my name is wayne young i represent the davies petitioner medley mr medley was convicted of murder his direct appeals were denied in state court he raised two issues in his state and federal habeas petitions that are issue here the first one was whether he made a sufficient shown to get an evidentiary hearing on the issue of whether his attorney deliberately deceived him into not testifying and the second issue is whether the jury instructions impermissibly took away from the jury the issue of whether a fire was designed as a weapon and was therefore fire a second issue is a state law issue we can't get into that can we i disagree on  fundamental law from in may when shipman on is that every element of a crime must be proven beyond a reasonable doubt an element of the statute if you begin with the statute an element of the crime is that a firearm is any statute here it is a state statute and you get into that issue from mcmillan the pennsylvania it's been discussed by the supreme court and numerous cases the state yes and the find the statute in fact to expand on that just briefly we have a california supreme court decision that holds that the instruction is not there and your claim here of course is ineffective assistance for failure to challenge it but how can you raise that claim when in essence in order to do that you're asking us to say that the instruction is insufficient contrary to the california supreme court's interpretation of exams that i don't believe and perhaps i'm wrong that there's a california supreme court case that said that that designed to be used as a weapon language has no meaning or doesn't apply in this case if you look at the statute defines the fire designed to be used as a weapon and a flare or something that falls right into that it a flare is generally designed to be used as a warning device it was used as a weapon but the question that was not there quote one is here the gun appears to be a traditional fire and there is no need for the court to instruct the jury more expansively so if you have a gun you can say is that if the court did hear the word firearm includes handgun but when you have something that it's ambiguous about whether or not it's a fire then you have to use the entire language of the instruction which includes any device to be used as a weapon and there was no testimony that  designed to be used as a weapon and therefore an element of the crime was not presented to the jury was taken away from him and that's the argument on that on that point on the in the first certified issue is testify but we disagreed and and he brings it up later he said his attorney told them at that crucial conference at the end of the people's heads ok you can testify i don't think it's a good idea but you can we'll wait till after the hearing on the motion to dismiss they had a motion to dismiss and there was no result the judge held his ruling in advance and you have to track and my point here is that the record generally supports the sequence of events we don't know exactly what was said between counsel and his client but the record generally supports the sequence of events because you know i think both it's when the break took place in which there was this off the record conference between counsel undefended and according to my client he says counsel said you can testify after the hearing on a motion to dismiss but i have a hearing on july fifth the court holds the ruling in advance they come back the next day july sixth outside the presence of the jury and the court grants the motion to dismiss on the other counts the next time they come to court is july the tenth for closing arguments and during closing arguments that was the first time according to my client that he had of the motion to dismiss is been granted it's my first opportunity to testify according to my counsel's advice and the soonest put doing closing arguments he brings up to the court that he wanted to testify so that you're now here in federal court the question for us is and is where is the federal constitutional violation with respect to the way in which the california courts interpret strickland strickland controls here right well strickland and more recently as well where you're asking for a previous aren't you when asking for an evidentiary hearing and i had this claim in the federal court ultimately we want to prevail on the issue of ineffective assistance of counsel but the really the narrow issue and we believe he did but alleging in detail in his declaration attached to his hideous petition that my attorney deliberately deceived me but that's a colorable claim but don't you have to another don't you have to have the request the eviden hearing course they can deny it to you and you can say then you can then raise the issue in federal court they should not have denied it to me but don't you have to ask for the evidential hearing in state court on a v s and present the record here's the discussion privately between counsel and defendant and the trickery and have the state court rule yes there was trickery or rule no there was trickery and then ask the federal court to say that was just clear error that was wrong under the federal statute that finding does not have sufficient support under the standard stated in that you don't agree with all that except the very first part that you have to explicitly say the words i want to have a denture here because you know but you have to establish in evidence your record you can ask for it for the first time in your federal aid oh and he did in his hideous petitions he allege with specificity that my attorney deceived with specific facts alleged that is fits within that category of cases in which the state court made insufficient findings that really are entitled to any deference the court can say other than t takes this beyond a round of of the cases that often come up in which there is counsel of our client saying you know i want to testify i guess we had a miscommunication he's taking this another step he's saying my attorney lied to me he deceived and the record is consistent with this thing that doesn't prove it because is that what with what happened in that conversation that's not the record we need to hear from trial counsel what happened but the record is consistent with his claim because my clients alleging you have to wait till after the hearing on the ten eighteen motion before you get to testify and the first time he came to court after that issue was decided he asked the court he told the court i want to testify so he did bring it to the what you have to do is bring it to the court the trial court in a timely manner and in the circumstances of this case that was his first opportunity to do that if it's true that his trial counsel said you have to wait till after the hearing on a motion to dismiss but that makes sense because that would affect between defendant in the court stake or the later hearing he says defendant says i sort of wanted to get up on the stand a while ago but everything was going so quick i guess i was waiting for that thing you guys were doing you don't say my attorney said i could dance to violator he says i was waiting for that thing you guys were going to do when i came back everybody said i couldn't get on the stand well to me you mean he wanted to go you wanted to testify i did want to any sort of sort of told me he didn't really want me to and i sort of did in other words there's there is inconsistent record on which the state court could have relied this sort of language original statement here he tricked me he told me i could testify but i had to wait there's no statement like that on the record so the record is inconsistent with the factual scenario that you're suggesting that is the declaration of  contrary when he said i was sort of waiting for that thing you for you guys to decide he's talking about the ten eighteen motion to dismiss so that's consistent with his later claim more specific and his declarations that  ultimately it is to some extent not directly but it is to some extent inconsistent with the statement that my attorney told me i could testify later but he also says other points during that colloquy no that's not exactly  you read the whole colloquy and you know it's a defendant without advice of counsel counsels there but there at this point they're in conflict telling the court i want to testify and i waited as i was instructed to do my attorney and now you're telling me i can't testify any brought into the court of the first available opportunity which was one during closing arguments all he could have done better is to have brought it to the attention you have one othe r problem i mean if you're light of course that's pretty serious there but the other question of course is prejudice and there there was an obvious reason why his counsel of the time was advised me not to take the stand and it's clear what he would have faced if he had taken the stand so there is a secondary question that the president let's have the puzzling issue to me i think there's a difference between the prejudice you have to show to get ineffective assistance of counsel because it's well established that the court can go right to prejudice and not even figure out whether or not counsel was was ineffective and if you're only asking for an evidentiary hearing the standard have the evidence or hearing we do revert to the point of on the basis of that record he's going to have to show prejudice but the facts are that there is also i believe if it's an intentional deception now you're moving into the area of into the area of structural error intentional deprivation of the right to counsel there are very few things that are inherently prejudicial but then i have a right to counsel as one and if you're trying to deceive column suggests that the right to counsel is one of those few structure layers alertly and that or even to get the evidence you're hearing you've got to have some showing you've got to have some showing my attorney said you can testify later when we have that showing that it is petitions and we also have it in the comic way but it's contradicted by the colloquy between defendant and state court judge well it's certainly consistent because they when he says i'm waiting for you guys to decide that thing it's clear that he's says well you just fill up the form the state gave them no that's not fully accurate yes he filled out the form but he went on to attach page after page of very sophisticated legal material if you look at it for approach say it's remarkably good he went on and on forms anyway conceivable and yes sure and we've seen we see cases on a daily bases where prisoners send in this form filled out which generates either and i request for the attorney general an informal response or the issuance of an order to show cause and evidence or hearing informal briefing so this is not some perfunctory document that is turned down indeed i just finished a lengthy hearing on one in the state court that was submitted on the same form in the same manner that was find your question well they did step one step two is what happened with respect to i think you said he filled out three separate forms one for the california superior court right one for the appeal ok and one for the california supreme court so these were before those respective courts yes and in the court make a ruling with respect to these yes if it was as counsel said during his argument they were the first one of the security it was denied on the basis on a procedural ground that you seeking a second appeal ok the second one was denied by the california court of appeal with no comment the third was not denied by the california supreme court with the citation to the  r argument that yes there is something in the record now that the not ruled well he never asked for it so how can you how can you say it wasn't ruled upon when he never asked for and was never asked for and therefore it was never ruled upon i think would be no i think the greater there was no request for an evidentiary hearing apparently there wasn't but i'm just wondering whether or not there might have been a ruling which would be sufficient to establish some evidence rebase in the record that in other words what you're saying is that it's not enough to say in the petition my attorney never opened a law book you've got you can you need to say that but you need to and that would not entitle him now to an evidentiary hearing in the federal district court and i think counsel today says well i needed to show was a color bill claim in order to get in evidence for a hearing the district court and i would submit to you that  iranians if this this court in a case called versus dushanbe which we cited in the briefs said to look at the was designed to make it harder to get an evidentiary hearing in federal court well if you go back and look  i agree with the we what we would argue that it is clearly a matter of state law this is a legal question of what under california law constitutes a weapon it's a matter of state law  judge you refer to the california supreme court decision i think you were referring to the brown case which was my case of the california supreme court and actually it's the question was whether a garden grove reserve officer was a peace officer within the meaning of california stat the peace officer with knowledge of the fact he was a peace officer the same thing is true here there was expert testimony an excerpt of the record two seventy six the flare going to work by an explosion propelling something out the viral and it's still left to the jury to decide whether or not they're going to killing and whether the and i had done so intentionally and personally it didn't take the elements away the jury still had to make all those fine so it's clearly a matter of state law and even if it's not there's no now raise it for the first time on appeal number two he's right in that yes it would have been different the trial would have been his defense would have been savaged if he testified defense counsel meticulously laid out this theory that some other dude did it so the know have to reach the other issues well stricklin of course says it often times and i see claims that most easily resolved by going to no prejudice and you certainly could do that in this case i think that would be up to this court this panel's determination unless the court as any other questions we would submit no further questions thank you others mr young you have some reserve time thinking on first point is on the requirement of requesting an evidentiary hearing i don't believe california law requires you to specifically request one and the supreme court lo williams retailer says simply pursue an evidentiary hearing in the manner required in state court and if the state court provides these forms and there's no place to check on it you want an evidentiary hearing and you will lead with sufficient specificity that some constitutional violation that constitutes the request for an evidentiary hearing and there are no other cases to my knowledge holding otherwise he followed the procedures required of him by the forms on the question of whether the affidavit was sufficient it's very detailed about how his attorney deceived him and it complies with the record transcripts but he specifically put a footnote in his request that the prison policy against attaching transcripts so i can't do it here so that affidavit assuming that what's in it is sufficient to  constitutional violation that that is sufficient to get you the evidence you're hearing and i think the stocks case because nelson participated and so what you have to do is make a colorable claim when you're pursuing say for sure now on the ground case that was the first of brought up about the police officer i agree with that because the question there is is this policeman the police a peace officer meaning california law or same thing with the runnion case i talked about is a handgun it's clearly a firearm but when you have something that's not clearly a firearm and you go well we always had to go to the language of the statute first a device designed to be used as a weapon that's in the statute so i agree that the court can remove the question of whether something is designed to be used as a weapon if you have something that's clearly a fine when you have something that's the purpose of the statute when you're not sure perhaps is designed to be used as a weapon but a flare designed for something else and that's an element of the crime and the last point i want to make is the other defense and trial there was something to a self defense argument here counsel didn't really make some other dude did it defense if you read the transcript it's true and i clear he was defending it the best he could but there is evidence in the record that there was an ongoing dispute between the victim and my client that had intensified over time that comes from the girlfriend so there was friction between these two i want my client alleged is that it was the other person who started the fight but he had the flare gun and shot him now now who knows what my hearing which is all we're asking for at this point is a colorable claim which you did in fact which supported which there are thank you thank you counsel for the case just to argue it will be submitted for decision in the