the morning council mourning it please the court mark frederick on behalf of appellant and petitioner in this not a mr cole scar your honor this this matter involves two issues for the court the first is whether the the petitioners due process rights violated by the twenty five year delay in prosecuting the case the second issue is whether there is substantial evidence to support the conviction in this matter with the court's permission i'm going to focus on the first issue and that is the due process  so the court is presented with an issue that i think is fairly unique in that the mr coastguards matter does not involve a crime that has a statute of limitations in california so most cases that involve due process claims where there's been a substantial delay knows there is a statute of limitations and most courts find that the statute of limitations itself prevents prolonged delay which result in due process violations so because we're presented with a murder in this matter and alleged murder and murder does not have a statue of limitations it's a dip a little bit different situation and that due process is the only protection against prolong the lake causing prejudice the petitioner so in this matter the lower courts found that there was no prejudice suffered by the twenty five year delay and that was an unreasonable application established law and one supreme court case would you cite to that effect i would  both love vasco and and i believe it's made your honor and and the reason for that is that those two cases both lay out that especially in the vasco that in cases of unreasonable prolonged delay the courts and look first to determine whether has there's been prejudice as a result of the delay so really there's been a three part it's looked at as a two part test most often but it's really a three part tast because first there must be an unreasonable delay and i think we c agree that twenty five years in a matter where the case was simply put aside for at least twenty years there just was a simple disinterest in pursuing so so let me ask you this as you know we live in an era of d n a testing and there have been recently a number of murders unsolved murders going back sometimes decades and decades that were suddenly provable by based upon d n a are you saying that such a long long delay cases are per se violations of the due process now what is the difference so the difference is assuming that the petitioner in those advances in investigative technologies that would be one thing or whether there was new evidence that was found or whether there were new witnesses who came forward or a confession by the defendant these are all things that are borne out by the cases in this matter there's nothing like that this is simply a case where four months after the incident the police and the prosecution who had already decided there was insufficient evidence to proceed with the prosecution put the case aside put it away and did nothing for twenty years at that point i think after twenty years the record shows that they took some evidence out of storage and had it retested i think it was the pants and now that another item that were found a hanging in the defendant shower in the petitioner shower when the police arrived at his house nothing new was found from those the case was put again put again put away for another five years nothing done and it's at that point this is what really makes this case unique it's at that point that the police go out and they re interview the defendant and when they re interview the defendant he tells a centrally the same story you know i know that the state takes the position that his story substantially different from the one that he gave to police twenty five years earlier when he was arrested that simply isn't true twenty five years later when he was interviewed he told the police that on the morning of his arrest he was on his way to his brother's house to do some wandering and he sees me twenty five years later he told the police that he was on his way to his brother's house to babysit his brother's shoulder and twenty five years earlier when he was interviewed he again told the police up i was on my way to my brother's house only difference was he said that he was on his way over there to do some laundry and to work on his car so this case especially the theme of this case by the prosecutor was there aha moment right that all of a sudden it's well you you you don't recall why you were going over there so that's sufficient for us to now charge you and the theme of our case is going to be you lied and so it's actually the delay that created the evidence that that caused them to  go forward with the prosecution in this manner it wasn't some d n a evidence they discovered years later it was the delay itself which caused the petition in memory to fade and now after all these years sure he remembers that he was going to his brother's house he remembers differently the reason for it for his travel there and in a case where the the prosecutor relied so heavily on those statements and an argument that his lies the petitioner's lies in those statements supported a conviction it was absolutely critical for the petitioner to be able to present evidence that would have corroborated his statements and due to the passage of time and police negligence or whatever else it was we don't know from the record the evidence that would have corroborated those statements is gone let me ask you some slightly different  it perhaps your calling is going to be the one that does this so so let me know i'll wait for him but if you raised in your pleadings the issue of the last night and towel but i don't see that those items appeared to have been raised before the state court is causing prejudice and the court of appeal didn't mention them in its analysis can we consider them now are they really an exhausted issues now we certainly argued at every level that all of the physical evidence had been lost in this matter and that that prejudiced the defendant's ability to defend their saying that that my understanding of the record is incorrect on that right i think that we did raise the loss of evidence i  can't recall as i stand here now whether we specifically argued that the that the knife was an item that was lost but i do know that we we argued that all of the items of evidence none of the physical evidence that was collected twenty five years earlier was available at the time of trial and that argument's been raised at every level so you don't think there's any chance of an exhausted aspect of this now and so i would just the idea that there was no prejudices stablish in this matter which would have caused the court to go forward with the next step which is the balance of the lower courts found that indeed to get to the balancing that the state chose would answer this is you know under jackson the question is whether any juror taking the composite evidence could have ruled for the prosecution the first degree murder case will get whether  else entirely circumstantial but they ruled in favor of the the prosecution but we deal with the jackson problem i think that that actually comes back to the due process issue a little bit and the reason for that is that the the the evidence as the court is noted was extremely thin it's basically motive and opportunity and nothing else and that's what it comes down to and so the question of whether any jerk could reasonably have convicted the defendant and really the court's going to have to look at whether there's substantial evidence to support that and i don't believe that any reasonable juror could find that in the reason for it is that the reason that the jury ultimately convicted the defendant was because the prosecutor relied so heavily on what he called lies and if we look through that the closing argument in this matter presented by the prosecutor most of it is devoted to what he termed what he called lies by the defendant and those simply aren't supported by the evidence and the the petitioners opportunity to defend against those allegations was destroyed by the twenty five year delay and so with the court's permission your honor i'd like to re good morning your honors in may please the court deputy attorney general john of the cross on behalf of respondent i'd like to begin by talking very briefly about the standard of review and i think it's important because wall the argument is somewhat changed here today from petitioner in the briefing he alleges he's entitle essentially to did over review of these claims and while that's true as far as it pertains to district courts denial of habeas relief there is of course as this court acknowledged a reason state court decision in this case the court of appeals denial of both of these claims and direct appeal application of controlling supreme court precedent since we don't have a whole lot of time well as let me just tell you what i'm concerned about we here at the bald time it runs through almost all of our collateral appeal criminal cases  nd the state court decision but i'm very troubled by the fact that this man was convicted of first degree murder you got to show premeditation what's the best evidence for that it is so paper thin on the on the motive the premeditation part i get but what's your best evidence as the state court of appeals indicated that this was a premeditated murder well one of the first thing i would say as to that is that the state court of appeal to dock consider premeditation deliberation it was not raised on appeal the district court denied it to a sponsor wasn't raised there either so i don't answer the question but to that extent ok when you get to sufficien of evidence which was raised yes and you're talking about first degree murder isn't that the bottom line i mean that you know that that's the essence of the concern so let's you know it was a raid district court didn't talk about it calculation you are correct one hundred percent my only point was while petitioner challenge the sufficiency of the evidence the only challenge to as to identity whether the evidence was sufficient that it was him and not someone else that committed murders now be that as it may this court is presented to support a finding the jury's finding that this was a premeditated murder as far as planning activity goes as i noted in my briefing these of course the three factors planning activity manner and motive the planning activity we know the petitioner harbored a grudge against archie he had been making violent threats against him for a period of weeks or months following marion's decision to leave him and move back at home and you're saying threats plural can you itemize those separate them frankly he said if she didn't return to him he would i don't mean the exact wording something like make her pay or something like that she would suffer as a result he did make repeated threats against archie as well i don't buy the exact wording of it but this is i think the important point how did  make the supers in the in writing for a while it was over the phone call several times gary the son would overhear his father talking to someone and his father would hang up the phone in anger and then the phone ring again and it would go to not voicemail i guess answering  machine and the message was a threatening message from petitioner so all this leads up to about a week or so before the incident when petitioner shows up unannounced he just arrives at the house he's carrying a loaded firearm that he had purchased only about two weeks before he waited the necessary two weeks or fifteen days before arriving at the house that same day or the day after he shows up at the house and he acts in a possessive way towards mary and refers to her as belonging to him carry the son who was there described  behavior as to range to not only to get a gun with him he also had a magazine of ammunition now he said when confronted with this that he was going to kill himself mary and did not come back to the jury however was entitled to believe that he had  more violent means in mind here that he was actually planning to do something else now importantly though he goes away that day marianne talks him down he comes back several days later and a few days before the incident before the murder and he tells marianne cryptically perhaps there's a reason why didn't kill himself which marianne takes to be takes to mean that he came to understand that if archie were out of the way he could be with her and of course a day or two later on archie shows up murder driveway of his home this was again a violent ambush there is no evidence that this is anything other than a targeted attack against archie no evidence whatsoever that this was a robbery he had a wallet full of money the car was left in the driveway running any indicator any implication by petitioner that money may have been taken from the garage is refuted by the fact that the door was closed when gary came outside so that's the that's the planning it to be the fact he brought a knife to the scene of the crime demonstrates planning activity was the time of the attack argued at trial as a means of preventative in fact it didn't happen with a lot of foot traffic it happened very early in the morning absolutely and certainly suspicious that he knew exactly where she would be at around five thirty the morning and that sort of goes to my point it was argued at trial this is no mere random attack and again there's no evidence that it was any sort of robbery so that's the planning activity the next factor manner of killing repeated stab wounds including one in the groin area which the detectives testified certainly could have been immediately came to the conclusion when they found his his dead body on the driveway that it was petitioner who must have done it and again if that were all that was i would concede that may not be enough however there's other circumstantial evidence here there's the fact that when the police showed up at archie i'm sorry petitioner's house the hood of his car was red hot on a very chilly morning which suggested and led to the reasonable inference that he had driven from long beach where he lived to torrance to kill archie before then returning now he alleged at various points that he well no i didn't drive that far i only drove a mile or two and he did of course give conflicting statements about this materially conflicting statements despite what he alleged was a clear memory of what happened that day  and an expert testified for the prosecution that the car would not have been that hot had he only driven a mile or so which is what he alleged and then of course we also have the fact that a wet pair of pants and a white shirt were found hanging to dry and petitioner shower  when the police arrived the pants had been spot cleaned leading to the very reasonable inference he was trying to cover the evidence of his crimes and again let's go to the prejudice question in the government's position is it the haun's correct your honor and this is this brings me to one point i want to make before i go too far what petitioner argues here today is that essentially the delay itself is the prejudice he basically argues and you can say the case but in his briefing you argued underdog that he's entitled to a presumption of here today is argue first well the delays most important and then we can talk about the rest of it but under the vasco which is the controlling case in this in this area that the court of appeal relied upon he must first show actual prejudice now the court of appeal reasonably found that he could not demonstrate more than pure speculation about any of this evidence now to your honor's point about the pep boys employed the court of appeal reasonably rejected that claim petition was arguing was well i went to the pep boys the day before the murder and i purchased an auto part from an employee and if i could have produced that person i could have demonstrated i could have corroborated my story that that's where i was going that morning when the police arrest me i was going to work on my brother's car but the court of appeal found that speculative for the following reasons first because we have no reason to believe you actually went that part even if we did we had no way to know who this person was we have no way to know if this person would have remembered petitioner in  ten when the trial happened and more importantly let's say the court of appeal said this let's say we believe that he purchased this part it would not have made a difference because all it would have done perhaps is explain where he was going when he was arrested which is around six thirty or so when the police actually confronted in front of his house it would have done nothing to explain or provide him an alibi for where he was an hour or so prior when archie was killed in his driveway and so the corporal found that that was a speculative claim there were others that they rejected regarding again money missing from the garage the court found there was no evidence that money went missing from the garage there was a suggestion that a box of money went missing at some point but again no idea when and again no suggestion that this was anything other than a targeted attack and i can go through each piece of evidence of fraud i would like but the overarching point here is that each of petitioners allegations of prejudice was according to the court of appeal and again recently applying the vasco under the  arguments were entirely speculative and in some cases entirely unsupported by the record and here i would then just briefly go on to the last point which is that even if the titian or even if this court finds petitioner can get through that prejudice gateway to the court of appeal found that was  finds if you can show prejudice that's the end of the inquiry even if we can even if he can he still can't show that the prejudice he suffered to whatever extent outweighed the reasons for the delay and the length of the delay he would be to show what the record shows here is that the prosecution in one thousand nine hundred five electors not to prosecute that was within their right they were under no duty to prosecute petitioner until they felt absolutely certain they could get a conviction beyond a reasonable doubt and what petitioner alleges that the case  sentially won away people ignored for many years it's true that became a cold case one of many however it was reopened some years later as part of numerous cases there were reopened by the d a s office at that time to investigate these cold cases predominately for d n a which is not implicated here but that was the reason why they reopened them and this was one of many many cases that this particular da who handled this trial was dealing with the d a felt much more confident about the case than the da had twenty five years earlier the detectives the investigators to go out and re interview and again here petitioner came forward with another contradictory statement so again what the record shows here is that most investigative delay which is the kind of delay that the supreme court levesque of found does not offend due process absent any sort of showing of governmental culpability you can't make that showing and the last point i want to make on this is that for petitioner to argue that the case became stronger against and ten than it would have been one thousand and five by the record of trial what we know with anything is that the trial became more difficult for the prosecution to prove after twenty five years they've had this additional statement which is important but other than that the evidence was pretty much the same as they would have presented a five the key difference though is that marianne who was of course a key witness in all this by two thousand and ten she had been with petitioner for twenty five years and she became for the prosecutor a very difficult very hostile witness he had to impeach her for da and one could imagine that twenty five years earlier prior to this long period being together her testimony may have been more helpful i think it's reasonable to assume it would have been and my point of bringing that up is only to say that petitioner cannot really show in any concrete way that the we still don't have any reason for the delay today as we stand here there's still no justification for the delay and the court asked a very important question that is what about this idea that he went to pep boys the day before well the prosecutor relied so heavily on the fact that that was a line that he spent much of his closing argument describing it as a lie and the interesting thing about it is the police officer and there's a stipulation to the time of trial he could have shown them that was not a lie that was the truth when the police stopped me that morning i was on my way to my brother's house a change my oil and change the oil filter and that would have shown that  was the fact that the petitioner claimed he was going over to his brother's house to do laundry and a police officer testified at trial well the laundry looked in the in the laundry basket inside the car looked clean and me well it's the petitioner testified it wasn't clean he said he was going to going to wash the laundry if they want to maintain the basket of clothes instead of it disappearing over the delay of the case that's another thing that he said i'm not lying and the prosecutors the closing argument goes from a half hour down to twenty minutes because he doesn't have those items to rely on anymore if they're not important why would they relied on so heavily that at the trial court level this case didn't get better for petitioner over time it got far worse because he couldn't prove those things it got much better for the prosecutor because over time the petitioner could no longer recall exactly why he was going over to his brother's house that morning that was the thing that changed this case there was no investigative delay it was just put away that's what your response to the government's point that marianne was with your client for twenty five years after this occurred and that her testimony would have likely been nothing incriminating then after a couple years they got back together what that shows is she didn't believe he did it not for a second in her memory this is a situation where the dimming of the witnesses memories is not speculation every single witness that was critical to the case testified they couldn't recall certain events from twenty five years earlier their memories of faded that was their testimony so it's not speculation that their memory said down and on critical points it wasn't just the employee that could have been shown to the jury to the jury in that matter the pep boys employee was a receipt specifically address the first degree murder that that it shouldn't be looked at by this court we did it we did address sufficiency of the evidence and the conviction was for first degree murder so i think that that involves all the