good afternoon your honors in may please the court my name is sean kennedy and along with my co counsel michael light foot i'm here to argue on behalf of the appellant carlos of aina your honor may i reserve three this capital appeal focuses on the supreme court's two hallmark ineffective assistance cases chronic which applies to actual or constructive denials of counsel at trial parts performance in this death penalty trial was so abysmal and i don't use that dramatical language lightly that it really does rise to the level of chronic which dispenses with the showing of prejudice however if strickland applies and is the test mr of ina has demonstrated traditional stricklin prejudice particularly at the penalty phase mitigation works especially when you have a nineteen year old client who turned to drugs in response to terrible abuse by his alcoholic father but that  issue i would like you to focus in on if you if you would and the two main pieces of evidence are types of evidence that were not presented that you contention have been presented  e physical abuse and other abuse that he suffered us as a child and his use of p c p and what i'm unsure about and why your take no in view of the record as a whole does that demonstrate prejudice well your honor this is a  teenage defendant who is involved in a serious crime but he had a story to tell at trial and that story wasn't told at all when this went to hearing we presented evidence that mr a veena had a terrible childhood that he grew up struggling in poverty and he want to and that his father who was involved in criminal activities but there was also aggravating evidence and i guess what i'd like you to do is if you can weave together why you think in view of the evidence of aggravation and the evidence about this crime how it might have changed murders but the court held in each of those cases there it was in effect of not marshall and present mitigation about the clients and here because mr vane it was so young it's particularly important the court in eddings has said that social history or life history mitigation is particularly important for a teenage defendant eddings was you know sixteen but the princip same there very young people are that's where mitigation is especially important mr county and i i think you know i have great empathy for the circumstances of this  young man and as you and i found out and pinholes true though the fact that you have a really tough defendant doesn't necessarily mean you passed a twenty two fifty four d test and that's what i'm struggling with in this case i read the briefs read the record i've seen the difficult circumstances that this defendant had with the california supreme court appointed referee there was  extensive hearings about all these many getting factors and after they finished doing that they concluded that while yes in the penalty phase they said it was clearly a violation of the first problem strictly to the second when they assumed a violation but in each instance they decided that there was no showing a prejudice they got some very smart capable judges who weighed what the referees found go through each one of the way the course the p c p issue and so on in each case they explained in some detail why there was no prejudice under the standard of i know you don't like at some of our colleagues are strongly opposed to it but that's our law we're stuck with that and i struggle under harrington and and other cases how we can even given the validity of your argument about the difficult youth that mr of a and a had how do we get around that mr kennedy i was struggling with i don't see how how do we meet the richter standard well your honor we're all struggling with but i think there are three specific ways that the court could find a and reasonable application of strickland first the california supreme court the state court made an unreasonable factual finding that mr of and it was not on p c p during the homicides how was that and then reasonable factual finding there was evidence both ways that he was and that he wasn't so how could either choice be unreasonable well there was a very small portion of evidence that he wasn't and there was a large amount of evidence that he was mr vane but on the night on night in question that was the difference was it not the supreme court said you got this collateral evidence about his use and so on but that there was no evidence that he was using it except for pod who i think said that who was one of his co defendants and what he himself said but other than that was there any evidence that showed that he was using p c p on the night in question yes powder was his friend and he was also the main prosecution witness for the d a at trial and he said that well first i'll just go through the evidence obviously on the tape recorded statement he's not asked about p c p but he does refer to being drunk i was crazy i was wrong that night we didn't plan it that way victor proud of who regularly smoked with veena and his brother arturo toro said that when they picked a vein up mr a vein he was acting wild and he looked and acted like he did based on the prior documented history of p c p use and mr of venus statements to the police and his behavior that they believed that not only was he on p c p but d orme analyzing testified that it was a major contributing factor to his participation in the offense vince sure all the social historian who testified said that in all of his interview of all of the family and friends there he didn't find anyone who didn't report that a vein had serious p c p problem and of course there were records prepared by  juvenile probation and see why a reflecting that mr vane a used p c p regularly on the weekends in this crime occurred on a friday night when you take that evidence against the contrary evidence and i will concede that officer pickens thought he wasn't on p c p but officer pickens is not a mental health professional his opinion i don't even understand how it's miscible and why it trumps to mental health professionals one of whom ran county us cities i think basically was the most involved with p c p users in the late seventy's in the early forgive me maybe i'm misunderstanding this but i thought that this california supreme court said that you know you had all these very qualified people but the information they got was from people who had a real axe to grind if you will certainly mr of and mr potter is mother the other people all relied on him and the experts as i understand it entirely relied on what he told them now i'm sure he has some redeeming qualities but the reality is he had every incentive to misrepresent what he was doing and when the supreme court of california made just determination  had all of that in mind all the things you talked about mr kennedy and more that you have not yet talked about and you have been weighing that they concluded that there was no evidence that they could rely upon that said that on the night in question that he had used p c p so what do we do with that under ed by again if it were just you and me that's different sure but we have to look at this on a twenty two fifty four d and when you look at richter how do we you know fair minded obviously can't disagree because those people did disagree and they're very smart capable people well we're here we have a reasoned opinion so you know i think we should look at the opinion not richter opining possible reasons and i  just want to say your honor i respect what the court is saying but deference is an abdication in miller l the supreme court i mean we had fact finding from a state court finding that the prosecutors did not discriminate in selecting the jury they made credibility findings and fact findings just like the california supreme court did here but the supreme court in miller l said well when you look at the record it's shown up that that's an unreasonable fact finding under twenty two fifty four d two and i think when you compare what i just talked about versus officer pickens that it's in the same territory  that is what happens under twenty two fifty four d and the court in miller well found unreasonable fact finding and i think this court should too and i want to say it's you know is that your strongest argument mr kennedy to the p c p argument and your view that the supreme court of california made an unreasonable determination of facts i think you're getting to three unequal i got to i have to let me before we leave the first one what if we were to conclude that the california supreme court decision the factual finding as to the lack of p c p he was that evening was not unreasonable how does that affect your argument on p c p medication evidence well i think it affects it on both the guilt phase and penalty phase because the fact that he was impaired on p c p would definitely be a mitigating it and especially because it's not just that he's using drugs it's that he didn't have his wits about him and he fell prey to drugs because of the terrible home life that he had so it would have allowed an integrated story of life history terrible physical abuse and emotional abuse drug use grappling with it trying to get better trying to change but remaining in a bad situation and eventual would all that come in any way regardless of whether or not he was using that well it didn't come in because of course mr part oh it is not i'm just trying to it seems to me there's a lot of the correct me if your theory is wrong but if if in fact that's not an unreasonable factual determination that takes the mitigating evidence off the table for that except for what he was drinking because there seems to be a tendency in this case to cheaply distance as if the fact that p c p use a week before doesn't matter when we know that it does from the experts say finish with and unreasonable applications basically it lead to an unreasonable strickland reweigh is what i'm saying and the reason i say that your honour's is when a state court ignores evidence before it in making its decision particularly significant evidence that is an example of unreasonable but what specifically in the supreme court's opinion are you especially personal but that's not true the so they didn't say personal they said there were only three and they were not particularly detailed and in that regard failed to portray him so the testimony of a social worker who had interviewed all kinds of family and friends and studied mr a vein as life in life history the traditional social historian we see in death valley cases m comey i'm confused about your response i thought you were talking with judge graber about twenty two fifty four d one which is legal interpretation yes and i think you know it sounds like you're going back to two is the fact maddox it was noted that when state court fact finding process is undermined because the state has before it facts which it apparently ignores in reaching its decision maker they don't mention it yes i thought that i know the district court specifically indicated and sided ticket out of our cases that you don't have to mention each of these factors and of course the supreme court had a referee that went through everything i mean everything and if they read the report what was the problem have to mention that in their opinion do they well i think that's right that not every single thing needs to be ticked off but when you say that the presentation is meager and cite to three declarations which justices the california supreme court said more detailed to me that betrays  closing one's eyes or deliberately refusing to acknowledge that in fact the evidence before it before the state court was much greater than that well then you're going back to forgive me if i'm missing this but i think you're going back then  shame mr again of felt when his father beat his mother and him and to many particular explanations about how that affected mr vane as a person he didn't do well in school he didn't understand the language his father was beating him and so at a young age he turned to drugs and began to self medicate that is such a different picture than marvin part portrayed for the jury and it does address the issues of aggravation as well your honor because much has been remarked as it should be about the jailhouse killing but marvin park contrary to ron pilla did not investigate that aggravating evidence enough because had he investigated he would have learned that there were witnesses in the jail who saw what was portrayed as the victim be the first aggressor yeah that you know he was angry and sort of lay in wait for a few days and then you know took his revenge so that seems just speaking for myself last stronger than the other issues you raise about background  drug use plus you have the fact that the he was observed leaning over the guy that supposedly offended him by repeatedly stabbing him without resistance an clearly was not p c p then so far as we know right no that's right what i'd like to say is i believe that issue of the timing the way the evidence shook out in the actual trial because of the failure to investigate was that a couple days before  another person had approached mr a vein and because mr park didn't investigate he was stuck with that in your honor is exactly right had he investigated i think you would have learned that much closer in time right before it was this particular victim who was portrayed as the victim that was a different aggressor which is why i was wearing a towel around his his waist now he was not on p c p your honor that's right but it doesn't have to be i don't like to stress on the penalty phase imperfect self defense could have helped mr vane doesn't have to be a full blown perfect i guess that but i mean  that there were i think several officers who observed him with the victim on the floor repeatedly stabbing him to death he clearly wasn't involved in self defense at that point at least arguably when the supreme court looked at that they have every reason as called fair minded jurors to consider this was no act of self defense bus with the talf thing we're talking about earlier the they understood that had some meaning as well but the reality is he's not p c p any stabbing this guy to death that's not defense at least in some people's minds right and if there had been a full picture and the jury could consider all of those issues we may have a different evidence as considered through the referee as well and concluded that as is their right that they did not find self defense or that it was cold blooded murder and that's the way they ruled and with that we're stuck with what they do unless it's so unreasonable that basically nobody could disagree with how unreasonable it is and that is why  don't really know if he's on p c p but one of the experts testified that you know he was sure based on the contact and the history that p c p was involved and the second expert in addition to dr rosenthal dr or malign made all kinds of comments he thought it was a major contributor that it affected a vein as ability to appreciate the criminality of his conduct that night that was would have a difficult time conforming his conduct to the requirements of the law and it with interfere with his ability to form that type of intent to kill that type of on the spot type of intent how did how does the killing in jail in the jail to be factored into what occurred on the night when he killed the randomly killed these two people doesn't deny that who done virtually nothing to him and the other when you claim self defense and yet he killed this guy it's all part of a package is it not this being courts entitled to consider the totality of his what he did overall clearly and one where there was even a chance of p c p in the strickland reweigh that is right the supreme court has to consider mitigation and aggravation but as an rom pilla when you don't investigate aggravation you cut off ways to minimize and mitigate what is terrible and as your honor speaks about it you know i acknowledge it it sounds bad but with proper investigation as we saw from the second lawyer who took over after mr parr left there was a story to be told about that jail killing that even if not a perfect defense it mitigated it and the jury did not hear that because the lawyer did nothing and i think in the end it's an unreasonable determination of strickland prejudice and it's particularly in other words a real reading of the law from your perspective that's where you get to the be the one concept yes because in finding no strickland prejudice the court had to close itself off to all kinds of evidence that was before it and then criticized the presentation as meager when the reference order itself severely restricted the evidence that was allowed to be presented and finally i just want to say my third path to unreasonableness this is an unusual case because the supreme court doesn't just apply stric and prejudice which is a reasonable probability of a different outcome at trial they also repeatedly cite lockhart versus frett well which has a different prejudice standard in a very particular fret well says that to prove prejudice you can't just look at outcome determination which sounds like strickland but you must also look at the reliability of the verdict and the fundamental fairness of the trial to the extent that the conflating fret well prejudice on ted strickland prejudice and that's done numerous  times created a higher standard for mr a veena to show strickland prejudice that is contrary to strickland and an unreasonable application of strickland i see that conflating it was discussing two different standards and if you look at what a different pedal of this court said around the same time of the state supreme court decision it too struggled with the meaning of lockhart versus well the parties actually discussed this in prior briefs not before the court and you know i pointed out then that this court did a similar thing with the law court lockhart versus broadwell so it wasn't as if the state supreme court did something strange it wasn't until later th compatible with what we were doing but they may have completed the standers through i don't think that's right your honor i think they would analyze them separately as alternatives but we did we may just disagree about whether that happened  of no prejudice was an unreasonable application of strickland and it would be helpful to me to have you go directly to that question because it seems quite obvious that this wire did a terrible job and presented nothing in mitigation and that was a fact that the prosecutor seized on an argument repeatedly there was no medication there just isn't i'm  not sure that's an exact quote but that's the gist of it and so the abuse is from the father the p c p usage why and why wouldn't that have made a difference well your honor the reason it would have made a difference is because the aggravating evidence was so much more powerful than any of the mitigating evidence he could have presented so specifically this court it said on bach and mayfield that juries were not possibly influenced by evidence that the defendant voluntarily became intoxicated by what he didn't voluntarily get beaten over and we have is something quite different which is what life might a person potentially to become violent being the recipient of violence and there was evidence that his family other than his father considered him to be a good person and that he was helpful to them and there there was a lot here it seems to me your honor the evidence medina also included evidence that the he was abused by his family that that's the struggle we always have in these cases because we're guns and all of those cases say this is classic mitigation evidence and the response generally is the one you gave here well not necessarily people in drug use isn't really help you but yuri's but the supreme court says seems to say that that's the evidence that should be that's classic navigation evidence and here i think the struggle i have any is the fact that you can put on anything like the this this defendant had no chance of not getting a death penalty verdict when you know put on a single bit of mitigating evidence well you would put other would just say that the crux of the argument is not that it's not a performance problem right now it's on prejudice and so it's totally understandable that this court well maybe does a yes your honor i think just picking up where th chief just left off but to the same point where there is some mitigating evidence and a little bit more it's harder to see prejudice where there is no mitigating evidence and that's the prosecutor's ver argument to the jury then it seems more plausible that the jury would have something to hang its collective sort of moral hat on if their hand beyond some of these was primarily that he had killed more than one person and with great violence well i think that's a very summary way of stating it i mean he killed two people for really no good reason other other than he wanted a car which it seemed like he could have gotten regardless of whether it killed them then when the police before they were able to arrest him he tried to kill two police officers he also shot into a no other car before he shot at the police woman who was stopped at a stoplight he could have easily killed her but you know look what happened he did not he shot her the driver side then even after he  arrested for all of this and he's charged with capital murder you know the sort of couple murder he kills again he kills an inmate in prison so it's not just a question of adding up the numbers it's you know there could have been i think the state uniform every day you hear all of this aggravating evidence and no defense whatsoever it's and his own attorney is basically arguing leaves a bad person but you shouldn't impose the death penalty for bunch of reason and prosecutor says you there's no medicating evidence and the jury is instructed to weigh that or getting evidence against the aggravating evidence that's a struggle i thought you know i'm i'm just it's expressing not disagreeing with your analysis i'm just expressing it when you when there's no effort to put on medication d for a lawyer to try case i'm not saying that mr part of a good job but the idea of saying well he's a bad person but still he doesn't deserve the death penalty is not a crazy thing to do with you know it isn't i isolation but it can be i mean it depends on the circumstances in which you make that statement and what else is happening in the trial but if i may ask a slightly different question on another topic yes or we have briefing on uncertified issues here and with if hypothetically we were to agree with  e petitioner that there was you know adequate strickland analysis at the penalty phase would we have to reach one way or another whether to certify the other then i can be corrected by petitioners counsel but that's my understanding of what the problem with that is that if you look at the beginning of strickland and it tells you before defining the test for ineffectiveness  sense it's virtually identical to what but there sure says you know chronic should be the strickland court said that when counsel's conduct is so undermined so undermined the proper hate to interrupt too much on the chronic argument but i want to just ask one thing it's across with respect to the prejudice issue you know any cases in our court or from the supreme court where a lawyer presented no mitigating evidence at all where prejudice was not found well part of thing of what they were instructions case the trial what troubles me about this you get all these cases rupe to me as a little bit of this like in pin holes where we had six hours worth of preparation and so on you can add that all up in the penalty phase here the california supreme efficiency of performance at the penalty phase i do your honor if i can explain why so we were mistaken in our brief when we said that the looks were doctored applies it does not because looks were only applies to  the exact same claim so we don't have the exact same claim here because petitioner added thousands of pages to the prone to aspect and by the way this is to our detriment that we s this under richter what you're supposed to do is look at all the possible arguments except this and the california court said they would assume it without deciding it so they haven't decided it one way or another there's nothing for us to defer to they just haven't gone there at all so you know that that's why i'm asking you it just seems obvious that there would was deficient performance and that's probably why they didn't say anything about it i finished why we're not considering it so if we just had the first state habeas ruling then we would consider it but the point is that there was a second decision but that was summ sufficient performance so factually is a different issue about whether we're sitting at the as a matter of law and what i would say is that richter can you tell me as a matter of fact whether you conceive it regardless of the legal and now yes because when you compare it to strickland stricklin was nine hundred four case and this was a nineteen eighty one case and the issue isn't whether you know we think that he did a good job the issue is did he perform competently so if you compare that to what mr strickland council did which was not deficient so you're so you're saying and i'm in the same issue in holster that you judge it by the law that existed at the time not what happened later on and how things change with respect to capital cases so your point is that based on professional conduct requirements in capital cases the nine hundred eighty one that is bad is this guy was he didn't violate the first prong of strickland is that your point it's exactly my point or but we have all sorts of cases around that period of time where we found deficient performance and not putting prejudice i grant you that but it's deficient performance when you ask the jury or the judge at the time which in arizona was the judge to weigh mitigating and aggravating and if you don't have any mitigating that applied at the time and all of them required investigation and i think there's nothing that would say don't put on any mitigating evidence in a capital i understand that this court has cases that say that and i respect that i just say that the supreme court reiterated it involves even hook that the a b a standards are not governing standards and the supreme court has said several times i think that circuit court precedents shouldn't be which is a california case same sort of situation and i can go down to all the cases and i can recall and you know put on any mitigating evidence i don't think there's been a single court that hasn't found either you know a strict one a violation of stric we go on to another topic if i may i just want to add that if this court wants to allow petitioner to follow supplemental briefs on whether you know the a p a standard under which richter applies to prong one we would have no objection it's an issue that we thought about is preparing for this case it wasn't done to try disadvantage anybody in fact we were disadvantaged by argument the way that we didn't are braves  if i may go back to something mr kennedy said regarding the failure of the state supreme court to consider a different evidence that was in the record in the state of i'm sure he issues of diminished capacity and that it is true the petitioner persuaded the state referee to listen to evidence that had nothing to do with that issue but then what happens is so was a state supreme court required then to listen to this evidence and said it didn't need it because it didn't but there are previously didn't meet the state standards for a state hearing on that issue i don't think there's anything in put  precedent that says the state court has to do that and the state court and so when the state court said the evidence was meager it was being accurate because it was not required to look at evidence that it told petitioner we don't want to hear because you haven't met the state requirements not because of any kind of due process problem but you haven't met the state requirement for justifying a state here and there but there's no came back with thousands of pages of evidence which he later gave to this court he gave to the state court first in sum up if i may the the issue of course is whether a fair minded juror or jurists could agree with the california the second prong we don't concede prong one but we also don't think that that's the word you should be spending most of the effort and it's really prank and i gather your your perspective is that even though no mitigating evidence was arguably put on that the totality of the circumstances of what happened was so awful you wouldn't matter what mitigating evidence was put on it wouldn't make any difference that's part of your honor i would also urge this court again to little bit but hardly any and all and that's why i struggle with it can you rely on that awfulness of the crimes collectively here is they you know no matter what no jury will possibly giving this guy a break let's say on the lockhart versus front well issue it's not just me three justices of the california supreme court said it was confusing and problematic to introduce that into the case and the next thing that i'd like to say the trial but he did testify on his views that but the california supreme court wrote we know that the police did not ask petitioner whether he was intoxicated on p c p on either the night of the crimes or at the time of the interrogation so that seems to be contrary to officer pickens highly questionable testimony on this issue this is what happened here is really worse than a mistake counsel is conceding guilt on capital offenses and then goes into penalty and offers nothing your honors i was a public defender almost twenty five years and i made every mistake in the book and i watched panel lawyers make a mistake but that action was not a mistake conceding your client's guilt and putting on no mitigation for a nineteen year old is just about the worst thing a lawyer can do to a client on trial for his life and the prejudice the prejudice analysis i hope this court will really take a look at because epa deference it's deferential but it's not abdicating the core supreme court standards williams versus taylor you've got to consider what the law was at the time and at the time those cases than exist at all been holster did not overrule the supreme court's stricklin cases it said that the new federal evidence couldn't be used to evaluate the reasonable and that was part of it the second part was when i'm just talking about school you have to look at the law at that time not as refined by later cases that was the second part of the ruling no i respectfully disagree those cases are interpreted in clearly established federal law as unseated by the stream supreme court and the fact that they came later doesn't change the fact that the claim itself is based on strickland and chronic  troubled decent young man who fell prey to drugs because of the terrible abuse that he suffered in the home humanizing a nineteen year old client is essential and it wasn't done here and it wasn't because it wasn't being done we had to strickland experts who said it was done all the time it was done because mr part has a fundamental aversion to mitigation he mocked it he made fun of it in the depositions and he said his sympathy lied with the victim the jury picked up on that there should be a new trial where he has someone actually trying to humanize him and contextualize his participation in this offense