between second degree murder and manslaughter it sent a question to the judge asking can a sudden quarrel be a consideration when making a decision a decision of not guilty or guilty in the charge of attempted second degree murder and this question is the question that gets to the heart of the due process problem in this case in my argument i will address why as a matter of federal due process had a provocation must be considered in determining guilt or innocence on second degree murder when there is a choice between second degree manslaughter why the jurors why the state has to bear the burden of proving the absence of sudden  provocation and how mr era manya has done everything required of him to earn relief for the failure to so instruct the jury here in this federal proceeding i guess i'll start with the first question of present fairly presented in the state courts but they're using a standard that is not the stand that this court or that the supreme court uses to determine fair present mints basically what required of a person to sparely present to the state court is to fairly apprised the state of the claim that you're making you don't have to make the duplicate claim you don't have to necessarily do it as artfully as could be done but you have to let them know the basis of your claim the federal constitutional provisions on which your claim rests and mr money it's that i would say that he heard it around the edges in his direct appeal but in his state post conviction motion and especially his state post conviction appeal he raised every single point that he is currently making in this case in the twenty two fifty four action he identified the constitutional provisions of the fifth amendment in the fourteenth amendment he argued in terms of why this these instructions did not comport with federal due process he referred to federal cases when he made those claims and he basically identified exactly the issue that we have all that we're making here today and what is more the state court i would argue the nebraska state court knew very well that he was making a due process claim because it addr decision it it basically gave a couple of paragraphs specifically to the due process argument addressed it in terms of element shift the bur shifting elements that had to be proved use the language of due process referred to due process so the state has had the opportunity that it is required to have to correct its error the requirements do you have the case law i understand your argument in twenty to fifty four the whole theory is let the states have the first shot at at these issues in their own criminal prosecutions  but you have a case where the defendant now the play need not raise it but the state courts did discuss it and raise it and to say that that's therefore it's not proceed to leave the fallen because even though the petitioner did raise it the courts addressed it there i don't recall finding any cases that are this close i just find the general principles that fair apprise meant is your requirement and certainly if the state addressed the issue it seems to me and natural implication that they had they were fairly a price of what the argument was i can't give you a case but it just naturally follows from what the cases require are we presuming in this case of there was a sudden quarrel or acts of provocation involved here as a matter of fact you're out of there  certainly a lot of facts in the record that would suggest that that standard had been met there was the initial scuffle between mr jenkins and mr earle manya happened outside of the house party mr jenkins rushed my client's wife pushed back and then happened two minutes later was when the firing happened down though he had made a mistake in the going to apologize that the facts that we have here well the question of whether he whether mr emanuel ever knew that that was his intent is the question there is a testimony on that whether he had the whether he understood the man was coming back to apologize or didn't understand the factual test here well i think that the jury could have decided that if he did not hear that that he would have been in a position where reasonable persons ability to reason had been compromise so i mean i think that would be a question of fact for the jury obviously the jury thought it important because they asked the question about it so there's no question i thought i don't think that the that the instruction of sudden pearl manslaughter was appropriate here the facts support it and the jury found it important the problem was that they were not allowed to consider it as a meaningful point they were told though it's not relevant on a second degree murder charge life and that's the air i think there were bottom line question is whether there's an overlap i think what his defense was as i just shot to scare i was just trying to do  that he didn't really raises the sudden quarrel that much but it is there an overlap between those it seems to me that you could be arguments sudden quarrel also by saying my i fired to scare them because we've had this argument again i don't know if there's any what the law in the basket is that or if you can have  quarrel and i'm just trying to square scarem as a part of the sudden or i don't think there's anything that would preclude both arguing sudden quarrel manslaughter and self defense which is i would say that what happened at trial was that defense counsel was more focused on self defense and at the time the intent was probably more important than talking about sudden quarrel because under the law at the time  they basically say well you're going to see this language about sudden quarrel don't worry we're not in sudden quarrel territory here so the jury it was set up for the jury perhaps in a strange way but i would say that the defense that was asserted by trial counsel for mr air manya did overlap with sudden quarrel and might sudden pro might not have been the main focus but it was certainly squared up for the jury to decide and again they said it mattered they asked the then a post conviction yes and and the brassica supreme court post conviction review confirm that the absence of sudden quarrel was not an element with respect to second degree murder process finding which it is and then you have the obligation under review to decide whether that's clearly unreasonable and it is because you know the money versus wilbur beats because of martin of homicide then you have to show the jury or that state has to prove that and that jury has to be able to consider that on a higher chart so that was an plainly and reasonable determination of federal law  say what the elements of the crime are well the state can define what they all meant but the state could say that this is the way we look at our statutes but then the federal government has something to say that federal courts have something to say about whether or not that comports with federal due process in the same way that molina versus gilbert i mean that was a state case where the state defined it elements and put the burden on the defendant to disprove something and director of the nebraska department of corrections services here a minute as brief raises two issues one whether federal due process is federal due process claim was procedur defaulted by not being fairly presented to the nebraska supreme court and second whether the jury instructions in era manyas trial violated due process by relieving the state of the burden to prove the ad sense of said sudden quarrel for the crime of second degree murder and that the jury was prevented from considering manyas defense that's the way they've articulated the issues the first thing as far as the federal due process claim it was procedurally defaulted i would refer this court to pages twenty five to twenty six of the district court's decision which does an excellent job of outlining the procedural default i frankly don't think i could do a better job of explaining at than the district court did but the district court does point out that the  federal due process claim was never raised in era manyas direct appeal to the nebraska supreme court it would be procedurally defaulted because of that because of nebraska's requirement that all claims have to be raised at the first opportunity and he clearly did not do so on direct appeal the district court also points out that the federal due process claim was not raised in manyas post conviction appeal to the supreme court and the district court points out that the nebraska supreme court addressed their manyas claim only through the filter of the sixth amendment claim of ineffective assistance of counsel which was how it was raised in the post conviction appeal that's a totally different analysis for ineffective assistance of counsel then the federal due process claim that's now being made as far as the substantive issue of whether there was a due process violation there was none the jury was correctly instructed as to the material elements of the crime of second degree murder as in this is important as defined by nebraska state law at the time of the crime in the trial and the jury instructions properly instructed the jury that the burden was on the prosecution to prove those material elements of the state crime beyond a reasonable doubt that satisfies constitutional due process the elements of second degree murder were a matter of state law not federal law nebraska law as articulated by the nebraska supreme court defined the law of second degree murder at the time and the jury instructions correctly defined those elements and set them out statutes is that a state courts application of clearly established federal law must be objectively unreasonable not merely incorrect and it has to be clearly established federal law as determined by the supreme to attempted second degree murder not second degree murder but attempted second degree murder the record reflects that that was discussed by consul for both parties you would be just record defense counsel agreed that the instruction as given were correct to not request any additional instruction and so none was given there is one thing i do want to follow up on concerning judge teams question as far as whether we your or your manyas presuming there was a sort of sudden quarrel the answer to that is absolutely yes because the record  and it comes right out of print court's direct appeal shows that iran is defense was that of an accidental shooting his defense was not that of an intent to kill in the heat of a sufficient legal provocation and even from the opinion this priem court noted that air manya statement quote he admitted that he intentionally fired the shot but stated he did not intend to kill either jenkins or cooper and that he was attempting to shoot to the side to scare jenkins away and also that when the male being jenkins continued to approach your mana stated i shot by him hoping to scare him and his friends in other words he was claiming it was an accident i was not trying to kill anyone and did not kill anyone in the heat of passion in which my reason was that frankly of scape me there are two recent nebraska supreme court cases since since they were mana started me and i think it was two thousand and eleven when the nebraska supreme court added this negative element of of of a i guess for lack of a better term negative element of voluntary manslaughter and heat of passion for second degree murder there are two nebraska supreme court cases it's pacifically point out in the absence of the evidence of legal provocation there is no would prejudice for the jury not being instructed on that negative element in second degree murder those cases are mccurry eight ninety one north west second six sixty three and state v smith eight o six north west second three eighty three plan and that's the latter cases when the nebraska supreme court did redefine under state law the elements of second degree murder but even in smith when that negative element was not given to the jury the supreme court said there was no prejudice because there was an evidence of legal provocation arum on his own statement of those i'm not trying to shoot anyone i'm basically firing a warning shot he also of his statement would reflect that i shot by him hoping to scare him and his friends which shows he's got time to liberate time to think and he's not just firing something in the heat of passion and then kill someone  in summary the district court frankly wrote a very excellent opinion it addresses these issues addresses them thoroughly and the district court should be affirmed ok thank you mr smith i might not use all my time i just want to address a couple of things that just an attorney general mentioned any mention this in the brief too that there is some kind of default because we didn't  follow the state will that you first bring your issues up at the first opportunity which in this case he believes would have been direct appeal there's been no finding in any nebraska decision that your mind did not follow step there was no finding of that in the nebraska supreme court and that should certainly not be the basis of any default decision with respect to state versus smith the two thousand and eleven case there are two smith cases but that first different so you know they did they didn't find prejudice for the failure to obstruct on that negative element but because we had i mean even the judge in this case he instructed on a sponsored by the way on second degree murder on the second degree murder charge he also gave the sudden parole manslaughter in the manslaughter instruction on his own so clear the trial judge found impulse evidence of sudden provocation so you know the fact that smith wasn't prejudiced by the failure to give that negative element instruction doesn't have any bearing on whether that structure would have been proper in this case and that i guess is how it's like to conclude a swan to remind you that the jury question that i started with shows that that sudden quarrel provocation was eating at them it was important to them it was probably the difference  certainly could have been the difference between a life sentence and a sentence that was a maximum of twenty years when these kinds of errors are the errors that federal hades was designed to correct and so we do ask you that you reversed the district court's opinion thank you thank you very much thank you both for your argument we will be back to