me please of course the morning you are is my name is richard to moore and i represent the petitioner appellant in this matter where he rico and with the court's permission i'd like to reserve a couple of minutes of my time for rebuttal just keep your eye on the clock so i will you honors mr rico was denied counsel at a critical stage when the state trial court judge failed to inform his attorney that mid deliberation that there was a request for an instruction and a note from the jury this under callup united states supreme court case chronic is a structural error that requires automatic reversal which a supreme court case you refer to that's chronic you run across a crime the threshold question that i believe that i want to address is whether or not this issue was presented to the district court in the first instance and i submit to the court that it in fact was submitted to the district court what happened in this case is that the district court looked at mr rico's petition which is a form petition that is provided to prisoners and it provides very little space within which to put in their claims and what mr rico did and this is that ethics are of record forty two is he described the constitutional violation as having an unfair trial in the factual sentence which is factual part of that form there is probably about three lines to describe facts at the end of that particular surrounding the the non contact with his attorney once a note from the jury came to the trial court and specifically and it's important to note i mean it really it i'll read it to the court this is from record one forty seven to fifty mr rico says petitioner's trial counsel was never advised by the court the clerk the bailiff or anyone that the jury had been given the verdict form and he was never advised by anyone that the jurors had sent in no to the court about the document counsel has declared that he has known that the jury had received and considered the form he would have moved for a mistrial or following the verdict would have moved for a new trial  making the argument that this is a deposition of counsel at a critical stage yes your honor i am was that preserved in the state court this is a b s case we're in right now all right it is your honor and what happened in the state court was that  mr rico filed a direct appeal concurrent with that direct appeal he filed a state havey as corpus petition and in the state he vs corpus petition he gave the court facts surrounding the the the structural structural violation of not informing his counsel about a note from the jury now what the district court did was that the district court found that the california court of appeals on a direct appeal did consider the facts that were submitted to the court of appeals in the mr rico state he views corpus petitions so the district court found that the direct  litigant to the same standards that you would to any any lawyer i mean it just makes sense but certainly in terms of presentation to both the california appellate courts and to the district court from a pro se litigant all the information getting to the jury in the first place firearm the firearm is the crucial point is it not no well it is not the crucial point the crucial point in my view is that it was an assault with a firearm and that was specifically the trial trial attorneys specifically try to keep that type of information now because of its president prejudicial value but that the jury was were of a conviction the jury was aware of a conviction of a violent felony and it was gang related but what they weren't aware of that it was an assault with a firearm and that your honor is violent felony gang related what does assault with a firearm add to that it adds it  is a it's a dimension that includes if you think about it can range anywhere from a pistol whipping to a shooting at somebody which is in fact what the with the prior with the prior action actually was was it was shooting somebody in the growing with buckshot essentially is what it was in the difference you know on to answer your question the difference between just being a violent felony is the type of violent felony now there are different ways to be convicted of a five violent felony without having anything to do with the actual act of violence you could aid and abet you can  be there at the time you could encourage those sorts of things but when a jury hears that you have been convicted of an assault with a firearm that puts you directly into  management position let's say of what is happening with what you are currently being can charge what about the application of the ten factor kid test in this case well you know that those ten factors i think were addressed in in our briefing i don't want to go over them again unless the court has specifics about that i i do think that that that based on our arguments in our briefing that  that it was indeed prejudicial i do think however that the that is secondary to my argument because the judge found contrary and i guess what i the reason i asked the question is precisely i disagreed with the court's analysis and i numerated that in my brief however i don't think that the court even needs to get to that if the court finds that there was a structural violation with the failure of my  please the court michel swanson on behalf of respondent warden i'm just going to limit my comments to the only certified issue that's before this court i believe i have addressed the arguments just raise with respect uncertified issue in my brief at the state court found that any federal constitutional error in this case with respect to the iranians submission of the jury verdict form and the judge in the jury room during ok so the difference between we submitted inadvertently presented the jury with possibly prejudicial documents versus a let's go in to retrieve it we won't tell anyone that we retrieved it if they were reviewed it is  a different situation and simply if we had the judge to call the parties and say we've got a mistake here here's i'm going to handle it i'll give them a little instruction versus what happened here we'll just pretend like no one knows about it well that judge you know that would be a claim of judicial the only claim that was presented the state court of appeals was a juror misconduct claim that is it so moving back to the german to claim this court is found under the united states supreme court's most recent decision of davis viola by the deferential standard of review and in davis the court explaining that the break standard sub defendant to win under that standard which is very onerous and here there was no substantial an injury is a factor influence on the jury's verdict when they saw this verdict form and i just quickly to address the ten factor analysis that the night sir kit has used in the past both on direct for a few cases in federal habeas cases i believe i pointed out in my case the state court is not bound by that ten top factor test i went through it since it is something and circuit finds helpful even assuming that the jury had that looked at this right away and they considered it before their verdicts on the record before the co court shows that and it would not have had an impact on their fur ticks and they already had before it evidence  as true but found no prejudice and so but the point is that the jury had before overwhelming evidence of guilt there was i witness testimony of what happened there was i wouldn't testimony identifying the defendant's s u v at the scene and its involvement its occupants involvement in the crimes the police pulled over the s u v right after the crime that if it was driving the defendant did not deny that he was the driver during his again that would be misconduct claim and that is not something that was ever briefed and i am not familiar with the standards that would govern such a claim and here we're just we're just trying to determine what effect that  jury i'm sorry the verdict form would have had on the jury and here there was already evidence of that prior juror and has declaration indicated that they understood that this related that prior but they were confused because they as he said they knew they didn't have evidence as to what the prior actually was beyond it being a gang related violent felony for which the defendants are to substantial sentence so they also had let me instructions with respect to them and this was not a case where the jury deliberated for days there was no indication that they were confused by the evidence or were struggling with the fact of the defendant's guilt i think also the jury's actions and after they determine hey we don't know what this is we don't remember hearing about this we don't remember being asked to decide this issue that they contacted the court and said what do we do and the court took it away now the court didn't give them any further instruction but i would think that taking that away wasn't implicitly you're not to decide best because it's not before them anymore and let's see and i believe based on the totality of the record and the state court reasonably concluded that every you know inadvertent submission of this verdict form to the jury and was was harmless counsel one when the when the judge that in the record so i don't know so what we have is a judge independently acting neither side receiving information but later on the court did hold a hearing problem motion for a new trial at that point there was a determination made counsel for the defense did argue at that point it went through the whole thing right yes and that's there any further questions i'm prepared to  constitutional violation of a right to a fair trial an impartial jury and within those sections from three sixty three to three sixty five counsel did elucidate on the facts about the jury sending out note requesting instruction from the judge that in they had received some information that they'd had didn't know what to do so it was presented to the straight trial court counsel and i asked this question if i understood counsel for the government correctly she suggested that much of what you would said in your original presentation focused exclusively on non certified issues what's your response to that my response is your honor is that the certain what the district court did was certified the denial of the petition for writ writ of habeas corpus so my argument is that the issue of trial counsel not being notified was within the petition of wri habeas corpus for the reasons that i talked about during my earlier sessions and therefore the denial of the certificate appeal ability necessarily includes things that even the trial court me the district court did not take into consideration namely the structural error under chronic and was laid in the butt but the specific point that you raised was part of a if you will a question that was raised and was denied certification right yes ok yes yes that's correct and  just in closing i would just like to say that what we're talking about what happened here is really at the core of fairness of a trial had the trial judge str court judge did exactly what he did and did nothing after having notified the defense counsel and from the prosecutor and requested their input on it i don't think i would have an argument here but what happened is that he was denied counsel at that critical stage and that is what is the problem with what happened here what happened here under chronic requires automatic reversal thank you thank you counsel the case just argued will be submitted for decision