the honorable the judges of the united states court of appeals for the th circuit oh yea oh yea oh yea any person having any manner or form of business before the honorable the united states court of appeals for the th circuit  to get their attention for the court is now sitting god save the united states in this honorable court represent the state of my attorney general correct that is correct your honor thank you good afternoon to you all of you represent the respondents the bones in this case which all collectively refer to as the state of maryland for convenience in this case the district court's decision to award a writ of horner on the grounds that maryland courts unreasonably apply supreme court precedents to reject his jury trial waiver and brady challenges was a mistake under at the district court did not assess warner's claims with the appropriate amount of deference at various junctures the court did not focus on the last reasons the court decision did not give the state court the wide berth they were tied into in a bind generalize  below there is a wide field of play that we've recovered and i don't suspect that i'll be able to address each easily but i want to be as useful to the board of the bill unless the court has specific concerns which i'm more than happy to prioritize i would like to suggest that perhaps we focus on the brady and procedural default issues since they might benefit most from a clarifying conversation well a vote you can go to however you want to do it  already here ok well start there then your honor the the jury trial waiver in this case was not or at least a quarter special appeals affirming thought it was not condemn essentially the colloquy of the the solemnity of the colloquy which was really not the proper focus since there really is no constitutional right to an on the record probably of course we all know that such policies o and that's what you have in your brief but i just hope and that was very thing i had open here because they say that in adams two years after patton what testing the needs of the colony and whether it was sufficiently solemn report that it was lip service roads but really when your the titian are on collateral review question relates to information that the prosecutor larned during shapers senate saying and my question is whether that actual knowledge quieting based on what happened the petition was raised in the  you know one of the things we have to look at those materiality and the district court considered materiality collectively if you will or cumulatively and and and we don't yet but that but but the district court and so how do we deal with materiality do we deal with it on an issue by issue basis for example do we do we look at materiality on this one brady claim kind of in isolation d or or do we do urge d as a district court boyfriend that is correct your honor that is my that is the state understanding of brady materiality law the difficulty of the record at least and you are correct you are to determine that afresh are not bound by the district court of reasoning but i have to say that the district court did not really treat this part of the u p a court's legal reasoning distinctly it there's a portion of the opinion below that sort of  together after rejecting some of our procedural evil arguments on some of the individual brady claims but then just sort of sort of assumed although it's been suppressed without discussing it and doesn't really that mr horner has wrongly served fifteen years because of a constitutionally defective trial in particular the district court concluded that the state contravene brady in failing to disclose intelligently waved to a jury trial as to the st grade he claimed the supreme court in kyle vs whatley held that information known to the prosecution including the police must be disclosed to the district court properly concluded that the st state p c r court unreasonably applied kyles holding the information known to a detect then attended the st meeting between detective alex and richard shaffer and then acknowledged that he was aware depreciate that was asking for a sentencing reduction in exchange for his testimony that she knew that schaefer had a preexisting relationship with another detective matter and or not and detective alex testified that he knew that schaefer was a paid informant now the effectively the federal district court and this court or the st courts to review the imputation claim in light of that testimony at the nd piece you are here alone when there is new evidence that has not been subject to a preexisting state court determination that it's incumbent upon the court to review that information  under this set of facts it's a reasonable application of kyle's to hold the detective hons knowledge cannot be improper imputed to the prosecution but certainly in light of the information established the nd round of p c r hearing namely the testimony of detective alex and prosecutor jennifer ship the information of detective hahn could be imputed to the prosecution that information this longstanding relationship between detective on and mr richard shaffer a decade plus paid informant relationship was alone with serial to the verdict and undermines confidence that this is not a case in which there is a blank jury verdict in which this court has to guess at whether a determination was material or what motivated the jury's determination and four quote he came to us without any kind of deal or offer and shaper testified merely that he had provided information to  decade plus relationship with detective that he call detective hahn whenever he was arrested and that charges were no cross in exchange for information provided were ruled accidental this claim in conjunction with the africa mentioned claim about his paid informant relationship establishes that richard schaffer was willing to do and say anything in order to receive he treatment for his testimony and that's exactly what he did is now the state will argue that that particular claim has been exhausted but it was mentioned for the st time after the nd round of p c r hearings before a court that had refused to reopen the brady claims and then it was raised in  horrors application from leave to appeal at seven and mr hoar court of special appeal to reopen those brady claims plus sufficing to exhaust that cla but it's not just it's evidence that fundamentally undermines one of the staved indeed as the district court recognized there are brady claims undermining the testimony of the state's other key witness in that case miss lorraine's net particularly that she informed the prosecution that she had no independent recollection of the events of the shooting that she was and simply mis weighing evidence in the record and it's in the former category it's the state courts determination here this state p c r court ignore critical evidence email from to date will four in which she said she didn't think that mr horner deserved to try this state courts explanation for the facts and decision to discredit  and she could not recall it in general all of which is available to this or ninety through ninety one in short this tension if we ignore in critical evidence in the state court record and simply re weighing that evidence here the dish trick or rightly to determine that the state court reached it on reasonable determination of fact as to the brady claims against miss it because it ignored critical evidence not simply that it mis weighed that evidence now this state has attempted to cast this claim against miss mit as about were sixteen now was simply mentioned in passing in a moment of cross examination petitioner's counsel even closed in or the nd state piece your court emphasize district court rightly concluded that the state failed to disclose six different d pieces of exculpatory evidence related to it's all lead to key witness in this case and therefore this court should a firm but that's not the only reason that this court can affirm the district court's judgment indeed in this case the district court rightly recognized that the state function where the courts come out is not a function of where they go in and supreme court precedent and searched and otherwise makes clear that courts must indulge every presumption that's correct that's correct your honor and the trial was problematic from the outset judy inadequate waiver of the right to a jury trial and so if it's true that the brady claims fall away if this court here's where the state misapplies at the deference in this case the court of special appeals cannot unreasonably applied clearly established supreme court press and supreme court precedent dictates that courts must indulge every reasonable presumption against the waiver of a constitutional right and the jury trial waivers must be knowingly voluntary and intelligent based on this record all the way th of special peals could have concluded that the waiver was knowing voluntary intelligent was to misapply the burden of proof in the st instance and indeed if this court looks to the decision of the court of special appeal it is riddled with charges that mr horner did not sufficiently speak up and object when his counsel attempted to waive the right to a jury trial for him or did not seek clarification of the right to the jury trial but the supreme court has clearly place the burden on the state in the st instance to ensure that that right is protected and in this instance that right was not sufficiently protected on the basis of no more than a five sentence colloquy which made no examination of mr horner's background in circumstances no examination of the charges of a potential sentence no examination of the particular waiver of the right to a jury trial and there was no attempt here by the district court or by mr horner to impose ruhleben like strictures upon the state trial court but it must be knowing voluntary and intelligent and the statement that in the st did it's incumbent on the federal courts to look to the record and assess whether the record suffices to showing knowing voluntary and intelligent labor and this record does not is not even required as a matter of constitutional law only a valid waiver the defect in the supposed litany which isn't constitutionally required don't go the distance to show on collateral review that he  behave he had a burden on flower review to establish that he did do so and there is no record for mr warner objecting to what he said on the record which is that he agreed with his attorney's advice certainly have enough information in this record search isn't general standard so the courts have weinberger's in applying the particulars here we have to remember that the trial court said that you have a right to a jury trial that there were twelve people chosen at random from the problems with their claim with respect to unrelated data i want to point out that the state actually disclosed that as we argued in our brief in their supplemental disclosures the u p a or found that as a matter of fact  miss smith i really don't have the time to regale the court with our very distinct understanding of the record but i think what you heard demonstrated in another itself that this was an evidentiary contest and there was position that what he said i think you were just saying and what he said was related d to the issue or were you responding to that in some other way well there there's two different points to be made there