ssible combs tape and it's a case that was so close that two prior juries had already failed to convict mr scott and these two points go directly to the question at the heart of this case and that's whether a reasonable judge could conclude that there was no reasonable probability of just one juror declining to convict mr scott absent the combs tape that's the standard set forth by this court in vegas versus ryan and under that standard mr scott respectfully submit that on this record it would be unreasonable to conclude that there was no such reasonable probability you know what we're really looking at is this yes that is the only nobody's really appealing the finding about whether the reason action that's correct in that there was a concession that the tape was inadmissible it was an imbecile hearsay and the state has conceded that point and there's also essentially a concession here that testimony was not admissible at the second trial i just wanted to boil it down because we're not really dark by now the first prong the mouse only the prejudice problem that's correct your honor and here's why and we're looking at the prejudice prong and the failure to object we're looking at the prejudice prong yes we are evaluating counsel's failure to object to the words other words we're looking at prejudice we've got counsel right there at the record and not making any objection third that's correct your honor and colmes ha about this testimony previously given another trial the tape was i'm not sure so the tape was from prior to any of the correct your honor is this direct evidence is this direct evan you mean is it the tape was considered for the truth of the matter asserted is a direct impeachment the evidence was it came in as a prior inconsistent statement but importantly the core instructed the jury that combs this tape was admitted for the truth of the matter asserted as to the matters wit hin that tape so really it was impeaching evidence the evidence does is first testimony was the evidence correct and then the tape was admitted for impeachment of the direct evidence your honor that's the you're correct that that's the rule that enabled the prosecution to get the tape into evidence but in a court that's i think that's pretty important because now we're talking about prejudice and we're talking about prejudice with a failure to object but we have to put it in perspective in my mind in order for me to make the proper determination so that's why i want to make sure where you are yes your honor the critical point here is that the jury was explicitly instructed that it could consider everything that comes said for the truth of the matter asserted such that it was substantive evidence in the third trial well what it really was it was a it was really impeachment of what he said pre that trial in the first trial it was impeachment of that testimony and what we're trying to say or what we're called upon now  because then what's my standard of review the standard of review is the one set forth in vegas versus ryan which is whether a reasonable judge could conclude that there was no reasonable probability of just one down for that we have evidence here that his credibility was impaired when he admitted he created a false alibi and lined up witnesses to testify about the false alibi we have evidence the video gave no indication that the victim said anything to scott scott was calm throughout the time he was in the store he left the store he got in the car and he drove away he went back five minutes later with a loaded gun upon seeing the victim he ran up to him and started shooting changed the victim around the car and shot him thirteen times that's the evidence not was standing all the stuff you're arguing about are you suggesting that a reasonable jury couldn't convict scott because the standard isn't whether a reasonable judge could have convicted mr scott this is not a sufficiency of the evidence case and in fact the court emphasis that the supreme court emphasize and woodford versus the scottie that the question is not whether whether they whether the petitioner is true that it's more likely than not that the outcome would have been altered but we need to look to is whether there was a reasonable probability of just one juror declining to convict and your honor laid out the facts as the prosecution laid them out at trial the reason i did is because it seems to me that when you ask the question you're asking and we put in this question that we're looking at prejudice and we put in this question the failure to object and we add to it the over oil ming deference i've got to give to the california court of appeal  well your honor the issue with the analysts is conducted by the courts below we don't have a reasoned decision but two prior juries had already credited mr scott's testimony at least there was one person on each of those juries and in the second trial and i know how do we know that because you assume it you assume it but we've been very careful to say that we don't make assumptions of why the jury does a certain thing the motive had an entirely different reason for each time that the  jury when we simply don't know we're not allowed to speculate so how can you make the whining idea for us well the fact of the matter is that two prior juries and two prior juries at least one person did harbor reasonable doubt and that's why we had hung juries here no one but we do know that at least someone did harbor reasonable doubt and so the only difference between this trial and the other trial it was not your honor in the first trial inspector was a nice testimony was admitted in lieu of the tape and in the second trial we had the tape and all three trials the prosecutor relied heavily on the tape and this is especially true in the surge trial and mr scott's cross examination the prosecution hit on this point very hard hit on the combs tape hit on the tape again in closing and hit on it again in rebuttal and this was a piece of evidence that should have never come in early infected that trial and so there is in so given that record and if you remove all references to the combs tape in the third trial it simply can't be it must be the case that that trial was weaker than it was in the first two trials and each of those juries hung now back to your point about the i guess my big problem with what you just said is i agree we have to do some comparison but when we do the comparison we compare evidence actually presented with what's would have been presented not withstanding this problem so i gave you that evidence that would have been presented notwithstanding this problem and then i get to the point why  say that a reasonable would have done anything different from what i hear the reason your honor is that the facts that you laid out very well were all presented to truth to juries already and those fact mr scott and here we owe deference the jury as well we know this is why we have juries we weren't in the room when mr scott was being cross examined by the prosecutor and we weren't there  to hear all of the other evidence to hear the two sides and hear just how close this case was and this case was so close to two juries and substantially similar evidence to that laid out by iran or had already failed to convict mr stein the attorneys then i owe deference to them absolutely making these determinations as the supreme court precedent but i'm saying they did it that's what you're asking that's correct your honor and simply on this record where we have two juries who already failed to convict mr scott and substantially similar evidence if you take out the evidence from the third trial that was the centerpiece of the prosecution's case where the prosecution relied on every turn and said that the case was dead in the water without it if this is not a case where this is prejudice whether it's prejudice under even the deferential at the strickland standard there simply is no case that can meet the spar and i'd like to reserve the remainder of my time what do we do it's well your honor this court already stated in vegas versus ryan that whether it's a jury had a difficult time reaching a verdict is an indicator of prejudice and here all of this evidence that we're discussing now that's another case but here is just a good is if it's true there's overwhelming evidence of first degree murder if it's true then why would there be prejudice there would be prejudice because mr scott doesn't need to show that the jury would have reached a different result only that there was a reasonable probability of a different result just one juror addicted clinging to convicts and we don't and i just want to emphasize again that two juries already hung already heard this and hung such that the evidence can't be over well number of times where did the state say that their case would be dead in the water without the tape that is at eleven e r twenty three eighty four and unless the court has for the questions are reserved may please the court peggy refrain from the attorney general's office for respondent your honors this is a complicated case on the performance prong but the ultimate resolution is relatively straightforward because the prejudice the prejudice prong is so straightforward the defendant has not bent his burden to show prejudice under the doubly deferential a d p a standard we're not conceding the performance prong but strickland itself says that if it's easier to dispose of an ineffective assistance claim on the prejudice prong the court should do it and that's what we think should be should happen here our position is that even if the combs tape had not been admittedly all the state court could reasonably conclude that there was no reasonable likelihood of a different result the first degree murder result for four reasons and all of these reasons i'm about to adust discuss are not dependent on the combs tape in any way first of all the undisputed facts of the defense of the offense this is classic premeditation and deliberation scott happened to run into his arch rival at this store he left and he could have simply driven away but instead he got a loaded gun did a u turn came back five minutes later ran over to where the victim was getting out of the store chased him around the car fired thirteen shots including a shot in the back and left him dead on the sidewalk much of this was confirmed by the  videotape that is classic evidence of premeditation and your first theory the evidence came in differently in this trial that the tape did come in but the evidence came in differently and the prosecutor's cross examination in the third trial was much more effective and aggressive not just about the combe statement but also about the concocted alibi about scott's constantly evolving story first it was going to be alibi then it was that he thought maybe the victim was reaching in his car for something but he didn't know what it was and by the third trial he was saying i'm positive that he was reaching in his car for a submachine gun and the prosecutor very effectively capitalize that on the third trial in the first trial the cross was forty four pages in the second trial the cross was sixty four pages in the third trial it was one hundred seven pages so it was much different and only deliberated for less than a day before they convicted him of first degree murder so the evidence was simply different well that's your first the undisputed facts of the offense yes the second is the motive evidence which was very strong there had been years of rivalry between the defendant and the victim over this woman christina marrow she had a baby with the the victim who was ten years old at the time of his death  then she was dating the defendant then she went back to the victim got pregnant with his baby and then aborted that baby and then went back to the defendant again and had his son so there was this very strong rivalry between the two of them and also the defendant was a gangster rapper who had written these rap lyrics in two thousand before long before this offense about hopping out of a car to shoot and kill a quote bitch stealer whose baby mama was a switch hitter who would ultimately be back with him and there's other very graphic violence in those rappler that i won't repeat here but the state court found that evidence show premeditation and deliberation he was writing a song about this and about this situation about killing his rival even before this actually  happened next there was scott's own testimony where he conceded that there was no immediate threat in the store he didn't think that the victim was going to shoot him right there in the store was going to shoot his son and under california law you have to have immediate danger for self defense so his own testimony defeated his claim of self defense he also kept embellishing his alleged fear and the victim's  saying the first two trials were hung here how can you say asking that the questions you might ask must ask that we should not get good a job of cross examination in the first two trials the surgery saw the case differently because of this hundred seven page aggressive cross examination i'd also like to address the point about the prosecutor did make this  remark in closing argument we made a deal with marcus combs his interviews and conversations were already documented and we were able to impeach him with prior statements his testimony was necessary with our without marcus combs this case doesn't go it's dead in the water because griego doesn't testify either neither one of them openly answered questions in court that's a problem for the prosecution it's an obstacle it's not insurmountable that was his entire statement about that  in our district court argument habeas counsel actually conceded that the prosecutor was just being dramatic that's at one twenty four and i think that's clearly what was happening here because colmes wasn't hearing at the time the first trial started they didn't know if he could even be found he was arrested the day before and brought in in custody so the prosecutor what is going forward with the case even without knowing if combs was going to testify even without knowing what he would say if he was going to incriminate the defendant or not so that that one state and he was relying on it because it had been admitted but to say it's dead in the water that was clearly hyperbole in the context of his argument he he wasn't literally saying i couldn't prosecute this case without the because he in fact did the trial started and they didn't have the tape if they didn't have colmes they didn't have any of that so that's clearly hyperbole as was conceded in the district court  say anything about it was a silence in niles so there wasn't a reason opinion on that so we really don't know well again i think the court can most easily conclude that the state court found that there was no prejudice in light of all of these these factors the final factor i was going to mention is the evidence that scott was the aggressor his he had some witnesses that were trying to say that nelson the barber the victim was this very threatening man but all of those witnesses were either his girlfriend his mom or a friend who had been in custody with him and the jury knew that he had lined up people at the first trial to lie for him and testify to an alibi defense which didn't ultimately materialize but he admitted that he had gotten these people they were ready to go they were ready to lie so the jury was aware that he could have done the same thing with these other witnesses and the evidence was undisputed that the victim was scared of him because he thought he had shot him in the leg before and the victim was so scared that he fled to michigan and was living there he had come back just coincidentally to attend his daughter's birthday party but even then he was so scared he didn't stay with his girlfriend he stayed in a hotel so there was this very strong evidence that the defendant this swaggering gangster rap er who the victim at least believes had shot him before it was the defendant who was the grass or the aggressor not the barber and i in fact i think it's dubious that he even made this alleg threat in the store the jury could have seen through that as well this man who was so scared that he moved away he happens to meet his arch rival that he police have shot him before they're in the store and yet he says to him you when your son or dead the defendants with another person there's two against one and he's a person who's moved away i think the jury could have also seen that that's not likely but even if even if it was the defendant defeated his claim of self defense by saying i didn't think he was going to do anything right there in the store and you had to have immediate danger to be able to shoot somebody in self defense did did the jury hear combs direct testimony in the second trial if they said they had they read his testimony from the first trial yes so the only thing so in effect the third trial the jury heard the same thing as the second trial they heard the his testimony from the first trial his very evasive testimony yes and then they the tape was played yes at both the second and third trials but as i say the difference was that the cross examination of scott was much different it came in much differently at the third trial  that's what the district court recognized in differentiating between the first second and third trial in the first trial counsel said he was going to present this alibi to fans that scott  acted in self defense and then after everything came out the way it did scott took the stand and he didn't really testify about an alibi correct correct and how was that presented in the second trial well scott testified at all three trials but there's no alibi counsel didn't get up and say anything about an alibi defense correct a second trial record or the third trial right by the side by the time of the second and third trials scott had already testified at the first trial and so the defense had shifted at that point to self defense so really there was a difference in the first and second and third trials in that council in the first trial said there was going to be an alibi defense but actually there never was correct ok he was examined about that yes he was although oddly enough he wasn't cross examined that much or that effectively at the first trial that the prosecutor really hammered on that especially in the third trial the fact the fact that he personally had gotten these witnesses lined up and participated in caught concocting this alibi that then he abandoned and said that he that he was in fact the shooter when he had these people lined up to say that he was actually in a different place and was nowhere near the store at the time of the shooting well the reason i ask you about that it seemed to me that the prosecutors worked in the third trial about the failure present the alibi of fans and the many things that's went out and did in order to put that defense together was tremendously or you will hurtful for the defendant then any other trial because it was pointed out how much he did to try to mislead the jury correct yes that was the very effective and aggressive cross examination that happened in the third trial which i think was w this jury the surgery deliberated for less than a day i could talk about the performance problem but that is much more complicated so unless the court has questions i'm prepared to submit i don't believe the defense i don't believe the defendant has raised the find ineffective assistance for failure to object on the best evidence rule we contend that that's not exhausted but i know you contend that they didn't even appeal that they didn't appeal that ruling in getting at we're not required to cross appeal each for feature prong of the ineffective assistance claim once a district court finds deficient performance but no prejudice we can simply dispute that in our briefing in the ninth circuit that's what i want to make sure guessers i thank you ron on e thing i wanted to emphasize that came up during this roofers presentation is that there were no material differences between the second in the third trial that were discussed everything that we discussed just now was a substantial difference between the first and the third trial and that's what the district court concluded was that there were some meaningful differences between the first and the third trials but if you look at the alibi cross examination at the second trial that was a rigorous cross examination and if i'd like to point your honor to fifteen e e r thirty three hundred to thirty three zero nine on that points and also all of these inconsistency between the first and third trials the prosecutor hit heavily on those very same and consistencies at the second trial and yet that jury hung and critically to the extent of the cross examination was more effective in the third trial it's because the prosecutor relied heavily on them in a miscible combs tape in cross examination and cross examining mr scott about that alibi point in context this is volume eleven this has the cross examination the prosecutor's closing in the prosecutors were bottle each of these chads has a reference to the combs tape or to the statements that only came from that tape so it really is something that infected the third trials the to the extent that case was more effective it's because of heavy reliance on the at a medical tape and at the end of the day even though there was overwhelming evidence in your honour's words of first degree murder a jury was certainly entitled to credit mr scott's testimony that he feared for his and his son's life that he left in a rage he thought he had seen a ghost because he thought nelson had left the state he turned around because he was going back to comb his house which was towards the liquor store when he turned around he saw the track pointing in the direction of his home and he felt the urgent need to go confront him didn't know what he was going to do brought a gun for protection and opened fire only one count when he saw him reach into the truck thank you thank you your honor thank you for your argument the case  f one five one five two four zero scott the arnold is submitted