essentially the scene a quantum on of his conviction without those i think it's unlikely that you have even been charged with this crime much less convicted of it but was he pressured was ico worse well i think there is a subliminal coercion in the sense that mr holland was not in a position to waive his rights there were several different factors a constellation of which produced a situation where mr holland did not understand his rights and was not in position to waive that account so for me it would be helpful if you could focus at some point on why you think the state court decision is objectively and reason sure i think the foremost reason why the state court decision i was not forming memories this wasn't an issue of weeks later days later months later a sub subject comes back and says oh no i don't remember being read my rights he told them at the time they were soliciting statements from him i was blacked out by then i don't remember what happened and that's only one of several factors that went into the fact that the police should have known that mr holland was not aware of his rights i was in a kind of a selective black you know certainly remembered some details very well well your honor i'm going to be the first to admit i've never done sherman before i presume no one in this court has either so i couldn't tell you when someone blacks out on sherman when someone doesn't you know i don't even know to be honest i didn't either before this case but according to what i've learned it's marijuana and p c p and some sort of combination but my understanding is that it does cause blackouts and yes he did provide details to the police that could indicate that he had some recollection of different things that happened that day was there any medical testimony to corroborate the effect that he claimed from the sherm cigarettes i don't believe there was specific medical testimony at this hearing but it is a fact that charm does produce blackouts i read that he had th p and p c p in its system but i didn't read anything about what what the level was or whether that level would be expected to correspond with blackouts there was no evidence presented to that effect was i don't believe there was specific evidence about the exact consequences of these drugs but i don't think that's all that important here in the fact that this is centrally testament to a subject telling the authorities when they say do you understand these rights as i've read them to you to him saying no or to someone indicating that they don't speak english or something like that when authorities are reading their rights to a degree it's not even as important whether or not he was blacked out as it was the fact that he indicated to the authorities that he was blacked out that isn't there a problem because he had provided information of the thorniest that proved to be false and he later acknowledged was false right such as that he was simply out jogging well you know he gave a false name and he gave his brother's information rather than his own and then reluctantly as i read the record reluctantly admitted yeah that was a true here here's what the truth is so the question is do the police have to believe what he says i don't think that it's so much that the police have to believe what he says i think it's more the fact that it's putting them on notice of the situation and you also have to view it in light of all the other factors that were present here and the fact is that the police the police obviously had an indication that there was something going on with them there's testimony about his erratic behavior they actually solicited the drug test that was done which normally isn't something that's done the police don't say well we want to know what kind of drugs these people are on before we interrogate them but at the end of the day it's whether they believe him or not i think there's a very simple solution here and that's that they can they can say hold on let's wait a second and make sure that this person does know and understand his rights when there's this clear ambiguity about whether he knows these rights that he's trying to waive there has to be some sort of obligation on the police to make sure that he is knowingly intelligently and voluntarily waiving these rights before proceeding what was the reasoning i know you disagree with but what was the crux of the reasoning of the state appellate cour blackout that he wasn't really blacked out at the time but again we're all just supposing this as your honour's and said we don't have the medical testimony all we have is the objective facts such as his erratic behavior the fact that these drugs do cause blackouts such as this and the fact that that's what he told the police it happened let's assume the we have a different slant on the underlying facts in the trial court of the what what makes their findings objective leon reasonable i think the most important thing that makes their findings objective when reasonable is the fact that they didn't consider the course proximity of the blackout to of the what he said was the blackout to when the rights were read that that subject wasn't really evaluated that begs the question a little bit because they're not buying into the blackout they're sinning no he was invasive right well i don't necessarily think that they found that he didn't blackout they just found that that he that he had been read his rights and that he said yes he understood that night they did say that i mean that the government did argue that he might not actually have been blacked out but i don't think the state court ever centrally found that he wasn't blacked out i get the impression from reading the state court record that they said look this blackout or amnesia only seem to crop up when they would ask him questions about the crime that they were investigating and they pointed out that he had a very good recall of other things he remembered for example that morning that he fixed his son eggs and hot dogs that he'd taken him to daycare that he'd go into a job where he was doing gardening and he seemed to be a pretty good historian up to the point that they said well let's talk about the last half hour and i my impression from the record yours may be different was that the state court said he was being evasive about one subject matter i don't think that's precisely what they found i think they found  that they believe he knew in earnest of his rights i don't think they're really considering the subject of the blackout when it comes to the understanding of the rights and i think that's the important thing you know the state court never said oh we don't find that he was blacked out they simply did not acknowledge that with regard to his knowing and understanding of his rights and then again the other point is this is an issue that has a very simple that had a very simple remedy at the time at the time someone tells the police i don't understand my rights the police should should be under an obligation to tell them what their rights are it's like what judge justice sort of my our said in her dissension burke ways that we can't live in a society where you think about the negative ramifications that advising someone of their rights again has on the judicial system you have to evaluate whether someone understands their rights and if they say i don't understand my rights you should take that minimal step of ask of reconfirming and think understand their right it please the court john sampson assistant attorney general for the respondent happily as this court is aware this case comes before the court under ed put in the deference od'd to the stay corded you to cation they petitioner must prove the state court decision was found as fact that the police did advise mr holland of his rights that he stated he understood he had knowledge and interested them and that he knowingly intelligently and voluntarily waive those rights and knowing and intelligent part of that finding is a finding of fact that is mining on this court unless it's overcome by clear and convincing evidence the state court did address the issue of the drugs in mr holland system the state court of appeals and excerpts a record thirty one specifically acknowledged mr holland's arguments that he was under the totality of the circumstances his lack of sleep has drugs in  system that his waiver was not knowing involuntary the court rejected that argument and they specifically pointed out excerpts record thirty one that he claimed to have blacked out and had a vague memory of the events surrounding the time of the shooting there's no indication however that he blacked out when he was read his rights and in fact just prior to being read his rights when the police chased him caught him he responded and said why are you stopping me i'm just out jogging and then immediately or soon after being read as rights he responded to a question about when they asked him do you know why you were stopped and he said it was about the shooting how was the kids there's no evidence that he was actually blacked out when he was read his rights and the fact that there's no evidence defeats this claim because at this point it's the petitioner burden to overcome the state courts finding of fa there any evidence in the record that he had ever before that date been read rights and waive rights it's not in not in the record that i'm aware of your honor i don't know if he had a prior criminal history or not the the fact though that the that the police officer testified that he that she read from the card everything except for the final question are you willing to waive these rights that was in the record the testimony that he acknowledged those either by a statement or by nodding his head yes and no that was in the record and under the supreme court's decision in burgas versus tompkins the fact that he nods is enough to show that he understood his rights and so the state court decision here was not and then the reason why application is supreme court precedent since this case is almost exactly like our guest there was there any medical evidence in the marijuana in p c b found in his system but there was no medical testimony as to how that may have actually affected him there was testimony from a detective talking about the vagueness of mr holland's answers and the fact that he did not recall the time of the shooting but could recall other events and in that the texas experience that is not a black out that is the person is trying to be evasive and doesn't want to actually been at the crime and that's it that's the only evidence we have we have no medical testimony saying that the use of the drugs prevented him from being able to understand what occurred and at this stage of the proceedings because there is a finding  fact in there is the deference owed to the state court and it's to the petitioners burden to prove that the drugs actually prevented him from being able to understand his his rights to being able to knowingly intelligently voluntary waive those rights counseling there's an issue i'm sorry judge he said it's his burden to prove you meant i'm sure it was his burden to prove it in the state court yes your honor because the federal district court here couldn't take evidence about that is correct your honor the reasonableness of the state court decision must be based on the evidence that was before the state courts and cannot consider new evidence until that district court judge who an hour did not look at the transcript what's your response to his challenge on that issue your honor it's true that the transcript was not provided it is not required to have a transcript provided that the judge can look at the evidence that was can look at the stake ordered you to cation can look at the records that were provided and made a reasonable determination that the state court decision was not unreasonable if there was an error in not ordering the trant or not having us produce the transcript if there was an error in the district court because that it's a harmless error because even if you look at the transcript that is not sufficient to show that the state court decision was unreasonable and it's not sufficient overcome the state courts finding facts and the judge below did have the written findings of fact which essentially a compass everything that was in the transcript on this issue and so really the focus by this court and by the district court should have been on those written findings of fact and the only thing that the transcripts would do would be to show whether or not those findings were supported has there been any dispute raised as to the facts i know there's a dispute about what effect should be given to the facts but as a factual dispute been raised at this point in the stage of the litigation the post conviction litigation no your honor there's been no argument that as can be raised in some heaviest cases that the petitioner was denied the opportunity to develop the facts or an argument like that he had a full hearing in front of the trial judge on the issue there is no argument even i don't believe that petitioners actually raised an issue in his appellate brief saying that the case should be reversed because the trial judge didn't just record judge do not have the transcripts he sent merely pointed that out and he provided those this court and we have no objection to this court reviewing the transcripts and making a determination but there's no i don't believe there's i don't ever ever been an argument that there's a lack of factual development council i think f time one issue that came up on the attorney general's argument was that the court considered the drugs in his system but i'd like to point out that that has to do with the issue of his actual statements that he made to the authorities if you read what the state court said it sa circumstance indicates he is worn down by the one thing questioning was impaired by the drugs in the system etc etc that is one of the factors that affects his waiving his rights but it doesn't have to do with the the first issue which is that he was impaired by the drugs when he was initially read his rights and was blacked out and didn't understand its rights so the state courts told him was not that he was not blacked out at the time he was read his rights and again the point is that this is all  totality of the circumstances analysis and when you take out that one giant factor that weakens all these other points but the fact is that all of these points are significant indicating that he didn't understand his rights there's just that one other  factor that the state court didn't consider and the other thing that i'll just point out is that i think that the state court's decision is not very credible as the government pointed out a couple times that the trial court's holdings found spewed that he stated that he understood his rights which is simply not true that well it may or may not be true that he stated he understood his rights but that's not an undisputed fact the one witness who testified to that was the police officers that i don't know if he said it or not so again i think that this is a very simple case where there's a very there was a very simple remedy and the police didn't follow it and because of that i think mr hollande is entitled to he is really thank you counsel the case just argued will be submitted for decision in the court will take a brief recess