouldn't test of the car there's no fingerprints in the car for my client the police made very clear that mr rice the victim's car was full of blood and brain matter there's just no way mr hecht that we don't know what actually happened that night your honor that's not what we're here to decide but we know it didn't happen it didn't happen t mr harris says it happened because my client would be covered in blood and there would be fingerprints all over mr rice's cock if we keep looking at the other witnesses mr nil claims that miss that my client showed up at her house about an hour later and she claims to have seen  what she doesn't claim is he was covered in blood just a clean anything that would be close to the idea of supporting what mr harris actually says if we had a point blank murder and then my client sitting in a pool of blood driving a car the other things that we do know your hon this court's decision blacks to blacks and says in a small community with a small social circle it's quite likely that witnesses can courtenay testimony in when that happens and you're operating the absent of absence of physical evidence which in this case means forensic evidence you have to be very suspect of these witnesses and that's when witness testimony becomes crucial that's the word that this court's used to supreme court it's crucial and if we're talking about crucial witness testimony this black vote has testimony that no other witness has that ties my client to the murder in a way that no other evidence can do and even if we use the case that the the state wants to rely on which is this right or versus what's case if you look at right or all of that thought confrontation clause rights were not violated and septic even if there was a violation if he said error was harmless so i like to start by quickly framing the issue for before the court and the issue is whether the state court's decision their cabin that it made him happy blackwell's testimony was an unreasonable application of crawford versus washington any argument or claim that the testimony was inadmissible purely because it was tainted or unfairly critical is procedurally defaulted because the petitioner did not exhaust this claim did not exhaust that claim as a matter of federal law versus maze that says that an argument not raised in the district court this court in haiti is in a beef proceeding this court still has the ability to consider  the issue of procedural default the issue is probably before the court is whether the state courts application of crawford versus washington was unreasonable and here it wasn't because the state court recognized the two prong test that to admit an unavailable witness's testimony that witness must be unavailable and that the defendant must have a prior opportunity to cross examine and hear the record showed that the state with a great lengths to try to track down this mr blackwell and they were unable to sell you had it isn't it rather meaningless to get to the nd crime is that rather meaningless to say the defendant must have had a prior opportunity to cross examine but we're not going to allow any of the fruits of that cross examination to come into at trial some of the fruits of the cross examination did come in your article bikini fruit here is the fact that blackwell stated at the st trial the only reason why she was remembering or testifying as she it was because she didn't want to go to jail again and that key fact was not allowed to be brought up to the jury that's correct your arm but it still doesn't render the scuse me the state court's decision an unreasonable application of crawford because the only issue before this that the issue before the state wasn't the adequacy or the effectiveness of the cross examination it was merely the opportunity and since the record showed i would say ace at least a small amount at least a small amount and the amount here is i think is more than sufficient to lack of credibility with her admissions that she was a prior drug user and that that had affected her memory and so isn't the particular issue here a rather fundamental statement about why ms blackwell suddenly was able to quote remember unquote what she had said before was the threat that she would be really jail if she did not remember and and your position is that because that's only one of several things i read she could be and was cross examined but it's fine for the state court to be consistent with crawford to limit the cross examination that ways that right yes your honor that the with the cabbie that this this position is based on and the manner in which the claim was presented to the state court to the state court all it had was just a straightforward application of crawford and i think the fact that the district court went a little further and said that specifically redacting that lack of testimony about not wanting to go back to jail shows that most reasonable jurist could disagree about the state courts resolution of this court your opponent is arguing davis and dan are still are you just saying we we can't consider those two cases or how do you deal with them yes your honor that that was those that was not the issue before the state court that this court this cour review of the issue is confined to crawford and the application of proffered because the state formal was ever presented with the arguments from davis or the prop what does that defendant have to do just the defendant have to mention davis and van arsdale or is it enough to say i have a confrontational cause problem because the testimony that i was making my statement only because i was under threat of going back to jail is a violation of my confrontation client's rights that would possibly be sufficient i mean  there's the border factor test to look at to whether claim is properly raised as an issue of federal law and using the phrase confrontation clause and explaining why likely would be sufficient to raise that issue but and that that state court decision would the district court properly applied at the deference to that state court decision and a deference is also with this court should apply interviewing that decision and find that it was not an unreasonable application of crawford but even if there the court finds and confrontation  violation any error was harmless because the state's proof in this case was substantial there was visible evidence that linked the petitioner to the murder there was true that that was a very common form of ammunition yes your honor that is correct but it still was significant that it was the same manufacturer in the same size seven and a half knew what his voice sounded like you know his car and he saw a shotgun and appear from the petitioner of car a blast and then saw petitioner exit the vehicle shove the victim over and drive away in the victim's car and then you had me to champion his testimony put additional in brownsville shortly before the murder and she also said that she saw shot in shells and a shotgun use but they also testified that the drug use did not impact their memory for example mr harris said that using practice gave him a little bit of a rush but that he was still very much within his senses and  said that the use of crack cocaine did not impact her ability to d perceive and recall arguing that the whole claim itself is procedurally defaulted just specifically the argument that the right to a fair trial or a violation of due process was violated raised but because the state court still concluded that there was not a violation of crawford the issue was sufficiently preserved for federal a b s review and respondent would submit that at the deferen yes your honor then again specifically that the claim properly before the court is did the state court reasonably apply crawford versus washington and based on the way it was was a prior opportunity for the for grants examination and so there are no further questions but one question that i have is under crawford is there a case from the supreme court that says having the opportunity for cross exam is crawford crawford uses adjectives like effective or adequate and that's an example of crawfordville and a little bit further at times and when the issue is properly raised looking into the adequacy of the cross examination the best not the issue that was raised or that the state court decided here they simply looked at whether there was an opportunity which is in fact which is still style that's exactly the point and maybe this is what justice or judge bush was going to proffer talks about when cross examination is required no one's disputing a cross examination if you're quire from his blacklist testimony be introduced the  question is prior cross examination as the supreme court has held time again doesn't just mean physical confrontation means effective means constitutionally adequate so judge post to answer your question how much cross examination had to be let in to be ok constitutionally adequate amount that's how much and that's exactly what davis and ben are stall and that whole line of cases defines for us it says that at minimum you have to be able to cross examine a witness on a principle form a bias that is a direct quote from ben defendant from bringing out such a bias and that in both of those cases this court granted habeas because that is a clear problem and when you have crucial witness testimony like we do here it can be harmless and i think there's a little bit of a phrasing issue here that i think is more important just semantics just because you took us about the confrontation clause violation and opposing counsel talking about crawford violations those are not the same thing crawford is just one aspect  confrontation clause if you look at claim fifty one dollars which i cite on page five of the required claim fifty one dollars which was granted by this court and granted by the district court does not say anything about crawford it says instead that the supreme court  by quote not allowing the prior testimony of unavailable witness to be read into the record this is not a crawford issue this is a confrontation clause issue and the supreme court's confrontation clause precedent includes dame's and they are still those predate proffered by incarceration and that's precisely mr miller's asking for it speaking so rude briefly about the physical evidence yes just for it was the typical size twelve gauge shell and it was a typical red idea i read casing because that's what sold at walmart and almost every department store in the state i would guess that almost every twelve gauge shotgun owner has read seven and a half inch shotgun shells you're if i could make one final point and then see my time once that one sentence your time is up i just want to point out to claim it harris was the original suspect of the crime until he pointed at towards my cli if there's any doubt if there's any way to be more sort of willing to say whatever you need to say to get out of things i can't imagine a situation and i think that's a very relevant aspect given he's the only eyewitness to step to this alleged murder or the murder of that might have