good morning and may it please the court my name is al simon and i'm here on behalf of the appellant's brian starling the director and commissioner of the south carolina department of corrections and joseph mcfadden who's the warden of the labor correctional institution your merits by a state court a federal court can only grant relief where there is no possibility that fair monitors to disagree that the state court's decisions conflicts with united states supreme court precedent even a strong case for relief does not mean that a state courts contrary conclusion was unreasonable in this case the district court ignored its obligations to afford proper deference to the state courts factual findings as required under section twenty two fifty fo and ultimately fail to afford proper deference to the state court determinations that mr bennett was not entitled to relief upon the claims that he was granted relief in federal habeas relief as required under twenty two fifty forty one as a result of these failures found that there was no you know fundamentally unfair trial but all i see in the supreme court decision is sort of a factual finding that the king kong reference was not actually an invocation of race so i'm trying to get a handle on what i mean i'm just looking at it and it says that the use of king kong was not an appeal to the passions of prejudice or prejudices of the jury and then at the end though it's based on the above reasoning the solicitors comments did not improperly inject racial issues into the trial so i'm just trying to figure out exactly what i should be deferring to and i guess that's the language that we referring to as as a decision by the south or on the supreme court on the legal determination that i did not in fact the trial with with unfairness a first the district court aired and finding that bennett was entitle to federal habeas relief upon his claim that he did not receive a fair trial a fair trial by a fair and impartial jury because there was a biased are on the panel in granting relief upon this claim the district court failed to afford the state house conviction relief courts factual findings proper deference the findings and then francis contained in the order by the state p c r court were supported by the state of it as a racially change and in regards to the king kong statement we believe that the as our supreme court found what it was referring to was the fact that mr bennett who was six five six six three hundred pounds he was much greater in size than the victim in the case that's the case why did she sign language the your we disagree your honor on that he was saving this kind of comment made earlier it wasn't made in the first trial but this trial was tried completely differently from how the first trial was tried and this but in this case it was a recent unsing hearing in the first case the approach several different issues differently and that's just that was just a matter of how the prosecutor decided he wanted to change his approach it had nothing to do with the race of the jury in fact the we believe that the that the first trial in the second trial new information that come about and looking at the testimony that was presented during the state's case it appears from looking at that testimony that they were focusing very much on mr bennett's brutality against those that are or are smaller than him there is more detail that was put in this record regarding the injuries of the victims from the app in there is more information that caveman and brute beast of burden monster or size related the caveman comment was referring to the fact that with at least two of the victims of assaults that were testif to he had drug those individuals by the hair and that was what that was referencing to the other comments were other comments referencing just how brutal of a person mr bennett was but he'd already won the next of the crime what you're talking about is what is the penalty was going to be imposed and what dismayed in the context of if he didn't get the death penalty he could be dangerous if he ever was released yes your honor that that  rather than isolated bases maybe might be enough isolated on looking on isolated bases but we look at them we could literally as well don't we we do believe that and looking at the issues you do look to see if they're if overall if they were isolated or not purposes of punishment they were all made during their retrial but again in looking at the looking at the statements that are at issue first the statement regarding blunt adelaida we submit that does not about that because it i'm just reading it on paper it sounds like the district court was talking about a concession you made before the district court that that was just totally unqualified evidence and that you could the state could not imagine a purpose other than the  but he is not able to change what a witness his answer is going to be and this at a certain point when you can deal with each of these comments and isolation but at a certain point it all just gets to be too much and it's just saturated the resentencing just becomes saturated with with an francis and when you look in the historical this house to be taken in that kind of context and it's just very hard i don't see that he had to resort to this sort of rhetoric because in the earlier every sentence saying it was done in a calm and i would completely race neutral fashion and suddenly you get an all white jury and the whole approach it's not a good thing if we were to say roe vs this is no no problem and we can impose the death sentence here in the face of this sort of reference down the line no your honor and again we believe that in looking at what how arse south and supreme court ruled on the issue they took into consideration whether or not the statement was bringing race into the  trial and they determined that and let looking at the complete all the circumstances of the of the case looking at the phases of it presented by the state and the case of some resented in the diff on the defense where you have these you're you may not have wanted to repeat it that that's all you would if you'd been trying to case you would have done well that's neither here nor there what they what they hear there but it's a it but that's a fact r hearing that reflected that anything that was said during the trial in terms of those particular comments were that those had an impact on the juror and well it had to be right one i mean either the juror went into the proceeding with he expressed seven years later or his views were informed by what happened in the sentencing right there's only two choices you see what i'm saying i see what you're saying and i would like your argument about the juror was forget whatever was in his head because he paid attention to what happened at the sentencing that's what influenced his decision making the but now it's seems like you're saying no no he wasn't influenced by what happened at the sentencing it was all just internal to him and it seems to me that either way you've got a bit of a problem now he and making his and looking at the argument they were presenting their argument was that the juror was not his decision was based on the evidence that was presented at trial statements  solicitor though that's not evidence that's that's just statements by the solicitor and we believe that what was not established at the post conviction relief errant without the when he use when he said that the reason that mr bennett committed the murder was because he was just a dumb n word we believe that's not reflective or wasn't shown at the p c r hearing that was reflective of his thoughts in the recent sing proceeding that was his thought of the time that he was doing this interview in two borne out by the testimony of the juror indicated that he had been thinking about the case pretty much every day from the time from the tommy was on the jury to the time of that interview all that him page eight hundred fifty other record and if you look at the questions that were asked they don't nest is they don't point to directly that that was his thought process at the sentencing hearing all right thank you mister rashid you've got some r please the court i think the court's questions of mr simon really got to the nub of what was unreasonable about how the state courts treated the injection of race into this and the fundamental error was to look at each little teeny component part and not to put it together if you start there is really a systematic plan to inject race into this trial started during solicitor mars opening statement when his judge wilkinson noted he called him brutal monster size big old brute total respect for human nature a big old bear what this person was going to say and then they said it and then it was objected to then during the during the penalty phase the mitigation phase they not only can do some more of this but then he injects the fact that the woman with whom mr bennett had a sexual relationship a guard everyone who were talking about judy hardy had been discussed throughout this and he says yes the blonde lady i don't think there's any other way to interpret that other than he wanted the jury to know that mr bennet had a black lover and then during his penalty phase kong i think the notion that king kong isn't racial especially in the context of all this is preposterous if i went back to go tomorrow and in my criminal procedure class i had a large black student and i asked him some questions of socratic dialogue and then i turn to another student said well what do you think about what king kong just said my office will be cleaned out by the end of the day and if i look at my d s i wasn't referring to race i was referring to the fact that he was a large guy they'd laugh in my face as well they should but you know in that so there was a systematic injection of race and race themes throughout this entire trial and that's really what the district court focused on in determining that the state court both made unreasonable determinations of fact saying not racial bond had it not racial but it's not talking about a trial here so we're just talking about the particular recent correct that's that's correct his conviction is intact nothing the district court did i mean just set aside the penalty phase and send it back for a new during the post conviction proceedings and he was asked about this and he was asked well why did you think that mr bennett committed the crime here's the question and why did you think that mr bennett had killed the victim and the answer is because he was just a and then he goes look i apologize for saying that but after going through that thing for an entire week and all the evidence piling up against him that was just the way i felt about it he sed these asking questions about his service as a juror that's the set up he's talking about as i sat there in the trial and heard the evidence that was how i felt about it that's clearly going back to his service as a juror and then on redirect he's asked again i new questions this is how you felt in terms of your characterization of mr bennett at the time of the recent sing and then he says you know i shouldn't have said that but you know to me he was not a good person for what he did with no remorse and that's how i felt he's talking about racist at the time of the p c r hearing not at the time of the trial well first of all i mean that works on some assumption that he was a completely fair race neutral person some extraordinary event happened in his life and turned him into a screaming racist in this period time there's absolutely no evidence to suggest that is counter to sort of human experience in nature and it's really not consistent at all with the conversation that was had during the examination it's all looking really at you know the trial itself and that you know the notion that this isn't evidence of by racial bias is really i think defies common sense and it defies what we know about the world the district court he didn't ignore what the state court did he didn't refuse to defer he did exactly what the supreme court the united states in miller l in other cases has said look you look at what the state court did you sort of compare it to the cumulative weight of the evidence and if it's against the manifest weight of the evidence it's unreasonable and that's what the district court did he did it very carefully he concluded that the state court decision couldn't didn't satisfy twenty to fifty four d to an unreasonable terminations of the facts and he granted i think now we're going back to that the comments the argument for the coming due process claim yes so i think that that what did the district court treated these primarily the failure to say that king  kong was the injection of race that the blond haired lady was an injection of race he concluded that those were unreasonable determinations of fact under twenty two fifty four d two he said look if you look at the record evidence you look at all of this stuff together  an unreasonable determination of fact are you not well i think in this particular case the way it was briefed and argued there dare to pass home the district court shows the twenty to forty two he looked at blond headed lady he looked at king kong he looked at all these things together and said that the state court in saying that king kong didn't buy for to a large black gorilla is ridiculous especially given sort of the long history in this country of derogatorily referring to african americans a totality they broke each one individual it said well if you just look at the king kong you know we don't think that refers to a large black eight that goes on a murderous rampage i think that's wrong in and of itself you know of that but they didn't put this together with you know all the other comments which i believe you know it's again is and has been suggested by other members of the panel when you put all of this together you know that the smell of the injection of race and playing on an all white juries racial fears and biases explicit and implicit is clear from this this was a clear message it was done differently and before the all white jury in the from the mixed race  when it comes to prejudice to the extent the state courts made a prejudiced finding that also was unreasonable as a matter of fact treated that as a question as well what should be do with prejudice yeah well he did do much of this under to you know on that i think you know but just goes to our other contention that this is just it's an unreadable application of garden which requires a trial be fundamentally unfair and it just the court went through and said look if you know all of this evidence of race penalty phase of a capital trial a recent capital trial the supreme court the united states is recognized and turner versus marine other cases that because of the discretion that a jury has at the penalty phase of a capital trial there's a unique opportunity for racial bias and prejudice to affect the decision and given that legal backdrop and given this you know cornucopia of race in finch comments that that was the risk here that was what rendered this fundamentally unfair in these in this case and i think again that just the court was very careful he went through the state court decision pointed out what he thought was unreasonable about it and did exactly what you know this court in the supreme court the united states of encourage courts to do deference doesn't mean was raises an independent only part of this you know in going in some of the questioning in this is raises a juror bias claim that's how it was race it's not necessarily it's not presented as an extraneous influence claim that gets into all kinds of problems  properly found that i'm not make the magically yes in this case they're related but they're independent bases for relief that's the way the district court found them and also you're also saying given this language and the felt about it he admitted using the word on other occasions he admitted he did refer to other african americans is just a you know as dumb and and all that and then went on cross examination by the state they asked him a series six and the judge let in over their objection but his point was look you know this is an extraneous influence this juror this is clear evidence of bias on the half of this juror he you know was a biased racially biased or he should have been allowed to sit that's a structural error we win and that was the pitch and in addition there's this due process claim so i think they are independent obviously you know thematic lee and how it worked there you know they're linked because they're both you know that they're linked in that sin the narrative patterson which contains the language that is an donnelly that's on joint appendix site seventeen seventy two and in looking at the comments that were made by the solicitor during the trial the issue is not whether those comments should be condemned because they should be but that's not would to the extent that they were to the extent that they reflect on race they p court found that in light of the comments made taking into consideration the context in which the comments were made in fact they were isolated comments it found that those statements against the statement regarding king  reference to the blonde lady and the elicitation of the all of those two statements those two did not render his trial unfair in light of all the evidence and testimony that was presented and that was a reasonable termination these are isolated comments i don't understand what they meant by that i mean they weren't isolated the army did it in what sense what do the secret mean when it said their eisley like you only that each phrase was used only once is that the idea literally don't understand the sense in which they were isolated but i'm hoping you can explain first then a reference to the blonde headed lady comment that was the only reference at all made throughout the trial of the could meant about the context in which the statement was made but i don't get is what the state courts meant when they said these are each one of them if you take them in an isolated way then each one is isolated i don't understand the sense in which you can say three different comments assuming hypothetically for a minute that each of them does have a racial implication that they are isolated if they all occurred during the same proceeding and looking at what they were saying in terms of that they were isolated their reporting of the fact that these were three that were not tied together and they were not and looking at the full context of the trial this and the length of the trial these are not this is not a situation where there were the races being permeated throughout the trial by these comments so you think they thought even taking them together the three of them were sort of isolated from what happened in the rest of the trial yes is there is anywhere with i'd where any state court said taking these three comments together comma there isolated well and looking at the south korean supreme court's ruling on the both the king kong comma and the blonde headed lady comment those are both address in the same part the supreme court opinion now with the comment about the black kenyans that was dealt with in a completely different manner and the supreme court and just quickly on the larger issue the funding was based upon by the p c r course based upon the fact that it was unclear if he was referring to two thousand and seven or two thousand when the jurors testifying and he made the reference to the defendant being just a dumb and or r counsel had the opportunity to present more evidence or get more information out of the juror that would establish that this we was referring back to two thousand that was not clear based on the way that the testimony laid out in the transcript or at the hearing and on top of that the p c r judge had the opportunity to both see the juror testify in person and assess his body language his demeanor and determine what or based off of his testimony both during the direct cross and my understanding correctly just from the way you can argue the case that assuming hypothetically that the comment did refer to the jurors state of mind and his bias against the defendant at the time of sentencing you agree that then there would have to be a new sentencing yes if if that was properly found to be referring to his thoughts at three sentencing that he would be entitled to rescind it but based on our brazen argument we just requested