testified and it seems to me that under the supreme court cases there's a difference in the use of post miranda statements by defend that for impeachment purposes and if it's true that he had conversations for a period of time with friends and family members while he was that you're not suggesting it's inappropriate for the prosecutor to ask questions that are designed to impeach him based upon things that he might have sat to those family members are you  circuits that that were not briefed because this issue was not really briefed point by by respondent but but we could present them in further briefing that any case what they show is this impeachment to say what the prosecution repeatedly said here which was if you because he was not because he was silent a and that's the only way somebody else was is that one of the two people who were there some  else there was that's absolutely right you're on thank you there was indeed corroboration there was the testimony of a neighbor who said that she saw somebody leaving the house  require testimony but that's the testimony of the neighbor actually supports the conclusion that a third person was there because it's was that before she heard that's  before she saw that fire truck coming someone came out of that house that person could not have been mr because we know that mr earth stayed in the house and was there at the time  that there was another person there was a third person present along with all of the is that an inference that the jury was asked to make i think the problem was the reference that i read to the neighbor it's pretty ambiguous testimony it could be i suppose consistent with her having seen your client leave at some point i mean maybe he went and ran out of that he had been outside correct well the jury was apparently uncertain enough your honor to deliberate for five days and they did ask for the testimony of this neighbor now they were there were three neighbors who testified and one of them did say that she s leaving apparently at a later time there were these two women who said they saw someone else run out of the house before the fire truck came in before they heard th and that seems to be a different departure so very there does seem to be that that testimony and again my question was was the testimony specific enough that we could rule out mr erf as the person that they saw in we know that mr earth did not know we're not talking about going into the backyard we're talking about actually leaving the house and going away from the house that night stand that but if he simply couldn't have done it  still have then there wouldn't they say a very short time afterwards the man left and came back and they just didn't see him return i mean that's the problem i have as with the ambiguity of the quote unquote eyewitness identification testimony it really the major part of the doyle error just disappeared it was not there it was not dealt with and when you have a situation such as that know which he courts simply does not address a substantial part of the facts or a substantial part of the claim that isn't reasonable that's what the hell of the united states supreme court your honor there would be prejudice under brecht because there was no once again there was no decisive evidence against mr kirk the california supreme court itself said that mr morgan  this if the jury had evidence that this was plausible if the jury deliberated for five days it is difficult to see how we could be reasonably assured that this very substantial repeated doyle error did not impact the jury substantial well we frequently hear the argument made that we should somehow read into a theory like the time and deliberating the conclusion that the case was a close one problem i have with it is we don't know what it was that caused her to hang off if that's in fact what they were doing it could have been the fact that they're contemplating what they know to be a crime that's punishable by death and i want to be very careful in going through the evidence to make sure before they reached a unanimous verdict that they're in agreement and beyond that i'm not sure how much more we can read and fine your honor i think it's right supportive point is not the central point the central let me get back to to a of a point that i think you were making earlier and ask you in regard to a charge of recent fabrication which is essentially the purpose of the prosecutor's cross examination  you're you're not suggesting are you that the prosecution is an able to cross examine mr earth in a manner that is designed to suggest to the jury that he's just making this up because now he's on the witness stand testifying in his defense and he's got to lay it off on somebody because as his judge faris was indicating the problem that we have is that there's no doubt that he was there at that or about the time that the crime was committed so he's got to have to explain to the jury that they've got to believe that somebody else was responsible certainly rather the contention here is that you know if the prosecutor can do that permissible to cross examine on a theory of recent fabrication then how else does the trial lawyer do it without suggesting that you made it up and the reason we know you made it  as a parole violator in which he believed that taking his taking his story to be true now as it plausibly could be if you believe that this was an accidental matter he was reluctant to put forward morgan i'm asking you is it silence or is it the fact that he now has an explanation inconsistent with the prior explanation that he has given your honor he said a number of different things to people in that brief three day period when he was you had all these concerts and he was really quite panicked about being arrested about what happened to the baby and so on and clearly wasn't quite sure what to do their act the one that if you could tell  is between talking about that period and talking about the period after he received his miranda warnings still miranda is as far as you're concerned miranda is that a cut off everything before the the principal intention we have with regard to ineffective assistance is that the penalty phase rush she was somewhat aware that there had been some previous greg you she was that apparently aware that there was a head injury she did not follow up on any of these matters she made no further investigation with regard to the drug use in fact it would have shown that starting in the eighth grade when mr was using not only marijuana but then cocaine and l to she says in her declaration she did not go to a neuro psychologist to investigate the question of what the head injury might have done what discrepancies and the problems that show up in the school records and particularly the white gap between verbal and and performance on the i q test are indicative of  some brain damage and that that's a brain damage can be attributed to the foot injury that he had when he was eight years old and that could have been used to defense that he pursued was not an adequate defense because the jury rejected you've now articulated on the basis of the evidence that was apparently not known to his lawyer a better defense than the one she considered is how do we avoid what the supreme court says we have to walk away which is the twenty twenty hindsight application  tell us and wakens this how much investigate she did put on evidence through family members and so on his childhood history and school and bringing and question this evidence does not support the defense strategy theory that i am pursuing i'm not going to pursue it any further it's not leading to the discovery of otherwise helpful  it to whether or not the personal relationship that counsel had with mr amounted to an actual conflict of interests if you could address whether or not there was an evidentiary hearing with regard to conflict of interest dr so i misspoke and the question is if you challenge the bifurcation of the actual conflict yes the price of this and what's wrong with the way that judge real did it and once that question because the horrible case certainly was made that there was witness intimidation raised involving the intimidation question the reason that we didn't have a hearing in the reason we can't have a hearing and no hearing with the appropriate on that issue in this case is twofold one is the court can't hold a hearing in last as alleged there is a basis for concluding that under a t p a california supreme court unreasonably applied or came to a decision that was contrary to some united states supreme court case here the district court could not come to that decision even assuming all of the allegations in the petition are true the second reason is and this is sort of a more peculiar reason having to do with the status of this case michael taylor's declaration michael taylor's testimony itself was hearsay which would fall under no cognizable exception there's no basis for receiving the evidence on the question and this is the this is the tremendous problem even even if we were to credit michael taylor's allegations that the prosecutor intimidated him into recanting some testimony at the end of the day michael taylor cannot stand up in court and say the things that he can stand up in federal court in any amount and say the things that are contained in his declaration we can't receive that evidence in this form and california in the california trial courts determination that that that that evidence was inherently affidavit the question i think i think again viewing this through the lens of the question in the first instance was for the district court in any event and for it was whether or not the trial court the california trial court determination on the question of credibility was appropriate and in this case california was perfectly clear that when ruling on a new trial motion a california trial court judge is allowed to judge the credibility of a very affidavit in are moving back one now to the question of ineffective assistance of counsel the issue of whether or not trial counsel was deficient in failing to discover in this case complied with wigan's in this case for example there are psychological testimony or evidence or the declaration from her psychologist that's being proffered by petitioner in this case contains no  damage of some kind that there are things in the defendant's past that are not inconsistent with mental health problems there is no and never has been any evidence presented either in the petition or in the supplemental matters  the first instance they can't simply say we don't know whether or not there's a neuro psychological problem that creates a conundrum which this court has to sort out no no i'm saying that in order for them to maintain a claim of ineffective assistance of counsel in this court they have to prove among other things the trial counsel spell years somehow prejudiced defendant in order to do that they have to come forward now and say here is right would have been uncovered if trial counsel had done the things trial counsel was supposed to do and that's why the recent united states supreme court case that i'm going to butcher the pronunciation of i think it's wrong a pia but whatever the pronunciation that recent cases it's extremely instruct because in that case what the united states supreme court told us was that counsel should have done a thing and talk council had done nothing here's what would have been uncovered and if that's the if that had been uncovered had been presented here's how it would have been helpful to the jury we're missing two important points in the petition in this case they do not say they only say talking also should have done more they do not and have not to this day ever identify a single witness who should have been called but was not they have not identified a single question that should have been asked of any witness but was not and they have not identified a single piece of paper a single piece of documentary evidence that should have been presented to the trier of fact that the penalty phase that was not presented in the absence of s allegation that there is something out there that should have been presented that was not other than these sort of very very big notions that they should have done a better job that if he had done a better job it might have been helpful it's impossible for the district court it was impossible for she had access to petitioners school records and it's no more specific than that but she does say that further there is certainly and again to this point i we have been presented with no eviden but at this point if they would be submitting it i submit to this court they would be submitting it for the purpose of bringing the truth of the matters in the out of court communication to the attention of the jury and unless and until they make a sufficient allegation which they have never done that this summer i would find it unlikely frankly the miss dale had reviewed every school record of mr or even every school record that they managed to uncover in the last fifteen years or so regarding mr so it's entirely possible she only had a picture of them it's also entirely other drugs when he was a teenager that as judge tolman was suggesting that a reasonable trial lawyer might conclude that there's really no reason to pursue that with any particular vigor particularly because it's consistent with what judge perry you're saying this not only inconsistent with this notion that he had nothing to do with the injuries to the child so there isn't any work on the mat sentencing and we're not talking about whether he committed the crime absolutely your honor and in that vein we have to keep in mind the figure out why we shouldn't have i mean we're not talking about a ten mark trial or talking money hearing on the mitigation and evidence and why we should have one well because in this case in the trial court there was a substantial case court to the to the declaration attach to the petition which in large part were from people who in fact testified in this case at the penalty phase in favor of petitioner it's very difficult to come to the conclusion that people who did testify there was some something you'd either investigate or present evidence as to those people who actually did testify so and also i don't think that we can we can quickly dismiss the  e extraordinary case in aggravation in this case unless and i tell we can safely conclude clue comfortably conclude that petitioner is likely to receive a more favorable determination in the absence of the purported failings there's no reason to to further examine the question of whether or not trial counsel could have done more to decide that if we don't know what the evidence it's kind of circular reasoning that's why i asked mr gerson the question in reading trying to make sense out of way to figure out what the supreme court was telling us how much is there now when do we know that the defense lawyer can comfortably say with regard to mitigation evidence this isn't leading me to anything helpful and it's not going to help my client a lesser well that i see two questions and maybe i'm a cross purposes with the court so let me let me be clear one of the issues i think the court is asking  saying the case law says before you can conclude that a strategic decision was a reasonable tactical decision and therefore under strickland we can't really examine it there has to be sufficient enough defense investigation so that a lawyer can make an intelligent choice an intelligent tactical strategic decision that's my understanding from what i hear mr gerstein arguing is that  definition if no investigation was conducted then the lawyer could never make a reasonable tactical choice because he or she doesn't know what she's choosing between so where i need help is in applying wigan's where do i draw the line in this case if your point is every witness that they want to call was call there might have been more information that they could have mine from the witnesses who testified but for whatever reason they chose not to go that far that entitle them to a further hearing on remey and so that we can figure out what that far was what evidence was left out that may or may not have been known to miss dale at the time well i think what we can confine ourselves to what we have to confine ourselves to are the allegations in the petition when when the court suggests that we don't know how far is far enough and we don't know how much more maximum that she could have discovered that that set that the allegations in the petition set the perimeter and my point is is twofold one is that based upon the case in mitigation that was presented the the additional material that is being proffered is not sufficiently beyond sort of the the ambit of that material which in fact was presented in this case so that we can conclude with under prior case law the defense and hearing by simply saying we believe there is evidence in mitigation out there and here it is one two three four five six seven had it been known if it's true that this evidence of this that would have been helpful we're entitled to a hearing to determine what it was what i heard you saying it and i think it's under the statute you have to be more specific now you don't get a fishing expedition here you've got to come in with the application and by declarations or some other means show that you've conducted your own post conviction post sentencing investigation and here's what you found and have that evidence been known to trial counsel in advance  have to set the baseline not at what they can produce now but at the allegations made to the california supreme court so the fact that they have managed to create an even more substantial case in mitigation in federal court  really can't inform the question of whether or not the california supreme court's determination of the strickland question was i guess in this case contrary to strickland or involved in unreasonable after strickland and of course wiggins instruct the stricken progeny that we've been discussing today  and also and i get i think i'm getting lost in this and i want to make sure i make this point strongly there's two prongs to strickland of course and the second prong requires prejudice and assistance of counsel the penalty phase claim and one is the claim of conflict of interest and i understand that there is a there is a point of all at between those two especially when it comes to the prejudice analysis but i want to make sure that that i'm clear to the court that the i c c claim different question than a conflict of interest point but getting back to my basic point which is we don't have to have a hearing if we can say with confidence as a matter of law the allegations in the petition failed to fill any or in this case either of the necessary predicates to a conclusion that there was ineffective assistance of counsel and so even assuming for the sake of argument that they can show that a reasonable attorney would necessarily have done the additional things that the failure to do these additional things fell below constitutional minimum even if we can safely conclude that we still don't get a hearing a hearing would not be appropriate unless an intel there is the additional showing that had counsel done these things there is a reasonable probability to believe there would have been a more favorable the terminations at the penalty phase and again this gets us back to the horrifying nature of the crime that occurred in this case again and and again we're not talking about an absent case in mitigation we're talking about a substantial case in mitigation in which they're going to add a little more weight to that side of the scale but in this case the weight on the aggravation side the scales particularly the circumstance of the crime are s overwhelming that it's impossible to conclude as california agreed it's impossible to conclude that this additional mitigation would somehow it's took the scales in the mind of any reasonable juror again there was substantial evidence presented regarding the defendant's own wife and the circumstances of his upbringing and this additional evidence which is relatively minor and cumulative of that evidence which was previously presented really as nothing  and here's a declaration from her says yes i would have been well the reason that we don't credit your declarations your honor is because the myriad forces in influences that might come to bear on that juror that might lead evidence is competent on any question so no we certainly i don't think that if we were faced with the situation in which there were no declarations of any kind i don't think this court would have any trouble applying br could if i could move on to the to the question of conflict of interest briefly the united states only ever recognised a single conflict of interest and that is concurrent representation of the fan dance with the version interest other conflicts of interest may exist the course of jurisprudence may give rise to other conflicts of interest over time but petitioner himself acknowledges on page forty five of his reply brief that no united states supreme court case has ever recognised any conflict of interest other than multiple concurrent representation of the finance with conflicting interests if that's not the nature of the conflict alleged in this case california under ed is free to fashion the rules that it finds appropriate and in this case if california has a didn't this case decides in its wisdom that this romantic entanglement doesn't rise to the level of a constitutionally cognizable conflict that's the end of the inquiry and unless an intel petitioner can come forward the united states supreme court case that should have compelled california to come to a different result there's no point in examining this conflict any more closely that's why when we were in the district court and this was of course the issue upon which the district court granted its evidentiary hearing were so vigorous that in evidence your hearing is completely unnecessary because it was artificial that even if they could show a of romantic relationship but that still is not going to as in fact was the case that's not going to rise to the level of a conflict of interest which the united states supreme court has ever recognized and in fact the united states supreme court has said other kinds of conflicts other than multiple concurrent representation have never been recognized by this court so it's not simply a question of we haven't spoken to the question that we now on the u s supreme court apparently but that the u s supreme court has never spoken to the question they have spoken the question is told us those conflicts don't exist so it's impossible for petitioner to maintain a claim a conflict of interest based on a newly created conflict of interest and that's the reason least on the question of whether or not it was appropriate for the trial court to bifurcate the two questions there's absolutely two components to a claim a conflict of interest as a matter of fact it's exactly the same two components that arise in the context of strickland versus washington in fact consider that we're at the same problem in the state bar has now concluded that is an actual cause and i'm not saying that that's necessarily an unwise determination at the end of the day the question in this case is whether california was compelled to so conclude based on the state of the united states supreme court jurisprudence at the time it was asked to pass upon the question certainly there would never be a problem i can't imagine there would be a problem if a trial court in a traditional stricklin versus washington allocation said we're going to have two different analyses much like the conversation we've been having today in which we're going to examine some detail and discuss with some scrutiny the question of whether counsel should have done something differently or should have omitted some action that they perform and then upon a conclusion that that affirmative conclusion that required we're going to turn our attention to the question of whether or not there was some prejudice that flowed from that the fish and that's precisely what judge real didn't this case he said there's two components to a strickland claim a conflict of interest one is the question of whether there's a conflict of interest and wants me of the term there is a conflict of interest we're going to turn our attention to see what adverse impact if any might have flowed from that conflict it's  case we can say with confidence that it's absolutely appropriate to ask in the first instance whether or not there is a conflict of interest before we're going to turn our attention to the question of whether there was an adverse impact because and the reason that has to be the rule the reason no othe rule can rationally and pain is because if all we're going to do is get to the question of prejudice and talk about how prejudice demonstrates conflict we're going to end up in situations where petitioners are going to say well see here the prejudice in this case is so overwhelming that we can really just skip over the first comma we can have a mitigated showing on the first prong which is precisely what petitioner hopes to do in this case they hold together they hope to present to the district court such a compelling case on the aggravate or on the prejudice allegation that an affirmative allegation mr earp suffers from the following your psychological deficit and then identify with specificity not talk of the should have done a better job investigating the arena of neuro psychology and the a put a billet even our psychology now we have to have a more specific allegation otherwise we're in a position and especially again since we're dealing with  situation where they can make very big allegations to california they can make these allegations that he may have he has certain features that might be consistent with neuropsychological deficits california would say well that doesn't  client that's what we can't do we cannot have a situation where the allegations to california are somehow so greatly enhanced that they transform a very weak unsustainable claim into a solid  sustainable claim and the problem that we have here is that i drag their marriage to what they said to california in order to say that the district court here and watch the courthouse for the questions i'll forego my last forty seconds have nothing none of that was offered in mitigation and the court and i think probably unless we get convinced otherwise is that it should have been introduced and the suggestion here is we don't know from this record what the facts are you suggesting that you are asking us to just to order a fishing expedition and now everything that can be disc the time to tell us what she would have discovered had she done what you think she should have done and if we have that in iraq and then according to the prosecution we've got something to decide if we don't have it  it would have been discovered as the expert declaration shows that and this could have been found crawling up leads from the from the school records it could have been found by following up on finding out about all