four am looking for people to rob in order to obtain money for drugs is not a positive one however greg really berry did not kill octavio hernandez at the mobil gas station on spring wells in southwest detroit on september fifth two thousand and three did not intend his death and his trial for aiding and abetting felony murder was fraught with violations of mr barry's constitutional rights several of which are egregious enough to mandate hate prius relief and at a minimum a new trial now a certificate of appeal ability was granted as to all eight claims raised by mr berry in his petition for writ of habeas corpus in the district court i will not be addressing all claims this morning for the claims that i do not address i rely on the briefs submitted the major constitutional violations i'm going to address this morning are for the first is the admission of witness kathy carr through its hearsay within hearsay statements that she overheard chiquita mack telling her mother about a conversation makeover heard between barry and his codefendant and one hamilton regarding the shooting at the mobil station the second is judge jackson's instruction on aiding and abetting the state or that the jury could infer that the defendant aided and abetted the killings by participating in the underlying offense the third is judge jackson sentencing mr berry for both felony murder and the predicate offense of assault with intent to rob in contravention of the eggs existing case law the other two constitutional claims was the violation of mr barry six the men a right to the effective assistance of counsel at trial sentencing and on direct appeal now we assert that the admission of kathy carr friends testimony was not harmless there united states supreme court decision in crawford versus washington had been released prior to mr barry's trial car thrones testimony was clearly testimonial as it was given to law enforcement officials during the course of a homicide investigation the air in the admission of car finance testimony does not lie as the turn in general would have you believe with the source of the alleged statements is well known the defendant's statements are party admissions however carthon not relate what defendant berry allegedly told codefendant hamilton but relates to seclude a max recounting of a conversation she allegedly overheard between the two young men now the importance of carthage is testimony to the state's case against mr barry is undeniable although makan hamilton testified at mr barry's trial it was only carts runs version of the alleged conversation between barry and hamilton that provided the necessary link between barry and principle and one hamilton to support the aiding and abetting conviction stated otherwise either the testimony of cafe car through most credible and she had told hamilton to shoot the victim which would lead a reasonable jury to find felony murder or the testimony of mack and hamilton was credible and she had no idea that the robbery was going to evolve into murder well was everyone involved available for that other than burying himself available for cross examination the designers did everybody testified yes they did and they were cross examined and i will get to some of that as i get into my counsel arguments later but there is no question that karr thrones testimony was hearsay and that it's a mission was erroneous those facts were admitted by the state prosecutor and the michigan court of appeals now it's our contention that the court of appeals unroot michigan court of appeals unreasonably applied federal case law precedent to the facts of this case they ignored the obvious constitutional violation they didn't address the sixth amendment claim and they placed themselves in the position of jurors by viewing the testimony and the language here is interesting they said the testimony was inconsistent and therefore harm testimony was conflicting cartman's testimony conflicted with that of mack and hamilton and we believe that their determination of harmlessness in this regard was erroneous there was a violation here the aiding and abetting instruction they had allowed the inference of intent by participating in the underlying felony now we assert that that instruction was clearly erroneous and we are well aware that jury instructions are to be viewed in their entirety and the structure and the instructions on felony murder reference the three requisite states of mind that are necessary in michigan for the finding of second degree murder and that second degree murder is elevated to first  participating in the numerated felony however this trial was all about mr berry's role as an alleged aider and abettor to a felony murder in a botched robbery attempt aiding and abetting was not an alternative theory of guilt in this case it was the only theory of guilt and the court's instruction on aiding and abetting was key it was the central instruction because this is what they were there to decide aiding and abetting to allow even by inference this couched in aiding and abetting instruction the outlawed felony murder doctrine into this two thousand and four prosecution for felony murder stands in violation that only of michigan precedent but also federal guarantees of due process of law in addition the jury in this case was granted permission to make this erroneous inference it was not told that they need not do so and i referenced the court here to michigan a rule of evidence thr to be now this court has a duty to grant hippias relief when a constitutional violation has a substantial and injurious effect upon the jury's verdict citing breakfast of a prince and then struction here had a significant impact on the jury's finding of guilt the error allowed the jury to convict mr berry a felony murder based on his on the basis of his participation in the underlying felony along michigan does not so define felony murder and this court cannot say with certainty that the verdict in this case was not based upon such an erroneous when you say you michigan doesn't define it so does it doesn't that make this only an error of state law good question your honor it is violation of michigan's precedent in people versus aaron whichever gaited the felony murder rule in michigan but i believe it's also in violation of federal due process grantees and we cited in our brief federal case of edmond versus florida which is  two death penalty case where in justice white not a blooming liberal he said that you cannot convict based on the underlying felony alone that was a capital case but this case is also without parole and it's a mandatory sentence now the court has correctly surmised that sentencing on both felony murder and predicate felony may or may not rise to the level of a constitutional violation however at the time of mr barry sentencing in two thousand and four at the time of the offense in two thousand and three michigan case law held that convictions for both felony murder and the predicate felony offended both federal and state protections against double jeopardy this one even if you succeed and you remove the underlying felony how does that help him he's sentenced to life without parole on the felony murder any time you can relieve a defendant of a felony conviction whether it's the predicate felony or the capital felony it is this it is providing assistance to counsel this is the fact that it doesn't matter whether mr barry has five convictions or one conviction he is still doing life in prison that is true but he should not be doing there are there collateral consequences you don't know i'm not sure there could be but i'm not going to say that there are to this panel on this case of he doesn't get out of prison and i'm not going to be voting or you know hav bring order that there was is a double jeopardy violation is understood in michigan and in federal court at the time and it should have been corrected and you bring that through the calling the ineffective assistance yes i do i do because they end in the right process actually right i didn't do that and i'm going to move on to ineffective assistance of trial and appellate counsels and i'm going to confine my statements this morning just to the interplay between retain kyle trial counsel and appointed standby counsel in the requirements of the sixth amendment guarantee of effective representation now in this case presents the extraordinary situation of retaining counsel under the cloud of a felony indictment for cocaine possession and court appointed standby counsel assigned the task of preventing in the trial court's words an appellate parachute for mr perry now as trial progressed retains council's condition deteriorated he fell asleep during jury instructions and even absent himself from the courtroom during the prosecutor's rebuttal arguments the michigan court of appeals rejected mr berry's claim of ineffective assistance of counsel by holding that the second court appointed attorney was in the courtroom at all times and and provided effective assistance now this slate of hand by the michigan court of appeals is an oversimplification of a courtroom situation and we argue that it does not pass constitutional muster the second appointed attorney viewed his role as limited instances where he had permission of retained counsel to take action or if attorney callahan simply did not appear in court for trial and he stated the same on the record at sentencing he stated what he stated that this was how he perceived his role was he asked specifically that what he made a motion you would not object if you didn't have permission to object or something he felt that it wasn't his not testifying but only after judge jackson jumped in with both feet when he heard that remark he wanted to stop it and then counsel said i object but but that is how that that particular situation came down i see a lot of time this judge why don't you focus at least initially or take your choice on the on the hearsay and the harmless error standard because i actually had meant to ask what's the clearly established law on harmlessly so you got two things number one was there a violation number two what's the harmless error standard so at least for me i would like you to address that certainly rounder the you know with regard to the hearsay of the confrontation clause challenge here first of all there's placed on this by the petitioner is incorrect the petitioner focuses on ms carthon in her statements as to whether her statements to police or testimonial there's no question that her statements to police before trial were testimonial but she wasn't reciting her statements to police as the hearsay that was the issue of trial the hearsay that's being complained about is her recollection of the statements between misha keyed him i believe her last name is mar against the petitioner here consequently there there the confrontation clause jurisprudence from the supreme court does not apply car thrown statements were in court testimony correct now she had said something similar to police earlier because she called the police threats were those statements in any way recorded and brought in to buttress her own testimony not to my understanding your honor the statements here were that was her testimony regarding the conversation that she overheard the confrontation clause challenge has to be to those statements that she overheard those were not testimonial in davis versus a sunni in washington versus davis the the supreme court has said that the confrontation clause does not apply to non testimonial statements and consequently there is no clearly established federal precedent for the state court to have violated by bringing these claims in purposes and there's a statement in the reply brief that suggests otherwise you can see that if you read the court of appeals of the michigan court of appeals opinion it doesn't specifically address what type of error is being addressed but if you look at the two cases it cites immediately after that specifically states that it is dealing with harmless error in the context of an evidentiary ruling and not constitutional harmless error analysis so clearly what was being addressed in the michigan court of appeals decision and also in  briefing by the the prosecutor on direct appeal was the evidentiary issue not the constitutional issue secondly with regard to prejudice the the issue here of prejudice  even if there was a constitutional error and we submit there was not here there was no prejudice because the testimony that ms carthon gave was cumulative with other evidence that was sufficient for the jury to conclude that the petitioner gave the petitioner aided and abetted in this felony murder specifically and this is the crux of the prosecution's case it's undisputed that mr barry gave mr hamilton the handgun and encouraged him to go rob mr hernandez from that the  that mr barry participated in an action and willfully and wantonly created a situation where death or great bodily injury to mr hernandez was likely to occur and in fact the michigan supreme court has said that when you somebody in the course of a an assault and the assault leads to murder that's reasonably foreseeable that shouldn't come as a surprise to any reasonable person that when you give someone a gun and encourage them to go assault someone it can lead to murder and that's exactly what happened here and that address isn't but the with regard to this the crew the correct standard or we're only at this point if if we have constitutional air act but if we have constitutional error then couched it was was there sufficient other evidence without herders i don't think that's the standard because there could be other sufficient evidence but yet the improper evidence was so damaging that it would overcome sufficient evidence by creating reasonable doubt i mean there are several different standards i'm going to ask your colleague the same thing so what do you think was the law that that they did correctly apply or at least not unreasonably apply well your honor  first of all with regard to the it's not clear to me that the company constitutional issue was raised with the michigan sit with the michigan court of appeals but further if one was to apply the breck standard the there is not there is no suggestion that it had a substantial and injurious effect on the jury here for the very reason stated but the you would never over anshul and injurious effect ok is that which is i believe the breck standard a lesser or worse than then sufficient to undermine you but further in terms of looking at not only is the court then required to consider the prejudice in light of the breck standard but also apply the had to deference then due to the core in terms of the determination that this in fact is not a did not affect the the result here and consequently when you apply the double level of deference that that's due here to the lower courts determination moment what was the if fact of having both convictions was there an additional so knows what well what really is the effect of honor the senses that were imposed were concurrent so the sentence for the felony murder is life and the sentence for the underlying felony was fifteen to twenty i believe to run concurrently so in terms of even if that decision was was vacated it wouldn't have an effect on when he when when the petitioner is going to be released because he's not going to be really have a parole system there or not that would be would it would if your honor i do have to decide when they get out there is a parole system my understanding and counsel can correct me if i'm wrong is imprisonment whether there are yes your honor and i do not believe that there are any collateral effects of the you don't know i'm sorry you don't know what you are or you are out of us knowing that there are not i am not aware of any of the the obviously the most the most normal situation is where there are some opportunity for parole and it would affect that in that case this court has in fact addressed the issue but you would concede when you did that with ineffective assistance to fail to raise in two thousand and two and and two thousand and no two thousand and three in two thousand and four the the wilder rules for double jeopardy your honor it may have been ineffective assistance at the time it is not ineffective assistance now that would permi we judge whether assistance was ineffective at the time it occurred correct your honor you do judge the the state of the law at the time that the trial occurred when considering whether a subsequent change in the law that's more favorable to the  to say versus booker to indicate that where the subsequent change of the law is more favorable to the state such that the although the prisoner may have had an argument in the were that they were being held and constitutionally there is no current holding of the prisoner in violation of the constitution so that he best relief cannot understand its arguments so i can have an attorney representing who blunted who had an absolute right and claim that was governed by the law clearly in effect at that time and my counsel didn't raise it and when i subsequently reach a pail the law has changed and you think that the rule is because because ten years later i would have been right reasoning for that is that the reason she the government gets the benefit of the rule that's in effect at the time is that it is difficult if not impossible to say that the court the trial court unreasonably applied the law at the time when it didn't forsee a change in the future here you have a situation where the trial court frankly got the law right but inconsistent with the then incorrect law from the michigan court of appeals in it's a discussion of wheeler and ream you find that the reason that the double jeopardy or when you said wheeler did you mean wylder while there i'm sorry yes while there's so many of these cases but i didn't know it was a wheeler ok i apologize your honor if you look back to those cases you find that the reason that the michigan courts held that double jeopardy did not permit a conviction for both the underlying felony and for felony murder was because the michigan constitution double jeopardy clause created a higher standard than the block berger standard adopted by the u s supreme court in the i believe one nine hundred twenty s car nine hundred thirty six years me so consequently the issue in michigan was that the michigan law imposed this higher standard when the michigan courts reverted to the federal standard for interpret the michigan due process clause in the michigan constitution it concluded that the michigan legislature intended to punishments and consequently the punishments at issue here and in those cases didn't violate the federal double jeopardy clause of the of the united states constitution consequently when you're looking at the constitutional error here in this court's role in haiti as this court of course has no role in enforcing michigan constitutional law it can only grant havey this relief for the prisoners being held in violation of the united states constitution and the michigan supreme court of its own law has ben that applying the federal standard there was no violation of double jeopardy ex post facto claim in this case when the law went far more favorable to less like there is there is no expos facto claim to be decided about that there is not there it has not been raised your honor i believe that all i need to know that any other questions from my colleagues your time's expired counsel ok thank you thank you runners you might try chance some point on the proper harmless error standard that they should have applied in your view we believe we believe that the standard particularly with the company with the testimony of kathy kerr three should be the brick standard and i know is skittles that hamilton street name shot the guy in the head in the white guy told him to do so there is no other testimony on this record that says gregory barry told and one hamilton to shoot talking about the convert to i'm sorry we're talking about different things in terms of the don't ask you about i'm sorry double jeopardy problem i'm sorry i must i must talk going off on where i'm going i apologize and and in terms of double jeopardy the there may be clearer consequences in terms of a commutation request if someone is serving more then you know the number of sentences and so forth but in our response to the double jeopardy claim is that the people have relied on a michigan case in a brief people versus reams saying the state of the law is this and now and therefore mr barry has to live with it it wasn't the state of the law then as this panel is well standard said that it violated both at the time of sentencing counsel stood by and didn't didn't do anything about it and i apologize for my misunderstanding you and my going off on confrontation that is very important here because it is he is we've got a friend from bridges here but maybe it can't just be an abstract rule it has no ground district court found that it didn't violate double jeopardy and that the state law was correct the present state law was correctly applied we don't believe that is true this court granted a certificate of appeal ability and we believe we're very troubled and we believe that the court trial court all the michigan courts excuse me should have applied the law at the time how do you respond to your post counsel's argument that it was based on the state which was the michigan state constitution as opposed to a federal right thank you and that that we at this level we're not enforcing the double jeopardy analysis in light of federal double jeopardy analysis in the should have been vacated there's there's reams and reams of cases where it should have been done and our primary argument here is that counsel stood by and let it happen and that was prejudicial to