may please the court marking for appellant as are doubtless dawnings was a despicable racist towards his client mr ellis the state court completely misconstrued the claim here ellis played a conflict of interest claim which requires adverse effect under kiley be sullivan but the state court applied the more burdensome strickland prejudice standard there are two ways to look at this first the state court did not educate the claim on the merits but if it and potential conflict of interest due to his racial animus citing and explaining sullivan if there was any doubt the only reference to strickland specifically distinguishes his conflict claim from the higher strickland standard mayfield it was it had been gathered in wade and there was no evidence that any of it was directed at mayfield specifically in our case there mr ellis had filed a declaration from himself time one of the statements what is your where are you what is your that's the case that supports the proposition that you know a racist attitude or a racist make up by defense counsel  racist statement and a threat towards his client in in our case while a threat is not apparent from the record there are still the same racial animus and that case analyzed analyzed little fraser i think is a good case for you but mayfield came well after in on bad decision so you are saying that it's different because in this particular case you have a record of racial animus that you can tie directly to the petitioner was the mayfield position or didn't have that compelling of a record yesterday let me mayfield essentially a plights all of an which required a showing  well yes your honor mr ellison pled below that there were four ways in which there was adverse effect shown and there was a fair cross section claim about sin claim a failure to to strike  bias jurors and a failure to present evidence that goes to motive all of those claims are are signs that the essential pulled his punches and didn't advocate for his client as zealously as him and because of that he essentially pulled his punches in this fifth or in this trial the in further in further investigation when we were assigned to the case we went back and interviewed  among among several the witnesses one of his daughters who had given a declaration that was filed in the pro se case and and in that case there is a statement that she made that was much more specific to the case and in that one in his daughter recalled ames talking about a trial from one thousand nine hundred ninety one involving a robbery with african american co defendants at a fast food restaurant and considering ellis case was originally charged as a capital case went to trial five times and was tried in one thousand nine hundred ninety one it's very likely that the with that this is a case that was referred to and as we made the arguments in our briefs there are a number of ways that twenty three fifty four  doesn't apply and this court can review did no vote on the evidence that was presented in the federal court for the first time as i was saying in the beginning one argument is that it was not fairly educated on the record or on the  decision was contrary to sullivan and because of because they simply applied the wrong standard either way twenty to fifty four d does not apply and this  applied sullivan to two successive representation case and not a joint representation case and secondly this court has applied sullivan to non joint representation cases in at least two instances in lewis v maly  the mcdaniel the alberni dissent specifically advocated this more restrictive view of nixon's and i was not the position adopted and as i was alluding to earlier this court could also follow frazier v united states and chronic and find that the conflict here amounted to abandon of counsel in which case mickens would not have any bearing it's important to know that we're not asking to expand sullivan to all manner of conflicts here and racism particularly against african americans is special asking here not that so of and be applied to all manner of conflicts but that a narrow exception be carved out for the specially printed as harm of racism towards an african american client here and if you don't have any questions of reserve my this is clearly a conflict of interest in the language of mckinsey taylor suggesting that solon cannot be extended to a case such as this which is not a joint representation case is either dicta or or we're outside of treated differently racism is well your honor i would argue the fridge of the united states is that case although it is created it is a case in which the court  honor yes your honor but the restriction in regards to in terms of deferring to the state court is mostly an operation under twenty to fifty four d as i explained there are reasons to put aside twenty to fifty four d in this case and even under twenty to fifty four easy in terms of deferring to the state courts factual finding the factual finding in question has to do with whether in his representation in this case was vigorous for one that was that was on direct appeal likely pulled its punches or likely it likely affected his his his advocacy and whether he whether he performed other functions in giving a closing argument or cross examining certain witnesses that morning may it please the court deputy attorney general christine freedman the warden of course racism should be condemned as should the derogatory remarks mr ames made about african americans and other people of color occurred the first time it was raised was in the state b s in two thousand and three and that's the decision and the reasoned decision and that is the focus of them at path here in this case and the state court even it wasn't the model of clarity it appears that the court applied both the conflict of interest national analysis of polish strickland at the state court decision and stated the fact that the federal appeals court i e the ninth circuit  theobald found mr ames racially biased in that case before the court did not demonstrate that the acts of which petitioner complains were racially motivated so it appears that the state court was saying that even if racial bias can constitute a conflict of interest adjudicate his racial bias conflict claim because the state court applied strickland strickland prejudice as opposed to a conflict of interest analysis however it does appear that the court did both and at any rate even if this court finds that the state court did did educate the racial bias conflict claim that was actually the only claim that was presented in the state court petition and the federal protection of palin argued in the alternative that there was a strict one prejudice in the state court to titian no str made so the racial bias conflict claim was that one and only claim raised in the state court petition if a federal claim is fairly presented to a state court and the state court to die is really if it is presumed that the state court adjudicated the federal you proceed to trial you'll find that i'll be very and effect of the results of that case actually would have been the same even the even if the attorney didn't use the racial slur and just said you're a stupid idiot if you go to a trial you'll find that i'll be very that there was constructively no as effective as the counsel can i and can i have you go back to the state court decision it is that it's very short and it isn't something about a preponderance of evidence so that it said he has not shown by competent evidence that absent any or all of the acts the outcome of the trial would have been more favorable to him the proof of this prejudice must be by preponderance of the evidence that's not just the strickland prejudice standard as it seems higher than the strickland prejudice standard yet it was worded and improperly however even if this court were to apply it in november of you claim would still that in this particular case the record more compellingly demonstrates racial bias specifically targeted towards the petitioner whereas the mayfield petitioner didn't have that sort of a record how do you respond to that what's significant about mayfield is that mayfield refused or declined to grant her certificate of appeal billet ian mayfield racial bias conflict claim because the ninth circuit recognized the limitations of the solomon exception him got a racist lawyer representing you at what point does prejudice get presumed if at all i think that kind of goes to the heart of why racism should not be treated as a conflict of interest there are a number of reasons why it doesn't really fit within the conflict of interest framework but first of all there's the issue of the main promise that were never presumed it's never spectrum you can have someone who is just like a little bit racist who holds racial stereotypes about certain racial groups on the other end of the spectrum you have someone who wears a white hood as a regular activity and then there is various degrees of racism in between so the question  become a well coined you have enough racism that you have an actual conflict of interest what is that threshold of racism and that would be a very difficult question to answer and even if you could reach that determination of how much racism is enough there would be problems of proof people don't often speak what's in their hearts and minds and good luck and that's precisely the argument for presumption of prejudice under certain circumstances because people don't express particularly to premise that racism in itself constitutes a breach of the duty of loyalty i think that is the main premise underlying appellants racial bias conflict crime of course is preferable that attorney that an attorney  his clients lawyers are human beings and they'll be many cases where attorneys dislike or even despise their clients for example a criminal defense attorney might really hate pedophiles or an a c l u attorney may find his white supremacist client personally a borat but attorneys are expected to satisfy their prejudices to honor the oath they took to uphold the constitution and provide effective assistance to their clients conveyed his racist attitudes to the client at the time of trial and the reason for the untimely filing of the petition was that he didn't find out about it until someone sent him a news article about his and his racism and other cases so at least from the record below it's not apparent think it was a few well in mayfield again the the recent the the declarations that were filed were not specific to race to mayfield declaration saying that he believed that that was in reference to his case and that he believed that that mr ames took out his his animus towards the co defendants counsel against him another statement that was filed from a different secretary of ames is also could potentially tie to us and that's why working mr ames as office i heard him speaking about a client with his associates he said that because this crime was black did not trust him and did not care what happened to him now those admittedly those are slightly veiled references before the state court but once we get past twenty two fifty four d and this court can review review the order can consider the refers to african american men were queues of holding up or robbing somebody at a fast food restaurant our case occurred in the drive through of a mcdonald's my for my father referred to as client in the case with racial slurs my father also commented on how stupid is not just generalized racism and that goes to what i was asking for they were asking for a specific exception or a very contained exception here when there is evidence that a racist attorney had racial feelings toward a client in particular and not just generalized racism which is not our case and i would also correct something that counsel said about frazier v united states and she was trying to downplay the races in all there and certainly the threat that was made in frazier and threatening to compromise the client's rights far exceeds and transcends the facts i'm holding in that case it we were advancing that there it was critical to the frazier's case that there were that it was not just a threat