you good morning your honors stephen bragger from the appellate litigation clinic at the university of virginia school of law i'd like to introduce to third year law students here regrets the o c and shawn johnson who satisfy the requirements for practice before this court and who have the consent of our client to split the argument on this appeal this morning tha good morning and may please the court my name is curious and i will be arguing the merits of mr cohen hales due process and ineffective assistance of counsel claims my colleague shawn johnson will then argue the standard of review for these claims as well as by the procedural default should be excused we would like to reserve two minutes of our time here what you would argue i'll be arguing the merits of mr aerials in the standard process and ineffective assistance of counsel cleans yes we would like to reserve two minutes of our time for rebuttal here the crux of this case is the prejudice to mr hale from the prosecution's on remedied misconduct during mr hill's jury trial this misconduct has caused a disturbing domino effect and it serves as the basis for mr hale's constitutional claims first the prosecution during summation argue to the jury that this case was just quote young african american men killing other young african american men over nothing and that the jury was partially responsible for solving this quote epidemic or quote poison that's going on in society these statements were improper and prejudicial and they rose to the level of depriving mr hell of a fair trial and thus his right to due process than mr  hell's trial counsel was ineffective and reasonably failing to object to these clearly improper and numerous statements and in doing so this prevented the judge from issuing a curative instruction as a remedy and also failed to preserve the issue for appeal and finally appellate counsel was ineffective and unreasonably failing to even consult with his client about the underlying prosecutorial misconduct and ineffective assistance of trial counsel claims and because of this those issues are also failed to be preserved  appeal to this day due to a combination of state procedural rules and ineffective assistance of counsel these constitutional claims have never been fully evaluated by a court and mr hale is yet to receive a fair trial  mr hill's underlying due process claims yes  know assuming that we get to the merits which obviously you hope that we do venture we're going to get to the difference in this question right yes your honor so the last reasoned opinion of the state court as i understand it is the michigan court of appeals do i have that right and the prosecutorial misconduct then went on the prosecutor must guess around the michigan state court of appeals so they find that the evidence presented at trial strongly supported the defendant's conviction for murder and that the air didn't affect the outcome of the trial or result in a miscarriage of justice or the conviction of an innocent defendant we have to give deference to that conclusion so explain in a nutshell if you would please why that decision violates the very difficult standard that you have to meet under parrington v richter and the other cases that basically say no reasoned person about how we don't necessarily need to give the michigan state court of appeals decision friends but even so if you do decide to give that decision deference we would say that the court there had an unreasonable application of federal law to the underlying prosecutorial misconduct claim so basically what happened was because the child counsel failed to object that claim was procedurally defaulted and so the michigan state court of appeals only evaluated those remarks under their plein air standard which is actually a higher burden to me than the federal darden standard and so the michigan state court of appeals there unreasonably applied the federal standard misconduct if you eat nor for second your argument as i understand it the because they apply to only on your standard that's not a merits decision i want you to assume this is a merits decision so i want you to assume that at the different supplies so the court is basically reviewing the strength of the government's case and the court found that there was planar here but it didn't affect the outcome of the trial we're talking about comments made on one page of a fifteen page closing argument so their decision it isn't our task here is not necessarily to determine whether that decision is right or wrong it's to decide whether it's so wrong as to meet the high deference standard that imposes and why are these particular comments so  agreed that the that any fair minded jurist would understand that the state court decision was an unreasonable application of sure so there seems to be little dispute that the commons themselves are improper every court that has looked at these claims looked at the statements gave you that the question agrees with that sure and so we don't concede that they were one comment on fifteen pages of child transcript as the government included in their brief and fact they were quite numerous they were spread out through the prosecutor's entire summation they included comments towards racial bias such as the young african american men killing other young african american men they repeated the referred to this type of crime as senseless as an epidemic as a poison going on in our society and the prosecutor just continued to disparage the defender with these types of comments throughout it's pretty clear that they're outrageous we're also not conceding that they weren't prejudicial they were prejudicial whether you apply add deference or you review the claim de novo part of the concern with saying that they weren't prejudicial under the state court's ruling is that because the state court used the plain error standard in making this determination that just isn't the federal standard here the federal standard is darden and whether or not these curative instruction that said this is not evidence this is not to be considered that's one and the other is wasn't they are substantial evidence of your client's guilt anyway despite the the prosecutor comments the jury had right substantial evidence yes your honor so because the trial counsel failed to object to the improper comments there was never specific specific curative instruction issued to the jury to cure them ferrero said that a proper jury instruction for this type of situation would involve quote the judge directing the jury's attention to the remark particularly challenge here declaring those remarks to be unsupported and then admonishing the jury  to ignore it and that is similar to what this circuit requires i believe an instruction like that was given in the united states is a general worst last thing better than the general jury instruction which simply said the arguments of both the defense and the prosecution are not to be taken into evidence now i see your time is up and judge key you're getting into your friends time here all i wanted to suggest is that when you're waiting to come back  would you look at you please in the fact section page you must the section of the closing argument that i understand you're saying was improper so all i'm trying to figure out what i want to ask you so you know what's so bad about this what do they really say then you said well it permeates the whole closing argument it appears as if everything you're complaining about is what you set forth on page ten so just tell me whether that's right or wrong when you come back oh please thank you it please the court my name is shawn johnson also be representing mister as my co counsel noted we don't agree that the plane air analysis and state court below means that that claim deserves at the deference in this court what matters is it does the decision include the merits or is it does it ambiguously rely on a procedural rule the machine court was clear they used plan or analysis and then dismiss the the analysis that the court would have used had the claim been preserved on appeal well let's assume that miscarriage of justice is a stricter standard because plain error was being applied but that's not all the court said the court said the air didn't affect the outcome of the trial  yes your honor but the court in its analysis of why didn't affect the trial was because it could have instruction could have been given that would have not prejudiced a defendant now that's  the judge took was referring your call counsel to a minute ago i believe that in the actual analysis and when it what it based its decision on on the plane or analysis in something that michigan courts do all the time at least when the issue has been preserved is simply that a curative instruction could have been given not just that the general instruction given was enough to cure any issues where you're right that in the  paragraph that you're referring to the second sentences they said a curative instruction could have been given but then they go on to say that it was cured by the instruction that was given well your honor even assuming again we have to we have to get by i know you don't like the is you just simply have to agree with you have to deal with the second portion of that same paragraph that you're referring to that talks about how it was cured so we have to determine why is that so wrong not wrong but so wrong as to violated is to violate your client's constitutional rights well in our opinion we would pass at the deference as well because of the prejudice caused by the prosecutor's comments  disagree that cured instructions were enough to have either cured him instructions or the general instruction that was given was enough to cure what happened there was incredibly weak evidence as evidenced by the fact there was a hung jury in the first trial we kn a that is incredibly weak evidence when granted they hung the first time and then they convicted him of second degree murder in the second trial when it seems to me the evidence is largely undisputed that regardless of the circumstances that led to the shooting the testimony is your guy once the decision is on the ground walks up and shoots them keep shooting them until he's dead our position is that that is not necessarily what happened there were two witnesses that testified to that but they gave conflicting stories as to what actually happened on the ground who shot off the first shot where that shot came from those two witnesses that talking about who shot who first know that's what is don on the ground yes your witnesses testified your guy walked up and and shot him dead yes your honor i believe they also obviously bought that i believe that they also both witnesses also noted that there was an earlier shot before hand but they can agree where it came from and you'll notice in the record i don't have it as an argument he's saying well he's already dead anyway from no no your honor i'm sorry there the physical evidence show that there were ten bullet shells outside at the time from another the first jury actually noticed that and asked a question about that but it wasn't available in the transcript the first jury also asked for the actual police statements by those two witnesses because there were so conflicting you also notice in the record we're not talking about the first trial we're talking about what the evidence was in the second trial what is what was the response in the second trial to this testimony that regardless of how the guy got on the ground that the petition here walked up and continue to shoot them or he's laying on the ground i believe if you look at the two witness statements that bill said that they actually disagreed asked to what happened once they were both on the ground and afterwards it's also noticed that the one of the two witnesses did not actually pick mr hale out of the lineup he pick somebody else out in then later on pick mr hale l the other witness the one that actually identified mr hill in the first instance he didn't even show up to the police station till thirty days later there's a lot of evidence to show that witness credibility was a big issue here in the prosecutor had to find a way to fit all the pieces together because their stories just didn't make sense hence she created a story about african american men constantly killing each other that's where the prejudice l so in the first trial it was clear the jury did not pay attention to those statements in there therefore we had no injury the second trial the jury did not was for some reason and mr johnson we're  approaching this on the on the view that this claim ineffective assistance claim was an exhausted and my correct that the that there was in the post conviction state post conviction petition hale argued he uses the term constituting ineffective assistance of appellate counsel ok so is that sufficient to  yes we believe so in fact in the post conviction and trial opinion they are they also mention the merits of the appellate counsel's ineffectiveness so clearly there must be a ruling on that thank you see my time is few things first of all i think the first thing i'll probably address is something from the reply brief which is whether martinez versus ryan does anything to weaken when white vs torn us of this is talking about  whether this court in a certificate of appeal ability asked whether ineffective assistance of appellate counsel for not raising the claim in the michigan supreme court can excuse the procedural default and it can't and the reason is because martina i'm sorry did you i'm sorry i missed what i of counsel on direct appeal michigan does defendants routinely do and so the reasoning underlying martino's is if this is going to be the defendant's first bite at the apple we're going to say that if counsel is inadequate  that can excuse a procedural default this would have been mr hill's third bite at the apple was the second one he actually took in his third opportunity to raise prosecutorial misconduct if he had raised in michigan supreme court so the reasoning underlying martina's doesn't apply here when right versus torn applies here united states versus nichols which is a decision from this court applies here and the prosecutor misconduct claim is the the default cannot be excused and it's not properly before this court for review but when you say the default can't be excused as assuming that there was something that was an exhausted here there there's no way to go back and exhaust it now as a practical matter so we go we move right to procedural bar correct and to do procedur bar we got to do cause and prejudice to do it cause we have to do the strickland analysis to find out whether there's deficient performance then we have to get to whether or not this really was something that was viol constitutional rights during the closing argument that should have been objected and absent the objection that was ineffective assistance don't we have to don't we at least have to do that analysis i guess i would need to clarify if you're talking about the prosecutorial misconduct claim or the in effective assistance of trial counsel claim the ineffective assistance is a failure to object there can't be ineffective assistance for failure to object unless there was something that needed to be objected to in this case that is the prosecutor misconduct so we're not talking about a different ineffective assistance claim that's not that's not tethered to the prosecutor in misconduct i don't think no no that's correct there are there are two sort of underlying claims for relief here one is that the prosecutor comments by themselves entitle mr hale to relief and that question is what i'm saying cannot be before this court because of the procedural cobol the second claim is that the trial council's failure to object entitle now that question is before the court and it does it does bring in the prosecutorial misconduct lee so this court can look at prosecutorial misconduct as part of that claim would have to under the cause of prejudice yes but we have to get to the merits of not misconduct at least in the context of causing prejudice right not necessarily i mean this court can as to the prejudice prong but the court can also look at the cause problems and say even if these so there presumption that counsel performs competently and this court is very reluctant to find that that presumption is overcome when it is a decision made by trial counsel not to draw attention to a comment made in closing argument and the hail has not overcome that presumption in this case and so you don't need to really get to the prejudice part of it because you can find no cause because you can find no deficient performance now certainly the court can also address prejudice and can also look at the overwhelming evidence that hill killed nelson hartmann and can look at the mission court of appeals decision and as i think your honest questions appear to recognize when i hear i hear counsel on the other side saying well we disagree our position is this well they have a position i have a position your honour's might each have three different positions but the question is not who agrees and who disagrees the question is whether the michigan court of appeals merits discussion of this was so outside the realm of reasonableness that no fair minded person could disagree with it what about the underlying claim that because it was reviewed under play in your view that therefore it's not a mere its decision and therefore you don't you don't get a difference i think any part of the michigan court of appeals decision that relies on something that's not part of the prosecutor tauriel misconduct claim is not a merits discussion but they did both they did talk about the merits and they also talked about the procedural bar and any part of it that does talk about the merits of the claim for example about how this was not this is not outcome determinative because it was a relatively minor comment that did not infect the trial with unfairness that i met a paraphrasing i don't think that addresses exactly what they're saying because they're saying yes the court did address the merits but through the lens of clean air review so therefore they did it doesn't get the difference i understand but i think that if you were to strip out everything in the opinion that was in fleming versus metrics which is controlling the circuit ok try one more time i understand all that but all i want to know is in that era immediate step do you agree that if it was reviewed only under the lens of clean air review not other language that you can say is reviewed under a different standard does that deprive the state court of deference because they employed plain air review yes if they employ pl view and relied solely on plenary for example if they said we're not going to reach the question of whether there was there we're not going to raise the question of whether as i can determine if we find that under michigan's fourth probably an error of you which i believe mirrors the federal fourth prong we find that this is not  something that should be overturned in that case i would say no we're not entitled deference because they didn't reach the actual claim they employed is solely procedural bar but so your follow up argument is they did reach th exactly exactly no if yes  speak also to that there's been i think i heard counsel said an oral argument and it was also i believe in the reply brief that faulting the michigan court of appeals for not applying the appropriate federal standard i think that's a dangerous argument that cuts against the petitioner in this case because if if it is true that the michigan court of appeals didn't apply the federal standard the reason is because the brief to the michigan court of appeals didn't cite the federal standard the brief didn't cite the united states constitution or any provision of it didn't cite any controlling federal law did not mention the words due process this was presented as a state law claim now i'm not saying that for that reason that's an exhaustive because we didn't say that in the district court but if if hill is going to say the michigan court of appeals should be faulted for not applying the federal standard then i think it's a matter of trying to have it both ways to say well i can raise a claim using only state law authorities and one non controlling federal case but then if the mission court of appeals decides it without using the federal standard now i get to know  review i think it has to be one of the other either it wasn't raised as a federal claim in which case it's not exhausted or it was raised as a federal claim in which case that pedestrians applies  and i think and i apologise there's a lot of issues here effective assistance of counsel now we've argued of course that it can't be reached because of wainwright versus torn up but i would also point that that the count the claim has to fail on the merits as well would also have to overcome the heavy presumption right the trial counsel performed competently that this was a strict tactical decision not to object and not to draw the attention of the jury to these comments and so for appellate counsel to raise the stronger  case for the united states supreme court they can't overcome that so you don't even need to get to the prejudiced side of ineffective assistance of a poet counsel this was a reasonable strategic decision that appellate counsel made that a competent and reasonable appellate cou made and that alone is enough to say that effective assistance of trial counsel is not there there are two arguments as well that are not properly before this court because they're not in the certificate of appeal ability which are the sort of getting mixed up in effect a sense of how a council for failing to advise and consult with mr hale in the michigan supreme court that question was not in the certificate of appeal ability so it's in their briefs and i would asked the court to stick to the certificate of appeal ability and decline to address that issue and i would also reiterate the point that we made in our brief which is that the supposedly racially inflammatory components of the prosecutor's comments were never raised never raised in the michigan court of appeals of the michigan court of appeals that chose to address them not raised in the michigan supreme court because nothing was not raised in state court collateral review at any level not raised in the petition not raised in the amended petition not raised in the r n are not raised in the objections to the r n r or in the opinion in order and not raised until this court mentioned them in the certificate of appeal ability and then raise for the first time by mr hale in the opening brief before this court so i would ask the court to stick to the civic duty component of the argument and not the racial inflammatory although i think that even under a did over review of stripping away all of these arguments that i have this is relatively tame stuff in the michigan court of appeals acted reasonably in holding that it wasn't hokum determinative i'll be glad to answer any of the questions that the panel you follow up very briefly on your your opening remark that there was substantial evidence of guilt here there was this i was asking questions as you heard about not so much how the initial shots came about whether there was and was or whether in self defense there it seemed to me the most damning evidence here was the testimony that after the guys walks up and shoots i agree or i don't in fact i would say i would i would say that the evidence i think in our brief we said there is compelling evidence of first degree murder of course he was acquitted of first degree murder  so i'm not sure how you account for that i think that i think mens rea before that happened right before he shot it and shot him while he was lying on the ground i think the mens rea was very much in dispute and i would not have been at all surprised to find him acquitted of first degree and convicted of second degree of see many cases where it's first degree as charged but there is sort of a mutual combat and it ends in the death of one of the you know the person who started it in the juries as well that looks like second degree but but then given those facts i think the fact that the fact that he was acquitted of first degree murder i think is is a little surprising and i think it it goes very much to rebut the argument that the jury was poisoned in the passions were inflamed against this defendant i think the jury took its role very seriously and and i think the jury followed its oath and i don't think there's any reason to overcome the presumption that it did i think that even as to mens rea i think there was there was substantial evidence based on what what your honor said and i think the fact i also need to clarify something in the reply brief it accuses me of of trying to say that two wrongs make a right somehow the fact that the prosecutor said this in the first trial makes it better that she said it in the second trial and that either misunderstands or misrepresents the argument the argument is not that two wrongs make a right the argument is that their opening brief started off by saying we know there was prejudice here because in the first trial we didn't have these comments we got a hung jury a second trial we did have these comments we got a conviction but that's not the facts the facts were we had the comments in both trial so we had to point that out to say you can't show prejudice this way because the comments were present both trials and so we're not and in fact i took pains to say we're not saying this disproves prejudice we're saying it disproves this particular argument as to prejudice and then in the reply brief i'm accused of trying to say that the two wrongs make a right and i just need to clarify that isn't the argument only citing this small part of the transcript how we can look to the rest of the summation to prove that this was just completely agree just prosecutorial misconduct that prejudice the jury against the defendant federal law require that the court when evaluating this misconduct review their remarks not in isolation but cumulatively in the context of the entire trial including the totality of the prosecutor's comments  the court's instruction to the jury or lack thereof as we discussed earlier and we go evidence presented there's lots of cases it's not our job to sort through the record we we read what you cite us to and you're absolutely correct that we don't put that in context but we don't go looking for other race based comments either during the course of direct cross opening or other parts of the closing so all i'm trying to figure out is is is this what's on page ten th least look at the summation and its entirety which is required by federal law to any other portions of the closing other than what's on page one we're not citing to we didn't say to any other portions of the summation and our brief however we do not have to because federal the law requires the court to look at this summation and its entirety i have my annotated version here of the prosecutor's second closing and on nearly every page of the transcript of this closing or something improper that she is saying this is just a small bit of it a small summary of the types of race base and city today morientes because of the circumstances under which you're here that say in the rebuttal argument that first of all it's our job to go look at the whole closing and we're supposed to figure out which things on other pages you say iran and figure out why they're wrong is probably not an argument is going to get you or no you are never not saying that you isolated she made these comments throughout summation i believe we included information in the brief to that effect that the government here i see the point it needs to be given to the court fetus that that's judge point since your student good to know right yes or at the end of your argument if we if you've finished having you counsel yes your honor we would be happy to file a supplemental brief  oh yes and we recognize that you are doing this on behalf under the criminal justice act and the court always appreciates that and particularly the good work of you students wonderful to have you thank ok we're ready for the next case