to keep an eye on the clock and do it correctly i'd like to focus my remarks today on the ineffective assistance of counsel claim that was litigated and exhausted in state court threw one full round of state havey as proceedings and in particular i'd like to focus my remarks on a threshold question and that is does twenty section twenty two fifty four d preclude belief doesn't apply to this case because if it does such a twenty two fifty four d by its terms as relief shall not be granted and the question for twenty to fifty forty purposes is was there energy to cation on the merits and here are the positions of the parties the state quite appropriately cites record high ranking versus the record for the proposition that the state supreme court's ruling in this to look through doctrine which requires that when there's an order like that under under illust we look through to the last reasoned decision and here they were two there are two recent decisions superior court and court of appeal and in either of those cases in either the opinions from the superior court or the court of appeal is that interview cation on the merits and the state has what i think is a very clever response and their response is to cite and i'm sure i'm going to mangle the name of this supreme court case differently according to the state court under him under under you know hosa what we do is the way we read that is we say two things have happened the state supreme court has secured the devolved and the supreme state supreme court has a merits of the issue and i want to make a couple of additional comments just on that and that is this i recognize that the ninth circuit and federal district courts in california are often tasked with trying to divine what is intended and what is meant by a state supreme court ruling denying hevia swirly i recognize that i recognize how difficult it is and i know there are members of the circuit that have issued opinions on this suggesting their frustration with it and i share that frustration i'm sure my colleague from the attorney general office shares that as well we are all i guess in the business of reading tea leaves when it comes to these orders and it is difficult and it is frustrating but in this case i think it's an unusual case because in this case we actually do have a model to look at in the state supreme court for doing what the state says was done here and that is this there is an established a practice and i talk about this in pages nine to ten in my reply brief there is an established court does they issue a very different order from the one they issued here where they say in that situation where there's been a lower court procedural default and the state supreme court wants to cure that default and address the merits they have orders that say this the i can't say they've been consistent just that would require me to know the record of every case in which they're going to deny it what does that what does that get you counsel because either we're going to look through to see what the lower courts did in which case they've addressed all of these issues on the on the merits and then we can simply talk about whether it's an unreasonable adjudication to talk and talk with the juror stuff or the supreme court has has addressed it on the merits and now we're responsible for finding whether there is adequate grounds on which that judge care to been reached and here's what it gets  because the first part of your comment is actually unsupported by the record and my colleague who agree with me here if you look through this case to either of the lower court decisions you will see that neither of the lower court decisions adjudicated the merits both denied this on procedural grounds both state court because according to the state supreme court it was raised and rejected on appeal in fact it hadn't been raised and rejected on appeal the ineffective assistance of counsel claim had never been raised on appeal it was raised solely in state  at i'm looking at these carrier court's decision two thousand and eleven on the hay vs and it says petitioner petitioner repeat some of the claims you made on appeal petition or race is ineffective assistance of trial counsel claim on appeal in the court of appeal reject yes that this proof or does say that but it's not true and when my colleague stands up you can ask him if this particular claim was raised on appeal it was not the claim that's raised in state hey b s was counsel failed to ask a hearing for jurors three twelve and fifteen that claim was not based on appeal so what you're saying is if in hose a is applied here the presumption that th appeal the the misconduct of jurors was reviewed by the california court appeal just not in the looking glass of an infected it wasn't framed by an ineffective assistance of state court of appeal and the state's supreme court if if the if the question of the jurors was addressed by the california court of appeal but in a slightly different context not in the context of an ineffective assistance of counsel claim but in the context of if there's been no education on the merits than the court has to review the claim to know about we can certainly talk about what the remedy is but my point is that there's been no education on the merits in light of the state supreme court practice that we know now we know from the cases i've cited on pages nine to ten we know when the state supreme court does address the merits and once the look through doctrine not to apply it actually  we just have a conversation about it i don't think you can prove that well we can certainly prove that that it does some from a does a lot of cation yes and it did not do so here right and so what the state is asking this court to do basically is to rewrite that state order in this  match what it was in those other cases the state would likely order in this case to read the petition for writ of habeas corpus is tonight on the merits citing yes and sometimes sometimes i mean it's also true that on occasion the the california supreme court will deny it and then issue citations to cases which indicates that there was some kind of procedural defaults on timely or something else yes i didn't get any citations in this case it was just it's a complete cypher correct and i think if you go back and look at the time the supreme court on the merits so it had those two models but this case arises where there had been a lower court decision so the court used the exact language that it also says you use when you want to look through got going to apply we add on to that in the inference from that is that in a post richter world when the state court wants to let a federal court know the look through doctrine should not apply it actually cites the look through doctrine again this is the discussion we just have i agree with you i can't i can't say that they do that in every case but neither can councils point to cases where they didn't do it so we are what we have to look at that this court is forced to read the tea leaves you've argued that the california court of appeal did not address this on the documentation that is the transfer that was and that was supplied to the california that that was corrected when he went to the california supreme that was corrected and the california supreme court acknowledged that it was accepting the the violence and so you don't have a forty supreme court acknowledged that it was it was accepting the filing the i'm not sure i understand the question in this petition was it one of them is the order from the california supreme court actually has to line this in the first line is the request for judicial notice is granted what was that request for judicial notice is a question forward for judicial well form the former statement is i don't think it's true i don't think there's anything in the record that you say they acknowledge that in fact the materials have been provided all they said was the petition is denied the request for judicial notice is granted and i should point out in the waiting time i have that the reason that defendant was unable to provide the documents that were necessary to the court of appeal is because at the time he filed that petition there's a california department of corrections rule that prohibits indigent defendants from xeroxing more than one hundred pages of material so while there is a state will that says you must provide not wouldn't be a little odd for the california supreme court to say the petition the petition for judicial notice the requests for judicial notice granted but we're going to affirm it on the same grounds as the as the california court of appeal to certainly not in this case because if you look at the court of appeal order they too granted the group request for judicial notice and that's one of the fundamentally problematic things about that default this is an in is required to attach materials there's a there's a c d c rule that prohibits him from making copies he then does what any indigent client which we would hope they would do he asks for judicial notice of the record in front of the court of appeal that has the prohibit him from doing but it certainly seems like he substantially complied with it in each court asking for judicial notice and you will see i think it's in the first paragraph of the court of appeals he is ruling they grant the request for additional notice so those have established the plain fact is that two of the four jurors expressed frustration with the time and delay of the proceedings which as the district court correctly observed had no did not conclude that ineffective assistance of counsel was rendered in this case as we pointed out counsel has not or mr de has not provided any declaration from counsel or explain such a absence hasn't provided any decoration from any of the jurors  as i stated is wholly speculative that further questioning might somehow establish a reason to excuse these jurors mr denning as an admitted child molester he his defense was to many of the claims was that he was so intoxicated that he didn't know what was happening can't counsel it it looks to me like that mr gardner's played long ball here today i didn't hear him discuss at all any of the any of the matters on the merits that you're discussing now seems to me through all of his eggs in one basket which is he was entitled to a hearing that he didn't get that may be his position but he certainly hasn't established any basis for such a hearing there was a hearing to the extent that the court the truck or brought the each of these instances to the attention of both of the parties and in each case the parties agreed th evidentiary hearing or questioning of the juror was required so he did receive a hearing and to that extent and with regard to juror number journal three there was an evidentiary hearing and he his argument is merely that counsel all that would still be barred by twenty to fifty four because he has he was not diligent in establishing the record in the state courts regardless of duty to you still must maintain diligence in establishing the record before the state courts in order to do that you need to affirmatively the alleged facts which if true would warrant belief and in this case he's only alleged facts that do not warrant relief that did hundreds of pages of documentary evidence understand your host which by the way was a silent denial by the california supreme court they did not say see that was merely silent  and then the united states supreme court said in that case where the underlying procedural rule does not apply then it is on the merits so we have to consider this is on it yes  conclusion this is on the merits even failing that he has failed to establish the factual basis for his claims in the state court he's barred for an evidentiary hearing in federal court and none of this court but in that counsel was not my client has been seeking an evidentiary hearing on the ineffective assistance of counsel issue in the state supreme court in the state court of appeal he asked for it in the state supreme court he asked for it and he asked for an interest record and the state has either not responded or opposed an evidentiary hearing on each occasion so to the extent to which is a fact when the calculus and i believe it is it's hard to imagine any proper exercising greater diligence than my client did in this life and what i'm not understanding is what is he what is he going to show in the e that's a good question we can never know in advance but i think the evidentiary hearing would involve talking to these three jurors juries three twelve and fifteen if i have the numbers right and talking about each of the problems did fifteen fifteen had a relationship with the victim's father said he knew him and so but but the point is we don't know and this court has has recognized i think in career and district courts like william sources all of recognize that when counsels fair to make an objection the results in an undeveloped record record the remedy isn't to say well question is has anything here rebutted it and the answer in light of the other orders that make clear that when the california supreme court wants to address the merits and wants not to apply it says so the failure to doso here can't mean what what those orders mean they're asking you in the name of federalism to rewrite the state's order and my position is that in the name of federalism that's exactly what you cannot do you cannot ignore what the state actually said and rewrite the order unless