review and then argue the merits of the claim nor is there a question that mr mark has presented sufficient evidence to get the insanity instruction that he requested well now that's my question why is there why is it so i'm not i understand that you might have problems with what the nevada supreme court does with nevada law but i can't deal with that that's not something i can deal with on a b s well we've got here is we have somebody who wants to present an insanity instruction which in fact says that they want to present this defense and to the court said no you don't have enough evidence to get it and then the nevada supreme court says you're right you didn't have enough evidence to get it in the record what the mass record as they find it in district court when that when the when the defendant asked for this instruction this court judge said no i'm not going to give the instruction because i find the your expert dr chambers the incredible which means that he made a credibility to her determination just a minute just a minute i appreciate all these good arguments you can make to the nevada supreme court because the nevada supreme court is the one who asked to determine what is the nevada law on this particular situation but once the nevada supreme court rules that there wasn't enough evidence to get that instruction then at again i'm really trying your argument is that the evidence that was presented metz a state court standard in finger and the the vadis supreme court had that definitely in front of them and said no it does not and you don't get the instruction there let me ask you this way let's go out a different way is there a federal right to an insanity instruction yes where so medina says there is no right powell says there is no right so where's the right so when you look at matthews matthews implies that i know matthews talks about your ability to present sure you're defense but focusing dead set on what you're talking about you're talking about whether the defendant has the right to have an insanity instruction and the and frankly our supreme court's kept out of that which is meant we've had to keep out of it so the only way you get this thing in front of me is to suggest that the state's if you will affirmative defense of insanity which the state court says is not a political will here i'm somehow to find that there's a federal right that's been violated and i don't find it minute when we're talking in those cases about that right to if you will present the affirmative the fans we're talking about a federal affirmative defense they have a right to present that gives us a federal way to look something that's why i said give me the case it says there's a federal right to an insanity instruction i can't find that case and therefore not being able to find that case i'm having a tough time understanding why it is i can look down into nevada law and they asked the nevada supreme court undo what the nevada spring court does what their own law first of all when the vast court looked at this case they so they're recognizing it themselves that there is a due process claim here even assuming that the court doesn't even recognizing a due process they said under no vattel law you do not have the right to have had that instruction it terminates in a fact i guess i can i guess i'm still want you to focus in on the fact that in order for me to do something on haiti is to help you i've got to have something from the supreme court that says what happened in the nevada court is wrong i've got to have that and i've got to have the nevada supreme court doing it wrong or applying it wrong or doing something i don't have that because i don't have a federal right to an insanity instruction all i've got in this case is the nevada supreme court and the vattel law allowing an insanity instruction in some instances but the number that a supreme court itself saying this wasn't one of the instances so this right to present this defense is gone because the nevada supreme court says the nevada supreme nevada law doesn't allow it so you can look at one to a  what the supreme court invests report says look he doesn't present any evidence that he was delusional which in fact that's not true because dr chambers testifies that mark has acted under the belief that he was going to get that this operation was going to kill him if it did not do what he said what it said to do so that's the delusion second the vast report then goes on to say dr chambers does not testify that this the delusion prevented marcus from not know knowing or understanding the his actions and that's also on that's also incorrect because in the record doctors does say that he says that mr marquez cannot do that because of this delusion and also because he has the psychosis so he testifies to delusions plus which is more than what is required in nevada so he tries more information maybe we should move to the second issue was it  effective to concede that the killing of the bartender during closing argument but your best argument there i see my time is almost up but your honor at the best writing is as the i mean i want you to look at prejudice let me give you every benefit of the doubt on representation falling below the subjective standard which the government would not be happy with me saying i'll give you that let's look at prejudice there was a surveillance video which was played for the jury only one person in this in the bartender was in the bar the man went to the bar temp to do it through cash and then attacked the bartender with the bat the owner of the bar printed off the verification strip at the a t m and the defendant confessed on a video which was paid for the jury tell me there's prejudice there actually is precious ron because the theory of defense was that mr mr marquez was insane at the time of the offense so by conceding his guilt he's conceding everything mr marquez was not as mr marquez in court of the journey actions was charged with felony murder murder two is not a defense to that insanity would have been so the fact that at the point in time that mr marquez attorney says we're not claiming that we're not saying that dr chambers is right that he that he didn't have the intent we're not saying that of course you are saying that that was the entire defense and that would have been a complete defense to the felony murder charge which was never alleged in the information that would be a complete defense for him that's why it's prejudicial so takes that out of the hands of the jury but the bottom line is counsel did everything he could to try to get this  sanity defenses correction in he did all of his writing all of his might to try to argue this in the court says no you can't so we did the best it could without that and i my problem is that i can see the prejudice with all the all the evidence that was sitting there that's why i let you see it lead to a fact that your i see that my time is up it is but you may have a minute for a battle on the time counts so you took a lot of your time i did take a lot of stuff we seem to do it every time with that about a supreme court did not unreasonably apply clearly establish supreme court precedent or reasonably determine the facts when it affirmed that a dial this remark as insanity instruction and when it found that mr mark as counsel trial counsel was not in effect on the first question i take it you would agree that in general there is a due process right for a defendant to have an instruction on a defense that is otherwise recognized by state law if there is some evidence to support it as a general proposition yes if the defense itself is recognized i would ok so an insanity defense is recognized in nevada correct about a law yes it's ok so what is there are a number of supreme court cases that dealing with the right to present a defense in which the underlying proceedings occurred in state courts  so what is our obligation in looking at this if we were to conclude for example and i know you don't concede this but if we were to agree with mr hadley that  the nevada supreme court's statements of fact that underlie its decision were palpably wrong such that ordinarily under federal principles the instruction should have been given what are we supposed to do a couple points there are first i'll start with trombetta because that's what that's where that one of cases originates where you have a meaningful opportunity to present a complete defense but the u s supreme court held in gilmer versus taylor that that complete defense right has never been extended to affirmative defenses like insanity so that complete defense really always secure position that even if there had been no appeal to the state supreme court  just been left to be final after the trial that because this involves an insanity defense he would not be entitled to a jury instruction my faith had evidence of insanity is that your position my position is even if that were  yes or no question is that your position that let's lay aside the sniff at a supreme court looked at this conviction and we had clear evidence that a jury might have found him insane under mcguire and gilmer versus tail taylor that would still be an error instructional error of state law so there would be a state wide area you think there'd be no due process rights violated in that circumstance i think i would actually point to your honor's dissent and bradley were have to be the exclusion would have to be arbitrarily excluded i'm not sure if within the meaning of arbitrarily excluded a one off error in one case would would meet that standard for a do well that's a long winded way of saying yes yes to my question there isn't you and your view there is no due process right even half there is clear evidence to support any state law climb of insanity yes you are the do it be honest all versus mcguire that would be an error of state law does not rise to a federal constitutional violation even though the supreme court says let's assuming for this question that we otherwise that there otherwise is a due process right we don't have any ability to examine whether there was an error of the sort that we look for in other contexts i think you would have to do with the specific defense itself and whether the u s supreme court has ever determine whether this specific defense is constitutionally required or i think i didn't make my question clear it seems to be your position that even if the even if this state or ordinarily were in a b s case we can look at what the state court did and if there is a palpable factual error we can say so even though the state court said x we can say well that was wrong as a matter of federal analysis so what i'm trying to understand is whether you think we're precluded from engaging in that consideration i would say that in this particular case if i want to see your question correctly the device from court did not a reason we determine the facts of this record when it found that insanity defense instruction was not required given the case you know what we can consider that question you're just saying there's any in your view there is one answer to if if your honor if the court finds that the supreme court's reservations as judge smith pointed out and powell medina and more recently clark versus arizona footnote twenty if your honour's conclude that those reservations of rights  nevada supreme court's decision and asking you if we were to find that the statements of fact are unreasonably wrong what are we supposed to do if you ok if you're if you're on a refund determine the facts then that is a potential basis for the writ to be granted but on this record that aspirin court did not unreasonably determine the facts for dr chambers on testimonial point the court to five thirteen of the record when dr chambers flatly said no not a delusional push you a little bit on that are you really saying that when we don't have any federal right to this insanity instruction and the only right there is to it at all is under the n law that we can go down and examine the facts that the nevada supreme court term and or looked at in determining how to apply nevada law and determine that there is none reasonable hapless cation of the fact not at all your honor i think first year first this court has to determine that there is a federal constitutional right to the defense which again in clark versus arizona justice souter said in footnote twenty that the court has never held that there was defense instructions this case is very much like the supreme court's decision and white vs what all and white versus what all the supreme court overturning sixth circuit grant of habeas relief where the sixth circuit faulted the state court for not applying certain struction in the penalty phase of a capital proceeding the supreme court had previously held that that instruction was required during the guilt phase but it specifically reserve the question of whether or not that instruction was required during the penalty phase and justice scalia pointed out that that reservation by itself demonstrate that there was no clearly establish right it seems to me that what we're really talking about here and i appreciate my colleagues questions and there is there are times when a state could make an unreasonable determination of facts when it seems to me that the unreasonable determination of facts can only be examined by me or this court when in fact there's a federal right at issue i agree or a sense is not when there's of where it's a state of ferment of defen i don't see any case anywhere which would suggest we should be able to examine the facts that's correct i guess i should amend my prior answer if i was unclear a prerequisite to engaging and the analysis of whether the state coroner risibly determine the facts is that there is a  preexisting right required by the federal constitution so what you're having that takes us back to the argument in your view that because this is an affirmative defense there is no federal due process right to a different defense instruction even if there is evidence to support it that's to the ineffective assistance of counsel claim there's one point one thing that's not in the briefs that i think might be relevant the court's consideration even if there were evidence before the state district court that mr marquez had objected to the concession and there is no evidence before the state court which this court is limited to reviewing it's still not clearly established that even if counsel i conceded guilt over his objection that would be a constitutional violation that issue is before the u s supreme court right now will be argued in january seventeenth and mccoy versus louisiana the question presented there is whether i gilmore it now becomes law and that's why marquez gets the benefit of gilmore because a big deal more was a t question as to mean whether or not it was a new rule and so under gilmore this is a new rule which now gets applied pointed out in my reply brief bueno the decision way no is based on dict matthews so it the rationale doesn't even apply in this court has constantly you know when you look