is the question of whether there's a deference in this case or whether this case court will review the certified question before dunno vo as if it came up directly from a federal appeal and  we submit that because the california supreme court cited three procedurally fault cases and said nothing more and it's all just order then this is a procedural people ruling council was the california supreme court's judgment hundred ninety eight myrick my recollection of those cases is that all of those cases say quite a bit about a number of different things that's right they're all procedural default cases but for instance with a case like clarke which was one of the cases cited it has any number of potential procedural defaults there's no pinpoint cite in this case it's generally it can be dealing the with timeliness the united states supreme court in walk a versus martin said if you pa a clarke citation with a robin citation in one thousand nine hundred eight decision then you know it's about timeliness but as the magistrate pointed out in this case without a pinpoint citation without a robin citation you don't actually know you  miller is it's been decided on a writ rather than on a direct appeal and then clark has many things in it including timeliness right but that with a citation to walter yes there doesn't that mean and isn't that logical that given the history of this case that what the california supreme court has said was been there done that in other words you've raised you've raised issues that have been previously decided by california courts on hey vs right and here's here's what the magistrate was correct in saying that because this is and gave us it cannot it cannot provoke a review we don't know whether the wall tria site applies to the certified claim that night to the writ before the court in two thousand had something like seventy five claims before it and if we don't if walter e s had been applied to the certified claim this court would find it was not an adequate and independent state ground because the certified claim was never raised on appeal however it seems to me that your biggest point in this is the pen decision and it seems to me that in the pen decision there was no question they were asking review of the prior decisions in this particular matter hundred mask review for any prior decisions he only filed another a b s review and from idaho so i guess i can get away with saying this it seems to me that the california way to deal with a b s is a very confusing system and you can start in the lower court and appeal or you can skip the mall and start with the best court and take your original hey vs right and so what happened here was he started in the highest court took an original petition and now you're suggesting he even though he didn't ask for review of the other decisions simply because one or two cases and i'm not sure i agree with you because there had been this confusion the california supreme court said ok look here's the deal what's reus means this miller means this clark means this they said we can if we choose also not only procedurally deport you but add the words and we deny it on the merits they went on to say if we cite those three cases it's procedural if we don't cite those key three cases it's on the merits so there's just no way to read these three procedural they're all make or if we give deference to the california court of appeal decision to lose well here's the thing your honor the other thing that is true as the court claim here and let me make this clear the court claim here is going to be that an attorney and i'll use the prosecutors were at trial did scenting unheard of he announced to the judge that he would not interview any defense alibi witness and he would not ask them any question that wasn't first provided him by the prosecution and the prosecutor gets up in closing and he says it is not me so this is another go to minute you didn't answer my question my question yes simple if i don't agree with you that the two thousand california supreme court decision strips these other decisions of any authority and i give deference them to those decisions do you lose no and the reason why that's where he ought to go now you've only three fifty seven to go because there is no california supreme court even if you got past the procedure of the flock no california supreme court lower court ever addressed this conflict defer to there's nothing to defer to there is no reason decision of this conflict claim which is the reason for my prelude your honor that the notion that an attorney stood up told the judge that he would be ineffective by never interviewing  defense witnesses and the prosecutor gets up and says you know as leverage i want to make sure i'm very clear here as i understand that the nature of your i c claim you've made two different claims two different for two different ways of approaching this one is that mr barnes had a conflict effect case it on based on judge smith's presumption that is if i if he disagrees with you on the cop on the con the nature of the california supreme court then we would have to give that the deference at least to the question of whether there was ineffective assistance  i'm really trying to figure out what you're really saying if you're going to the prejudice fish to the conflict if you will between the two california didn't deal with the i hope this answers your question your afire yourself and because the attorney in that case did not they said the adverse effect of that was that he did not competently present evidence or cross examine which is precisely the situation here but even  strickland your honor i would say this if you were to decide that under a strickland standard that obvious deficiency because he says to the court i'm not going to do anything that a lawyer would do and the prosecutor says it's unheard of the prosecutor gets up and says that is proof of guilt the way that this lawyer deficient lee presented this evidence is proof of guilt how can you that not undermined confidence in the verdict when two things are true the prosecutor knows that's not true because he knows the reason that that baron's was doing this the announced it to the court was the tightest allegation and the defense can't get up and object to this false argument because once again they do get up and say he that's not true it's not that my client is guilty it's that i'm trying to the court he uses the word tightest and we've cited in our brief he said i want you to know i'm not going to examine any interview any of these witnesses you know about the tightest thing we've cited that in this argument and so he viewed it as something that witness particular witness gets up here i am only going to ask questions that track the prosecution's memo on this i will not interviewer i will not ask a question outside the scope of it and the reason for this is this was in the context of the  students right yes yes and the reason for that is i want you to be assured that i'm not doing anything that i've been accused of here how could that have even been a plausible possibility since parents didn't since parents didn't come up with them it was the it was the prosecutor who said we got to tell you we heard from these we've heard from these students and in tucson and we've interviewed them parents didn't know anything about it how could that possibly have have implicated a conflict in baron's well barron's maybe anybody it but but the fact is he articulated that it is a conflict and because he did he you saw the prosecutor in closing said did you see a word of that any investigation not one finger was lifted not only that they made a big point in saying they didn't even talk to these people in two months of that is unheard of and then he goes on to say that what they did they lived one of figure no and what that i'm going to put in bids letter red letters on the bottom of this chart what this means joe hunt's consciousness of guilt that's what it means the next day he goes back to the big red letters argument in closing so barron's may be a fool he may be an idiot but nonetheless he tells the court i am for saking the critical the fence function of preparing witnesses and i am doing that and he says it's titus related he therefore examines the defense witnesses in a way that allows the prosecutor to say this is unheard of it's unheard of and there's only one explanation of it joe hunt's guilt when we know the explanation for it as given to the court was the tightest allegation your honour's i submit to you that is meets the standard of adverse effect under color and man hol defer to state court findings rulings you will find nothing in the state court that addresses the titus complex of facts has to i want to answer any other questions otherwise i'd ask for at least good morning your honour's they please the court elaine to mona's deputy attorney general for respondent i'm going to start with the specifics and then move on to the general in response to my opponent's argument the defense team did interview cancel and lopez they went to did his job the defense team did its job and what matters really at the end of the day is not what defense counsel might have been thinking but what did he do what was his performance in the case and as far as the arizona witnesses are concerned parents performed like a constitutionally effective attorney  regarding the standard of review review is is deferential under a deputy here be at play here because for several reasons one is that a higher court's decision under california ruling in this case and and so it's possible to look past that to see what the state courts did into it and to defer to any lower c court merits ruling which existed in in this case on petitioners claims  the case is cited by the california supreme court the district court found the dischord found that decision to be ambiguous and i explained and so could look through it because the court couldn't tell which claim which case the case citations appl but if that if those citations do anything at all it's to leave intact the lower state courts merits rulings while trios says you don't get to renew a claim on hey b s that was previously razer rejected on appeal miller says that he was petitions being rejected for the same reasons that it was rejected earlier and clark without a pinpoint say taishan even the district court said you can't tell what it's being cited for and it could have been cited to bolster the citations to walter is and miller so what but what novo review that's his argument right and i think the problem with that argument and the problem with even some of the cases that are slight that petitioner cites in his reply brief which are on reported district court cases some of this is some of the these cases kind of and petition in particular here confusingly conflates the analysis of whether a case and a claim has been exhausted or procedurally barred on the one hand with the question of what deference is due to the state court decisions on the merits on the other hand and the deference issue clearly isn't confined to the highest a court decision it's the last reasoned decision well  it's it's whatever the state courts merits rulings have been and often the language that's used to discuss that is last reasoned decision language but i think it's helpful to remember that used was a pre ed case  was didn't directly address and couldn't have been tessa pated addressing what difference is due to a particular state court decision under twenty two fifty four twenty two fifty forty and there's no question in th nominees below a conflict point the district court found that all of the claims addressed here had been exhausted either in this had been raised either in this petition or in previous petitions but as to all of them found some state court merits ruling  ruling below and so it's our position that that deference should be applied to those lower state court decisions the only did there were a couple of the even the conflict the conflict claim was raised in petitioner's march twenty nine  six supplemental petition filed on the first day that the evidentiary hearing in state court began and those claims were addressed on their merits by the california court of appeal summarily denied with a statement that no prejudice resulted and the district court look to that decision as as you know as to which it was able to give deference it's true that the court of appeal decision didn't go into detail about that claim but it was raised then and you know these claims in case like this they tend to morph over time so there was a different conflict claim raised below on different grounds that you know isn't a subject of this appeal but the gist is pretty clear that a couple of other claims not at issue here had not been addressed on the merits in the state courts and it gave de novo review to those claims the rest of them it gave deferential review  under any standard however it's our position that petitioners ineffective assistance claims have to fail they have to be evaluated in light of the overwhelming evidence against petitioner presented at trial his multiple confessions to multiple people the handwritten to do list he left behind at the apartment one level was killed his codefendant pitman's impersonating levin the day after the murder flying to new york using levin's name and stolen credit card but titian ors appearance early the next morning after levin was killed in possession of  levin signed million have dollar check in contract and more in light of that evidence the petition is ineffective assistance claims his claims that council should have done something differently or better have no merit all of the evidence that he contends should have been investigated or presented at trial was vetted in a very thorough thirteen day evidentiary hearing at which thirty witnesses testified nineteen of them called by petitioner the state court made factual incredibility findings that are binding in this court under any standard of review and and found this is the los angeles superior court hearing which the california yeah and and the court found that the witnesses defense counsel claim should have been called were either not credible some of them utterly so their testimony would have been inconsistent with the defense theory that levin administer minded his own disappearance to escape this criminal prosecution and financial and legal troubles that defense counsel didn't have information or wasn't on notice sufficient to warrant the defense to have investigated these people they came forward too late to testify in the guilt phase or even in the penalty phase or trial at all and or their testimony would have been cumulative so all of those findings the superior court made demonstrated that counsel had not been had acted properly and you know there are countless ways to try a case and even attorneys of the highest caliber know two attorneys will try the same way but here defense counsel made reasonable tactical and strategic decisions to present evidence consistent with the defense that levin had masterminded his disappearance evidence that the fence counsel found credible and they explicitly found baron's testify that he thought control and lopez were credible and that he didn't want to present non credible so called citing witnesses that could have undermined those more favorable witnesses  and and he made decisions to stay away from evidence that would have been inconsistent with that theory or wasn't wouldn't have been credible at all this citing witnesses claimed to have seen eleven out and about in west l a where generally the part which is generally the part of town where levin had lived and where the trial was taking place that they had seen him out and about before or during the trial which would have been inconsistent with with the defense theory that he had fled or or disappeared and the control in lopez the arizona witness's testimony that they saw him in arizona was consistent with the testimony that he had left town i was go say seems to me at least three years on the testimony is consistent that's right that's right but what were really there your argument is that as to those they were interviewed and he made a tactical decision not to call that's right and some of them came forward as i said very late in the game as well robinson for instance came forward after when the jury was already deliberating and he actually came to court on april twenty eleven trial even though he was a journalist when he supposedly saw eleven in westwood while he was waiting for movie showing six months earlier i mean he wasn't credible invariants had a good basis for deciding not to present his testimony council thanks i just want to add that that every court every state court and the federal court that is heard these claims and heard this evidence has decided that levin is dead that petitioner killed him and as a california court of appeal said to be procedurally clear the conflict claim was never presented and the magistrate found this to the california supreme court until the two thousand petition which was denied but no wait a minute was it presented to any other california court days talk about strickland there is no mention of conflict there is no mention of cuyler there is no mention of titus there is no mention of variance so i'm saying your honor there is no merits ruling on the conflict claim to defer to even if you could look past what difference does it make whether was raised the california supreme court as long as was raised to some california court for which there was a final for which there was a final judgment it makes all the difference in the world of course if the court this court respects the procedural default rulings of the california supreme court to direct appeals so if walter yes was the holding there that would be inadequate because that would be force miller is the one that would say it was going to say what about miller right miller i mean walters i get your have to have a rule is that if it's ambiguous and any one of the you would have to prove that all three of these are valid as to the certified claim because we don't know without that without a specification as to what sub claimed these applied to what the california supreme court's procedural ruling was we know it's procedural but we can't determine that it was what it what it was and how it applied to this very quickly on page reason on page thirty says what i have done your honor i have not even made up my own questions and this is as the zona witness i have used the prosecutor's questions and other police's questions and i am mimicking and reading these questions from the tape that is what the prosecutor correctly says is unheard of what defense attorney relies on sully on a prosecutor memo to present a critical defense witness and then we get to the question that's an adverse effect but when you get to prejudice and the prosecutor stands up and says that is consciousness of guilt part how doesn't that undermine confidence of the verdict when we know that was not the reason that that that examination