may please the court john sampson assistant attorney general for the appellant i'd like to try to reserve five minutes for rebuttal and for response to the cross appeal in this case the district court here granted relief mr houston's convictions finding that the trial judge's restriction of cross examination resulted in the process presentation of false evidence that was material to the outcome of the trial the district court erred was argued but it didn't appear that the state court had ever ruled on the poor claim and when i went back to review the record it appeared that hewson never raised a  am i correct is there a place where he raises in a pew claim as opposed to a confrontation clause claim yes your honor he actually in the opening brief he did present it as a  it's not raised correct it is raised this is this case cited anywhere in the state court yes your honor i don't one citation one sentence but only to distinguish the proof from his actual argument i didn't see any argument that the prosecutor had allowed false information to be presented and so i didn't see i didn't see that argument and i didn't see the state court ruling on it he raised it specifically as new  then raised the issue to the washington supreme court and he didn't cite but he did allege that false testimony was presented so he didn't specifically cite in his state supreme court brief that it was  prove violation but he did have a significant argument that it was the presentation of false evidence resulting from the restriction across to dismiss it if there was a procedural default of some sort in the state court that has not been raised as an argument on your behalf correct correct your honor so the difference would be presumably whether we review under or we reviewed didn't over all but would that make any difference in your view to the outcome here it would make no difference your honor because even if this court were to find that there was no state court adjudication that the district co application of the materiality standard was incorrect in fact here your argument helps your opponent in some ways i suppose because you're saying he did exhaust it that's why we didn't raise the issue of procedur honor i having looked at the case having i was the one who wrote the answer to the habeas petition and when i looked at the record i saw in my mind that he presented enough that i cannot argue a lack of exhaustion well  i'm sorry i didn't mean to interrupt your answer and i was just going to say that he did present in my opinion he did present the claim to the state court the state court addressed upright as a denial of cross examination claim because that was his primary and i i think your answer to judge graber is question was whatever the standard of review what you tell us why you think that the district court here yes wanted the district court here for two reasons first it looks only at this evidence of this false evidence of the full deal that was never presented to the jury and said this would go to show bias the court did not look at the full cross examination of mr  what the court did the district court in addressing the second part of this claim which was a claim that there was a denial of cross examination on gang membership said that mr de la was extensively cross examination cross examined and enough to show bias can we can here's like you know address the issue here because normally we've seen in a in a context where somebody has either suborn false testimony or fail to correct given the other side the information or correct false testimony this is a strange case because it's close as i can read this transcript defense counsel is having a terrific time cross examining this person and the trial judge may have cut off the examination too soon but that's not the issue raised in this petition this petition blames the prosecution for what happens as opposed to the trial  testifying faced and what benefits he potential benefits he'd received out of the deal and so and they were wailing away at him when the judge may have cut them off too soon and so what is i guess my question is what relevance does the judge action have to whether we find an approved by alicia your honor i think the relevance is and i do want to correct one factual error in my brief i had argued on page twenty that there was no evidence showing that the prosecutor ever charged her intended to charge delisle in the state criminal court appeal there was no evidence because that was not part of the record before the washington court of appeals there was an information that did charge mr delisle in a separate testified that he was had not been charged with a state crime i believe he did testify to that and he testified that his federal sentence was reduced i think you said by a few years and so what what i understand the argument to  been is that the few years was the false testimony because he saved himself a lot of years so the question is whether a few years first as a lot of yours is false and if so whether it's material or prejudicial because that different effect on the jury would be negligible so would you address at least what i think the specific honor and i would agree that the the few years really what he was referring to mr de la was referring to was three years off the federal sentence and this is that excerpt the record to thirty one so when he said a few years he got a couple of years three years off of his federal sentence but then he also truthfully admitted that he avoided a charge of burglary with a gun and he was asked with a gun the gun would brief i've years and he said yes and then he was asked and that's on top of the burglary charge and he said yes so he could if you read his whole testimony in context he wasn't saying only got three years off or only got two years off he was saying i guess i got a deal and then he testified i was not charged i was not charged in state what he meant was i was not prosecuted by the state so the statement i'm sorry judge good so that your e mail that he was not charged with the state offenses and they also knew what deal he out with the federal government for those offenses what they didn't know was how long the state charges that he was potentially facing because that's where the court kind of off is that correct that is correct your honor so they didn't know as petitioner alleges that he saved twenty four years off by the gun and handsome and i would point out that mr houston actually only  got sixteen years for going to hansen's not twenty four years he had the potential for twenty four years but he only got sickly can we go back to the state charge because you now i think candidly say he was charged she just wasn't he was never brought i don't know i may not be material but i'm just asking he did testify he wasn't charged in fact he was yes in part of the part of it is semantics when people talk about i haven't been charged they mean i haven't been brought to trial and so technically you know there w violation because the jury was told through his testimony that he wasn't charged because of his deals that he would not be prosecuted by the state so in effect what the jury was told was you know he should have been charged but he made a deal not to get not to get it and the truth was he was charging made a deal not to be prosecuted further yes your honor ok and the jury didn't know the exact amount of time but the jury did know that he did not face he did not have to go to trial on state charges he was not convicted on state charges he was not sentenced on saturday by the way much or makes any difference because i don't think the judge's ruling is in front of us do you agree i don't agree with that we don't deal with the wisdom i'm not sure what what the judge was thinking about when he said i don't want you to ask him how much time he faced in state court because then the jury might find out how much time this guy faces but that's a separate issue but you agree that is his holding is not in front of us the state trial his drug dealing his money laundering the fact that he did have a deal the fact that he did not have state charges there are also the district court erred because it didn't look at the entire trial in determining materiality mr de la it was just one of four witnesses who positively identified mr houston as the robber including the victim who was nine hundred ninety seven percent sure that he was the one he did not wear a mask when he pointed the gun at her she positively identified him to other co defendants positively identified him so even if there was false evidence it was not material because there's not a reasonable likelihood it would have affected the outcome of the trial and unless a court has questions i would like to save your manner the time for about you may do that thank you and we'll hear from mr fine good morning that please the court and counsel let's deal with that whether they were charged or not and what that actually means it's in the record in a number of places but the reason it's important is the last reasoned decision by the state court on the nap who issue was judge brown and he said this is the clerk this is of the record at u c r fifty four apparently there was no charge and we assume for discussion without support in evidence from our record that there was no charge and then he says because mr delay and mr oakes were never charged it is case where the jury obviously understood that this witness had not been prosecuted by the state regardless of whether he had been charged he was not prosecuted and he answered all of the questions i got this many years of my federal sentence and it's all because i cooperated and i got this many i didn't face a sentence for gun enhanced men and so on and so for what marginal utility would there have been in the additional comments that you wish had been allowed in perfect question let me address it and it's not short it's a bit of a lengthy answer but i mean take it in pieces first of all i would have crossed him further now i know the court cut me off in ars dalan that's been ruled against me in this deference to the bandar's field ruling but had it been corrected by mr supposed as i think the obligation fell to him to make that correction when he heard that false test and the correction would be well actually i was charged but i've never been prosecuted that would have been the correction no actually that correction would have been he was charged and threatened with three counts of weapons and hansen's on each of the two substitute defenses because i practiced in spokane for thirty two years i know how the holdbacks work on cooperating witnesses mr delay always charged and then if he doesn't come forward they pile on an add on the weapons charges it's how it's done so i know a assume in the light most favorable to for a moment that he was facing a ton of time in state court had he not one of time good legal terms here's how but he said  the jury was told he got a nice deal here's what you do your problem is it weren't told how good a deal he got here's what the jury thought let's go to the jury room for a moment you know i guess just my question for a second so yes we are saying is the magnitude of the deal yes is what makes this makes this constitutional error yes for this is your jury was well aware that he got a deal yes and it was well aware of that it saved him years in jail how many years wasn't so clear but it how many years is the judge's fault not yours not yours that's not correct judge let me explain what the jury thought when they went back to deliberations juror one says well what about this delay oh guy he only saved a couple years and another juror says you know reasonable jurors them you're right when the judge cut off mr fine or delay with minute he had escaped one charge well these are he talked about eight years because he talked about three in federal and five in the state so it's not just a  couple years and the only false to that you've pointed to is the question of whether he had actually been charged first since charged and not prosecuted in the state court that's the only thing that was incorrect in what was said young or i don't have the right i'm so sorry i didn't mean parole i didn't ask him what he was charged with i said facing because i know but it was the cross examination began by saying oh i don't have it in front of me but if you were charged in state court it was your turn yes had you been charged in state court would you have faced five year of hanson or something like that you bet but the question about whether he had been charged or not which came from your question that seems to be the only thing that was literally incorrect that had he  he had been charged but not prosecuted when he said i only saved a few years that was consistent with the view the jury had when they went back there was another judge and was out from under eight or more years of prison federal and he said i was given three years off the sentence the question was about his federal sentence and he said he was given three years off the sentence which seems to be correct right that's not correct he was not given three years and this is your cross examination and so we were going at five for having a gun weren't you yes five years just for the gun yes on top of the burglary yes so what do you suppose you saved yourself here and then you go on what would you have saved i played out to seventy to eighty seven months federal and then he says so i didn't really save myself much which is an opinion i guess you're getting out soon aren't you and so on and so forth about cooperation and then he says i saved i was given three years off the sentence and you got time served correct and you didn't get charged that's your term state for the gun or  mandatory years for that true he did not get charged with the gun he got charged with a burglary in the robbery ok so is there anything false and what i just read to you yes what he saved himself that jury retired believing that this man saved himself a couple of years it's softer federal sentence and no charges including burglary and the five mandatory and then you pursued the state see his answer was accurate with respect to the federal charges i say and then you pursued the state charges and here's my difficulty with this case from your perspective the the trial judge then cut you off and whether he should have or not isn't before us but i'm trying to figure out what given that the trial judge did cut you off and therefore you would not have been allowed to get into the amount of time he saved himself how were you prejudiced by his false answer may i answer please because the burden fell to the prosecutor to correct the falsity that he only saved himself a few years he had a benefit of over two decades and i could not get it out but not off this federal sentence that's my problem because that colloquy was actually it was understood by the witness and apparently by you because you want to go then further intestate thing as being only so far about the federal  so is it your view that he saved himself decades off the federal service because when the yes or no is did he save himself more than three years off the federal sentence no he did not ok so what is fa about what he testified to when he describes the whole deal he says i saved myself a couple of years he doesn't say off the federal sentence but that was the context of the question right and you were understood it that way because you then still think you've helped me is this let's assume that the trial judge made a terrible mistake here drudge shouldn't have cut you off but that's not in front of us not directly it was a matter of prejudice well  because the question is what would have been different had the state said oh let me let me let me let you know that he was charged and the potential and the potential charges in the state were x y and z the judge still wouldn't have let you get out the number of your number of years and so i don't see how things change i don't think the judge would have been able to stop it had he did that he had and you're not challenging that had the state come forth how does the judge stopping it relieve the state of the burden of correcting the misleading actually see i think what happens here the problem here is this you were doing a heck of a job of cross examination it had the judge really not cut you off you would have gotten that everything you wanted to guess and then because i had the same deal also so it's the judge's fault not the state's i don't agree the burden was on this prosecutor when that statement was made about only getting a little bit of time off and if it seems like you can happen it into the federal case i see how you might cabinet that way there's no findings below that that's how it worked what the finding below what the last recent decision below said that was  even under your theory the most that was required to correct this if you will is to say well he was actually charged but never prosecuted and in addition to what you asked him about burglary robbery and five years for that gun to say well there might have even been more state charges i don't see how that makes any difference would not be how that cross would have sounded and it's not a matter of cross you're now saying the government the state had an obligation to correct yes misstatements and the only misstatement i can see in any of this is comes from your question what it is that he wasn't charged in state court versus was not prosecuted in state court everything else that he said is either accurate it seems to me or a matter of opinion whether he thinks he saved himself much or he didn't this is or is constrained by the last reasoned decision on this matter the last reasoned decision on this matter was that there were no charges that's a fact that the judge brown's ruling it's the last reasoned decision he's wrong so if you still have to demonstrate that there is reversible error here just because the reasoning is incorrect that isn't the end of it is who it is if it's the last reasoned decision is premised on a false fact and this court cannot make new rules or new findings of fact beyond what the states already ruled on this cuts both ways i get the benefit of the last recent decision re judge brown's last recent decision he got the facts wrong and the benefit would have been in my cross first of all the prosecutor should have corrected it and second of all in my cross i could have walked through the six charges he would have faced and he knew that oakes was charged with him i know i know this and it could not get to it and i know how the whole backs work the jury came into deliberation thinking you know that i was just slightly exaggerating when in fact i could have shown that he was misleading them to their faces they would have been able to sue me when you're referring to the last reason that you're talking about the washington court of appeals judge so you're saying so if on direct appeal in state court the state court judge made an error of fact yes then what you would get would be de novo review if we said it was an unreasonable determination of the facts were rel win simply because a judge made a reasonable determination of fact that's just a gateway they get you to do novo review in federal and that it would get me to talk about prejudice yes sure and that's the question we've been asking even trying to get a given given that given that you have not raised and isn't what is not before we have some of the correctness of the trial judge's ruling cutting you off because it is not being attacked in front of us and that's what gives me difficulty here given the ruling this trial judge made had they corrected the allegedly false statements i'm not sure how it possibly could have changed the result because you would have been able to get in two years anyway so the so the court said i don't know i think there anything about the amount years that he might have that mr deal out may have face because the jury can make that easy to have mr hughes and may be facing with that weapon so i think we have to take that ruling is the at the number of years deal that ruling would have been subject to an immediate reconsideration by her she bought it the prosecutor was under a duty that duty does not evaporated because the judge interposes a bizarre ruling that duty sticks otherwise you've got now with no feet no traction he had a duty the prosecutor knew that that was misleading testimony that it was not true he only saved a few years he knew that folks save more than that he knew the here's part of my problem which is slightly different which is a form of invited error because your question mark is you've got no burglary church no robbery church no five years no five years for the gu that was your question if you had said you know no twenty five years for the gun you didn't and so are our guests i have a great deal of difficulty seeing why this should be laid at the feet of the stay because in context the charge had been dismissed that the i was talking in the present tense not you never with charge sir you've got you're not facing you've got no robbery charge you've got no burglary charge it was in the present tense you have turned it to make it into the past tense i didn't say it that way and i don't think it was interpreted that way his denial was not a well i got your start of that colloquy rising if you would have been charged in a state court for this mercury we're looking at you were looking at five for having a gun weren't you so i guess held her slot that it's just difficult for me to see why having open your cross examination that way you can now say  saying five years the witness lied when that was your question yes yes he did and it was a we should have said no i wasn't looking at five years you know he would have said i was charged it was it was that wasn't your question yes and what you are letting there you're looking at five for having a gun weren't you answer yes five years just for the gun yes on top of the burglary yes so that's where he's truthful go back to where he was not truthful where were you when you said he's not truthful or two there's only two places you identified in my correct one is he should have said i was charged as opposed to i wasn't charged right m no don't just answer my question that's what he what is that what you that's is at a place where you think he he lied no i think he lied when he went so then tell me the statement that he made that was a lie not that how you would have argued it what i set out to seventy eighty seven months federal so i didn't say it myself so much in the context of the deal i didn't save myself much i get seventy to ok it's not the same and that you think was all was a lie was i didn't save myself much absolutely ok then then as i saved three years off the state time yes ok and then tom and then you begin to ask you about the substantial amount of state time and the judge says well then she cut me off she says i don't i'm not going to let you talk on about how much state time he saved context was what he got for his deal not what he got from the state not what he got from the fed what he got for his deal and he kept acting like the deal was no big deal and that's not true and the way he answered was not true the questions were in the context had to do with his deal i he's someone we have but i want to ask the question differently here because you're making an approving claim you're saying that the claim you're saying that the prosecutor violated his duty yes i'm trying to envision this right up to the point of the judge's ruling you're doing terrific you're you're you're you're walking him down no way in to make him say how many years he would he faced in state courts got started yeah you got started and i'm not sure i see any secret duty of a prosecutor to leave up at that point say your honor let me help him out you know he said a little time it was really a lot more oh you're in the process of establishing a lot this is not trivial no you're in the process of establishing a lot more and then the judge cut you off and my problem in this case is i'm having difficulty looking at this record figuring out when the prosecutor should have leaped to his feet and said your honor i need to correct the record because the judge wouldn't let him the judge said i'm lucky to listen to that stuff and so it may be terrible error by the judge but i'm having trouble seeing her by the prosecutor forgive me you're speculating what the judge would have done the prosecutor i know what the judge did know she did not know that this man had had confabulate so as your prejudice in this case the judge wouldn't she would not have made this ruling had she known the precise nature of she made the ruling the prosecutors not relieved of his burden to be truthful we don't we don't convict people because judges don't know the errors and that's actually part of the original now who case and i'm sorry that was a misstatement it was part of the a lie a case getting the judge involved doesn't help the state the state has a duty the state has to respond the state can't let a statement like that go to the jury room and corrected the state did i ask them to correct it it was not corrected nothing happened that's not in the record but they had a duty the  there is on the side i agree it was an error and i don't think i can get to it i've reviewed it carefully i think the van arsdale it's just i think we're stuck with it now so we understand your position and you're very far over your time thank you earth to be specific about what the trial judge in this is that excerpt the record two thirty one the judge said i understand that the efforts are important with regard to generally the inducement and benefits received i am going ask you not to be specific with regard to the number of years having anything to do with punishment that may follow a state charge so the judge wasn't saying you can't ask him you were not charged with burglary what charges they they was there a conspiracy charge that could have been brought and he would have said yes and if he had said no then that would be false evidence but then moving on to assuming that what mr de la said was false just assuming that there is still no materiality because mr de la was cross examined quite extensively the judge the district court judge below found he was impeached and shown to be biased and so therefore there was no  violation of cross examination regarding the game membership under the assumption that this issue was presented to the state court is there a state court finding and materiality your honor there is again it a silent the nylander harrington versus rector because that it was raised in a motion for reconsideration and the court denied it without comment so under harrington versus victor that would be a silent and and this court would have to look at it is if the court did look at it and determine there was not material it was not material but even under it and over a review it's still not material because in light of the entire trial the other witnesses three other witnesses positively identified him there's just not the materiality that there would be reasonable likelihood of a different outcome we'd asked of the court reverses just the court thank you counsel the case just argued is submitted we appreciate that helpful arguments from both of you and we are adjourned for this morning session