i assume the court's read our briefs but there's something i want to emphasize that should is mentioned there but should have been emphasized more and that is that in the state of washington in a self defense case like this case the burden is on the prosecution to disprove self defense beyond a reasonable doubt that was the context in which the prejudice issue that the state court or the state judge ruled on should be and must be evaluated as to whether there's a reasonable probability that but for these numerous errors of both trial counsel and of non disclosure by the prosecution there could have been a different result of form is another can with regard to her self defense defense or with regard to the lesser included offenses that of manslaughter in the first degree and second degree that the jury did not reach the jury of course did a quick ms netherton or did not convict her of first murder which was the prosecution's charge against her that was supported by the prosecution's eyewitnesses a couple of whom or one of whom at least testified to a completely unprovoked cold blooded shooting the jury obviously did not believe that in their words many reasons why the jury would not believe that and that is why the prosecution relied so heavily on the testimony of the investigative detectives regarding the crime scene and the analysis of the crime scene by the state crime lab officer and her gentleman mr evan thompson don't we have to decide what what in the minutes because the washington state court rules say that decisions on the merits are made by three judge panel of the court of appeals and this is an unusual situation where a judge really under the court rules usurp the power that he didn't it's not frivolous to send it to a panel for a determination on the merits and he decides it's close why isn't that doing exactly what the statute authorized him and i guess i misspoke with regard to who's usurping i think that he has been attributed to a power that he did not have of course he made a mistake because his ruling on frivolousness was actually reversed by the washing supreme court the watch and supreme court granted relief on a sentencing issue that was one of the ones he said was frivolous and he was wrong but i guess he had the power to say it was frivolous but he didn't have one to wash and court rules the power to decide the merits of the case and that's what the rules say and that's why this is a different kind of a situation than any other that's come up that i've seen in any court about what constitutes  adjudication how could you decide some things frivolous without considering it on the merits you know i think that is the mystery that we're here on and that's the question is the frivolousness determination procedural determination or a substantive one i think that it is a substantive one in the sense that it curtail i mean it is a procedural one in the sense that it curtails the defendant's application to the panel that does have the right to determine the merits i think as a matter of practicality what the court knows is that in this kind of a situation that sort of a determination is made in a much different fashion than a determination on the merits is made by a court of appeals panel both regard to who does it how it's prepared how it's argued presented and the washing court rules say if you're going to decide the merits it's going to go to a panel it's only if it's frivolous that it is rejected and even the postcard decisions by the california supreme court are that are the main source of authority on this do not purport to be anything other than a pure decision on the merits of the case not a decision that you can't get through the door because you're pleading is no sufficient or not does not meet this very low standard of frivolousness that's required to get into the door of a courtroom do you have the merits of your case determent are we dealing with a state court or a state law issue here i think we're dealing with a federal law that says that jude occasionally merits is necessarily going to require an analysis of the state procedure in the state rulings that it has if it's in the more conventional situation where there's a procedural default ruling by the state that depends on state law as well so the federal law is an overlay of the state law with regard to what the state law has done and according to its rules the state court here did not decide the merits it decided that the go the judge decided it was frivolous that the merits would not be read you're arguing that this federal court under the rubric can decide that issue i think that the federal court necessarily has to decide what is an adjudication of the merits and i think that because of the different state systems that we have that to do to kate these things in very different ways it's going to have to look at the state law and determine what they mount to instill in terms of the federal law where we don't look to issues of state law and normally enfin federal habeas review but always with regard to making this determination again in the more conventional situation where it's a question of was it a procedural default or was it a merits ruling and even in the postcard cases in california they look to the state law about what the state law means nowadays i think the california supreme court's adds a bunch of citations that we then the court then looks to and decides whether those constituted adjudication the merits or a determination on procedural fault under federal law so that is a broad issue i don't think the court needs to reach that though because what happened here we have only this issue of prejudice that was dismissed it was even purported to be decided by the state judge order and that determination is really impossible to i think square with the record in the presentation that was made and should have been found to be unreasonable under twenty to fifty four d and not a subject of deference whether it was an adjudication or not and that's i think because for one thing the state court judge's order specifically used the wrong language talked about the likelihood of prejudice from the nondisclosure of this information regarding the impeachment of the state's forensic experts the state judge said that the testimony of these eyewitnesses these two people who completely can contradict each other in terms of how many shots were fired where they were fired whether  address that and other cases where courts have found similarly that there was no prejudice because of supposedly overwhelming evidence from eyewitnesses here we had the state obviously not thinking its evidence was overwhelming from the eyewitnesses and calling these crime scene experts and analysis in order to bolster them and that's why it was there and this testimony that took both of these state experts credibility completely in a different light than it was presented to the jury i think was clearly the sort of thing that could reasonably probably result in a different outcome but we never really had a hearing on that or any developed on what evidence was withheld and how effective it would have been in impeaching these people because the manner in which this case was cut off so that you had to the two prosecutors in the case both said that they had no information  brady sort of material with respect to either of those people correct i think they actually said why often only heard of one thing about mr gullah hadn't heard about mr thompson our evidence as everybody knew about mr thompson mr thompson was quite notorious quite early and of course the question is what not just what the prosecutor knew but what the king county police knew what the washing state crime lab knew because the police in the prison the in the prosecutor or the sheriff's have a radio obligation is well there's no evidence about that and the state judge never addressed that the state judge never said that they didn't know the state judge said overwhelming evidence no prejudice same thing with regard to ineffectiveness state judge never said this lawyer was effective state judge just said overwhelming evidence that is not a reasonable determination of the application of clearly control clearly established federer u s supreme court law to the facts and that i think was overlooked by the court's below that and those are the two main issues we have here we also have two uncertified issues which i think on their own stand up to this this area quite well one just last friday where the court held that the non disclosure of impeaching evidence with regard to a crime scene sniffing dog was prejudicial despite seven eyewitnesses who identified the defendant here we have complete impeachment that resulted in the firing of evan thompson his testimony never rebutted by any expert and we have two eyewitnesses who contradict each other who contradict the physical evidence with regard to how many shots were fired and a substantial claim of self defense that the jury credited in an idea and a half would liberations questions of the judge about is it used can you can use for stop a kidnapping we have a defendant who is on the phone talking to the police right well this was happening trying to enforce a court order we have many reasons to believe that this jury could have reached a different result and yet this evidence may please the court john sampson assistant attorney general for the respondent this case comes before this court under and put in the deferential standards of review because the state court did educate the merits of the claim contrary to coun arguments the washington rules allow the chief judge to dismiss a petition on the merits if it is frivolous and in fact the vast majority of personal restraint petitions which is the form of post condition collateral challenge in washington courts the majority of those petitions are dismissed by the chief judge the state court actually held that the chief judge dismissal was proper and this isn't  supplemental excerpts the record wanted to the court said this is a proper ruling on the petition that it's a determination a state law binding on this court also under federal law both under the u s supreme court precedent in this court precedent it doesn't matter the form of the adjudication what matters is was there an adjudication in an harrington the court talked about how the statute refers to a decision which resulted from an adjudication in this court in lambert versus blodgett said the issue is whether the court reached the merits without dismissing on a procedural basis like a in our state there is a time our statute in a success if success a petition statute those would be a procedural reason to dismiss calcify understand mr ford's argument he says that we have the authority to examine whether that decision by the chief judge was proper disagree on or again so what is what is the precedent that we point to when we say as we have previously held a decision by a single judge dismissing the case case i'm sorry on case i usually don't bring all the cases i cite in a brief because i travel from a lengthy and i don't have the time i can start doing that but i could also point this court even if you page at nine sixty six your honor i'm looking nice six or six where what am i looking for six in that the court said an adjudication is not restricted to a particular form of hearing and then there's also a statement that the issue is w state court reached the merits of the claims without this missing it on procedural grounds to talk about a single judge i don't recall if in lambert if it was a single judge or not but i can let me have my question is unite the u s supreme court said that even if the washington state supreme court did not reach the issue you did not make a determination of whether the judges removal of the juror was was proper they look at what the trial judge did and they determined that because the trial judge determined that the jury was biased lots of cases that the saying that when the when the when the state court acting you know there's not give a reason that was a case where there was a dismissal by single judge that does not allow it to go to the full court maybe you know if there is such a case i'd like to know it because it would save us some writing if there to find a case and provide a supplement a citation of authority and i would also point out that if the court is concerned of whether so if you if you i give you twenty four hours to do that and we don't get anything from you will that mean there isn't that a vast majority of our cases the chief judge denies that the petition so this is an important issue well your honor there's also the point that the state supreme court denied review and so a majority of this one claim which is not before this court that court denied reviews so you didn't have if you're looking for a decision by a full court that was constitutes a majority of the court that court she would not have exhausted those claims she did present those to the state supreme court state supreme court summarily denied review on those claims all denied a postcard denial on those claims so if you're looking at that decision and plus  nine it said it did not it granted review only on the one claim and in a direct denied review without any comment on the other claims were any of these claims raised at the district co single appellant judge's order yes your honor and that is how the vast majority of cases are are decided that's an issue of state law which state courts it was properly done in this case and it was an adjudication on the merits and i will find a case don't know if there is one that says specifically the chief judge denied a claim on the merits is a adjudication but i think that if you apply harrington first as rector co versus been holster you have to come to that conclusion even if there is no nicer compress and that because the supreme court has said that if the state court rules on the merits of the claim even if it's a silent denial or even if they reach there is in washington the supreme court commissioner who is not an elected judge but she is appointed by the court she screens but  sometimes screened the case and will prolong it and this court has relied on that decision numerous times in applying the had to deference in this particular case because the state supreme court granted review on one issue the whole the whole department ended up looking at that so that's a majority of the court that constitutes a full there is no way to seek further review from that from the four five justice at this point to even talk about the in the ineffective claim regarding failure to retain an expert and what i would say on that and certified claim is they have not presented evidence to show that the state court's decision was an unreasonable application of supreme court precedent their expert mr sweeney he never really said mr thompson's opinions were wrong what he wanted what he challenged was the added adequacy of his of his work he didn't say the conclusions here were wrong because mr sweeney never actually tested the evidence so he cannot say whether they were right or wrong so that he has  progs in the state's position the court reached both the deficient representation and the prejudice but this court not to resolve that issue because mr miss now the attendance not show that the state courts resolution on the prejudice issue was i really don't find any place in that order that there's any reference to the merits of the ineffectiveness or the nondisclosure it's all about prejudice i think that's the only fair reading and i can't resist talking about mr sweeney has he did actually challenge mr thompson on some things but more importantly we were denied access to the evidence we asked for access to the evidence in both courts so mr sweeney could look at it and then the ruling was we lose because mr sweeney has a look at the evidence that is fundamentally unfair that is not an adjudication now i want to talk about the supreme court's review because that i think really answers judges families question washing supreme court i think it's wrapped thirteen point four takes cases depending on whether they have statewide importance or whether there's a did dispute between the lower courts it's not a merits decision that's a matter of state law that says what their jurisdiction is and why they grant review or not that state law then has to be looked at by federal courts to say was that an education the merits of course it's not supreme court said that many times that if an appellate the highest the public court says discretionary we don't want to hear this case because it's not important enough that's not decision on the merits that illustrates how state law and federal law must interact in determining this and if you look at twenty two fifty four d the language that count congress said they could have just said if the state court was unreasonable you can lawyers who handle this question of the threshold of whether you get into the court and we don't just have a technical issue here the order says that the defendant hadn't give me any allegations regarding how he's prejudiced by the ineffectiveness there's thirteen paragraphs of allegations we cite them in there in the excerpt of record they're all over the place we made thirteen paragraphs where we supported it by five hundred pages we had radiological imaging we had photographs we had witness statements we had an expert report we had the current brady list that discloses the created the credibility problems of these two witnesses from this prosecutor's office and we got no where we got no discovery we got no no argument we got no hearing it's not consistent with what the supreme court's done is not consistent with an adjudication on the merits and that's what washington state court rules say it's not if we got in front of three judges they never would have said we've made no allegations we made thirteen paragraphs of allegations and five hundred pages of documents the judge simply didn't know what was there and that's why the decisions on reasonable even if  unreasonable determination of facts from the record which is another portion of twenty two fifty four de ford it was mr sampson right that if we attack the manner in which the washington state courts dealt with this will be up and doing practice in the state of washington i would be aiding a brand new mode of proceeding for the court of appeals which did determine that this was a decision on the merits right in a subsequent work in a subsequent order i think they determined it was appropriate for him to make the decision he did i don't think they can decide whether fits of the determination the merits for federal law purposes i would defer to mr sampson certainly he knows much more than i do about the typical practice i wouldn't be surprised if this is typical and i got to say ed who was put there to have the state courts be the main event to have the state courts have the first chance to apply to deal with these constitutional issues and i think congress meant for the state courts to do something and not just to shove these things out the door and push them of on a federal court and hope that the federal court will defer so i would suggest that if it does change state practice that that's for the better that's what congress meant to have happen that state courts are actually supposed to do something with these cases and not just send people off to federal court to deal with these technical issues rather than the merits of serious constitutional claims like this