reasonably determine the trial counsel was not ineffective in declining to request a jury instruction on circumstantial evidence in this case the previous error was committed as a result of the district court reversing on the basis of sufficiency the evidence with which this court reversed  and remanded for further proceedings as an initial matter though i have to mention that the court of criminal appeals determination that a circumstantial evidence instruction was not warranted and is a matter of state law that simply be on the purview of the hevia school or opposing counsel encourages the court to sort of dive into the web of tennessee law surrounding this issue but it's the state's present position that that's simply beyond the purview of the court and in particular point the court toward the lindt decision which i cited as a matter of supplemental authority a couple weeks ago and in that case the court considered whether or not counsel should have requested a specific instruction and the court went on to hold essentially that the state courts determination that an instruction wasn't warranted was only relevant as to the prejudice prong of the ineffective assistance claim before the court this ensures that we can't hear behind the reasoning of the will certainly your honor and and it is obvious that the issue before this court is the ineffective assistance of counsel plan which is a constitutional issue behind that is this underlying question of the jury instruction and that's why it sort of as an aside or alternative argument in our brief we address the merits of whether or not the jury instruction should've been included and certainly as a matter of federal constitutional law that jury instruction was not required because it's always been the federal law that or at least as i think since the holon case that circumstantial evidence and direct evidence there's essentially no distinction at least as of the jackson decision there's no distinction between that circumstantial evidence and direct evidence admittedly it took tennessee law a little while to catch up to that and to sort of get in line with the federal standard it was earlier more restrictive than that but there was sort of a period of time where if counsel requested this instruction if  direct and circumstantial and counsel requested this instruction it was required to be given at the same time and at the same time as the petitioners direct appeal in this case there was law essentially acknowledging that tennessee's law was commensurate with the federal standard which drew no distinction between the circumstantial evidence and direct evidence essentially that in cases involving both circumstantial and direct evidence there's no need to exclude this the languages exclude every reasonable hypothesis but guilt money from the petitioner in order to go buy some cocaine apparently that money was never returned the petition in this case became angry she started looking for the victim she enlisted other people to look for the victims she made contact with a couple accompli mental element in this case as as with many other cases the only evidence as to her requisite mental state was circumstantial evidence which is not uncommon but the case law even in tennessee it doesn't draw that distinction to say just because circumstantial evidence is what proves the mental element it says that there's this mix of direct and circumstantial evidence period then the instruction itself is not required unless counsel requests it  so both as a matter of tennessee and federal law instruction was not require without the request what role council does that it was interesting here the d defense was i wasn't even there great for writing this this defendant said if you talk about this shooting all you want i wasn't even there so if that's the defen does that affect the need to seek an instruction about circumstantial evidence when the defense is that there was even there sure like you said the defense was all about alibi test were family members that came in and the centrally said the victim the petitioner and her codefendant were at our house they were never to be found obviously in this case the jury completely discredited that that testimony they  testimony of the eyewitnesses at the scene who said the petitioner showed up with her codefendant confronted this victim about the money that he stole and the codefendant pulled out a gun and shot shot  victim but there was also testimony from another eyewitness who said that was actually the petitioner who possessed the go on and assaulted the petitioner but as to your question as to whether or not that instruction matter of fact that that your answer to this the fact that the defense obviates circumstantial evidence it shouldn't affect the matter i don't think it affects this matter i think as to the question of the harmless error analysis as to the other the other claim about whether or not the violation of the right to testify i think it goes as to that because her post conviction testimony was completely inconsistent with the alibi theory presented at trial century she set out at trial she all these witnesses the sound wasn't there and a post conviction she said well i snuck out of the house and was at the scene of the crime to see this aftermath of the of the shooting and certainly it's relevant as to that claim because obviously the alibi testimony would have completely nala fired her credibility if she had testified to that effect and her testimony to that effect would that they were sort of mutually exclusive so as to back claim it is relevant but i'm not i guess i'm not certain how it would be relevant to the circumstantial evidence claim but i do want to draw the court's attention to the coulter decision because i think it sort of highlights the state of the law around about the time that this case was on direct appeal and certainly with respect to the cases cited cited by the opposition and we knowledge of those cases the monster sit in the top to the thompson decision and that the same time there's this culture decision where in the the court of criminal appeals held it is not quote it is not necessary for a conviction that a defendant innocent to be excluded from every reasonable hypothesis and a case involving both direct and circumstantial proof here this this  case rests at least in part on direct evidence and indeed substantial direct evidence and i think this court already pointed that out in the previous appeal with regard to the sufficiency the evidence there is substantial evidence supporting guilt in this case at least with regard to all the circumstances leading up to the crime and the actual shooting itself that she was there she had the motive to commit this crime it's only with regard to the mental element that the question of circumstantial evidence comes up so the state's position is that given the state of the long tennessee this this instruction was not required and even if counsel had requested it and even if the trial court had sort of peered into the law at the time and you know made the decision that yes we better go ahead and instruct this even though the law was arguably in flux at this point in time even if the trial court had instructed our position is that there is no reasonable probability of a different result at trial given the other evidence of guilt in this case and that being strong direct evidence again we just have to point to the circumstances the jury resolved the petitioners guilt based on the reasonable doubt standard as instructed by the truck or she was angry with the victim because of this drug money she sought the victim out enlisted others to do the same she's saying hold this person for me i'm coming they indeed held him she drove to the scene of the crime with the codefendant she was the one with the motive to retaliate and on arrival she confronted the victim about her money and again the witness testimony is a little bit different some say that the codefendant put up the gun and shot but there's at least this other sort of alternative testimony that she was the one that possessed the gun and actually assaulted the victim so given all that testimony i'm sorry the testimony from that witness i can't recall her name was not that she shot the victim i think leave it was that she saw the victim that she saw the petitioner with a gun assault the victim i think was the language  thought the testimony was that the male crime victim there was testimony to that that that was there was testimony about effect but there was also this alternative witness on i'm sorry i can't remember it was a it was a regard to that it was not that she shot the victim it was that she had a gun and she at least assault the victim but given the state's position is that you know even if we jump through all these hoops that if truck council had requested it if the law  it's pointed out by judge cooke i mean i think the defense is there what it was an all an alibi period defense as for the state and the defense pointed out you know there's no evidence that she said i'm going to shoot you now and then did it i mean there's not that direct evidence as to her  mental state but the state's theory is that you know look she was the one with the motive to retaliate retaliate against this person he had her money she was sort of the one driving this whole encounter in this whole confrontation and as a result of that a negative that's correct your honor and i think that and i think that was the goal of the state here it was the direct evidence of her actions with the codefendant but the direct evidence of those actions sort of transformed into circumstantial evidence as to her intent or motive or not even her motive but her specific intent as to the first degree murder so i think that was the sort of positive fact that was trying to be proved by the state with all the direct evidence showing her involvement leading up to the offense i'm close to being out of time and i briefly touched on the harmless error argument with regard to the right to testify i think it sufficiently covered that but in some we just respectfully ask that you reverse the district court with regard to its determination as to the effect of assistance of counsel claims for the jury instruction but  the district court with regard to its harmless or with regard to the state's harmless error determinations to the right to testify clime thank you you thank  good morning i'm with the federal public defender's office along with some to camp on behalf of tampa for white before getting to the discussion of strickland i'd like to quickly emphasize four points about the facts in tennessee law that i think helped to clarify some of the questions that the members of the court have previously asked point number one is that typical white based on the state's theory was guilty only because it was the theory of criminal responsibility and that's the as  recognize that's the the prosecution's closing argument page idea eighty two and eighty three the state's theory in the end quote from the state quote miss white did not shoot the gun so they acknowledge in their closing argument that miss white was not responsible for actually killing the victim but that she was only being accused and they were asking for a conviction based upon a theory of criminal responsibility the admitted there was no direct evidence she actually killed point number two is that under tennessee law as recognized by the court of appeals and by this court it's prior decision for miss white to have been criminally responsible for the conduct of mr robbins she had to have had the same intent as mr robert she had to have intended to kill this point to point number three in this kind of gets to what you were saying the judge more the evidence of her intent to kill was all circumstantial sure there was evidence that she was angry sure there was evidence that she was looking for money but there was no direct evidence that she intended to kill and that was really the point that value because the closing argument of the defense counsel was that there was no direct evidence that she intended robyn's to kill the sort of it all and so based upon both his argument the defense counsel's argument as as well  closing argument of the prosecutor who in eighty two eighty three also says there are two ways you can convict or you can convict her one of having the same intent in finding her guilty of criminal being criminally responsible for first degree murder but you go also on page eighty three the prosecutor says but you know there you can also convict her of facilitation of first degree murder if you have question about her intent so with that instruction what the jury could have done was it could have relied on other reasonable i think really gives a great analytical framework for to answer your question there are there with the fourth circuit granted habeas relief in a similar situation and what the fourth circuit said there was you can make arguments all you want to but if you don't have an instruction whereby the jury can take advantage of their argument and give credence to your argument and acquit the defendant then it's of no use and that's essentially what happened here so what you had was defense counsel saying they don't have any direct evidence she intended that this man be killed yet the problem was when the jury was considering whether or not she was guilty of first degree murder they were not able to consider the reasonable hypotheses or other reasonable theories that she didn't intend that  as judge martin said in his dissent for instance that she just intended to get her money back she was just mad with the guy she had no got no idea that this guy was going to pull out a gun and shoot him in the instructions that were given well the reason they weren't able to consider that is because they did not have the instruction that they could acquit her based upon the other reasonable theories that she didn't have the intent they weren't given that instruction were they instructed him well they were they were had to have and intended that but but the point was she could have been acquitted based upon the circumstantial evidence instruction because that instruction would have said but if there are other reasonable firies or reasonable hypotheses that she didn't have that intent then you must because first of all the issue desk before the court is a strickland question and the question is whether counsel was deficient for failure to request the instruction that was available under state law it wasn't necessary critical appeals never addresses the question of whether counsel was deficient for failing to ask for the root request the instruction all they say is sort of in this general sense the essentially a the essential address a state law question which which it which is if you don't ask for it are you entitled to it to which they say no but that's not the question that was before the court and that's before this court which is if counsel had requested the instruction would it have been required in the answer is yes it would have in and you can see the problem with the state's argument when you look at the court of appeals decision there not to they don't talk about months they don't talk about thompson there or they don't talk about strickland so all in all the court of appeals does is say in a general  sense because you didn't request it because there were some direct evidence you're not entitled to it but that's not the question the question is under strickland was was counsel deficient for not requesting the instruction that clearly had to have been given under matson and thompson which even the state finally kids conceded in their reply brief that's the law in tennessee that was the law that apply to her case and so under those circumstances what the state court said about whether you are entitled instruction or not they never answered the first question the first prong of the strickland question which was was counsel deficient and clearly counsel was deficient when counsel was arguing in closing argument that there was no direct evidence but then didn't ask for the instruction them and that you don't need to defer to them on that because it's unreasonable as we've had in and i want to make a few points just about the prejudice that existed under strickland and also the unreasonableness of the state court decision and as i said i think when we talk about reasonableness of a state court decision i think looking at the fourth circuit decision of leave versus clarke is really helpful because they do an excellent analysis there but in terms of the prejudice to tabitha white there is a reasonable that she wasn't guilty of the greater offense but of the lesser offense two we see the divide the divide even among the federal judges who reviewed this case previously about how this was a close case about whether there was intent to kill but point number three i think when you look at  the prosecutor's argument the prosecutor saying well she's she may be guilty of of of facilitation on the one hand or she may be guilty of guilty of first degree murder even the prosecutor recognized that this was a close case but all the state court did was they just said there's no prejudice but they didn't do any analysis of it and so as we've said in our brief there's porter versus mccollum from the united states supreme court there's people's versus laflamme from this court and there's also lee versus clark from the fourth circuit and the language that the courts used in those cases include comported they say that the state court did not consider essentially the relevant evidence of the relevant circumstances of the supreme court also said how the state court discounted entirely the relevant circumstances that's exactly what happened here all they said was there's no prejudice but they didn't take into account the very types of considerations take into into account by the district court here both initially and in on in the most recent decision as well as  what we've argued in our briefing with and what it essentially the theories that judge martin recognized in his dissent previously a people's talks about it's an unreasonable decision if the state court ignores the extent to  which there is relevant evidence or the relevant circumstances that entitle somebody to relief that's exactly what happened here lead versus clark uses the language turned a blind eye to it didn't recognize it i'm not sure why you think that well  opinion i don't know i agree i agree i'm not saying it is majority pin but all i'm saying is their analysis is correct and what they say is if there is no opinion written by the court then you can look beyond it and try to see if there are any reasonable aligns with the majority so that we have to consider it absolutely does if it aligns so it was ok i said in concurrence or dissent this said it in court interested in what the majority said since that that's what porter says that's what we're going says yes or implicit you have to look at the analysis of the court which is what the fourth circuit did inly which is what this court did in peoples which is what the supreme court did in porter and when you have to look at the actual analysis so if the court says you know we deny relief because it just doesn't make any it makes no difference but without any analysis well if if there are all these facts and circumstances that haven't been taken into account of then beckett be unreasonable and that's really what with all these courts say and that's the situation here what we have here is essentially a one sentence denial that says there's no prejudice but the court has not the state court took into account none of these circumstances about the circumstantial evidence about the fact that she didn't intend to kill about the fact that she never said she intended to kill as judge tony indicated it takes takes into account no consideration of the closing arguments of counsel which as you recognize arc are critical facts that need to be considered if you're going to try to make a reasonable doesn't stand for the proposition the state says it stands for coulter and you actually read it coulter was the situation where number one the the petitioner the defendant there actually got a circumstantial evidence instruction he was asking for a different one or what he thought was a better one and the court said you've got your circumstantial evidence instruction that's all you're entitled to so when the state's saying you're not entitled to circumstantial evidence instruction coulter actually proves our point not bierce what's also interesting is coulter cites a couple of cases of the dumas case which is a one thousand nine hundred five tennessee criminal lexus a twenty three and shafer which is one seventy three southwest second to sixty nine and those are both cases in which the state cour of tennessee concluded that based upon the circumstantial evidence of intent that there wasn't sufficient evidence so when the state's trying to argue that there's some distinction between circumstantial evidence of intent versus actually you know circumstantial evidence of actually committing the offense that's not true because schaffer granted the guy really found us sufficiency claim it has to do miss when there was not sufficient evidence to establish intent given the fact that there was only circumstantial evidence so tabitha white has been granted relief by the district court she did not receive a fair trial she didn't get the proper instructions as in leave her says clark that's it she's entitled to she's entitled to a fair trial at which the jury can properly consider what offense she's actually guilty that there were these possibilities but as i said the problem was without the instruction the reasonable hypotheses the reasonable theories that she didn't have the intent couldn't be taken into account if that's the lesson of the leak case thank you very much i'll try to be brief i think the court makes a good point in looking at the lesser includes because the jury was properly instructed as a judge could point out as to both the reasonable doubt standard and that that reasonable doubt standard must apply to the requisite mental state and the jury did just that and in doing so they essentially rejected all those other reasonable hypothesis those being those lesser included offenses they looked at those they considered those under the appropriate standard or review and rejected them i wanted to briefly just the denon five the testimony from the witness with regard to judge moore to question it was witness marion tucker it was actually codefendant robin's witness and she testified that she saw the petitioner a quote assault the victim over ten dollars and she ctually committed an assault as well so it sort of makes sense that it's robin's witness but i think that's why we have that slightly inconsistent proof but again that's proof that can support the jury's verdict as to the to the first degree murder count but at its base again we have a state law question here regarding the propriety of this instruction and as this court's well aware the question of jury instructions almost never rises to the level of the federal constitutional concern obviously there's exception with regard to capital cases and lesser included offenses and things of that nature but as a general rule they almost equate to questions of evidentiary significance they really rise to a federal constitutional question i want to briefly touch on the deference question because this court's correct under the harington b richter decision the supreme court decision the majority opinion if you have a summary did denial of the hay vs climb that's sufficient to afford deference to the the court's opinion and we take exception to the idea that the state court did not have a ration opinion i just briefly looked at our brief where i block quoted the state's opinion with regard to the i c claim it references strickland it references both prongs of strickland it goes on for six pages between the boilerplate for the strickland analysis and then a paragraph of the actual analysis of the petitioners claim but it's six pages of the opinion so you know we submit that is a ration opinion it does reference both of those problems and it decided the question of prejudice on a matter of state law that being the jury instruction question unless the