please the court my name is roman rector and i represent the petitioner appellant in this matter jason dale jack i would like to reserve three minutes for rebuttal a competen diligent reasonable defense requires more a reasonable attorney would have more thoroughly investigated the witnesses and facts regarding this murder one case prior to going to trial a murder one case requires more the district court erred and with one reasonable when it ruled that petitioners counsel was not an effective when he failed to investigate and present witnesses and evidence at trial the cumulative effect of the various did not meet the standards outlined in strickland the district court erred it was and reasonable when it ruled that the newly discovered evidence failed to demonstrate petitioners innocence they just record air and was on reasonable when it ruled that petitioners claim that the refusal of the trial court to issue the jury instruction two point seven one point start and did not violate petitioners due process rights under the fifth and fourteenth amendment your standard of twenty to fifty four d one your honor there's there's been a lot of appeals and writs filed there's a lot of evidence in this case and i think one of the things that needs to be focused on here is that mr blazer who is a highly competent attorney and was part of the dream team on the o j case he was the d n a attorney was just simply too busy to prepare for this case the o j case indeed on october third one thousand nine hundred ninety five that was the day the verdict came down the this trial petitioner's trial was set for trial on december fourth ninety five about two months previous to the o case ending mr blipper was retained on ten ten of ninety for some thirteen months prior he'd simply did not have the time to investigate he was embroiled in this litigation with the o j case a litigating or trying the o j case carol was not doing a very good job so he fired her and hired his wife charlotte to do to do the rest of the investigation and there's an internal memo in it is page two fifty three of the export of record dated november sixth one thousand nine hundred ninety five about twenty nine days prior to trial it states and i quote we start trial in four weeks on this case and there is much work to do this case has to be ok here's here's the reason that it was unreasonable and this is what my argument is going to focus on your arse there was there was four people in the car that day there was the four young men driving around there was the petitioner my client jason jack there was the shooter isaac ready and then there was just a domingo as and with carter castillo now ricardo has do you have been with mr jack the entire day he went to the party with him he witnessed the shooting and what occurred is  that charlene the main state's witness the one who testified about these conversations in the car in other words she charleen is the one who showed and gave the jury the evidence regarding his intent and motive she's the one who testified between my client in the shooter saying that something's going to go down we're going to shoot those rival gang members we're going to do x we're going to do y we're going to do these bad things to him she later recants or testimony and that's a different issue but what ricardo and his declaration says is he says these conversations never took place these conversations didn't take place and it is an unreasonable application of strickland because any trial attorney who had this knowledge who had this knowledge that ricardo can directly rebut the statements of charlene would have put him on the stand because he didn't seem to have anything else there were three witnesses presented at trial on the defense side one of them was sharle to try to impeach or the state's main witness was charlie so they tried to impeach her and put her on the stand that didn't go so well then he puts on chris charron who's the second defense witness who was a gang member he's a known gang member and that's true but a conversation that eight angel the last heard and then the third state witness was nicholas who was the petitioner's mother so one could argue well it was a defense strategy a strategy to not really present a defense we're going to take this case to task and we want the state to prove up their case but that's obviously not the case because he puts on this first parent a known gang member charlene gets on the you have affidavits of what these two two of the declarations are from people who were in the car with the petitioner that day and who were there and present for the student ricardo castillo and jesse domingo's neither one of these individuals people who rode in the car with him were with him all day and were present there the shooting they weren't used at trial and they were never an intake in an investigator never would speak with them did you ask them to strip court that for an court had oral arguments on the issue and oral argument decided that an evidentiary hearing would not be needed numberings me to the next issue is that the state's main witness recant that was the state's main witness was the sharleen and now she's recanting in the problem here in the reason that she recants there is really the standard for your honour's to decide whether or not this declaration should be given consideration or weight is whether or not you believe it is whether or not it should be believed and whether or not it would have made a difference in the minds of the jury well the reason she troubling didn't show up to the very first day of in it she says she shows up the second day schedule for her testimony and she she there are gang members in the courtroom that day and she says she feels a lot of pressure  i have here her dechen declaration and starting at paragraph number five she says and i quote when i testified at the trial i was afraid for my safety and i did not tell the complete truth the events of which i was not truthful are we now correct with the truthful statements and then she goes on to say that the music in the car was very very loud and really people weren't talking because they were playing this very loud music and that the statements were never even made in other words there's this discussion supposedly by her the state's star witness that there is this discussion going on between the shooter and my client who was convicted of aiding and abetting that they say we're going to get those diamond boys we're going to shoot those guys i'm down for going to the pen with you all this kind of gangster talk that you know you you know you've seen the movies and stuff but it never occurred that these these this exchange w and motive of my client never occurred and she completely recant and i think that her declaration is believable one because she never had any prior contact with my client she didn't know my client she's not part of the same gang or anything they're not family relations there's there's no relationship between her so i believe that the declaration is believable because if you look at the fact that she showed up late for a trial that the diamond boys were pressuring her to get a conviction why would she recant now there's really my clients in jail he's not really a member of a gang so he can't bring any pressure to bear on her so i believe that her declaration is highly credible because she has no reason to recant in fact she came to my client's family feeling bad saying i feel horrible for what occurred i never thought that he would be convicted i was under a lot of pressure to to get a conviction because these guys were threatening me and i feel really bad about what's occurred and then the family put her in touch with the petitioner k b s counsel so i believe that her declaration is highly relevant i believe that's highly credible that the district courts that you know recantations are against public policy that they there's a strong public policy to have finality which i understand it makes sense that we need finality in these cases but we're somebody who's convicted of murder one two times and is serving double life sentences without the possibility of parole i think it's too important to just kind of slough are off and say well she's not believable and i think that she is a leader because why would she lie now again the district court ruled that it was was not or that it was harmless error while in fact they ruled that it was not error and i believe that this is an unreasonable application because your instruction to point  point seven involves statements oral statements made and the jury instructions reads as follows put it this evidence has been received from which you may find that an oral statement of intent plan motive or design was made by the defendant before the offense with which he is charged with commit it is for you to decide whether the statement was made by the defendant and then the last and most important line of  statement ought to be viewed with caution this statement was read for the his codefendant mr reddy the shooter one like it but this statement this jury instruction was not given to the jury regarding my client and the reason that it's so important the reason that this jury instruction is so important is because the the the statements he's oral statements are what convicted killers that federal federal roe versus clarke really sticks us eighteen this is the reviewing courts not set aside an otherwise valid conviction of the court believes on the record that the constitutional error question was harmless beyond a reasonable doubt applies to the erroneous instruction here  there were not interviews of the passengers the car by the defense investigator richard riccardo the studio gave an interview to the police record of the steel was also under the influence of marijuana and alcohol at the time ricardo steele's declaration is somewhat contradictory in that he testifies he states that the music was very loud and couldn't hear there's a conflict also mccullough's statement to the defense investigator where she says this conversation did occur the  steel statement is also contrary to other witnesses who placed the defendant at the car at the time of the shooting as well as petitioners own declaration which places him at the car at the time of the shooting that's that's interesting to note petitioner places himself at the car at the time of the shooting petitioner nor has declan's offer any explanation for why he assisted the codefendant in going to the house to get the gun in fact he admits that they did go there to get the gun it's kind of hard to say that there's ineffective assistance in investigating when you're conceding the material facts that form the basis of the aiding and abetting with respect to kaushik two point seven one point seven the issue here even if this rises to a federal question is whether the state court's decision was unreasonable and the state court decision that the error was harmless was based on the additional instructions that were given two point seven one in da involving admissions and certainly statements involving motive are a subset of admissions the prior inconsistent statements instruction culture two point one three two point two zero witness credibility two point two one point two where witnesses willfully false two point two two weighing conflicting testimony in two point two seven the sufficiency of the testimony one witness additionally there was eight point eight zero point one which told the the court your honor the main thing here the main thrust of this case is that you have somebody who is in the car richard castillo who was there present all day really two people these two young men richard  jesse were never talked to by the defense counsel and you have a client who is facing double homicide charges murder in the first degree if they think life without the possibility of parole and you don't interview two people who are in the car with you who were there all day and if you would have interviewed them he would have known what testimony they could give a trial and richard in his declarations that i was never interviewed and if called to testify i would have testified to the following one there was no conversations as charlene testified at trial there was no conversations between the shooter and petitioner these conversations didn't occur the music was very and you have no one to rebut nobody rebuts this testimony ad council done as investigation he would have known that he had a witness who was their presence and who could absolutely positively rebut the state