issue and the susan lynette issue and joel the bean is going to be addressing the closing argument issues and the riddle who are issue of course will respond to any questions you have on any issue i would like to save  twenty one of paragraph c which has the exact language quote the specification of non frivolous issues required under this paragraph shall be deemed to be a petition for writ of habeas corpus with leave having been granted to amend the petition the temporary state will remain in effect for one hundred twenty days to allow a newly appointed counsel to prepare and file the finalized petition so they referred to the initial filing as a petition and they referred to the second as a finalized petition i referred to it in my br clean slate makes sense what you're saying but it's not a clean say we have this case from the supreme court would ferd which is tough for you guys in this case it is tough so help me get past that case it is distinguishable because woodford does not discuss or deal with a local rule which this court has said that parties have it can justifiably rely on the word of the court would for does not deal with the local rule man of the federal district court saying that the petition filed here was a petition for a vs corpus there's no discussion let me ask you this because in the context of the statute of limitations which is not jurisdictional i think there is some looseness or tolling that courts can apply but are you aware of any case that allows  equitable tolling to apply to a standard of review which is what we're dealing with here all your honor with due respect where it's a lot more than a standard of review this is the filing of a petition of ed does a lot more than change a standard of review a certainly how it's true that the state has filed a couple of nights as alluded to phillips and dade child these are ninth circuit cases which hold that a defendant has no due process reliance interest in the change of a standard of review in those cases it was a standard federal standard federal criminal cases where the court granted a downward departure or granted an up departure and the standard of review before the protect act was abuse of discretion the defendant appealed but while the appeal was pending congress act and acted the protect act which changed the standard of review from abuse of discretion to de novo and the defendant argued well he had a and argued in part he had to due process it was unfair for this new standard of review to go into effect and the court held he had he argued that he had a due process reliance interest the court said no it's not substantial enough just a change of standard of review from abuse of discretion to de novo but what we have here your honour's is far more than a change of standard of review we have  we have ed but changes the governing law at but it says not only does this this court has to look only to the holdings of the supreme court of the united states for surely not under pre and pl law this court could look to the circuits own holdings on whether or not there had been error so it changes the governing law it changes the statute of institutes a statute of limitations for the first time in federal habeas corpus ok but that changes the that the amended petition the the amended claim has comes from the core facts that were in the original claims this is already affected this case because i lost the court below it's not issue here two amendments i wanted to make but was unable to come within the felix vs mailing framework not only that it has changed what evidence can be introduced in federal court because of persia and cohen vs pinholes there's interpretation of it but you can't introduce new supposedly new evidence in the federal district court so in ineffective assistance cases one of the issues here is ineffective assistance there's now this double deference this double deference mountain if you will that a petitioner has to overcome an ineffective assistance that and so all those changes have been wrought by ed work far more than just a simple change of review from abuse of discretion to de novo petitioner rowland and his lawyers at the time had  right a justifiable reliance due process interest in relying on the local rule this court has said that we can rely we must rely and perry versus brown we must rely on on on what the courts as now it's true the one exception in the state points this out and i pointed out in my opening brief if there's a mandatory jurisdictional deadline and even if a district judge says to a lawyer you have fifty days to file your notice of appeal and the lawyer relies on that to bet too bad even though a federal judge told you you had fifty days it turns out that's wrong you only have fourteen days and it's too bad now there might be an ineffective assistance claim it probably would be with a good lawyer would say well that lawyer was ineffective in relying on what the district court said he should have done his own research and right but that doesn't apply here in this case and all we can do what the state said well what would the how can that be justifiable reliance what would the what would the petitioner have done differently well if you take a look at the memo of issues file one twenty nine eggs or provide record one twenty nine this was the memorandum an application for temporary stay of execution the word memorandum process memorandum your honor that title and title a petition for haiti is corpus and this case would even be here that's all it would have had to do i submit to you your hon problem with the courts so it's clear but we can look at it but what this is your honor this is a from the internet last night preparing for oral argument it's a local rules attorneys advisory committee from the northern district and it's it lists the committees that the northern district has one of the committees is the heaviest corpus committee now grant this is right now today this is today the northern district tele fornia has a hideous corpus committee on that committee one of the members is peggy esraa from she is and it's a deputy attorney general and she actually she's been an attorney general for many years deputy and she's in the docket sheet you'll see her name mention why am i why is this important i don't have evidence i can't prove it i can't show it i couldn't find it but i have reason to believe and common sense tells me that in one thousand nine when this point of that though when the concern is about up to an empty didn't come along for a few years later so it can't be that when this local rules in acted the intent was to permit it tourney's or in petitioners to rely upon their characterization of non frivolous issues as sufficient to satisfy the requirements to file before up to so i mean that there were reasons for for wanting to get things on file i think that mostly had to do with stays of  but i don't see how that provides any support for the notion that that your client relied upon the local rule to believe that ep to wouldn't take effect and apply to his case and i doubt that anybody at that time was thinking about the ep the problem it's developed sense well iris iris i understand look i think i understand what you're saying you want to but i respectfully disagree i think that lawyers when they say when they see when they see the local rule saying this petition is deemed a petition for heebie as corpus whatever the purpose in instituting that or establishing that local rule whatever the purpose all except the rule exists and i'll accept that the california office knew about the rule whether they had a member on the the committee or not they were they were bound to know about the rule when in the six years the passed before up to came along way surely dealt with that rule so there their commission with knowledge of it great i'm not certain about that but i just i do know that the it has been held and i'm not sure if it's in the wood for vs garceau or if it's actually in the legislation but it is effective as far as i know april twenty fourth one thousand nine hundred six i don't know if it was actually in the legislation or not your hon i believe it went into effect that it was signed by president clinton but i could be wrong  that yes it's it was ineffective assistance i have argued and i maintain to fail to call susan that to the witness stand in the penalty phase  to introduce roland's complete statement to her as we know roland confessed to her that he murdered or killed jerry richardson we know that but we also know that at the same time he told he gave her an explanation for why he killed her he explained that he killed her because there was a quarrel over his status as an ex felon and it was also in part a quarrel over methamphetamine now the trial judge at the time was dealing with the issue of whether or not this statement could come out in the guilt face and he held that well if that statement comes out in the guilt phase then the state is going to be able to introduce his whole prior record in the guilt phase so the deter news decided not to introduce that statement in the guilt phase but the trial judge at the time said well you know that's a i'm paraphrasing now so basically that's a that's a powerful statement that would be good evidence for you in the guilt phase because that could tend to  lower the charge from first degree murder to second degree murder or even manslaughter this is the trial judge and is it metaphoric yes said you could argue coralie a chilling after a sudden quarrel now that trial judge articulated exactly what trial counsel should have done in the penalty phase and why it was ineffective assistance for not to introduce that statement in the penalty phase yes and so how would it have helped in the penalty phase it would have helped them in the penalty phase for two different reasons first of all it could have a raised a lingering doubts and under california law california permits lingering doubt it could have permitted an argument that to the jury that the murder the killing was not in the course of a rape or over a rape it was a killing about a quarrel it was a killing that came about in the heat of passion over a  anger because he was being insulted that he was an ex convict and that could have caused one even one juror even one jurors all it takes under california law could cause even one juror to say yeah you know i have a doubt i have a question about whether the murder actually was in the course of a rape or not even if you believe he raped but it still is whether the murder was in the course of the rape second entirely apart from that lingering doubt or jerk could say well you know this this might have been a killing he lost his temper he just went nuts but it's not a it wasn't a premeditated murder during the course of a rape it was as the trial judge said it was a it was a killing that came about because of a quarrel it's a terrible thing in council so the rape made in the kids that's still can be a lingering doubt in the penalty phase and i cited your honor i cited stu articles in my reply brief to you which show they demonstrate according to the authors that lingering doubts even though there's been a finding of guilt in the guilt phase jurors can still on the penalty phase even though they voted for guilt in the guilt phase can still have a lingering doubt about their vote and the articles  reply brief show demonstrate that one of the strongest grounds for jurors voting for life instead of death one of the most often cited reasons is lingering doubt o as it is a doubt about whether this person did it or doubt about exactly what drove him to do it to the latter category i mean to be fair that he did it in a fit of rage because she talked about his past record at the same time she had other things to say that were pretty unflattering doesn't really paint a pretty or picture of him and whether i mean i i confess i have a hard time understanding how the jury's going to be motivated by that testimony to reach a different result well all i can say is a point you back to what the trial judge said your honor a highly experienced trial judge who had sat at many many many trials he said he thought otherwise he thought no this this evidence if if believed in there's no reason not to believe it she had was the key government witness testifying the confession she says this is the reason he gave now  that's certain jurors would say oh well this makes it this doesn't do anything but all it would take is one juror to say no i think it does make a difference i think it would and i'm going to i would vote for life so that's my argued now it's couldn't this be a strategic decision that i don't want to buy the attorney's out i don't want to open up that can of worms we had enough problems well it's true that there were some big idea that he would be killing his parents is not a good thing and a penalty phase but there was some dispute because he she said that he said no no no you misunderstood i didn't say i would kill my parents i said it would kill my parents but me even so i'm not saying there's absolutely no consideration in the trial lawyers could have given to that but the but even if it was a strategic consideration it was the wrong strategy by overwhelming because we know it didn't work so in that sense you're well you know than that but we have confidence that another strategy was more appealing i have absolute confidence that  this the same person who confessed to killing this woman is saying this is why i killed her because the week i got into a quarrel with her that has the ring of truth to a jury it has a ring of truth to me and it has a ring of truth to a jury and it makes sense that he's he's confessing he's unburdening himself now the government's about self serving here say well he's just confessed to murder in the same breath there's no reason to think that what he's saying about why he did it has any less weight and yes there may be some negative there's always negative aspects to introducing evidence and then you can say well it's a strategic decision well it's some strategies are just dead wrong and it was unreasonable and ineffective not to give the death penalty phase jury an explanation for such a brutal murder there was no exit and even the trial counsel  argues in the penalty phase he argued i don't have the site right now but in the penalty phase he argued yes i do look at the transcript trial transcript page seven zero five four basically he said the killing quote was a rage killing done in anger hate and despair he argued that but he had no evidence to support that that that was the argument that what that was an argument to make and he made it but there was not a shred of evidence to support it because the only evidence would have been roland's statement to lynette that's exactly in essence what he told her i killed her out of rage and anger because of the quarrel over what she said about ex convicts he had an argument but no facts so what i'm going to do counsel as i'm going to give you ten minutes ten more minutes ok so the clock should read make it seventeen ok thank you i'll try to talk fast right we are here also to argue about two statements or arguments made by the trial district attorney during the penalty phase of mr rowland's trial and in the certificate of appeal ability that was issued by this court in granting a certificate appeal ability on these issues among the cases that  or at least the case that was cited was a case called bowers socks we were versus bauer socks in the context of that case i'm going to present these two issues together before i do i have to do just one minute of may a cul because we have a misstatement in our briefs in our briefs we referred to the prosecutor's arguments as having been done in his rebuttal argument in truth we went back into the record and we learned that he made only discussion of combined arguments by a prosecutor which ran afoul of due process in our case we have two types of arguments made by the prosecutor one was vouch and one was voters the two vs in the vouching argument what the prosecutor did was he argues to the jury in the penalty phase i'm not asking you to do something that i wouldn't do myself now in the california supreme court when analyzing that issue the court said well that was record based and we're going to determine that that was ok the problem with that statement is that the prosecutor didn't qualify his argument by saying i man i'm lising the following facts a b c indeed and based upon those four facts i'm not asking you to do something that i wouldn't do myself if he had said that there would still be a problem but he never did qualify it that way now when we get to the federal district court the court from which we are appealing to this court the summary judgment judge in the district court says i find that there was a problem with that with that argument i don't approve it should be disapproved he also found that under the totality of circumstances in the in the case it didn't affect the outcome of the proceedings but he does indicate in his view that those argument that argument was in was inappropriate now it's inappropriate and the case law that powers scuse me that about our stock we've reviewed our socks relied upon comes from the u s supreme court so even if we're a in a post ed but analysis you have the cases of berger and young which we cited in our briefs which come from the supreme court which we've reviewed our socks case relied upon and apparently opposing our position on that on that on this issue there is reference to a case called garden versus wainwright which really is no it took ability in this particular situation darden versus wainwright was a case where a supposedly improper argument occurred during the guilt phase and the argument was invited by something that had been said by the defense lawyer prior to the argument that was being complained about we don't have anything like that here case did not invite that comment which in effect is vouching by a prosecutor having been an ex prosecutor and i believe that somebody on the court was also  when you see a comment like that in a trial record it's like watching chalk on a black i will agree it it caught my attention but but the but the test is not whether it caught my attention that the test under because it does still requires a reversal if the california supreme court unreasonably applied existing supreme court law or unreasonably applied the facts to the supreme court law we're really dealing with the former in this instance the don't we still have to apply some sort of harmlessness or prejudice error to what occurred here well i think you i think you do but if you look socks case which which drew upon those supreme court cases that was an ether circuit case it would draw upon those supreme court cases and later and i'm going to mention it with respect to the other are the other final argument as well when penalty trial and when we get to the valve the voter issue that one to some people is even worse you have a situation where the prosecutor gets up and he says everybody in kalar the vast majority of california voters favor the death penalty and they even went so far as to vote out from office three judges who sat on the california supreme court my labor law professor with one of those judges doug professor groden and they did they were voting against death penalties out they go what that does and what the vaccine does as well is it relieves the jury of the ultimate responsibility of the death sentence that they're about to determine whether it should be in our case the argument was all the voters in california are not all but the majority of vast majority of voters approve of the death penalty so here's a juror sitting on this trial and and he is now being here she is being told that it's it may not be your responsibility because the public opinion in favor of the death penalty should weigh on you now not only does it relieve the burden on the jury it may also be going through the jury's mind i may be subjected to shame they may be picketing my lawn next week it's like a mob mentality it is a totally inappropriate argument and under caldwell v mississippi if the jury has been relieved of its burden that type of an argument runs afoul of due process now the question the court posed a few minutes ago is under at why is why are we entitled to relief we're entitled to rel because supreme court law was not reasonably followed and drew upon that and reversed the case in the eighth circuit because of the inappropriate comments by the prosecutor but they were also drawing upon supreme court law so i think the situation here isn't a factual determination that was unreasonable it's whether the law itself was applied unreasonably and we believe it was and we believe that on those two issues we are we are entitled to the relief being sought here whether or not the court analyzes these issues these arguments individually or analyzes them collectively and i think that the more appropriate thing is to analyze them correct collectively and the reason why i say that is because they both affected the penalty phase they both affected the or both involve a theory with the jury is being relieved of its burden by the argument being made and this is your honour's wasn't a slam dunk penalty phase verdict we had a situation here where in a relatively short trial the jury that decided the penalty phase was out two and a half days on this one issue death first is life we suggest that the conclusion from that is that it was close let me ask you about that because to me that is th key question is case the statements by the prosecutor my view were wildly inappropriate to put it mildly but at this stage that but that pride and prejudice what is the quote what's the standard we have to apply  your view of that to whether there was prejudice to your client well i i'm going to go back to cold i'm going to go back to in cold well an argument which was even less egregious than he was in my ro right and it was it was different because what the jury is being told there is a it's not you it's going to get reviewed later so you don't that's not at issue here at issue here is a statement that this is what the california population has voted for not that somebody else is going to look over your shoulders and review it later so i understand the analogy in the sense that it's saying something about the outside world but it's saying something i think is making a different statement it is a different state and so how does caldwell really speak to the scituate goes caldwell speaks to arguments that are made where the jury is relieved of its ultimate burg and that's that's the holding of of course i don't think that we well but it doesn't have to be the same statement how is the jury relieved of its alternate burden here it's the one that has to make the decision and not being told somebody else is going to second guess your decision or relieve you from the obligation or be the person that actually makes the final judgment they're being told look this is what the law says the california population has voted in favor of this and so the burden being relieved is a very different kind of burden i'm not sure i would agree with that i think that anything which is argued to a jury whether it's the voter issue or the valjean issue which basically says that them to a jury this is going to be a little bit easier for you because and that shouldn't be done and both of the issues that we're raising here whether it's the vouching by the prosecutor or the voter issues  you know that he argued both give that message to ensure they get into in different ways but now combine the two arguments with three arguments as they did in dollar six in actually had a situation where the prosecutor argued to the jury remember general patton he sent the boys out to battle and he told them they had to do their duty and among the things they had to do was possibly kill people all right and that gave a message to the jury in that case that it might not be so bad as a matter of policy to give people a death sentence because it's done in other setting s and and we have a similar situation here where the perp in one instance the prosecutor put his thumb on the scale of justice by saying this is my opinion and another one when he says this is the voters opinions and in both of those situations the jury is being i don't want to say relieved but certainly being given a lesser burden in terms of what they're about to do and what they're about to do  is the ultimate decision and one of the things that was also argued by the prosecutor in these context was he said that the only outcome where justice can be done is the death sentence and we take issue with that and that is really what the problem is there would be justice if the jury based a non death verdict on the evidence and  to suggest to the jury i think it was the right thing to do as the prosecutor i'm not asking you to do anything i wouldn't do only death is just this the prosecutor comes into the courtroom and was as we know from berger in other cases with a higher level of authority than anybody else except maybe the judge but certainly more than the defense lawyers so he has more sway with the jury jury hears those kinds of arguments and the jury's going to say that prosecutor says it's ok if the  briefly about the inadequate is unless you have some questions on these issues very very briefly about what my colleague called the riddle huber issue which really is an inadequate assistance of counsel issue to a psychiatrist who we claim was inadequately prepared wasn't given enough information to testify about the the the mitigation facts the mental health mitigation facts that might have had  for an impact on the trial during the or in the penalty phase of this case what kind of reminded me of and i'm going to do this a little quicker because of the time when fictions that you know i was just imagining last night and talking to my coll not in a football game and you have the west play the game somebodies needs to rush for a first down they bring somebody in who's out of shape somebody who doesn't know the plays and they put him in the huddle to give him the ball they say run things i could have testified to a b c indeed but they didn't give me you know how time it doesn't quite say that he seems to say there should be more testing done and this leads me to suspect that maybe this should have been the diagnosis and i'm troubled by this issue one of the things that troubles me on your side is that we really don't have much firm evidence in pinhole steroid complicate that today but this case has been around for twenty years and has anything  developed to suggest to us that the suspicions that he articulated in his declarations amount to more than suspicions we try to the answer is that we did try we tried during the district court proceedings and one of the things we did response to your honor's question is remember the context of where we are today the procedural context of where we are today this is a summary judgment ruling we are here to appeal a summary judgment ruling in a summary judgment ruling our position is the facts that were pleaded below are deemed to be true well and in a pin holster world i'm not sure that's quite true because if if the district court and our court is limited to the record that's been developed in the state court then there is no further evidentiary submission possible then it may be termed summary judgment we get that in a lot of cases of a lot of administrative review for example of that it's called so it's called summary judgment but in reality it's simply a judgment on the papers because the papers are all you going to get so i hear you're arguing about the rule fifty six standard but i'm not sure it really applies here if there's not room for additional evidence than the district court's going to call it summary judgment for lack of another term ok well let's go back to the trial record then freshers the minute among the things that we say in the room fifty six that need to be deemed to be true is that the doctor says i didn't have enough time that's and that's in his declaration that was filed in the state court and in the state court during the penalty phase the prosecutor at the end of the trial when he gave his penalty phase submission took advantage of the lack of preparation and told the trial jury disregard everything dr riddell huber said because he was unprepared unprofessional and he didn't even have enough time to prepare th didn't interview the defendant enough didn't conduct enough testing so he took advantage on the trial record in the state court that is now for review in federal court in the fact that we had a  expert that hadn't been prepared and hadn't given enough time on the critical issues what he did then says in his declaration and also filed in the state court is that if i had been given enough time to do this i would have found the following things now each and every one of those following things might not have enough itself have or disqualified the death penalty  but in a penalty phase or mitigation is relevant weakens vs smith tells us that from the u s supreme court as my colleague argued and suggested a few minutes ago you're really only trying to reach one juror who might have a lingering doubt as to whether or not it's appropriate to invoke the death penalty this jury in rolling didn't hear these mitigating facts and they didn't hear it because the expert was prepared ok while we go ahead and  is it too late to exhaust your jones claim the that the eighth amendment is unconstitutional that that death was unconstitutional can you go back to state court and exhaust that claim i think it is you think about that take   morning may please the court alice luster the california attorney general's office on behalf of the respondent very briefly judge wardlaw we submit it would not be too late to file a claim in the state court the california supreme court in the same manu case which we cited in our briefing on the on this issue indicated that although looking at the jones record they would not have granted relief they very specifically indicated i mean your honors the woodford versus garceau is indeed on point and controlling the only difference in the wording is the language in the northern district rule that talks about deeming it will be deemed a petition however the important thing is to look at those sections of the rule that they rely on there found under the section of stays of execution  subsection a says that a stay pending final disposition if a petition is filed upon the filing of a petition the judge will order a stay and that stay will be in effect pending final disposition of the petition in this court we were not operating under that under section subsection be and this is i'm sorry at page one twenty of the excerpts a temporary stay for the appointment of counsel that says that when the accused seeks appointment of counsel that the application for that again the language shall be deemed a petition but upon the filing of this application the district fortunately issued a temporary stay it's for a short period of time solely for the purpose of appointing counsel and then subsection c which is where we come into the statement of non frivolous issues is a temporary stay for preparation of the petition that's when new counsel is appointed they come to the court and at that point they are required by the rule to file a specification of non frivolous issues to support their stay request but again under that subsection it's only a temporary stay until a petition is filed so if you file an actual petition you get a stay pending the outcome if you file anything else namely what petitioner filed in this case all you get is a temporary stay until a petition is filed i think it's very clear from the way the rule is written except for that language and as was mentioned  questioning earlier there was no need in one nine hundred ninety for a petition to be filed what was going on then was across the country there was some dispute in different states in different districts as to whether or not a federal district court had the authority to issue a stay of state court proceedings in the absence of an active ongoing matter or case that was ultimately settled in macfarlane versus scott by the u s supreme court where they said the shell petitions are necessary we have the ability to hold off and appoint counsel and issue a stay regardless but this court in its death penalty task force that from where these local rules gr of had said you know yes we have the authority to issue a stay so that the person can get counsel can get a petition on file and it's very clear that that was the purpose of this rule for whatever reason the northern district chose to call it a petition maybe they thought it was easier for the clerk's office i don't know to the extent in i guess we'll be seeing a motion to for the court to take traditional notice but we would  certainly be filing in objection because whether or not even if there was a person was on the court from our office at that point we have no idea how the proceedings went whether or not that person did object did not object whether or not they could have vetoed any certain language i think it's just simply irrelevant i'm not sure all the way in matters even if some of the a g s office thought that was the rule the supreme court said what it said in the case i think we have to deal with that case regardless of who was on the composition of the committee that and the counsel was appointed and they asked the state moved in that case to dismiss because there was no statement of non frivolous issues as was required to be filed in their local rule and the court said or the district court ordered them to file it they did prior to at pera at the past and woodford versus garceau said that is not enough in fact the anguage in woodford specifically talks about whether or not says i'm sorry the court said if on that date meaning the effective date of the state prisoner had before a federal court an application for hay vs relief seeking an adjudication on the merits of the petitioners claim then twenty two fifty four d does not apply and if you look at the application that was filed that includes these non frivolous issues this memory memorandum in application the prayer for relieved is based on the foregoing petition respectfully request that this court issue an order extending the stay of execution for one hundred twenty days to permit the preparation and filing of a k v s corpus petition by newly appointed counsel not an amended petition not even a finalized petition to permit the filing of a petition all they wanted as required by the rule the ability to extend their stay for another hundred twenty days and i think it is in terms of word law when you were asking earlier about the effective date i don't have the actual that was passed by congress i believe they will be my coko or opposing counsel was correct that it was the effective date was the date that it was signed by the president but it was certainly the subject of much talk of hearings for an extensive period of time prior to that effective date it was styled the antiterrorism ineffective death penalty act completely reliable source but that i believe they are right on that point that the effective date was the date that the president signed it but simply it certainly was not an unknown quantity couldn't come out of the blue that's correct and they are not that there's not a complaint about that it's me i mean the reality is we had a lot of non capital cases where the heaviest process was started off by some handwritten filing by the petitioner itself and if that were filed before what turned out to be  that what they're asking is is there something before the court that asks for relief on the merits and typically those handwritten petitions will ask that their sentence be set aside in fact we note that in this statement of non frivolous issues they've only included in this is with council two of the all of the claims that roll timidly filed they didn't even take the time to include all of the claims that were clearly exhausted from the state direct appeal or the state he which they would have had no matter how new counsel was would have been a fairly simple thing to do and a lot of times we also see that from from inmates is that they will basically photocopy their direct appeal brief and file that and say please give me relief please set aside my judgment but again the relief that was asked here in accompanying these motion this motion was for another hundred twenty days to file the petition the merits were simply not before the court as woodford requires applies now turning to the lenette issue certainly there are always possible arguments to be made but just because the trial court suggest things that could be considered when he was dealing with the question of whether or not he was going to allow defense counsel to bring in portions of the in that statement without allowing the prosecutor to then further expand upon that that was how this came up trial counsel had litigated this repeatedly had he had done this gone through this with the court we want to bring in these statements but we don't want the prosecutor be able to get into  can and i'm not an expert on california evidence law as of the time of this trial but i'm puzzled by the pick and choose and i'm puzzled by the notion of how the defense can get in statements by the defendant that favor the defendant is not it not an admission by party opponent or so forth so so how is that i mean is that something the defense could get admitted even if she's testif they say actually that is i think subject to question because it certainly would not be an admission of a party opponent so i'm not i don't think it's necessarily looking would have going to be either the whole package comes down  or you can't pick and choose but that's that is certainly the case to the extent they could have gotten those statements in at all it would have had to have come in as the whole package and that's what the court was telling them the court said i understand there might be reasons why you want this statement and that statement in but if it comes in you're standing in the dangerous waters because all of that is going to come in and what is significant is that the it was it's clear from the record that counsel affirmatively decided at the guilt phase in light of that renewed ruling by the trial court not to put these statements in with lynette during the guilt phase however they asked that she be held and subject to recall which clearly indicates that they were keeping their options open they were considering the chance and the ability to recall her during the penalty phase so they were not just saying oh well we can't bring it in so we're not going to they kept her subject to recall now they ultimately determines not to and we think the respondents admits that there are some good reasons for that not just the statement about her assertion that roland said i will kill my parents if they find out about this and yes she said that she that he agreed that he called her and said oh no i said it will kill them but when question in her statement she says very clearly now he said i know what i heard him say i know that's what he says he said but i know what i heard him say he said that he would kill them she was asked did they get along with his parents no she didn't she didn't think he had a very good relationship with those parents so that statement certainly would not have been helpful to his case at the penalty to find out that there was at least the potential of a threat to kill his parents as well as jerry richardson is that this court has already pointed out at all the fight over the drugs does is add a second reason to kill richardson it doesn't do away with the first that he raped her which is the jury has already found the  again recalling lynette would have allowed the prosecution to revisit and reemphasize the circumstances of the crime more because of the defenses up there offering her for some other reason not to have killed her for the rape then certainly the prosecution has the right to go over that again ms lynette yes he confessed to killing her which is a bad thing but he also said very clearly to her you're going to hate me for this is this going to change how you feel he was wanting to minimize the impact of his relationship with lynette the impact of this murder on that he did not tell her at all about the rape and in fact he told her that when he dumped richardson's body she was fully clothed which we know she was not from the evidence so clearly he was not giving lynette the full story and the other tactical issue and this goes back to the the argument that roland makes at this point is essentially what do they have to lose you know there's nothing left to lose well first of all that is clearly not the standard and the supreme court held a nose versus resilience that is not the test but also this court has to look at what possible tactical reasons could there have been again not wanting to bring in the statement about the parents but also we see in the guilt phase closing argument lynette is the one who testified to the jury that he comes c n n and talks about how he's killed this woman in closing and this ties into the conflict issue but the prosecutors said i'm sorry the defense counsel said let's talk about when that let's talk about her credibility this got this baggy and they implied that maybe lynette kept the small baggie with the methamphetamine and he said let's look at the bricks that have to be built into this wall that the prosecutors trying to make to show guilt beyond a reasonable doubt and be the attempt that they were making was to cast some doubt on lynette's credibility so again tactically you might not want to come into court in the penalty phase and say well you know i told you she really wasn't credible during the guilt phase because i didn't want to consider the parts of his confession but now i really really really want you to believe that she was right and the fight was all about drugs and had nothing to do with the rape now that's not going to be terribly helpful either the the respondent submit and again when this court has to look at all of the possible tactical reasons and determine that none are adequate then simply we cannot find especially under the doubly deferential standard that a applies to ineffective assistance claims that counsel was ineffective mental health evidence at the penalty phase and and i had trouble sorting some of this out could you and we have two different phases guilt phase and penalty phase and is clearly established that  defense counsel began contacting mental health professionals more than two years before trial that least with regard to guilty issues the guilt issues in and mitigation issues are always the same and what do we know about when counsel began consulting mental health professionals with regard to the mitigation or penalty phase arguments but we do know that dr riddell huber was not asked about testifying at the penalty phase until as the penalty phase was beginning and if that's all that it had if there had been no prior examination that probably would be a red light flashing right there because there are cases that talk about having to thoroughly prepare so what do we know what confidence can we have that there was legitimate consultation on mitigation issues prior to that day well i mean first of all we also know that dr riddell huber part of his preparation was to interview the mental health experts that had already been involved in this case at the guilt phase the i think the most significant thing that we can do to have confidence the most significant reason for having confidence and i would ask this court to take the time to read volumes seventy of the trial transcript which with all but a very few introductory pages is dr riddle huber's testimony at trial dr really huber gave extensive testimony to read his declarations one would think he may have testified for about ten minutes to say i was called in to see if he had attention deficit disorder as an adult and i did some testing and i couldn't find that so that's what he did but  testified to he testified that appellant suffered from borderline personality disorder which he on multiple occasions throughout his testimony talked about being very serious he said there are times when a person suffering from that  psychotic that's it page is six thousand and seven or fifty six fifty eight in the trial transcript he talked about the signs and symptoms of that and that it can be just is disruptive a schizophrenia and its effect on adults he explained the difference in this is that six thousand eight hundred six to fifteen between borderline personality disorder and any social personality disorder which the prosecutor was trying to get him to admit to a diagnosis and he explained why that was not an appropriate diagnosis in mr rowland's case so he differentiated that he explained in detail stressors leading up to the murder he explained about the loss of cognitive control that mr rowland suffered he tied all of this to treat to his treatment by his mother and father he talked about the drownings attempts that the mother made he talked about that his treatment by dr stone as a child was not adequate and in fact may have been counterproductive given his seizure disorder he talked about the in pat that we now know that ritalin is not good for  seizure disorders and that that therefore was not a good treatment he talked about the benefit that roland received of the treatment in prison and his mental health expert from the prison also testified and that that made him for organic brain damage that's correct your honor he does opine that however when he also if you look at the declarations what he talks about is organic brain damage could lead to the loss control issues and so what we have is dr riddle huber testified to the jury about the actual results of these whether it's organic brain trauma whether it's the drownings whether whatever it is he talked about the hard results that come out of that so we're really looking at ok was it fetal distress that caused it was at the drowning attempts by the mother that caused it in any of that that he experienced these loss of control is usually eighty d which he also said could have been a result of panic but more significantly and particularly as it goes to the ineffective assistance the deficient performance prong in his one nine hundred ninety six declaration which was attached to the summary judgment motion in federal court dr baden huber says twice first he says a complete and proper diagnosis was not possible at that time meaning the time of trial because brain damage study equipment and i'm sorry this is on page two of the one thousand nine hundred six declaration because brain damage study equipment and the ability to interpret the results of such testing available time of mr rowland's trial in one thousand nine hundred eight was not advanced enough to diagnose the neuro psychiatric disorder suffered by mr rowan and then on page five again he says a precise diagnosis of mr rowland's complex of disorders including information concerning their precise nature location extent is not possible until a complete spect test and analysis is performed so even in one thousand nine hundred six they still would not perform the proper testing but even if they had dr really huber's very clearly states that the testing available in one nine hundred ninety six which may have shown it and he's still speculating there because it hasn't been done was much more precise than what was available at trial and you simply cannot find that counsel was deficient for not performing tests that would not or might not have shown the results that that he is suggesting were possible but again we would ask the court to read through dr really dr riddle humorous testimony it's very extensive he talks about many of the problems and probably one of the the more extensive expert testimonies that this court may have seen in a capital case and the argument by the district attorney there were two sections john so and what is important under both of these two sides issues is to look at the context of the argument my opposing counsel said that the prosecutor didn't analyze it he didn't say a piece of evidence one two three four five we submit he did analyze it in his argument he said after he says i have made it my practice never to ask others to do w i would not do he says and based on the system of justice where the punishment should fit the crime and the criminal based on the law in this case as i've explained it the judge will based on and here's where he where he spells it out the savagery and brutality the horror of the crime against marion geraldine richardson based on his history of past criminal activity involving violence which represents a manic stream cruelty depravity and violence i now stand before you death so he did it may not have been based on the following eight pieces of evidence maybe not as detail but he very clearly did tell the jury this is why i think it's appropriate sorry but to go to their point i mean the case is as strong as you say it is why did he have to go there i'm asking to speculate his mind but that's that's at least some evidence that maybe it wasn't that strong after all i mean  the best ways of phrasing things they get caught up in the heat of the moment and sometimes say things that they probably would better have not been said but that doesn't take away from the strength of the case and when again when you look at his argument as a whole he's repeatedly asking the jury to consider factor after factor after factor of what was put into the evidence and then even more so when you look at his statements made after talking about the voters now it would appear he was anticipating an argument which is fairly common in death penalty cases that the defense will say well the death penalty is bad you just shouldn't impose it it's the wrong thing to do and grant it this was in to support tori because this was not in the rebuttal but that would appear to be what he was saying he's telling the jury this is the law the voters have said this is the law and again we can we can discuss whether or not he should have done it whether you or i would have said that but in context what he says immediately after that is and this is in the supplemental excerpts at pages fifty nine and sixty  all murder is qualified for the death penalty as you know there must be a special circumstance and he explains that in this case it's right but then he says but not all people that qualify for the death penalty should get the death penalty he's telling the jurors ok yes the voters have put this in and they've required a special circumstance but even if you have murder and the special circumstance you still may have people that you don't apply the death penalty to he's very explicitly telling them that it's only those people like mr rowland that the bad outweighs the good in his background and so substantially outweighs the good of the mitigation is background that death is justified death is appropriate death is warranted so he is telling the jury there are people that could be at this stage and in fact a few a few lines later he says the law favors neither penalty at this stage it's a waiting process at this stage very highly inflammatory and your honor you know again i you know i wasn't there i don't know why the d a chose to make that statement be the california supreme court said that they didn't think it was appropriate but nonetheless this court has to look at the argument in context and has to make ultimately either if you look at it as part of the finding of whether or not there was error there must be  your honor i would not have supported those statements or made them myself certainly but i think the key in this case is that the what he said afterwards and what he said immediately afterwards is even if the voters say that there is appropriate to be a death penalty and even if you have someone that would seem to meet all of the requirements for the death penalty there may still be a person for whom the death penalty is not appropriate it's not mr roland because of his history and the the horrific nature of his crimes but there could still be someone that if you weigh the factors and again he said the law favors neither penalty at this stage even after all the findings of eligibility and after everything he said about the voters he still tells the jury the law favors neither penalty at this phase unlike the our socks and caldwell cases this is not because as the court noted earlier this is not a case where the jury was told this is not your fault if you vote for it this is not a case where they said you're a soldier go do your duty whether you feel you should or not in this case his reference to the voters while certainly an artful was  was in there it was you know this is the law but you need to apply it and i see i'm sorry i've gone over my time so i will be asked do my colleagues have any further questions to ask clifton  at reasonably relied on the local rule and my submission is yes he and his attorneys reasonably relied on the local rule reliance interests this court havey as corpus as equitable foundation the writ of habeas corpus is ultimately equitable in nature but if we were to agree with you that there some sort of due process right here under ed but don't we have to have found the supreme court with rico would have to have told us that no you can find that because of the local rule petition true petitioner and his attorneys reasonably relied on that so in this case it put doesn't apply and what case would we rely on to say that you would rely on all of the cases that establish a stop all by entrapment and stop a by i cited the court the rarely line of cases by analogy where the government tells somebody that something is ok and then the person does it and then they prosecute him and say ha ha i guess it wasn't ok but but there is the provision under the supreme court has hit our court pretty hard in the past on it that to find some sort of new constitutional right to rule we can't do that at our level it has to come from the supreme court this court is strong enough to have no doubt this is not finding a new rule we've been beaten down or we're going to be beaten down again you want us to be tough about it absolutely ok fair enough i have full confidence that but i it seems to me hard to there with all due respect how can you say lawyers can't rely on the first  the government says well  they look at each one twenty nine the memorandum of issues and they say even even petitioner's counsel in the last paragraph they say based on the foregoing requests this court issue i'm reading for me are one thirty three based on the foregoing petition requests this court issued an order extending the stay of execution for one hundred twenty days to permit the preparation of a filing of behaviors corpus petition all they would have had to do is put in amended havey as corpus petition and as i said in my opening argument simply change the heading to petition for a b as corpus your honor pointed out that a pro se petition or writing a letter with one single sentence on it my issue on federal hate that would be a federal hate is corpus petition the council can could have easily change this if there was no reason but their reliance on the district court order gave them no reason to do that as a matter of due process this court should hold that ed put does not apply in this case under equitable principles if the supreme court says you're wrong well ok but i think that given the situation here you will prevail finally the government says well they only added they only put two claims in but that's the whole point of amend the titians you would have added more claims  the lawyers amended the petition thank you you have the remaining time of five and a half minutes thank you i don't think it will take that long let me very very briefly talk about an argument i heard a few moments ago regarding the final arguments by the prosecutor and there was some suggestion that those arguments were at least with respect to the voting was intisar pated that the defense would argue something else therefore the arguments by the prosecutor on the voting would be justified whether or not it was anticipated it never happened the defense never argued something which even if there had been a rebuttal to it would have justified the comments about the vote so i think that's at least from my perspective i don't think you know we don't worry about me defending what the prosecutor said for me it really is about the transpired prior to him hitting the witness stand in the six or seven days or eight days before he did what we do know is that besides the fact that the state court record says i didn't have enough time and i started consulting eight days before we also know that the prosecutor when he gave his some mation to the jury in the penalty phase says to the jury disregard what this psychiatry's said because he didn't prepare enough he didn't have enough time to prepare the prosecutors in fact arguing our position and the the objective facts that are in the record support that argument he didn't have enough time to prepare now when it comes to what he found i think some questions were raised regarding what he what his findings were subsequent to to the trial proceedings he never had a chance to describe to the trial jury in the penalty phase the traumatic birth that's just one example and the fact that the defendant was having convulsions from the birth and during his early childhood among other things if the trial jury  rolling gets to hear those things because the expert witness who is lawyers hired had enough time to prepare it had the records to prepare it and had the opportunity to tell the jury about it then even one juror would said i don't think this fellow should be put to death because of his background because of the things that occurred to him during the time of his birth and subsequent to his birth and that didn't happen here because dr riddle huber was given the case on the run and earlier in the in the arguments today when we were talking about the the arguments by the by the prosecutor i said that there was  you get the feeling when you listen and read those it's like scratching a chalkboard when you have a an expert lesson when you have an expert who is given the critical mitigation evidence basically at the last second and he's already eight days before is the last second in this kind of a situation it's sort of like scratching a chalkboard any defense lawyer who is doing his job in a capital case knows you don't wait till then that's one thing and then you give him everything that's available so he goes in prepared looks like a professional and gives persuasive testing that