may please the court christopher young was sentenced to death following a jury verdict that was marred in three distinct and unrelated ways first in violation of backs and against kentucky prosecutors improperly removed at least one potential juror from the veneer despite the fact that she was qualified to serve as a juror in this case second in violation of simmons against south carolina the trial court instructed the jurors that they lacked the authority to sentence mr young to life unless ten of them agreed to do so when in fact the decision of a single german to sentence mr young to life would have been sufficient to accomplish that purpose and third in violation of mills against maryland the trial court instructed the jury in a manner that created a reasonable likelihood that one or more jurors would misunderstand that they need not agree among themselves as to which particular evidence was mitigating in order to return an answer to the mitigation question that would have resulted in the imposition of a life sentence the risk of confusion arose because the trial court neglected to give a statutory instruction that would is ensured that there was no confusion the texas statute requires the court to charge the jury that in answering the mitigation question the jury need not agree on which particular evidence can support an answer to the mitigation question that results in the imposition of a life sent constitutionally required judge think about them if the statute did not include the language it would in fact be constitutionally deficient because as mills against maryland makes clear it that the jury must be permitted to give effect to any mitigating evidence that the defense places before them the defect in mills was that the statute enumerated both aggravating and mitigating factors and the jury instruction created a likelihood that the jury would be confused when deciding whether a mitigating circumstance had been proved that sufficient i think i understand your suggestion judging botham in specific the jury was told that each juror could take account of any piece of mitigating evidence in answering the question and had the instruction that is provided for by the texas statute then given in this case then the jury in this case would have been instructed exactly as was the  result of not giving that instruction was that the jury instruction more resembled the instruction from mills than the instruction in space act the now the difference of course is that mills required unanimity whereas the instruction in this case required ten but it nevertheless suggested to the jurors that in deciding whether there were ten votes in favor of a finding of sufficient mitigation to result in the imposition of a life sentence that they had to agree on what that mitigating evidence was and the very purpose of the instruction that wasn't given in this case was to make sure that didn't happen and in fact there are two decisions from the court of criminal appeals that are not cited in our letter brief but that i call to the attention of this is the case called rousseau in state eight five five s w second eight sixty six it's from the court of criminal appeals in two thousand and five the other is signal against the state two seven zero southwest third page seventy nine believed that that juror could not answer the mitigation question and it's in a in a particular way and what judge cochran's opinion and sigmund who emphasizes is that the reason that there isn't mills error in texas is precisely because of the jury instruction that the texas legislature added to thirty seven zero seven one following the supreme court's decision in the in the first penry case at least one justice of t i read the cases from this circuit that hold that mills doesn't apply is that mills does not apply to the ten to rule not that it does not apply to the proposition that in arriving at a verdict the jurors must be able to take into account different categories of mitigating questions or mitigating evidence in answering the mitigation question it's absolutely true that this circuit has held that mills does not create any difficulty with the texas ten to instruction and our argument with respect to the ten to instruction is a simmons claim not a mills claim but i don't think that there are cases from from this court that i was suggesting in my answer to judge him bottom of the five cases where this court has cited specific act one of them is a federal death penalty case so obviously doesn't raise the same issues as mr young's case three of them don't involve mills claims at all and only one case called allen eight o five s third i just have the jump site it's at page six three two i don't know what page that case competition with the instructing the jury in the statutorily and constitutionally required manner eliminates any mil's claim isn't applicable in this case i'd like to spend a few minutes if i if i might saying a bit more about the questions relating to our monza that this court requested additional briefing with respect to preserved at trial and so if an error or objection is preserved there's a lower arm standard and if it isn't preserved than the court of camel appeals will still address the merits of the issue but it imposes a higher form standard and this court asked a series of questions having to do with in vocation by the court of criminal appeals of monza constitutes an independent and adequate state ground that would bore a federal court from granting relief and of course if the answer to that is yes then it would i think follow off or shiori that it was appropriate for the court below to deny a certificate of appeal ability with respect to that issue in addition to the arguments that we made in the letter briefing that we provided to this court i'd like to mention a couple of research the only case where it's ever arisen is mr young's case and the reason for that as judge cochran for the unanimous court stressed insecure is that when the instruction provided in thirty seven  one two f three is given that there isn't a mills violation here obviously it wasn't given there have been twenty two cases in the court of criminal appeals that cite i think what the constellation of these cases reveals is that even if al monza were an independent state law ground it's certainly not adequate because the court of criminal appeals is not regularly applying the a standard to address mills violations what i'd say further is that monster that cannot even represent an independent state law basis because our mind's eye is about form and mils doesn't require a showing of harm mills error is identified by looking at the jury instruction and asking whether there is a reasonable likelihood that the jurors were jury would be confused by that instruction if the answer to that is yes that's the end of the matter i think that there might be of very narrow universe of cases where harm analysis would be appropriate in the context of mil's error and that narrow universe of cases would be where there is no mitigating evidence at all and if there were not any mitigating evidence at all then it wouldn't matter that the jurors might be confused among themselves as to whether they can give us that to certain categories of mitigating evidence with only one or two or three or fewer than some statutorily prescribed number want to give mitigating effect to that evidence the threshold jurisdictional question before this court with respect to the mills error is the c e o a standard witches repeatedly misstated in the court below and that question is simply whether jurists of reason could debate the answer to this question jurists of reason can debate the answer to this question and not only the answer to this question but the question that the court below got is wrong the omission of the texas instruction performed exactly the injury that the court of criminal appeals recognized in  i'd like to turn now if the court doesn't have more questions about mills for me at least at the moment to the babson claim that we've raised there were sixty potential jurors on the jury  r in this case six of them were blocked one was disqualified one was removed because that left four one served on the jury and three were struck the defense raised ba challenges with respect to each of these three the baton claimed before this court involves one juror in particular whose name was merkley williams and in offering an ostensibly race neutral explanation for its decision to remove ms williams from the veneer the government insisted that the reason that she was being removed was because of her religious affiliation the reason wasn't that she had particular beliefs the reason wasn't that she could never agreed to sentence the defendant to death in fact the reason wasn't even that she participated in a ministry at her church that ministered to prisoners the reason was that she was a member of a church that had a ministry at that church that ministered to prisoners the relevant portion of the dialogue between the defen lawyer who raised the batson claim at trial and the prosecutor is actually contained in the quarter camillo peals opinion and the relevant section is cited in the government's brief in this case at pages twenty one twenty three and it's clear that after the defense lawyer objects to the removal of ms williams on the basis of race the prosecutor says i'm not getting rid of her because she's block i'm getting rid of her because of her membership in a church the defense lawyer says at that point you haven't said anything about whether she is able to follow her oath and follow the court instructions and the prosecutor says that's right it's because i'm getting rid of her for her membership in church so what we have on this record is an acknowledged example of removing a particular juror from the veneer for reasons having nothing to do with anything other than that juror's membership and a particular religious not held up judge we we addressed it in the greer taste and we but didn't didn't get didn't get it didn't didn't get to it and so if the court wants to use this case as the opportunity to make clear what other courts that have conducted this same exercise have concluded namely that as justice briar's opinion in miller well as justice kennedy is that in the witherspoon line of cases the court the supreme court suggests a tenth for that matter in this court's understanding of the witherspoon line of cases the supreme court suggests that membership in a particular religious institution is irrelevant for the purposes of government action another way to think about that is that an equal protection violation or arises when people are targeted on the basis of their membership in a particular religious institution for the same reason that it arises when people are targeted on the basis of race or gender because that characteristic that individuals have is irrelevant to any legitimate interest that the government may pursue i'd like to spend finally before my time expires a few minutes on the simmons claim in this case which is different from the form that this claim has taken in other cases the challenge in this case is not to the permissibility of the ten to instruction or the ten to the simmons challenge in this case is that each the trial judge tells the jury that they cannot answer the special issues in a way that is favorable to the state less all twelve agree and that is true and then the trial court tells the jury that they cannot answer the questions in a way that is favorable to the defendant and that would result in a life sentence unless ten of them agree and that is stalls because the way texas law actually operates is the statute itself makes clear but the jurors are just not told this is that i a single one believes that the answer to the mitigation question is affirmative the result is is a life sentence now it is true as the government argues that the precise way in which the jury was misled in simmons against south carolina and schaefer against south carolina and there's a third south carolina case and i've forgotten the name of the precise way in which the jurors were misled in that case is that they were misled with respect to poor old ineligibility but the key fact is that they were misled in a area that bore and whether they were going to sentence the defendant to life or death the reason it matter that they were misled with respect to parole ineligibility is because by misleading them on that dimension there was an increased likelihood that they would sentence a defendant to death and they would otherwise sentence to life court of appeals held this argu es procedurally defaulted correct yes the court of compels held this argument was why isn't that an independent grounds for denying really because there is not any opportunity other than appeal to complain about the texas statute me that the first opportunity to complain about the fact that the texas statute represents a simmons error is in the proceedings so i think that the fact that the court come up he'll tell that it was procedurally defaulted doesn't recognize the first forum in which it can be raised to the extent judge owen that you're not persuaded by that argument then we have also made both the simmons argument and for that matter the mil's argument as part of our ineffective assistance of counsel claims and so the last question that the court asked in its request for additional briefing is whether it's possible to address the merits of the mills issue even if it is an independent and adequate state law basis for decision and our answer to that question with respect to mil's would be equally applicable with respect to which is that if an objection was required then there is not cause for not having made it and there certainly prejudice please the court today's case presents several interesting although ultimately meritless claims of air and short the director wins on young's bets and claim because this court is not free to create a new rule of constitutional law and the director wins young's remaining claims because he cannot show harm in his first claim before this court young argues that bernard person might lean williams was struck by the prosecution for being a member of the calvary baptist church he further he's entitled to argue that the holding is an unreasonable interpretation of cool established federal law but young is wrong there is no clearly established federal law on this point and his claim is both an exhausted and proce defaulted he did not make a religious based that's an type of objection at trial he did not raise this claim on direct appeal and he did not raise this claim on state habeas young cannot use the state court's ruling to exhaust a claim that he never made young's utter failure to preserve and exhaust his claim bars him from any relief but regardless of the default he still loses federal  relief is only available for clearly established constitutional rights to date the supreme court has never held the batson extends to religious affiliation and this court is bound by its prior decision in fisher denied if the court has never the questions on that all move on to his remaining claims yes remaining claims are loosely connected he attempts to use jerk affidavits which are clearly for cause by both pit holster and federal law to support each of these claims he claims that he deserves relief under simmons vs south carolina mills vs maryland and because he received ineffective assistance of trial counsel when counsel failed to object to missing jury charge that was required by state statute but his claims all failed the lower court reviewed the simmons claim to know and still denied relief the c c a and the lower court both reviewed the jury charge error and concluded that it was with that violation that would be this the second case and this court has held that mills does not generally apply to texas this court should not ever like young's defaults and it should not accept his invitation to ignore circuit precedent much less to create a new rule of constitutional law nor should this court believe in his his unproven claims of harm in short this court should not grant a certificate of appeal ability if this court has never their questions i'm happy to return their remainder of my time mark thank you m thank you judge with all be brief the question with respect to whether the datsun claim is t board is a question of what was dictated at the time of mr young's trial at the time of mr young struggle it was clear that targeting individual members of a jury on the basis of their religious affiliation is constitutionally forbid the attorney general itself has acknowledged in its brief that the question for this court is whether the court of criminal appeals identified a permissible reason for striking ms williams her religious affiliation is not a permissible reason what about the argument that this case is exhausted read this issue and exhausted  removed because she's black that's not your position from this that it is not our petition in front of you our briefing in front of you stresses that the babson claim that was race a trial the batson claim that was suppressed in the state court and the claim that was pressed in federal court is about some claim based on the fact that ms williams is black the government then says no no no the reason we got rid of her is not because she's black the reason we got rid of her is because her religious affiliation government says no we're not getting rid of her because she's black we're getting rid of her because of her membership in church and then you have to say well that's a constitutionally infirm reason in any event you can't rely on that i don't know why that would be the case i think that the question is whether reason and you didn't know want to judge in the trial court that it was in for an impermissible reason nobody said in the court of criminal appeals that on direct appeal that it was impermissible reason because religion court appeal said well it was talked about it being ok shouldn't say the court of criminal appeals erred because as a constitutional matter it's an impermissible basis all that on the on the religion piece that was not preserved in your state habeas petition or was it i didn't i didn't i didn't actually write the mystery as to his petition but the argument in the state his petition was that the babson claim was a race based claim and that it was not permissible for the prosecutor to respond that the reason that she was being removed was because of her religious identification and that is the reason that when the court of criminal appeals ruled on appeal that the batson claim was going to be rejected that it cited its own opinion in c that says no no it's perfectly ok for the prosecutor to get rid of somebody on the basis of her religious membership so what the court of criminal appeals understood was that the babson claim was a race basically not a back that was direct appeal yes what about state hevia what was r the argument was exhausted on direct appeal if for purposes of federal habeas it only has to be raised one place or the other no one said young never said in his direct appeal that it's that this reason the state game the religious grant was in principle in and of itself i don't know whether that's true well i don't i don't i don't know what young's lawyer at the time and we look at the papers and so we can look at the paper not only now i don't know if there was religious membership and that's ok religious membership is ok citing its own opinion and casarez so at that point it is true that young's lawyers didn't file a motion three hearing and say whoa whoa that's not a permissible reason either because of all of these other cases but i don't think that they are obligated to do that in order for the issue to be properly before this court today oh you didn't use all your opening time he used almost all of it but if you would like to take a minute to summarize  quickly cover something else you may but only a minute all right i'd like to just say a quick word about the juror affidavits and the question of mills harm one more time i fear that i didn't adequately emphasize that mil's air requires no harm and i didn't say a word about the juror affidavit simply because i was running out of time but i will say just two sentences now and those two sentences are that what the juror affidavit that's not what this case is about this case has no inquiry into the validity of the verdict it has to do with whether mr young's constitutional rights were violated at trial so in our view will six o six is  inapplicable which leaves the government's argument that the affidavits are barred by colin against him holster and what i'd say about penn holster is that it is true that for purposes of deciding the twenty to fifty four d one question namely whether the state court decision is objectively unreasonable all that this court can look at is the evidence that was before the state court at the time that the state court issued its opinion but if after doing that the court concludes that the state court judgment is objectively from looking at any additional evidence when deciding whether the petitioner has met its burden under twenty two fifty four d one and that question is whether the state court determination is objectively unreasonable or thank you mr down your case is under submission