good morning may it please the court my name is stephanie a drac to us and i represent the petitioner rod trading and woods woods as trial attorney planned to call a crucial witness jones who would have been pete the complaining witness is testimony identifying woods as the person who shot him the state court held correctly that trial counsel was deficient because he failed to lay a foundation that is for the impeachment testimony that is he failed to ask the complaining witness  foreman if he had told jones that the shooter was another man council also failed to impeach foreman with his recent criminal conviction the only issue in this case is whether woods was prejudiced that is whether there was a reasonable likelihood that at least one juror would have had a reasonable doubt absent counsel's errors because woods provided a credible alibi for trial at least one juror would have voted to acquit if jones had testified and foreman had been properly impeached moreover no reasonable jurist could agree with the court of appeals conclusion that foreman's identification of woods was consistent and credible on the eve of trial the prosecutor himself told the judge that when he spoke to foreman about his testimony in the hallway that foreman thought the whole thing was a joke woods and foreman knew each other they both loved classic american cars and they knew each other through their car club  arrested refuse a subpoena used of sanity's directed at the court and he was arrested right before the trial i am confused about the procedural posture of this case and whether that we had some very recent motion that we received i think just on the eve of this argument is there currently is a new state petition pending there is a new state haiti is petition pending in the los angeles county superior court and on june twenty ninth the ok hang on hang on before you go ok in that state petition since we're talking about foreman is that the state petitions that there's that there's i think three or four declarations filed in conjunction with that petition yes including one from mr foreman yes and there is so that state petition hasn't been ruled on yet as i understand it but it's those declarations are the subject of a motion for judicial notice before us yes order to show cause percy drily was an important ruling because the state court the state court judge in the superior court looked at the merits of those submissions and issued a no s c which is unusual  berkeley i couldn't handle that petition in state court there so they they filed it on mr which is the happen they also filed a motion for the indication in the district court so my understanding began i'm just looking at the motion filed for us for judicial notice on those which is which we just received but be that as it may in response or judge kozinski question you said the issue in the new state petition is a foreman recounting yes it is and i am actually it seems to me a little broader than that there's four declarations the two women derek smith yes who allegedly handed off the phone yes has emerged and an allegation about petition to include those new claims as well as that ultimately was the request but the district court recently denied the motion for an indication that it would consider those to proceed almost is that the if this court were to issue a certificate of appeal ability as to that denial then presumably that appeal would go forward e receptive if that's correct your honor that's why the issuance of the order to show cause i think was a signal that the state court acknowledged that this case had its legs yes your honor for ye the indications of that the seriousness of these claims are present in the existing record in this appeal form and didn't want to identify the real shooter anthony jones's statement that that person w you have to track them down in jail and even when there are different gangs say there's a so i would say code but basically i think that's it you don't testify transcript with the trial transcript both mr foreman's testimony there is such a dramatic difference is that it's very clear that mr foreman is lying he said at the preliminary hearing that he didn't associate mr woods with any kind of green foreman's testimony had been consistent incredible when it clearly was not mr we've already discussed mr foreman being arrested his reactions to the subpoena and what he said to the prosecutor before trial but you can look at the preliminary hearing testimony compare it to the trial testimony which were both rather brief and he's saying different things under that he didn't know and he said somebody told me i'd been looking for him for a year he said he just met them he said we've been a member of these car clubs oh well we had a confrontation that could have been weeks months before then he says at trial we had this face to face confrontation that it's it's complete so inconsistent that it's impossible to believe what this man he made it clear that under oath he was willing to say multiple different things about the same subject and i do want to point out the crucial nature of the testimony about the green card because one first interviewed at the hospital mr foreman said that the shooter was a person named de makar beam that now if he knew woods as he later said he did why would he say something like that he was giving the police the runaround from the first moment it could have been a misunderstanding b shooter it would have been easy for him to identify him because they knew each others through their car clubs but instead he said oh it's some guy named then later he says oh it's a person who drives a green camaro that belongs to the car club e testimony of the victim was resolute and consistent and you've just been talking about that another was the cell phone pinging off the towers you want to talk about that yes in the brief i attempted to explain this but the key flaw in the court of appeals reasoning is that they said that mr woods had testified that he'd retrieved this going in ontario and that is flatly contradicted by the record no one testified that woods got his phone back in ontario but the bigger problem is the nine thirteen call because that doesn't rely on witness testimony really right the the well there's a a witness to testify about where that call ping that it started in l a and that you know the phone was moving east and right and is is it your but and i understand that the court of appeals thought that that was inconsistent with his alibi witnesses who said he was at the restaurant at nine thirteen they did not though the question is isn't that what the court of appeals thought that there was that inconsistency and in fact those witnesses said he got there at about eight but left to go get the phone to meet derek smith and so pursuant to the alibi witnesses in other words the one thirteen testimony about the cell phone pinging it seems to me is consistent with the alibi witnesses if the alibi witnesses are believed yes as well as the testimony of the defense expert who pointed out this exact problem he said no one testified that woods retrieved his phone in ontario and in fact he said he drove back toward los angeles to get the phone and so the nine thirteen phone call in the cell tower location that it use was consistent with woods's testimony is that the seven thirty five call more problematic for your client it's not what the court of appeals relied upon but but what about that call the seven thirty five call your honor i don't recall the self the tower location of that that would indicate that the phone was back in l is why would somebody else receiving check in the voice mails mr woods testified that in order to check the voicemail on that phone all you have to do is push the button so if mr smith pushed the button on the phone that the ways he wouldn't need a password so i wouldn't have needed a password so he could have checked the voice mails do we have any indication about why he would have done that or whether he did that or smith didn't testify right right he did not testify so we don't know that but the voicemail retrieval that shows up on the records is really only a connection to the wireless service team mobiles routing number the both of the experts testify to that the seven thirty five entry on the cell phone records just shows a call being made to a routing number that allows a person to access their voicemail and that's it and do we know from the testimony of but that but that call to check voicemail came from which is own cell phone no but that both of the experts had different takes on this that the expert that testified for the defense mr caused gro said that it was not and not necessarily and he didn't think it did come from the handset that was assigned of what he said that anyone can call that number from any phone and retrieve voice mail so it's not there's i don't want you cation thank you convicted the court of appeals reasoning about mr wood's alibi wasn't dependent on that seven thirty five phone call is dependent on that the the erroneous well sumption that he picked up his phone in have we look at the entire record and we fill in the gaps even things they didn't mention specifically are things we have to assume that they thought about you i think that would expand the ruling attribute motives and thoughts to the state courts and i don't know why we're precluded from doing that when they have a speaking or that your honor i can see the court is precluded from it but in this instance one can look at the call to his dad it's not sure but because it's not inconsistent with what the alibi witnesses said i think though in response to judge kozinski as in korea i tend to agree with him about harrington and so i went to seven thirty five call i don't i don't know what we do i don't think anybody knows but we do consistent with harrington but what i'm understanding from you is that my the premise of my question was mistaken i understood from the briefing that the seven thirty five call was problematic because the voicemail was checked and that that meant that derek smith would have been checking the voice mail which simple little odd and i understand from the briefing that he didn't would have needed a password but quite apart from that what you're telling me is there isn't location information on that so we don't know whether  that mr woods could have been checking his own voicemail at seven thirty five right wrong or if another one so the call didn't wasn't placed from his own cell phone that's what i think that i missed about if one reads the testimony of the cellular expert the prosecution and for the defense it's consistent that neither of them is claiming that that call connected to a tower because it's a voicemail that's what i understood but also there is no evidence because i focused on this as well was there testimony that a person entered the password there was no testimony that a person entered the voicemail password because the only indication from that line on the cellular records is that there was a connection really it doesn't give us any information about mr woods's location seven thirty five call you know probably if one wanted to speculate about the court of appeals reasoning maybe skip that in their analysis because it doesn't tell us anything mind i had initially moved to state these perceiving so that we could go back to state court and exhaust and attempt to reopen the petition in the district court the court could consider staying the proceedings in this court the court could same view of what our role is whether it's to anticipate what the supreme court has not done and extend a bad will even for that or whether it could do what's right until the supreme court does do that that's another police at least seven factors about the shooter number one he had tattoos a star on his body count a kind of what are you now speaking about the second trip or i don't know whether it was four days was the police officers first visit to him or the second  foreman was taken to the hospital right on the scene he stayed for three weeks right within the first two days he said made it two statements to the police while in critical condition on the fourth day so this is not the second time he talked to the police yes ok but this is four days after the shooting by or within those four days he had identified at least seven factors he said one that the shooter had star tattoos on his forearm two he said the shooter was in a black car with hello kitty logo car seat covering he said three that the shooter usually drove a green camaro ford he said that the shooter six he said he saw the shooter at a local car wash with a woman in the same black car thirty minutes before the shooting seven he said the shooter was not a stranger in fact they had had a prior gang banging riff two weeks before the shooting now that day on july seventh formant in critical condition was shown a six pack which did not include petitioner's photo and he did not in the identify anyone the very next day july eighth five days after the shooting he was shown a fresh six pack which did include petitioner's photo and he not only identified petitioner's photo as the court knows he said i'm one hundred percent sure that's and we have a declaration where he says this is nonsense i was like we of course have thought in opposition because the court can't take judicial notice of something that's still pending it has not been adjudicated  court doesn't do anything until a state court is finished right it has finished for purposes of this what obviously is occurring is that they're trying to relive it get new matters to get around t they're trying to further exhaust the for purposes of this case this court can forge ahead to have anything in the record that tells me i have questions for sure about these declarations and some of them i don't know why they wouldn't have been attainable at the time certainly certainly the two women who were in the car i've questioned about that but as do we have anything as explained in our proceeding when there came forward when mr foreman came forward and said none of this was true none of for this case number one they requested stays of briefing here in order to go back into the district court to get a rule sixty motion for indicative relief after that was thoroughly briefed the district court which is the june order said under this circuit's law i hate to put it this way but it's like putting lipstick on a pig this court is required to enter to if you don't want to if you hate to put it that way think of a different way ok but the point being the court said under this circuit's law that this motion for indicative ruling is an absence of a second or successive petition which requires denied the motion without prejudice to this court issuing a certificate of appeal ability and consequently this court has started a new case number to assess whether or not there should be review with respect to the rule sixty rulings so that's one train on the track and not being handled by the federal public defender the same federal public defender is the federal public defender who after the district court's ruling court to reject or deny the judicial notice but specifically as the records show pertaining to their motion as well as our opposition the superior court issued day and next day rulings which once said i'm going to issue an order to show cause and then the next day i believe they were november orders said i'm busy i don't have time to look at all of this stuff so i'm going to give myself a continuance to wrestle with this ass things stand which we've asked the court to reject the motion for judicial notice but as things stand the los angeles county district attorney team has filed and was granted in july of this year a continuance for how long as of this argument that continuance is until september twenty fourth but to be brutally candidate with the court the district attorney has represented to me that on or off the record the supreme court's not going to really do anything to this court rules in this case because they like this court believes that let me see what the night circuits going to do first but but that again all the reasons why the court should not take judicial know they were trying to tell me that i should consider that we should find that your client was consistent night in identifying mr back to that i yes i was the stand let's dive deeper into the policeman or hearing and he later made clear that he either ed was mistaken as to what he had heard but he pointed out in the same plimer hearing which was before the is largely consistent and it was before the jury the jury was assessing all of this to jury was additionally assessing foreman with respect to character and terms of him being an admitted gang member they were assessing his credibility with respect district court pointed that out too and i believe the district court pointed out a footnote that said the only bone of contention there would be of course if you allow in for the fact that anthony jones was preparing to say what he said but he said not i'm just looking at this is this this is foreman compared to foreman foreman in addition to the factors identify at the hospital four days after the shooting in critical condition he then identified him without question at the premiere hearing which jury knew which was four weeks after petitioner was arrested on july twenty first and then ten months after the shooting i trowe foreman yet again despite not wanting to be there despite testifying in custody despite admitting that he had smoked marijuana seconds before the shooting and he had smoked a blunt earlier that day despite it meeting a prior riff with the shooter two weeks earlier earlier despite all of that he steel testified at trial that was my future the jury was aware of all of that as well as the inconsistency at the plymouth and steele made a creditable mindful of the fact that petitioner himself admitted yes felonies mindful of the fact that his mother of course would be biased and this is also an waveringly consistent when he was asked  connection that you know of between the defendant and the green camaro i know it's a macor car club but i didn't really know what car you drive then later and do you remember what kind of car the defendant oh yes a camaro years after the shooting petitioners my shooter it's consistent to say alternately at the pulmonary hearing that's my shooter it's consistent to say a trial that's my shooter despite the fact i don't want to be here despite the fact i'm potentially a rival gang member despite the fact i smoke marijuana seconds before the shooting despite the fact that we had a prior riff two weeks earlier despite the fact that the jury was able to assess all of that and it's just not  consistent unwaveringly can see we went on the critical fact they were inconsistent now you may be able to explain the consistency and you may be able to sell a jury on them particularly if his counsel been ineffective and has t presented the key defense witness then you can more much more easily persuaded jury that inconsistency don't matter but again we would strongly submit that there are reasonable arguments in this case under harrington to affirm because the state court was not wrong under existing law beyond any possibility of fair minded just disagreement and of course that is the test under harrington thank you thank you camaro was critical because after mr foreman had initially said that the shooter was de mccabe mag that and that was eliminated as a person who who committed the crime the way that he what's most striking in this case is the brevity of mr foreman's testimony and how under oath he said flatly different things about the same said to me maybe in the kind of thing that you would argue put your face and believe him because look inconsistency if one reads the trial transcript and compares it to the pearl in your hearing transcript counsel confronted him with a couple things but not all the things we're talking about today and secondly as the course pointed out when trial counsel is ineffective as he was he did not present the evidence that would have allowed a full and fair jury consideration of the testimony of mr foreman if the witnesses who could have testified had testified here on the prejudice pran right judges were drunk or crazy you know what you know what is the test whether there was a reasonable likelihood that at least one juror would have held reasonable doubt that's a little better no no that's not the test the test is whether the quote appeal judges a reasonable likelihood standard we do have to put those two things together but in this situation the mr jones his testimony was credible he was a good friend of mr foreman's had been friends with him for seven years and he said i was with him when he had a confrontation with this other gang member at a mall he gave a specific place where it occurred and he said that that was the person who shot mr foreman and they had the head were involved in a dispute so there is a reasonable likelihood of a different result in context of a witness whose testimony was so inconsistent over time