we're ready to hear argument in our first case rio's versus warden and that's despite the fact that both trial counsel and the state presented ample evidence and argument on the issue of self defense south carolina post conviction court held as a matter of state law the trial council's decision to special deference to but trial counsel also had no tactical reason for abandoning his request for a self defense instruction and we know that based on two things both counsel statements to the judge during the jury charge  applies where the state court has found as a matter of state law the trial counsel's performance was not deficient here we have a state court determination as a matter of state law that that the trial counsel was deficient that the mystery was entitled to an instruction and he failed to get it but we don't know any at the deference to that determination right well this court actually in williams at answer that question in the affirmative the the standard the un reasonable question the unreasonable interpretation of federal law standard to the first prong of a strickland analysis on but not to the first prong when it comes out for the petitioner and requires a is that unreasonable in this standard petition or it is challenging a steak or lying but not when the state is defending actually in williams against ozment and that's for ninety four f a third for seventy eight at four eighty four this court specifically applied no reasonable ruling i don't understand how you're reading the statute there's two reasons why it might apply in that scenario first because it serves the important federalism issues federalism concerns that ed has meant to meant to further but second this court has done however if the court were to decide that that is the incorrect analysis then then this court would review that issue de novo applying due deference to the state courts determinations of state law it wouldn't then put the thumb on the scale against the petitioner in this case where the state court actually found in the in the in the petitioners favor and disposed despite finding correctly finding deficient performance here correctly finding clear deficient performance in this case the post conviction court then unreasonably applied strickland unreasonably under twenty two fifty forty one to hold the mystery as was not prejudiced by trial counsel's were deficient performance and that that determination is is unreasonable for for two reasons first the post conviction court ignored the obviously prejudicial effect of relieving the state its burden of proof its burden to disprove self defense beyond a reasonable doubt this court recognized in guthrie that when a state law places the burden of proof on the state as it as does south carolina it denies the defendant due process if the if the if this if the court fails to instruct on the state's burden and faced with the same question your client never admitted to shooting his wife no he never admitted to firing the gun so how can he argues self defense well that's a question of south carolina law and as a matter of south carolina law the south carolina courts are clear  in cases of battle and light that even when a defendant does not admit to firing the gun even when the for the fact that the shooter is unknown even when the it contested who shot who fired the weapon or even whether the the shot was fired intentionally that a defendant can still claim self defense and that the defendant is entitled to a self defense instruction as a matter of state law and that's what this what the what the post conviction court found here that he was entitled to that instruction as a matter of state law grounds on the prejudiced point so the district court and the magistrate applied that the this standard yet if i had a different standard than the usual regular you arguing that that's is that part of your argument that's not part of my argument here so in ceding either what is it that you are conceding that davis does not apply here davis is the wrong rule or that the cars were under ed but we can't really resolve an open question in this posture well there's no rule there's no me needed to to resolve that question here because my client is entitle to the writ under either standard and this court as this court held ok and this court obviously is not is not bound by the davis decision but faced with faced with the same question as as we are here on plain error review the third circuit held in smith that the failure to instruct on the state's burden to prove self defense beyond a reasonable doubt which is what the state had to do here has an unfair prejudicial impact the can on strickland is really clear strickland says there's a couple of things that we will consider per se prejudicial like if a lawyer doesn't show up or if the lawyer has a conflict of interest other than that we don't do per se prejudice i don't doesn't matter if it's a constitutional violation you still have to show on the facts how this case would have come out differently so i don't understand explain to me why it matters if this was a due process and where in a different posture if you were not doing ineffective assistance of counsel it might be presumptively prejudicial or you might assume a certain level of prejudice i'm not arguing that he that that there's any sort of person per se prejudice here instead what i'm arguing is that the prejudicial effect of dint of removing the state's burden is obvious here because the courts have held in other circumstances they've they've held just how prejudicial it can be by a by applying the plain error review standard here we do have to look to the totality of the of the evidence we have to look to to the totality of the circumstances it is not enough to merely show a due process violation to prevail under strickland however here on the facts of this case there is ample evidence to support both the jury instruction and the notion that  the fact that that had the jury known and applied the law had they known and applied the law to the facts as they were presented that the outcome could have been different that at least one juror could have changed his or her mind law he could have those two instructions are not mutually exclusive so he was entitled to both and under the under the evidence here the question was whether he intentionally fire the weapon if they believed if the jury believed that he did under the instructions that the court gave they had to vote to convict they couldn't they couldn't find based on his intentional act that he had acted lawfully and that's what's that's why this instruction is so important on these facts because really that's the only issue here when he when they go into the when they go into the bedroom what happened and we know we know his story and the jury could have blue believe it or not but if they believe that he intentionally pulled the trigger then they had nothing to do with his they had nothing to do with the statements that he acted in self defense they had nothing to do with his reasonable fear when he said i feared for my life and i feared for my family they didn't know what to do with that evidence and so that's why it's so prejudicial in this case and it's so prejudicial and we know that it's so prejudicial because both trial counsel and the state argued self defense in in their closing arguments and so for the judge to exclude that argument and then for her to not charge on that then for the  state to argue it to the jury and then for the judge not to come back and give an instruction it makes no sense and the jury is left dismissed him mis leading impression about how to interpret the facts so the if i'm remembering right the p c r cord says it's not applies the standard strickland inquiry into prejudice and says it's not prejudicial because this guy's credibility problems were so strong having made up an entire story about the intruders that i  just see our court just didn't think there was a reasonable probability that any juror was going to vote to acquit even had they been given some place to put this late breaking self defense story what's the how is that a reasonable way to terrorise those are just angry but what makes that an unreasonable to do was under reasonable not to put that question to the jury was unreasonable for the jury not to be able to to weigh that evidence in light of the law that's that's your argument that if this was an error i totally understand your argument that it was an error but we're at it sort of a slightly different question now we have a p c r court saying there was an error but it wasn't prejudicial and the reason it wasn't prejudicial is because no reasonable chance that this newly developed self defense theory after the original story that three intruders broke into the house and killed the woman that the jury was going to buy it really doesn't matter maybe there was an instruction maybe there wasn't but no reasonable juror there's no reasonable likelihood that her juror would have acquitted based on this kind of you know crazy theory that he came up with at the last minute after he'd already given an entirely inconsistent story and after he had given a leader story in which he's the first person who makes the argument physical and pushes the white with all of that on the table there's no reasonable probability of a different outcome now we have to find that that is not only incorrect but an unreasonable determination by the p c r court so what makes it on reasonable that's what i'm asking you why do you want to say to answer that question it's it's unreasonable for a few reasons the first and most important reason is that there was conflicting evidence on all of these points that the jury could have weighed and and and weighed in light of the state's high burden here we have to remember that everything comes back to the state's incredibly high burden to disprove self defense beyond a reasonable doubt the jury only needed a reason to believe self defense that's all and if they had any reason then they could have found that and and we know looking at his statements and viewing them in light of both his mother statements and in light of the physical evidence that there is credibility there his statements line up with the physical evidence they line up with his with the physical evidence of his hair found pulled out in the living room they line up with the physical evidence  of the gunshot wound they line up with the evidence of the of his ripped t shirt has you one quick question about his statement so he he does at some point right originally say i pushed her first no no no chairs he doesn't say i pushed her the statement is i shoved her and she shoved me it is not a statement of chronology the only person who states expressly who the aggressor was was mr rios his mother and mr rios his mother said unequivocally that she pushed him so at so at trial what was that the argument that was made that i'm just trying to figure out what happened to his original statement so is that how that was dealt with a trial defense counsel said you can't tell the sequence from that statement or did he walk back the statement i'm just what did the jury know about that original statement well the jury read the original statement and read it in context and was able to see from the language that he used and also from the fact that the rest of the statement was not entirely chronological that he might not have meant i pushed her and then she pushed me and that's and that's and that's sort of normal language you could ask me  what happened and i could say i yelled at her she yelled at me and you wouldn't know necessarily that i started the fight there's no indication that i started the fight from that state and it is also they did the jury was  also able to view the statement in light of the fact that it was translated directly into english then translated back to spanish and then signed in english to language the word his first languages so they could have viewed that and realized that there i'm pleased the court i'm caroline scranton of the south carolina tourney general's office and i'm here today on behalf of respondent ward and ask that you affirm the district court order granting summary judgment and denying that will have us relief in this case in this twenty two fifty four action this court looks to novo to the last reasoned state court decision to determine whether it was contrary to or whether it was an unreasonable application of clearly established federal law as developed in this case in strickland vs washington and so we look to that final p c r court order which though found the finding deficient performance determined that there was no prejudice caused by trial counsel's failure to make the final objection and simply preserve for appellate review his request for the self defense instruction and we submit that that was not an unreasonable determination by the federal court in this case we turn to the prejudiced analysis because we know that of strickland versus washington even if there is an air prejudice is really what can win make or break the day and so in the prejudiced analysis in this case with the failure to preserve the request for appeal we look to whether had  for that self defense instruction whether the trial court should have given that instruction and then we also look to the reasonable probability of course of a different outcome at trial assuming that that instruction had been given well did both sides  defense to the jury i do not believe ok because your opponent says that they did and it seems like it that was argued to the jury and was a central point that yes your honor instruction should have been given yes your honor and if you actually turn to page four hundred sixty two of the appendix you'll see at the top of that page counsel trial counsel brannon's closing argument on behalf of mr rios and it says what happened in that bedroom was an accident and so jumping in to judge ha 's final question from earlier how was the defendant statement used at trial will defense counsel very clearly in his closing argument looked at that statement and he directed the jury's attention to what happened in the bedroom and that was his focus in support of the affirmative defense of accident and support of his clients however the statement itself we have a statement from the defendant his final statement where he said i pushed her shabd it's an incomplete sentence she pulled my hair she pulled she yanked my medallion and then at that paragraph concludes with him saying that he followed her into the bedroom so based on this alone going back to whether or not the charge should have been given of course i'm going back to that prejudiced analysis is there a reasonable probability of a different outcome a trial answer is no because of how the evidence was related to trial and because of how defense counsel works without evidence at trial we don't have a legally sufficient evidence in this case of self defense we know that we have four elements for self defense we know that the first element is that you cannot be at fault and bring about the difficulty and that is not what the evidence suggests in this case because the altar cation began in the kitchen because there was no counsel talked about accident but there were also points in the closing argument where trial counsel you left out the park where they did talk about self defense and the state also  pins in their argument so so what about the fact that both parties they they did argue self defense didn't one photo already yes your honor they do make mention of the self defense ok arguments and they make mention of that because of that final portion of the defendant statement where he does use the phrase self defense right so my question then was since we've established that they both parties did in fact argue self defense what was the jury to do then when they made that finding but they had voluntary manslaughter which involves the heat of passion and they were instructed on the heat of passion so the jury in this case if they did buy the self defense evidence which again we submit was not legally sufficient for the charge but if they if they bought into that that part of his statement and that version of mysterious story they could choose voluntary manslaughter they could determine that there was evidence of a struggle and that this killing occurred in the heat of passion or they could choose the affirmative defens accident and again mr rios a statement talks about how his hand was on the barrel of the gun he never admits to being the shooter he never admit in the evidence does not support that his hand ever necessarily moved from the barrel to the trigger which kind of raises the question of ok well does that mean that he did not ever physically act in self defense if he's never admitting to being the shooter and so the jury had those two other options they did not have to select the mouse murder there was an affirmative defense available that did match the facts that were presented at trial and there was of course the lesser included again if they bought into the or selected the heat of passion the evidence of the  struggle and the the case the area of the struggle which was presented by the defense throughout throughout the trial and so that is is really the evidence in support of the reasonableness again there was an additional bar to the legal sufficiency of the self defense instruction which was across in this case and that is that there was evidence of mutual combat if you looked at is about reus is testimony and if you look to her whole testimony in the context of the trial and mr rios is child siblings testimony it's very clear from the context of the record that isabel was not present when the altercation began in the kitchen and it's also very clear from isabel and from some testimonies or statement rather that the two were engaged in mutual combat that there was a willingness to fight again he says i pushed her she she yanked my hair so your honor the ruling that he was entitled to the instruction is deferred to under the a standard however i believe that reason or minds can differ as to whether or not he was entitled to the instruction and as to whether that was actually the holding back  court the p c r court in its final order found that there was a clear deficient performance stemming from trial counsel's abandonment of the preservation and that is a reasonable finding when you look in isolation i like to look at at the prejudice and the deficient performance prongs of strickland kind of stew chapters in the book and so if you turn just to the deficient performance finding that piece your court made you turn to trial strategy and you also turn to what i believe from the totality of the order served as the basis for that p c r corresponding and that is that the south on a court of appeals did find that that request was waived and abandoned and so when you're on twenty two fifty four when you're when you're in a hay vs action that state appellate court determination becomes a factual determination that is owed deference by by the federal court on s and so i think that that's a reasonable outcome for the p c r court based on that court of appeals ruling i think that serves as the basis for where the p c r court may or may not have been struggling with was this deficient and was this prejudicial but it also times and what is important here is that the p c r court always goes back to the outcome of the trial because that's what we have we have in effect is ineffective assistance of trial counsel claim and the p c r court is always coming back to what the outcome of the trial was and whether or not there's a reasonable probability of a different outcome so we may disagree with whether it was deficient or not but again under harrington versus rector as long as fair minded jurists could disagree as to whether the state court came to the proper outcome that is not clearly not a basis for granting federal habeas relief so if there is a disagreement it doesn't mean that it's unreasonable and here based on the totality of the record we think that the deficient performance finding in this case was reasonable and addressing the questions about the davis case from earlier i don't think that davis applies in this case that's an eleventh circuit case which three years later the eleventh circuit came back and did note that davis was perhaps pushing things because davis appears to look at the outcome of the appeal had the issue been preserved and that was a that was a batson that's an issue that was not  appeal and it doesn't go back to the outcome of the trial based on trial counsel's performance and the sixth circuit has rejected that view and the eighth circuit has also rejected that view and so i i don't think that the standard from davis that was an unstated in the report recommendation in this case is determinative of trial counsel's performance i think again going back to converses washington you have to focus on what happened to truong what the outcome was  at trial becomes this enough for you right i mean you just have to show that the legal standard applied by the p c r court the non davis standard was not so again based on the record in this case really the first piece of evidence that was presented at trial was the nine one one call and you could hear petitioner in the background of the nine one one call saying no decus nada don't say anything and so petitioner statements from the very beginning of trial set up kind of this lack of credibility that supports that there is no reason probability of a different outcome on the prejudice problem of strickland by the failure to instructor the failure to achieve the self defense instruction in this case and if you go back to that phrase no do you guess not it's also reflect of the record right there is no legally sufficient evidence the record doesn't say anything that would be legally sufficient to warrant that charge and therefore under strickland versus washington we do think state p c r court by the proper standard and it should be the the grand summary judgment should be affirmed if there are no further questions i thank you thank you a few closing points just like are you asked did both sides argue self defense and i want to clarify they absolutely did defense counsel argue did record six forty to six forty one and six forty three the state argued again six fifty four to six fifty seven and six sixty three the state one of the last statements from the state in this closing argument was this was not self defense it is unambiguous that was an issue in this trial was an issue that mattered to the jury you also asked what were they to do if they believed self defense and the answer to that is clear if they believed the self defense theory and these instructions they were to convict they had no other option if they believe that he intentionally fired the gun in self defense they were to convict the state suggest that they could instead convict on a lesser lesser included offense that's not correct the the lesser include here was voluntary manslaughter which is heat of passion and and no counsel argued heat of passion state's counsel said i'm sorry  you said aren't we stuck with the p c r court's finding a different performance that is absolutely correct after mr rios moved to alter or amend the p c r court said explicitly in both its form for order and in its final judgment that there was a clear deficient performance here it's not as the state has suggested a close question or one that the p c r court seemed to struggle with the state the state court found clear deficient performance both counsel argued self defen and accident and those are alternative arguments and so the so the state's wrong to suggest that the that the that counsel had to stick with one or the other finally mutual combat is foreclosed by the state c r courts finding deficient performance here that issue is not before this court the state court did not find that there was any evidence of mutual combat here and the state court the state trial court also did not charge me to a combat here so that's not an issue so what we're left with is this the jury was instructed incorrectly and based on the instructions that they were given they only had one thing to do if they believed that mr rios intentionally filed fire the weapon they were they were instructed to convict now there is a reasonable probability that if the jury knew the law and followed the law and applied that law to the facts here the facts that were before them but the outcome would have been different and to find otherwise was an unreasonable application of federal law of strickland against washington and so i ask this court to reverse the district courts of this district court's judgment and to order the rich to be granted thank you very much right will come down and greet counsel and go directly to our next