this appeal presents an important question of the denial of due process through a burden shifting instruction it also presents an equally or more significant procedural issue concerning whether a state procedural rule is firmly established and regularly followed for purposes of federal habeas review the act of shooting an unwanted house gas much less one's own son squarely in the chest and a plain effort to kill him was not justified no civil society would find that this shooting was justified or permit an instruction that would allow it to be justified nevertheless the state at trial and on appeal and before this court have attempted to justify this conduct we feel no did you exhaust this or given you make to me we exhausted it repeatedly our well you talked about a general cla but i don't think you exhausted the argument you make to me i'm sorry the talking about the merits argument or the b s the general argument the merits well we from day one we said that it was burden shifting and we have repeatedly said that well but the way it was phrased to the court the underlying chords and the way it's phrased to me is different it seems to me you may have used the word exactly how you phrased it was different i mean the first time that i find where we have the the argument addressed right before us may have been in the objections to the findings me to talk about we just use these words in general but it argument we never say anything about it nobody ever goes through it that still enough to exhaust that's enough what he says that well i would cite the court exam if the reason i ask you about that is there are quite a few cases that say that i cannot address this case if it's not exhausted and  thirty four u s three three two and nine hundred seventy eight the point made there is that when i present a constitutional argument to the state court the court may address it or it may try to finesse it and if the court even ignores it completely if the state court that makes no difference i have exhausted that claim and i can proceed into federal court with it now as far as the board grab them and when i use the word grab them and i'm usually trying to reshape someone's argument what i'm saying is here's they say here's what they really mean and in this context it doesn't make any difference what human meaning the court of appeal may have attributed to what i was saying the only question is did i present the constitutional argument in question it is if i can say explain the language in the lower chords to suggest what i now want to argue in this chord it's exhausted is that what you're saying no i'm saying it's not the latter given it wasn't made no it's not the language that the court of appeal uses it's the r it's the language that i use as long as i have used the proper a rgument to the state court the state court can't deflected or finance said or try to bulletproof it by saying that i said something else and so that's why this this argument is is is it is exhausted you're on ok i understand your argument i just felt like it seemed a little funny that i'm the only court that has addressed this particular argument or will address that i guess because now you make it and all these other courts who have had similar language in front of it therefore addressing this language in the way they did and based on what i read based on what they had front of him didn't address this particular issue said to me i don't really like to have the california court of appeals talk about this i can't help that i and fact my concern is that our state procedural default rules do not are operate arbitrarily so as discriminate to discriminate against the assertion of federal constitutional rights such as the burden shifting rule there must be an independent and adequate state ground for the finding of forfeiture and that has led the supreme court to say that the state rule must be firmly established and regularly followed consideration of the rule there's no question that the california court or the california code will allow discretion here and the california courts have used that discretion and therefore they have said it applies and sometimes they say it does not apply but that doesn't make it isn't firmly established the regularly followed its regularly followed every time  discretion they do one thing and sometimes of the discretion they do another well that's kind of the definition of no rule well no that's not true because that's why beard says the discretionary rule can be firmly established and regularly followed even if the state board is allowed an appropriate amount of discretion to permit consideration we are fine with the concept of discretion and well how do i really how do i interpret beard if i don't interpret it the way i just explained to you ok let me let me explain the did because this has been before similar issue before the california i mean the united states supreme court at least twice evidence of this was resurrected just a bar this it i think there is i think is it a coincidence that in this case this judge who in the past passed has applied to step analysis and  to the court but in this case decides not to could that have something to do with the fact that we have a blockbuster federal constitutional issue at the heart of this case which is not not only not being addressed but is being forfeited so that there's supposed to be no federal remedy is that a coincidence there's only a couple of explanations where they they not like mentally ill people did they disagree with my argument who knows who knows nobody knows nobody knows that this wasn't a substantial right that was of on fact it's an almost incredible that it would not be a substantial right involved here the  good morning your honor some may please the court kevin quade for the respondent i want to try and touch on some of the merits issues in my colleague on the other side's claim but before i do i do want to address what i view as really alternative procedural hurdles that really operate to bar federal relief in this case and the first of those was touched on by by judge smith's comment on exhaustion the the claim before this court i think is most clearly articulated in the opening brief at page thirty it's one of definitional instructional definitional insufficiency the argument goes that the forcible and atrocious crime definition instruction was insufficient to inform the jury of what that meant and as i said that's on that's on page thirty of the opening brief now that claim is fundamentally different from the claim that was raised and exhausted in state court as noted in our answering briefing over and over my colleague on the other side argued that the claim centered on factual support for the justifiable attempted homicide instruction it focused on the actual facts in the record and whether that instruction should have been given indeed i think it's important to note that that particular claim that that particular claim focused on entirely separate instruction five one thirty five thirteen versus the claim now which focuses on kaushik five sixteen the definitional instruction i think that that's critical in showing how different these two claims are and while it's true it's critical but his argument is simply i said what i had to say to make the argument i'm making now simply because the argument was made by those other chords to a different argument or focused on a different argument doesn't mean that i lose the argument i could make that says that in fact is his argument that's correct judgment but i don't know and i guess i was trying to find the case that says he's wrong or the case that says he's right well i you have one i think the critical case is the people vs kestrels case by the supreme court which essentially says that the fair presentation requirement for exhaustion requires that the case the claim be brought to the state's highest court in a manner in which the court could properly review that claim and as noted in our answering brief the california rules of court will but he says is it was brought that way it's just that they took an alternative route to get rid of it but that shouldn't regard my way to deal with that in front of you should destroy my opportunity to make that argument that's what he's saying well the problem with that argument judge smith is that the the purpose of the exhaustion requirement while the heart of the exhaustion requirement goes to the understanding of the state court so to the extent that my colleague now argues that the state court misunderstood his claim on direct appeal and before the california supreme court it was incumbent upon him to clarify that claim when the court of appeal said in its opinion the grab them on the claim is x if that was wrong it was incumbent upon m to to alleviate that misunderstanding in a petition for rehearing and the best case for there is i think it goes back well back to the case your side of the first place well it goes back to the people's case and it also goes back to the specific rules of court that dictate how you can bring claims to the california supreme court are going to why don't we move to procedurally barred certainly so so even if mr murphy can overcome and show that his claim was fully exhausted he still faces the problem of procedural default and the the rule at issue in this case is california's contemporaneous objection bar specifically in the context of instructions and it will we go to firmly established and regularly followed and he saying this is regularly fault at all i disagree with i understand  because it regularly followed as understood by the supreme court's cases and walker versus martin johnson versus lee going back to beard versus kindler regularly followed contemplates a frequency of use sufficient to put a defendant on notice of what he risks if he fails to comply with a specific procedural rule so in this case i mean as cited in our answering brief there are a number of cases in which and we only cited california supreme court cases but there are a number of cases in the california reports that show that an instructional claim can be forfeited that you can lose your appellate rights for failure to object in the trial court now it is true that the california penal code includes a discretionary exception that allows courts to reach the merits even frak that very exception they use the very prong is about notice if there is a sufficient body of case law that shows that you risk the loss of your appellate rights it doesn't matter if a number of other courts on the other side of the ledger exercise their discretion to give some defendants in some cases discretionary lenity it's simply the fact that if there are enough cases that show what you risk that you could lose your appellate rights you are on notice for the purposes of the adequa y requirement and i'd also like to briefly touch on the second limitation that walker identified and that was from a nation and as i understand my friend's argument this morning you need more surprising or i'm sorry well i think unique or surprising goes as i understand it more towards the i think they can be both i understand it is going more towards the adequacy of notice ok but i think in this case in particular and in general if we look at  body of law in california there is no indication that the contemporaneous objection bar is applied generally or in this case for with a discriminatory intent the type of intent that the walker court that justice kennedy's concurrence and beared identified as as undermining adequacy i think in fact if you look at the language of the court of appeals opinion in this case it shows not to discriminate for intent but for the clear sympathy for the outcome of this case the court clearly felt that while its hands were tied legally that it that it felt that it could not exercise its discretion it clearly felt sympathy for the facts of this case and for the outcome and it noted that multiple times from the opinion i think maybe you want to then turn to where the instructions deficient and prejudicial absolutely thank you your honor as to the merits of this claim my friend simply can't show a likelihood that the jury instructions in this case rist a jury interpretation and that that was interpreted in an unconstitutional manner simply put the instructions given in this case and the definition instruction was an accurate statement of california self defense law and it was supported by the facts in the record california for well over one hundred years has allowed for defensive killings defensive attempted killings on in view of an apparent in imminent threat of physical force being applied that could lead to death or great bodily injury that was codified in the eighteen hundreds in penal code section one ninety seven and the law has not changed in that respect the cow defense structure that were given in this case adequately and absolutely that rule and the use notes note that they go straight from that rule and the cow back it seems as if in this particular case that the court followed the no to the model instructions in drafting the structure i think that's exactly right judge smith i mean it appears to be an explicit application of that use note because this case while clearly on its facts presenting a likelihood that reasonable jurors could could find that the initial shooting was justified it was not clear that any one of the as a matter of law crimes the murders the rapes those types of offense yeah it's it wasn't clear on the facts that any of those crimes applied so under the use note that  taken directly from california law under the use note the court explicitly applied what was appropriate under the facts and i just i'd like to briefly note that even if my colleague can surpass procedural hurdles and actually show a due process instructional error i think he fails to show the actual prejudice under brecht necessary because the jury's verdict it's first degree murder verdict included explicit  findings about mr murphy's mental state and that mental state was incompatible with any finding of self defense thank you honour's i listened with interest to my colleagues argument and my ears were open to hearing what the california rule is with regard to  substantial rights what are of substantial rights when are they affected we do not know sometimes they are deemed affected but not meritoriously sometimes they are  affected and when and often we just don't even know as in this case whether the court viewed the substantial rights were even an issue and  where is where is this rule that we are seeking it i'd suggest that it's it's not in even as deep as you delve into these numerous citations of pages forty and forty one of the a here every every court that has reviewed the case has seen this as an anomalous result and can't understand how the jury arrived at it yet the jury was told repeatedly that self defense doesn't apply so it's no great mystery and and to me it's no great mystery why the state court would not only want to dodge the issue but at the same time bulletproof it