e but taken one minute to read an excerpt from judge murphy's decision that i think is a nice segue into the heart of the the legal issue in all appeal don't just act our docket revise don't be it shows the brewster vs hurt so what's the second ok so i just want to make sure i'm the brewster versus oracle you got leapfrog somehow or maybe we're folks from north georgia may not be used to atlanta traffic exchanges and i know in twenty five and a half years i'm still not used to it in denying mr brewster relief on his twenty two fifty four petition the district court in fact did not decide the merits of his petition rather it found that mr brewster had insufficiently pleaded the claims that he presented and had offered only conclu states that i see claims are described in an attached memorandum and the memorandum sets out the facts supporting the client mr brewster did that in his twenty fifty four petition and the district court was error to conclude that he had not sufficiently pleaded his claims we would ask the court to remain and to the district court for it to vacate his convictions for reasons stated in our brief and and that i can elaborate on further but in the alternative we would ask the court to remain and to the district court for it to consider the merits of his claims for the first time your strongest argument of course is the but let me give you all the strongest argument i can say which i'm articulating a little different than he did that they did address first of period that would been addressing his merits his client that's his client that they were coerced into reaching a verdict by the fact that they were out so many times quarter companies could have just said affirmed and we would infer that they reached his calling your position is that where they messed up was after the semicolon by saying but he fails to sat the language of the fans coercive are threatening indicating that they understood the claim to be a language claim as opposed to repetitive denali of the jury's request basically for why shouldn't we interpret that language as addressing his coercive claim as opposed to just a language instruction klein that doesn't fairly encompass the claim  brewster presented which which all the although i realize that before the semi colon it is very succinct and therefore is broad because there weren't there wasn't enough language in that portion for it to achieve any real specificity but the the basis for objecting to the supplemental instructions if nothing else was at bottom the fact that the court kept giving them continually gave continued to send the jury back you're going to go into the merits now and maybe maybe your fallback position is it was so obviously coercive series of events that even if the court of criminal appeals addressed the merits right now and so your art is correct that that is our fallback position but what i am trying to say is that that they are that what the court of criminal appeals addressed is fundamentally different from the broader claim that mr brewster presented because the it simply doesn't it the fact that that language doesn't go very far or is is simple succinct and therefore conceivably broad doesn't change the fact that the court's analysis or explanation of its decision doesn't address the claim that mr brewster presented so so whether you want to frame it as the court correctly construed it but didn't address it or want to frame it instead as the court misconstrued it i think in either event deference because they the court did not address the merits of his claim i think you lose the deference argument here on the former that is the court correctly construed it but didn't address it because once the court says this claim is before us and then there after there's the word affirmed the we've we've said before we don't grade them on their articulation of the reasoning and rationale and all that comes tough unless the simply a conclusion that what the circuit court of edward county had done was supported by the facts in the law and therefore it summarily affirmed but either way under under the supreme court's decision in wilson the sellers we look through the of criminal appeals decision to the last decision that actually gave a stated rationale which would be the end of what so either way we wind up at the same place but the i think the place we wind up  is a place where the merits of this claim were not addressed by the state court i understand that the the brief preamble of of five words  so that refers to coercion by itself i think could be read broadly by itself but i think that it has to be understood in the context of what follows and what follows is an exclusive focus on the language of the supplemental instructions and and there is no indication at all from the court's resolution of that claim that it understood it to be a claim that contemplated or that involved the comprehensive coercive miss of knowing the jury's numerical division repeatedly sending jurors back into the jury room when they repeatedly had said that they could not resolve the claim of initially telling them the judge who was presiding on the first day when he gave the pattern modify the allen charge toward the end of the day saying go back and give it one more shot and then on the second day the  judge who would stepped into his place judge millikan was all of a sudden there was no more of this one more shot vibe that that judge hall had given the preceding day instead it was just keep at it keep at it in the last supplemental instruction judge millikan said start at the beginning if you have to to jurors who headed for almost twenty four hours been telling him that there was no chance that they were going to be able to resolve it unanimously if you if we disagree with you on the construction the quarter come pils decision or interpretation of it or whether it's warranted and we in we think it is warranted a deep deference what supreme court decision clearly establishes that the events in this case violated your client's constitutional rights but the supreme court case that we're asserting  was unreasonably applied was strickland the washington and that can be i mean you can't say everybody has the right to affect the system so counsel he didn't get it in this case and therefore the supreme court decision is trickling clearly establishes that this branch of the state court decision wrong if you did that then every ineffective assistance of counsel climb on the merits would be collapsed into the twenty to forty four d two and that's just impossible is that the best i can say in response to that is that supreme court or for example in williams v taylor in two thousand that's different that's a mitigating circumstance where the hell that we've said this before specifically about mitigating circumstances in a capital case accept or exciter but but what the court's fundamental when the court came down to the unreasonable application question it was addressing its holding was th lower court had been reasonably applied structured it cannot be held to the extent that there is a language to that effect in williams it went beyond the actual holding in that case which was based upon previous mitigating circumstance went on to say it described the standard for what is an unreasonable application and stated that an unreasonable application is one that either extend unreasonably extends a legal  may i finish my point i'm about sure a matter that unreasonably extends a legal principle from our president to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply and our position is that when the state court addressed this claim we believe that it did address the claim that brewster continuance that he presented in that was misconstrued you have to contend that because you lose if you don't correct i mean if the court come pills didn't address that claim and the issue is de novo reviewed by this court we'd have to find that that was slap you in the face obvious occasion for an objection and mistrial motion which would have been granted and that any lawyer that was awake and functioning would have moved far  judge i disagree well aright you've got i counted them five if you count the informal what i call informal allen charges right and furthermore you went from nine to three told eleven to one and they made it clear it was holding out for acquittal and the judge kept sending them back and when they reported back and she's just doing crossword puzzles he took the crossword puzzles away from the woman and said i've done my duty i hope you'll do yours if that's not coercive i don't i don't think you can find one of our decisions that involves facts that our course of compared to their judged these deliberations jury deliberations began it eleven twenty three am and i'll just refer to as day one is not i know stand the chronology but at the jury came back rather simply saying and said were deadlocked in the read came back again and in our sent a reasonable draw are who's holding out and keeps getting told to continue deliberating remember i told you you had a duty to decide this case and in fact is why he's telling her and then she just does the conscientious objector thing and starts doing crosswords and he takes the crossword puzzles away from him and tells her to do her duty he's done he has there is no reasonable person i think would interpret that as courts did address the client and here's why i'll say at the beginning the opinion could have been a little better written both of it but this is the test under alabama law still today at the time this case occurred and today and the federal test is the totality of the circumstances when you look at jury charges look at his claim which right was pretty darn well written on pages nineteen through twenty of his attachment it doesn't even use the word language and it doesn't focus on the language of anything it just says it was course if because they kept telling them to go back and deliberate right but judge what our position is is that by examining each of the charges individually which is petitioners no no i'm sorry judge when i say his i'm referring to the trial court the rule thirty two court when it when it denied that particular claim it said that the charges are stupid that the language in the allen charges was not coercive or threatening yeah mattingly but that's not his claim that's the problem i mean you couldn't give letter perfect pattern jury instruction on allen charges twelve times in a row right over a period of twelve date and not get a punctuation mark wrong and indeed the charges and that still corsi i see your point judgment that's what he's claiming right my response is is that the the trial court addressed the claim on the merits and so did the court of criminal appeals because by addressing each of the charges in effect individually and not looking at that that they did look at the totality of her circumstances because how can you look at four different charges it just isolate them and go this one is good this one's good this one's good this one's good course they didn't do that  they said a review of all of the language and the supplemental charge singular singular right fails to show up so they didn't even look at the language in all of them they just looked at the language in one supplemental tar well again i would say that the opinion could have really been written better and i think that would take that as a given in most opinions but right and my view could scarcely have articulated it any better other than to say and i'm not talking about the language per se right judge i would just respond by saying that the the standard under alabama law is to look at the the point on their brief the totality of the circumstances the charges all considered together in a whole and we believe that is what the trial court did when it made it to relink it could have explained itself a lot better but it clearly looked at the language it may have said charge but they were the essentially the same charge given except for the final charge and that a fair reading of the judge's opinion was and again not just taken my interpretation of it or but alabama law the test is look at the the charges considered as a whole you would concede that at some point if there are a number of allen charges being given at some point the sheer number of allen charges would become coercive right it's some point not to the point when these proceedings were terminated had that eventually would have reached that point i think it reached the point somewhere between of at least somewhere between the fourth and fifth time the jury said we're done we can't reach it she's not deliberating let us go basically i'm paraphrasing very roughly you think it was there after would have been there after where there after i think if the jury had come back again i think i think it this after that after this charge where he gave the blended charge and recharge them as to reasonable doubt i think a charge after they at what it been would have like that that went back over some of the original charge that was given at that point there was nothing left to do and so after that point i think yes we're run into trouble i go back to forever without cross word because the judge i would i would say that it was i would consider that separate and say that's just a trial court say and do your job in this court knows from its own how much trouble sometimes we have would yours doing their job are not doing their job in undoing convictions years down the road in this court was conscientiously trying to do it it may appear somewhat abrupt judged  well i would i would just simply say that the the the lawyer you're not objecting at that point i don't know what you could have done the objection would not have been  sustained i think the truck order said i'm going to make these folks live up to their oh says jurors we've been here and by the way at the time that was given that was own day to it to forty eight or scuse me i'm sorry that was  twenty five pm so from eleven twenty three the day before until two twenty five pm the next day this discord is seen me many juror deliberations that lasted a lot longer but we did concede that it some point they would have and it was getting very close so i will concede they had but up to the point that these proceedings were terminated that it was not course if it was not threatening you said that it would have been if they had gone one more because at that point there was nothing left to do but the court was being made aware of the division of the jurors and that it was coming down nine three eleven one and by taking away the newspapers and at least arguable that there was really nothing more to be done after the judgment of the newspapers and the crossword puzzles judge i would say in response to that if they at that point if they had come back again then most likely would have been time for the mistrial and i think that motion would have been made it let me say this in as you have a wait this counsel's performance and you look at these lawyers this is lawyer i think the record shows supports the claim that he was not only competent but they was very competent then why didn't the state put in an affidavit or asked for a hearing and let him testifies don't why he did this and why he allowed the jury to go from three holdout to acquittal to one to she's refusing to little or deliberate that one because we want to convict and she wants to acquit and him not object to the further instruction at that point on it let the lawyer explain what conceivable strategy he had for that judge i would say that there were there there could have been good reasons as to strategy is there not to object and not to move for a mistrial judge it could be that he felt like that the motion would be denied he tried the case so why not move it and preserve the issue for appeal judge that i don't know what i would say that i think that he tried the case masterfully up to the point of the jury instructions of the jury deliberations i don't think there's any dispute about that he had a theory of the case he had a good theory the state had a good theory but to the defense had a good theory and he pursued it he aggressively question people he aggressively question the circuit judge that took the play of the state's star witness so this guy he didn't hold anything back and he observed the conduct of the trial he knew his client he knew what his client had told h observed the trial court he observed the demeanor of the jurors and and for reasons that are obviously not on the record he decided not to object so i think that his overall performance which was outstanding should be taken into account to support some reasonable theory that he decided not to object ok as the other side would say that he also failed to propose a charge on a dedication which was really the only defense he had so they may take issue with the masterful trying out case and even if they don't just because it was effective in all respects except one does is no defense to an ineffective assistance of counsel cli thank you would take that case under submission accompli we're going to take a short recess at this time ah mr jones i see your clients are here but we still want to take about a five or ten minute break