death row in san quentin our position what we've presented to the district court is that there were serious constitutional defects that permeated throughout his trial i'm going to focus initially on what we consider to be an extremely agree just violation of brady versus maryland as it pertains to one of the three most significant witnesses in the case and that's one mesa in this case address this morning is mr one mesa mr one mesa had been a informant for the detective carlos just cone for at least ten years prior to this killing where in the record does it say that he knew him of course for many years the testify that the evidence rehearing that mace often met with ciccone sure doesn't make him an informant but i mean it may make him a witness and make him very very useful to the police but that gives him a very different status if he's actually an informant so i'm wondering what your basis is for saying he's an informant or basis is simply that your conan mason confirmed that they had a relationship that went back to seventy five and that cohen oftentimes visited mr mason either at the penitentiary the california department of corrections or in the san diego county like a duck it we're going to we're our position is that it's a duck the defense team knew that mayes had known chicago for many years and the defense team knew that he they had visited and about this file they are talking to us so well what did the first is that cone kept a file a police department file on mesa for over ten years or approximate ten years and this was prior to the forty third street killing the maistres what was never disclosed and what we interrupting is it your contention that there was a failure to disclose his membership in the game you know they knew that they knew that all right so so forgive me what is it they didn't disclose if you could be specific that would help me sure it during the course of the evidence rehearing can you can stop me but my understanding from the briefing is that that claim is a it is a well first of all the immunity agreement that he did receive was admitted as an exhibit at trial it was you and he made statements at the two thousand and ten hearing mesa yes which if we can consider went to the effect that that he may have received more that is being excused from earlier assaults or perhaps even a murder that was committed in prison and i didn't see anywhere in the record if you could help me i didn't see anywhere in the anyplace in the record where there was any indication other than that testimony from mr mays of that he did get any additional breaks as a result of his testimony mr mason testifying twenty two years later that he had was debriefed by a special service agent for the department of corrections where he was also dropping out from the mexican mafia and he it that he had committed prison assaults and even a murder well right but he didn't admit that he committed a murder that i could see that there was that there was allegation that he had but it was many years earlier and he indicated that may's indicated in the twenty ten testimony that the prison and that he had he was relying on sources that he had within the mexican mafia and within prison and so your honor the the fact that mr mason is given immunity and he's testifying on behalf of the government but he has an immunity for those type of offenses certainly that should have been disclosed ok so here's my go to the defense be able to use that to impeach or but what's your strongest shot at what's the best evidence that he was given wrong quite frankly and certainly if an individual has been given is given protection and has given him blanket immunity for these type of offenses that certainly would have  hoping to get released but in fact he did that that had long been set in stone and the government had made efforts more than a year before to under a penal code section eleven seventy the to file a diagnostic report with the c d c which was the first step to ensure that he would be released mr belcher so oftentimes when we get brady claims we the defense fortunate enough to come up with a particular document that the government has withheld has been found in government files has been released to the press something as has occurred you have anything like that you're what you are what you are doing is is that there was a side bar agreement that was outside of the plea agreement that that nice i had with the police here and that his informal testimony twenty two years later suggests that he got more than was actually disclosed in the agreement but but you many you don't have a document you don't have any documentation for any of that you know you don't have you don't have a piece of paper or something else that the government was in the government's files that you know of and that should have been turned over to the got to the defense with the with the exception of the  diagnostic the eleven seventy d application which was filed a year before mr mason ever hit the stand right i would have to answer specifically no  within two weeks of this attention to a different question counsel yes when did they ask this a period port to release him after the call right after his testimony so when you said it was a done deal was a done deal yes ron it was a done deal perhaps that they were going to ask your honor and all due respect it is a done deal period ok since i'm listening go ahead and you know it mr it's our position that mr mason was guaranteed that he would be released upon his testimony and  the fact that he was released right after he testified the fact that the government the year before he testified it already started the wheels in motion to have him released recall that when mr mesa became a witness in this case certainly at the end it's our position that at the behest of encouragement of detective jack own that was two years after the offense and at that time i'm certainly not going to suggest that the trial was imminent r evidence that trial counsel for mr eola fell below the standard of care in essentially failing to present the significant available and critically important impeachment evidence of the most important witnesses that the prosecution brought forward during the trial specifically impeachment witnesses available to testify that one mason had indeed it made it that he was concocting his testimony in connection with detective two of those witnesses testified at the evidence three hearing in front of the district court and their testimony was consistent with what they had said twenty plus years prior i think under this court's opinion in a lordly you would  case in providing direction for your honour's in evaluating these claims as in lord of the wood the district court ultimately concluded as we know that it found that there were potential in consistenc supreme court that it is unreasonable under twenty to fifty four d and for two reasons we know it's unreasonable the first reason is that in granting the evidence or here the district court determined that the decision by the california supreme court in misstated the record with respect to the i c clay in particular the california supreme court rejected the i a c claim by making a factual misstatement that the reason why trial counsel did not call richard survive cio was because of his membership in the n r a that was an inaccurate description of the record and judge moscowitz that the district court properly noted that even after pinhole struck that same analysis holds tr deference ought to apply to a reasoned decision and we're going to presume even on a summary denial that the california supreme court had a reasoned decision where that summary denial isn't reasonable or looking beyond that summary to know if the decision of the california supreme court in addressing the record was unreasonable you are not obligated and shouldn't provide that kind of double deference and you should look at the evidence yourselves i think in one of the other compelling arguments about why double deference ought not be provided here is that the california supreme court has held in people view romero people of the deval that if a prime of facia case of i a c is presented to the court they will not write his name was not specified and as the district court noted that did not preclude the california supreme court from evaluating that clay well since you're talking about deval how how would they do that why isn't that a a some a cursory present ation that is not adequately presented to the california supreme as to mr garcia mr going to go i was going to evaluate if he wasn't even named counsel he was his name wasn't mentioned your honor but the petition that was presented to the california supreme court said that savant cio and others would have testified that one mesa had admitted to them that he was concocting the story finished under deval and romero are we are not obligated and we're not necessarily able to come forward and prove those allegations or even present declarations in support of those allegations the california supreme court is obligated to accept those allegations as true for the purposes of determining whether it's going to issue an order to show cause or issue funds for investigation or set an evidentiary hearing and they didn't they issued a summary denial it's part of the reason why the district court allowed us to present raul garcia as a witness in support of our i a c claim as well the district court hell that not specifying garcia's name but indicating that the california supreme court that there were others in addition to survive who were known to the defense counsel could have been presented as impeachment witnesses put the california supreme court sufficiently on notice and created a what was presented to the california supreme court and the california supreme court determines not to go forward at all no just a summary do now which is what they did they simply aren't entitled to double deference at that point at that point the district court is entitled to take evidence as it did and you are entitled to look at that evidence you told otherwise would essentially render this court to be rubber stores you jump all of those hurdles one of what if you go with respect well mr gelb or not then he's not he wasn't available that testified that independently of themselves one may say had admitted to them that he was making up his story about having purported to elementary hearing he didn't back down from that this is twenty plus years later he came out from arizona is no reason to lie garcia had been except all of that right what demonstrates the council was ineffective in not calling it what we had the testimony of two experts steve harmon and declaration form and mark overland whom the district court appointed about half way into  is why was this the defense's strategy wrong here because the killer was counsel counsel knew who that that's the macho was was could be impeached and it was also apparent that the district court was going to allow him to be impeached on  by admitting the gang evidence and this is just going to this is just going to throw off all the strategy the vents talk not the defense's strategy in the end may not have been the strategy that you would have chosen but doesn't make it ineffective it's a tactic that the strickland expert the only stricklin expert to testify concluded fell below the standard of care was not reasonable for the precise reason that at the end of this trial the critical  never impeached at all in a way that could have successfully demonstrated that they were lying making up the story had reasons to lie and that allowed that allowed the prosecutor to argue in closing as he did in consistencies as to mayes and they certainly knew he had an incentive to lie right they certainly knew that he was a jailhouse snitch if you will absolutely honor that was all pointed out the question is whether she should have done this other thing which would run contrary to her trial strategy and there is a cost to introducing any mention of going at it and that was the that was the tradeoffs decision she had to make right why isn't that tactical because the cost that she was afraid of was an unreasonable fear as mr overland concluded and again was that the witnesses to be presented were not cumulative testimony that had already been presented there was no testimony from anyone that won  to making up the story after there was no i'm sorry and there was no testimony from anyone that pete castillo had tried to solicit two different people to kill one of the victims but one of the arguments that the prosecutor made about why castillo should be believed in shifting his identification from the mexican nationals who he initially identified to four different people to the ayala as was that he was afraid of the olives and that he had no other reason same tactical decision was apparently made it's not these people were unknown right there was a cost calling them well i can't speak to what happened in the other trials nor can i speak to what trial counsel's decisions were in those trials but the  district court's order right he made that the am i correct that he made that observation and these witnesses weren't called in the other trials either he made that observation but the cost your honor that you're talking about the potential cost there was no demonstration of what that cost  been part of the reason that the district court gave an evidentiary hearing to begin with it was the district court's conclusion that these impeachment witnesses could have been very very critical and important to impeaching the two most important witnesses in the case he gave that evidentiary hearing and essentially said in his order to the state you will have an opportunity to demonstrate the cost of putting on these witnesses what was that cost if there was no critical they couldn't have simply said which would have been untrue anyway because he was not a member of the a m a if you're a member of the a m a we get to bring that out and we get to demonstrate that mr ayalon is a member of the enemy that's part of why the fear that thank you i thank you and i just want to take a couple seconds so i have some rebuttal time but once roughly recanted as your honor points out all of that concern which we contend was unreasonable the trial counsel had about ga mafia and that she was that that was still on course and i've looked in the record to try to figure out you know at the time of the trial not at the two thousand and ten hearing but at the time of the trial whether the defense strategy ever our defense team ever articulated that they thought that there that that wasn't not true that that that the cat was out of the bag and i can't find it is it in there is it in there that the defense team said at that point the cat was out of the bag and we should have rethought it right yes it is where i or i may have to find that site for you and provide it to you after this hearing but trial counsel did express that once that happened she was felt like her entire strategy had been blown up when she said she would have tried the case differently it  was a different case and she wished she had run a different or she would have run a different strategy had she known that that was going to happen let me ask you this though even if she had said oh my goodness you know now there's this very strong reference and inference i the testimony and that he had concerns about both the southern group and the northern group that's what happened in front of the jury in front of the jury ok at that point were her choices to tell the jury what there's this there's this thing i haven't told you for the last you know up now how you're briefing doesn't discuss that but she was in a very tough spot right if she was going to reveal that this is been something that had been kept from the jury well she was and i don't think she i think at that point her call to not present any of this impeachment testimony was rendered completely spur fluids and she should have not admitted to the jury that she had withheld evidence from them but said all right gang is now part of this case there's no reason for me not to put these critical impeachment witnesses on i'm going to do it but she did all of them are just about you i think she could have put on all of them so by cio and garcia were available johnnie mendez was of available to impeach ca and also available was luis bu garcia to impeach peake steal all of these witnesses were available throughout the trial once the gang was out of the bag there was zero reason not to do it and mark overland testified to that as well good morning your owners mike murphy deputy attorney general on behalf of a respondent and appellee pinholes are instructed that federal evidence received in federal court has no bearing on the twenty two fifty four issue therefore it with the exception of a small portion of mr survey to use issue all of the evidence that was received in federal court which has been the cornerstone of counsel's argument here is not relevant to the issue of whether or not the district court properly found it was not an unreasonable determination by the state court in that regard the as pointed out before the issues that have been discussed here in particular again with the exception of mistress of akio the state court was presented with close to nothing they didn't identify in state court the witnesses they have produced in federal court and they didn't present any documentation or statements from counsel that would have explained decisions that they made right or wrong  supreme court was left with really a skeletal allegation that wasn't supported with available documentation and that wasn't even if accepted as true going to establish the elements of ice see to prove deficient performance or prejudice or brady claim again because even if you accept the allegations are true i was true you have to judge those in light of the entire trial record and there wasn't a basis to conclude that they could estab why why why is reasonable it the ball to go for without i was the fact finding process reasonable in the state court to not have a hearing on that issue right well there were there was a lot of particularly in the factual allegations as to how that happened there was also you could there wasn't a basis to establish that any of his conduct would result in prejudice that any of the conduct was known you know to the prosecutors in this case to the extent that the suppressed evidence counsel here's what i'm trying to get at but i don't think i asked my question very clearly but i think the allegation in that by the time they got to the exhaustion petition was that detective took on had visited this witness i'm speaking of mendoza lopez r shortly after he testified that he had coerced threatened them that there was going to be a that he would let let it be known that this that russia had testified so and of course he was a prisoner at the time so this was a life threatening threat i seems to me that his wife had been threatened that her children would be taken away or she would be prosecuted for bringing drugs into prison so i think that's i'm summarizing of course but i think that was the the allegation and yet no hearing on that claim right and those allegations were made by an investigator based on hearsay part correct investigator hart i think his declaration says on information and belief a lot and so on the other hand it's  a case involving gangs maybe there was concern about retribution or an unwillingness to put all of the information in the in the declaration where do we draw the line there well i mean the line has to be drawn with the rule that the california supreme court has that you have to present sufficient particularities in her in your assertions and you have to present available documentary evidence that would essentially demonstrate to the court that we can prove these allegations ok so if you grant a c hearing or if you order a no a c we have something to back up these allegations that was lacking in this case and that standard is consistent with the federal court standard i mean if there are that are lacking in support the united states supreme court has said you don't need to always have a hearing and especially in light of the record you're allowed to reject those if it just doesn't meet up or they had they had the hard declaration i think that's the only thing that supported the exhaustion partition is that i believe that's correct and is the thing that makes it insufficient that he said it's pretty specific allegations but that he bases on information and belief is that well i think that's part of in california requires that if a declaration is present you basically need to present evidence in the form of someone who can testify to that in court so here we have hearsay cal also requires that you provide because i don't think it's just that to answer your question directly but it was also here the lack of other evidence that you would think would be available such as declarations from the witnesses themselves who could purportedly back up this assertion maced on based on information and belief and you have a you know with respect to the i c claims you don't have a declaration from counsel or a declaration from anyone explaining why there's not a declaration from counsel who could address what they knew about this and the reasons they had for proceeding as they did so you centrally have i mean if you really what you have is you know years after the fact a defense team could present a declaration from their investigator and if you look at that heart declaration it essentially is a lot of just his opinion and conclusions based on circumstances i mean if that's enough to invoke you know the process of the courts that's an extremely low standard and california rejecting that in this case certainly did not act in reasonably first counsel addressed the brady claim with with mr mates of the district court well first of all i should state that that again was a claim that was denied by the california supreme court and so all the evidence that was offered in federal court really doesn't bear on that issue but even if we consider it the district court made findings that there was no evidence to support that there was any misconduct or any threats or inappropriate behavior by doctor or mr chicago detective chicago and that there was no basis to conclude that there was suppression by the government of any material exculpatory evidence claim seventy six which adds the aspect of the immunity  agreement first that wasn't certified issue it's also it was agreed below wasn't exhausted so relief can't be granted for both of those reasons but it can be denied and of course the district court found that there was no basis again to conclude there was government wrongdoing with respect to that to the extent mr mason twenty two years later believed a certain thing about it really doesn't bear on the issue of whether or not the government committed misconduct in that case they've asked us to send that back because it completely sorry my first point on that would be that it should be denied or affirmed that the district court denied that's your bottom line i got that ok that's my hope that much of them they'll move on from there if it's you sort of turned away from the mike when you thought explain me why this should be denied so i just mr woods i'm sorry your honor i think i simply move then to the point that if if this court were to disagree with the district court's ruling on that then i do believe that because it's exhaustive is there anything that prevents them from going to two state courts now no i mean even as we speak you know it could have done it last week the week before that's correct we could do it what would be the effect of ongoing state proceedings oh well i mean there's there's so many potential things that could happen of course if we get the nod there if they get tonight there th they would have an opportunity to come back here and attempt to they would have to do it without giving it is they would have to raise it by successive petition yes your honor it could not be fooled into this one i agree with that yes sorry if i didn't understand yes that they would have some hurdles to meet yes yes it's a clear the california court would hear it if they went back to it but they were here on the merits i don't think that's necessarily clear other there are standards for presenting new evidence newly discovered evidence that would allow them if it meets certain criteria but of course just like a federal court serves there's bars to successive petitions but i can't predict that but there is an opportunity for sure honors i think i've covered the points i'd like to make unless there's any questions i'm prepared to submit thank you thank you removes just a couple points in response to the state's argument i think the state overstates what the requirements are in the california supreme court the exhaustion petition that was submitted knew as case taylor v maddox the standard is whether we're going to be giving the california supreme court double deference or not and as long as the allegations support a prime a case the california supreme court should issue a no i c order further briefing set to give funds for discovery none of that happen based on allegations alone and the specific allegations in this case created a prime official case which the district court found so with all due respect i think under the prevailing ninth circuit law as well as from maryland deval which is very clear about when the california california supreme court will issue a no i c ask for more briefing and most importantly provide funding for investigation and discovery and we go to the california supreme court with an exhaustion petition we don't have funding to do any discovery and i'm not aware of any case that provides that it's a requirement to submit a declaration of trial  subpoena power over we don't control in order to have a non skeletal petition it's going to be sufficient to defeat a double deference i'm not aware of any case that that provides that as to the issue of what to do with some of the new evidence if this court does conclude that the district court and this court are not entitled underpin holster rector to evaluate the evidence that was developed the evidence tree area i do think it's appropriate under the quixotic case that we cited for this court to issue an order back to the district court asking them to remain on the iranians back to the california supreme court to give us that opportunity and we will take that opportunity is that is the idea under gonzales versus wang that something happened the evidence there's some new evidence that has transformed this into a new claim is that your it's actually yes your honor that basically there's new evidence that makes the claim much stronger because what we don't want to have happen is we don't want to simply go back to the california supreme court without that order and have them kick us out as a successor petition when in fact we've met the two standards under ronnie's the evidence  makes much stronger the claims that were previously presented and we exercise due diligence in developing that evidence and we didn't intentionally withhold it from the california supreme court and i believe we can meet most of both of those standards if that's what the court removes back to the district court to do that would have to be briefing on that but i think we could do that and that would be our our fallback or and i'd like to ask this of few questions i think you're actually out of time but i'd like to ask a few questions about procedural default california thought supreme court thought that many of these claims were untimely my understanding from the record is that in the district court you all the defense team briefed the what basically the walker issue and the but also requesting permission if the court ruled against him on the on the adequacy of time california's time in his rules sort of had placeholders in there about causing prejudice but didn't didn't reach causing prejudice after walker again just to just correct me if i'm wrong absolutely this is an invitation to correct me if i'm wrong i want to make sure i got this right after walker came out the federal district court judge decided not to take you up on the offer to brief and prejudice instead under franklin went straight to the merits is that right that's exactly right you're ok in the blue brief to us i don't see any mention of causing prejudice or timelessness at all but please point out to me if i've missed it you haven't missed it your honor ok the opposing counsel has a couple footnotes indicating where issue by issue where there are some rulings about timeliness and then in the gray brief there's not a response on causing prejudice i don't think  procedural defaults and the inconsistency is and how they were applied by the california supreme court which would render the hand you know not you know we would keep them from barring our claims because of the inconsistency and there was extensive briefing on that we didn't get last year right because of walker now you've lost that argument and i think that the district court then in twenty six certificates of appeal ability we were instructed to reduce our brief even more from what we had done we tried to brief what we