case in perspective a little bit here mr card of it has been in prison since october of nine hundred and ninety nine for over twenty years roger we know for a fact that the judge to adjudicate his guilt and punish don't give him a life sentence he was being investigated by the california supreme court for larning about his credentials when becoming a judge and then later disbarred and he was he with the time that was presiding over  relevant because one of the issues here is whether or not he knowingly waived his right to a jury trial one of the issue is whether or not he was the ninety six amendment right to effective assistance of counsel and the other one being whether or not he knowingly society as a district judge put it and this case is in fact one of those cases but just moving along just focusing on the issue itself the years of litigation some of which were devoted to just procedural issues what it's come down conducted in soft according to witnesses that were there he was not in the right state of mind now there is absolutely no way we can go back in time and measure his blood alcohol level at the time of the crime or whether or not he was taking medications and whether or not he was on marijuana well we do know is shawna that less than an hour after the crime and a half an hour after he gets arrested he's taken to the emergency room directly to the emergency room yonder and he's being treated differ over four and a half another defense which would have been based on intoxication voluntary intoxication is in fact a defense to this charge you want on the california law but that's how you would have utilized it when i heard about the testimony of doctors are do pronounce that correctly you did you say that's what he was doing they were asking him during cross examination whether or not in general speaking and he's very specific about that he keeps saying i can't talk you guys in general we're talking about this particular case i was out that deposition  i can tell you that he never used those words he not come out of reason out there were that wasn't he put on wasn't a doctor put on notice about what happened to your the chokehold threatening to kill and so forth and based on that doesn't necessarily mean that other factors on the plane i'm not being played here and that's what he said he said that in order for you to judge this person you have to look at all these circumstances including the fact that he had b the system and the fact that he has no doubt about it and brain damage so when you combine all those together is what he said that this person was not in the right state of mind and the reason why he north south yarra critically the reason why he knows that is because he's got the same francis records because it's look he's relying on scientific evidence evidence from other medical doctors and nurses and isn't formulating that opinion something that dr brooks never had an opportunity to do because the lawyer failed to do her job the questions on this particular issue or any other issue the other issues you want to i think there's my contention with respect to the jury trial waiver your honor would be that in order for a lawyer to be able to to advise someone to give up their right to a jury trial then each and all the facts they need to have done their due diligence of taint discovery reviewed it and discussed it would be petitioner this person with person and life sentence for four for  convictions that he had committed when he was a juvenile one and one in new jersey later on in his life all of which stemmed from major deep stem from his brain damage  and no one has taken the time to take care of this person's issues but death just simply put him in prison and you can see this case how that happened specter the other issue you wanted at the court a certified his right to a public trial show your honor i'm not going to push that issue too far because i do realize that there was just a moment just on it with respect to the waiver of the jury if that issue presented to the just to the state court as far as i can tell that it presented to the the the issue dad that is if i do remember correctly the issue that is in dispute whether or not is what happens when vargas spend of august finds out through mailings through understand your jury trial waiver argument a little bit better are you arguing that the waiver is not valid because the trial lawyer and the defendant did not know all the facts about the specific state court judge or which was a lie a fabrication that he made up in his mind it was never true the judge being and then the nd one being that brand of artist the lawyer didn't have the facts she had nothing she went in there and talked on for five minutes is and says me in the in this case nd although opposing counsel is talking about disciplinary proceedings against friend of argus she has not been disciplined in connection with a criminal case in over twenty years  opposing counsel also said that it's impossible to measure the blood alcohol content content at the time of the crime that's incorrect it's absolutely possible to get a blood alcohol content expert who would be able to perform calculations in order to determine know what his height and weight was at the time of the crime and they need to know what his tolerance level was at the time of the crime and once they have those points of data i don't believe that any of that data was collected on federal havey is in order to have it at the time of the draw the information that was that came forth about his alcohol intoxication at the time of trial was information that he provided both to the police and two different clinicians that evaluated his mental state and i believe he told one of the clinicians that he had a few beers before the crime he told the police that he had beers and i think it was a card before the crime so there are some differing assessments about what he actually drank but that's the information that he provided and do you agree that voluntary intoxication would have been a defen it could have been a defense your honor but petitioner was unable to show the data that was necessary in order to prove a defense like that you can't just look at that point to one number that was taken after the crime occurred without having an expert explain what that number means and especially in this case where we know that petitioner has been abusing drugs and alcohol since the age of nine so for him his tolerance is going to be a lot just to move on to prejudice your honor nothing that petitioner presented on hay vs would have changed the outcome of his trial because the record clearly showed that petitioner had the specific intent to commit attempted robbery and burglary in addition petitioner's own expert who we've been discussing doctors their dues on federal habeas admitted the petitioner could not have been suffering from a seizure or its aftermath when he committed the crimes and he also admitted the petitioners actions were voluntary and goal oriented doctors are does conclusion and doctors are jews was a neurologist i believe so doctors  as conclusion concerning voluntary intoxication as a standalone defense was completely unsupported this claim is entitled to at the deference based on the california supreme court's silent denial on he b s and to the extent that this court wishes to consider the evidence elicited at the evidentiary hearing in this case i hearing which occurred over respondents objection review would be dyno however under either standard of review this claim fails haiti is when they're looking at private facia evidence that they take all factual allegations is true and so on that basis the magistrate judge said that assuming all of the allegations that petitioner made on haiti as were true that petitioner was entitled the granting of the writ or at the very least a hearing and on that basis the court said that the california supreme court had misapplied strickland however the california supreme court does not look at all factually factual allegations as true they do not accept conclusory allegations unsupported allegations or allegations that are controverted by the record and in this case that's exactly the record that the california supreme court had before it because there was extremely strong evidence of specific intent in this case and that was compared to some fairly weak evidence that their head of doctors or duces declaration which was largely duplicative of testimony that dr brook gave a trial and also there was evidence based on petitioners common law wife from trial who behaved during a seizure and that description of petitioner did not correlate at all with how he behaved during the crime mrs arty's said that during a seizure petitioner was confused and dazed and mumbling and that is obviously not at all the way he conducted himself during these crimes in fact doctors are do is admitted that the actions that petitioner took during the crimes were goal oriented and purposeful and were not consistent with a procedure state and these actions included entering this event o's apartment without permission telling her neighbor christy is that she had the wrong apartment in order to get rid of zero did not give him money fighting has used as has been in order to get away scaling a wall of the apartment complex and jumping over two fences attempting to hitch a ride outside of the apartment complex and removing his share in an attempt to avoid police all of these actions taken together show that petitioner had the specific intent to commit attempted robbery and burglary which by the way of that specific in town we're talking about is not a very high bar here specifically the intent to commit excuse me to commit burglary would have just been the intent to commit a felony and for rock of attempted robbery it would have been attempt to commit a robbery and that would have been satisfied alone just by the choke hold that he placed on misc the demand for money and the threat to had they provided the correct documentation an analysis of what that because again the st francis records only showed a point to one numbers so theoretically point t in some cases might be sufficient to overcome specific intent however in this case there are two problems that petitioner has he has the problem with the fact that there is very strong evidence that he had specific intent in this case despite elevated blood alcohol and there's also the problems of proof because even on federal hay vs there was not proof provided of his blood alcohol content at the time of the crime there was doctors or jews was not qualified as an expert in blood alcohol content nor did he perform any of the requisite testing and analyses that he would have needed to perform which would have taken into account petitioners size and weight and his tolerance level and what of determined what type of effect that that had on his state of mind and in fact the case that petitioner primarily relies on miller versus moon in that case they actually had a blood alcohol content expert who discussed blood alcohol content at the time of the incident and discuss the defendant's tolerance and made very specific findings about how that would play into his state of mind at the time of the offense and that is exactly what's lacking in this case in addition as i mentioned or teases testimony at trial did not support the fact that petitioner was having a seizure during the crime and the st francis records themselves also do not support either seizure defense or nor do they show what petitioners blood alcohol content was at the time of the crime dress the other claims to have a specific question you heard my questions to opposing counsel about exhaustion and raising in the district court what's your response yes the jury waiver claim was not exhausted were if we cut if we think is there he says it was exhausted you say it wasn't can you give us a little bit more to go on what is your the basis for your saying that it was not exhaustive the claim has never been presented to the california supreme court ok so the it's the absence of a record yes and also i'd like to note that the fact that the claim was an exhaustive and timely is something that the district quite noted in two thousand and ten when it declined to consider this claim with the court like me to get to the merits of the claim despite the procedural hurdles in this case why don't you address the other cl three in terms of the denial of right to public trial claim the district court found that this claim was waived and that's a factor to be considered in this case however in any event there's no closure in this case because there was no evidence that the trial court ordered the court room closed nor was there evidence that there was anyone prohibited from attending who wished to attend the closure was also too trivial to implicate the th amendment because the testimony mr vento was very brief and wall obviously she was an important witness she was one of the main victims she was not the only victim to testify barbara casinos also testified and in many ways her testimony was much more demand for money in the threats to kill and so that was far more persuasive in this case in addition the a combination of this frail and elderly witness was reasonable because there's no evidence in this case that vento was not ill or unable to attend trial and she candidly admitted as i mentioned during her testimony that her hearing and memory were impaired and just to sum up it was actually better for petitioner in this case that the testimony ended up being taken at her home because had she been declared unavailable which is likely what would have happened had they not accommodated her preliminary hearing testimony would have been used and that testimony as the just recorded knowledge was more detrimental to petitioner than her trial testimony just just to summarize the ice you claim petitioner was obviously in control of his actions during the crime he was able to make demands for money threats to kill placed people in choke homes and he appropriately fled when confronted on the other hand the st francis records did not show the petitioner was having a seizure when the crime occurred and that was a fact confirmed by doctors or duz petitioner also failed to present evidence that his blood alcohol level prevented him from forming specific intent therefore we would ask that the district court's judgment be affirmed ok thank you judge a condo she issued an order saying overruling the defense the response objection saying quote judge was it is determination that the california supreme court i recently reply federal law is supported by the record in this case so that's that and then i wasn't answering that question your honor but i could answer absolutely yes your convenience absolutely i'll answer this what you want or the the arguments that were made that the attorney general's office saying that were on exhausted those arguments were presented to the california supreme court in a context of ineffective assistance of counsel claim whether or not brand of bargain is was it was deficient constitutionally deficient when advising trial in that respect the same arguments that were presented in the federal court were presented to the california supreme court so if you read it for you i know i wasn't yes you wanted he was asking pro se at the time he did not raise that he was told that the judge had a psychology degree and therefore is more much more able to understand scientific evidence than jury and that wasn't true under the premise on the line he's waiver was completely false  doctors are doing the same based on what he has reviewed he's the expert he's the one who can make a determination he same based on what i've reviewed excuse me his conduct during the crime hemmed and hawed didn't want to come to anything just moving around standing still not stealing anything and that's what he was talking about are over your time yes your honor thank you very much thank you matt