process and in this case that didn't happen we had a fundamental breakdown of the adversarial process and how that happened was one of the most explosive tory facts in the case presented by the prosecution was really never brought to light it was introduced as evidence as testimony from the quarter but it was then just never commented on and more importantly misrepresented by the prosecution at the time closing argument consistently throughout the closing argument five distinct times and that is that the fail shot in this case came from a nine millimeter bullet and this is absolutely imperative and critical to the case because the defendant daniel aspies was found in possession of a gun that was also present at the shooting but shot when you're arguing is he's arguing that the gun was the gun that was used to commit the murder that's right your honor but so when you acknowledge and i think it's fair to say that that was an inference that certainly the jury could process so clearly the most well i guess i was i worry about that statement that it was the most important fact seemed to me from reading the record and i read through it pretty well that sure your client i mean it seemed to me that that was the key of this case if chavez was a liar well your client would have got off but the jury thought your client by someone else at the scene which was his effort and argument as well as in what he did there are two shooters at the scene we have casings from a forty caliber and we casings from a nine millimeter and we have the coroner who gives us the only evidence that the fatal shot is a nine millimeter i know but i understand that that is that's your best argument now i guess i'm trying to suggest when i read the evidence and i formerly looking at really was this a problem i look at what is the evidence and he linchpin the whole thing on chavez being a liar and i thought that was pretty good because if they believed chavez it was over and then he attacked then chavez credibility and so if the gun was just incidentally in the car therefore adopting a different defense of poles posture than you know articulate well with all due respect  possible that is true but really even sacks testifies that if you put the wrong it doesn't make really sense only in the realm of anything's possible and the other ballistics expert never says what the fatal shot it says it's inconclusive says it's consistent possibly with a forty caliber there's only one expert witness brought on by the prosecution that actually positively identified as the fatal shot as being from a nine millimeter gun well how can the defense not bring that to the light how can the caliber or a ten millimeter and the coroner very clearly states he had been applied to the fatal shot as being from a nine millimeter bullet and there is one sentence on that in his testimony and then it never discussed again by the defense never highlighted so even if the defense chose to emphasize the believability of chavez's recantation of his adventure cation it still does not opines it's inconclusive she cannot determine what the fatal bullet is she says it's inconclusive possibly consistent with a forty caliber or a ten millimeter and the corner just basically says it's a nine millimeter so you have a conflict in the evidence but only one expert a prosecution expert identifies the bullet positively the fatal shot being from a nine millimeter gun issue is that who well even if there were error i'm wondering again because it seems to me reading the transcript the jury believes show vs i mean we try i thought the defense tried to do what they could to limit the jury believing chavez but it seems as if the jury believes chavez when he talked to police and the prosecutor they thought that what he said  product of fear sold then with the ballistics evidence even disputed at trial the jury just didn't buy i mean that was the bottom line with two points your honor first of all the jury is actually deadlocked and doesn't make a decision until they reviewed the stipulation which shows that aspires to possess the gun connected with the forty caliber two weeks after the crime but secondly so one i think the jury was very much on the fence yes ultimately they disregarded the can't there recantation but that's not the issue the issue is would they have was there a reasonable probability the jury would have come to a different conclusion had the defense argue the nine millimeter fatal shot that's what strickland's about we're not asking what clearly the jury ultimately decided to believe in shot this is original identification i mean there's no question about that we have a conviction that's the only thing it can be based on the question is that whether it was a close case which is demonstrated by the fact that it was a deadlocked jury decided by really revealing the stipulation  absence of arguing that just because he aspires appears that's one of the guns present at the crime scene two weeks after the shooting what rules him out as the shooter the fact that the fatal shot is a nine millimeter gun trial he said there's no conclusive evidence that the fatal shot came from the forty caliber weapon but that's not enough that's all i understand you're saying it's not enough but i guess my biggest my my i'm trying to understand your argument your argument is and i read the transcript the fact that he didn't raise it in closing that's the problem there's multiple problems in a o p talks about not objecting to the closing arguments the missta and i'm saying objected to closing argument incorporated into her closing arguments and impeached detective king who kept talking about detective king and  the other ballistics expert star sachs about the nine millimeter but that should have been a highlight in the trial so should have been in cross examination of the prosecution witnesses on the topic injecting to closing argument of the prosecution and incorporating it into her own closing argument it should have been a central theme in her case and there was no reason to argue one thing with the exclusion of the other particularly when they were not contradictory at all they completely complement each other the prosecution's firearms examiner that she was never given any nine millimeter casings to test next she elicited from the coroner that his report indicated up the bullet recovered from the victim measured nine millimeter then based on that evidence in closing argument she argued that the nine millimeter casings were quote unquote being ignored as to whether or not petitioner was the shooter and whether the handgun recovered in the car petitioner was in was used to shoot the victim trial counsel elicited from the from the prosecution's gang experts that oftentimes gang members pass off hot guns that have been used in crimes from one gang member to the next or to members of other gangs then using that evidence he argued that despite being in the car that the gun was found in petitioner was not the shooter since he may have just been the recipient of a hot young that had been passed off to him and she also argued that measurement came from the corner and it was just a measurement that this there was a deformable which measured nine millimeters in diameter on redirect by the prosecutor the coroner admitted that he was not a firearms expert or a ballistic reasonable for trial counsel to simply just sort of throw out the possibility that there were nine millimeter casings found at the scene they were being ignored by the prosecution and therefore possibly someone else could have done the shooting but decision was a reasonable application of strickland oh i will it may sound like the same thing because of a double negative but i thought that the supreme court has told us that we should reject the state court's decision only if we can say that it was a project of leon reasonable that is we don't have to say it's reasonable  should give relief if it subjectively under islam while your honor is the state courts decision was was not and objectively unreasonable in this case it was it was an entirely reasonable application of i think in essence we're saying the same thing whether whether or not it was objective lee unreasonable or whether or not it was reasonable under strickland i think i think they're in essence two sides of the same coin here but isn't it doesn't it seem that taking out my colleague's question doesn't it seem that we are not to judge this on an objective reasonable most standard but it's got to be unreasonable in other words a standard lower than objective really reasonable in our determination of what the court did we are giving the court more latitude in what they did and i think that's what judge ghoul's trying to have you think about well let's assuming you're assessing the decision whether a sweater it's subjectively unreasonable it was arguments it was entirely reasonable for truck counsel to avoid doing so because the prosecutor simply argued reasonable and logical inferences from the evidence during closing argument and therefore any objections to the prosecutor's argument would have been overruled specifically the firearms expert testified that the bullet recovered from the victim was consistent with either a ten millimeter or forty caliber bullet two forty caliber casings were recovered directly across the street from where the victim was shot and those forty caliber casings were tested and determined to have been fired from the glock forty caliber handgun recovered a few weeks later in the car petitioner was found and therefore since no ten millimeter casings were recovered from the scene the reasonable inference was that the bullet recovered from the victim was a forty caliber bullet and that therefore the victim was shot with a forty caliber glock handgun can i ask you a couple of questions on the other arguments that have been made here you struck first there was apparently an investigator hired by the defendant to determine that construed as instructed presumably by defense counsel romero will not be contacted without a hearing but what does one make of this should should should the investigator have extended and by implication defense counsel have accepted the statement that the l a p d ruled them out as the shooter without further investigation on what from an eye witness that that i would use was identifiable and available to trial counsel and that the witness was available to testify he's failed to show any of that so his his showing i it's going to question whether he's in time truly from that basis the question is what should have been before before his argument was rejected whether there should have been some sort of a hearing which means really the second point that i want to raise with you apparently although it's not it's not clear whether it's within the ambit of the significant appeal ability there's an argument that the petitioner makes that there were two people who actually saw the shooting and they were shown a photographic array and in which the petitioners thought it was one of the photographs and they didn't pick him out and i assume that's it might be well first of all it's our position that that's not within the ambit of the certificate of appeal ability to the to the extent that it might be again the deficiency is on petitioners part it's petitioners burn we do not know do not know whether these witnesses were made available to trial counsel what reasons she may or may not have had for calling these witnesses there could be a myriad of reasons why she had could have chosen not to call the eyewitnesses and we don't know we don't know what those reasons are and not doubt that fail the failure of proof or the failure of pleading is on this because under strickland your honor it's petitioners burden to show deficient performance and he can't show deficient performance just based purely on assumption inference and speculation he has to come forward with some evidence having so much trouble i understand the argument is that the track than the id because he may have been afraid but you still have the eyewitness and i would assume retracted his his earlier i do trial and you have  that this was a gang related shooting and that he was afraid to testify in fact he he was he was unwilling to even circle or write anything on a six pack photo identification and i believe the detective testified that we do not know what the reason was for the jury's deadlock we do not know if it pertains to the ballistics evidence of the eyewitness identification evidence to the fact that they were unsure as to how to read a particular instruction we witness was it which was witness was it who had done a fight the appellant as being armed at the party that that when this was  irvin lifted up his shirt and displayed a handgun and identified himself as being a member of the langdon gang and now when this is separate from orlando ch identified petitioner as being the shooter in this case who was the the witness at the investigator or the person that the investigator thought was the other  the one the the police thought was in mexico and that person was he says romero saying he had a gun you have the police recovering the gun then you have this evidence about ballistics and i guess counsels are given has some appeal to me and that if counsel had emphasized in closing the if you will the problems with the ballistics when we have the jury teetering and not knowing exactly where to go how do we just jump to the fact that that isn't that couldn't have been a great way for counsel to have helped her client in that particular situation expert who did and then based on whatever evidence argue that the nine millimeter casings were quote unquote being ignored that's and as she said does does the best she said she didn't emphasize that  didn't go into it i mean if counsel i'm not sure counsel would have been there if this counselor been there that was not all that would have been said and if a jury is teetering how can one go to the fact that that doesn't make a difference in this made he was just the recipient of a gun that had been passed off to him and therefore he wasn't a shooter could that wasn't that was entirely reasonable your honor i couldn't ask you one more question or response to judge schools question they keep your time has expired related to that why the state opinion isn't reasonable and even under harrington it's more it's double deference it's no fair fair minded jurists would just agree how why this why the state opinion isn't reasonable and i looked at it again and here's the issue the corner evidence just gets missed it gets missed by the defense attorney gets missed by the state court what the state court opinion says is that the ballistics evidence was inconclusive and what that means is that the state court judge only was looking at star stocks in testimony because her testimony was that it was think conclusive it could have been this it could have been that i really can't say that's inconclusive but it really was is it was inconsistent it was inconsistent because one person said it was and the burden is the petitioner has the burden to make a prime facia case that there was ineffective assistance of counsel we have the burden to show we make a prime a case this case not based on speculation and a good faith showing of the facts which we did hear that there's deficient performance and prejudice and specifically when it comes to defense counsel strategic decisions that only goes really to deficient performance whether or not that was there was a strategical justification under california law when you look at pope and duvall and what we all know as defense counsel or counsel or defendants can't go to their defense lawyer and say hey can you please sign a declaration showing that you're signing off that you're incompetent never happened something to never happens but it and so you need to have an evidentiary hearing to bear that out only way we can do it is to bring defense counsel into a courtroom and tell us what she was thinking thank you your argument i was finished thank you so much appreciate it