court appointed counsel for mr john ray i'd like to reserve three minutes for a bottle of wine this case provides a prime example of the importance of defense counsel's press presence in ensuring fall and fair criminal proceedings before trial mysteries counsel uncovered in an indication that there was a monetary relationship between the state's key witness chris trotter and the police department mr ray's counsel sought discovery as to the relationship between mr stronger and the police department both the state court and the prosecutor admitted that mr ray was entitled to that discovery however after an in camera proceeding in which the prosecution amendment rights and violated this court the supreme court's precedent in chronic but despite that plain error mr ray's appellate counsel did not even raise this issue on appeal and when mr ray raised the in state hey b s proceedings the state habeas court denied the claim without citing chronic without performing the correct conic inquiry and without even citing the sixth amendment or a viewing the transcript of the in camera proceeding determination could not violate clearly established law or cannot be contrary to pardon me clearly established law where in that situation the state court had applied chronic and had determined that there was not a critical stage at stake in this case counsel claim but the state court did not apply strickland in fact what the what the supreme court thought as it applied it clearly wasn't applying the correct inquiry because the defendant had alleged that he suffered ineffective counsel at the bargaining stage and the state court essentially skipped the step but said while the playing was not the play it was knowing involuntary so there's no that the claim should be dismissed and the same thing occurred here mr a raised a chronic claim  incorrect inquiry and so it's not a sort of magic words doctrine but the problem here is the status quo didn't say chronic and didn't didn't ask the chronic question which is were there significant consequences to the hearing which m counsel was absent is this a stage at which rights could be preserved or lost if it applied that inquiry the answer would have been yes but it did not and because it did not as the court explains in it is the supreme court explained in l it is up to the federal hate b s court to review the claim to novell and to decide it as a matter of first principles and when so there is the critical issue here is the state court did not either refer to chronic or apply in the chronic type of analysis but rather applied this standard that it wasn't relevant which is really a catch twenty two kind of situation and the critical feature then is this takes this hour the question is it in a reasonable application of a specific precedent that's exactly what makes it more generalized chronic question is this in our opinion a critical stage when they're having a hearing in camera hearing and what does this witness who is a critical witness in the case say happened and the relationship about witness to the court made very clear that where the prosecutor and the state discuss potential impeachment evidence without the presence of defense counsel that's a critical stages air and and chronic applies does it matter the question whether or not the the evidence was his rights and the evidence were even irretrievably lost in in your client's case he still could have  d at trial and had folks under oath about that relationship i think actually he could not right before mr strider testified there was a lengthy colloquy between mr strother not mr starr mr ray's counsel and the court because mr ray's counsel had independently discovered potential evidence that mr strother was serving as a as a witness in another trial and so he was again attempting to argue that he wanted to question mr straw to her about his his relationship with the police and the potential that that relationship might suggest problems with his credibility and the the state court refused to allow that line of questioning and ironically in part it said that he had an addict adequately substantiated that there was this relationship with the police well of course he hadn't adequately substantiated it he was denied the evidence that could have done just that so i think he was actually denied the ability to question mr strother on that but you're talking about on another point no i mean there were pursue what's your relationship with the do you get money from the police what's in it that he got paid off for tipping what so he said that was that was what the note suggested but because the court had held that there was no relevant relation he mr counsel bullied that he could not simply question that because there would have been irrelevance determination but he repeatedly attempted to gain access to those records and to bring that back up and what i'm that's what you just sorry about it but it was but in general what mr ray was missed mysteries counsel was seeking before this in camera proceeding was just evidence about the relationship for you to tell us he was generally seeking and you know there isn't no in the in the record that says that there's a that mystery's mr strother continues to call the detective for money and so mr ray's counsel set out very clearly what discovery he would like as a result of that note and it's  evidence of the history between mr stronger and the police department on the theory that if if mr trotter is regularly serving as a paid informant not simply in this case but in other cases or there's there's of a lot of allegations of mr starters involved in the drug trade if there's a relationship there based on mr trotter attempting to obtain favorable favorable a favorable look from the police that any of that would serve as impeachment evidence and again the state court and the prosecution admitted that mr ray was entitle to evidence and it's simply that after the in camera hearing and we don't know what was said there and we don't have the records although those those apparently exist the transcript does exist after that the court said no you can't have access to that and so before the strada testimony what essentially happened is mistress counsel was trying to get out another way he thought he had evidence that suggested something about this relationship that he'd been denied discovery from the state on and so he tried to raise that and he actually did to your point say well i think at least this would should give me the good faith basis to get a hold of those records from the state added deference might not apply if this court were to say or at that i should phrase that differently but could be satisfied if this court were to say well how can we possibly decide this issue without for example the transcript of the  of the in camera proceedings then it would of course be unreasonable for the state court to have made that determination without reviewing the transcript which apparently it did and therefore that would satisfy the twenty two twenty two fifty during state proceedings which occurred here and therefore the evidentiary hearing would be permissible if there which state courts saw the transcript the only state court that we know and it appears the only one is the state court that made the determination it is presumably didn't get a transcript they just write sorry they saw it live a transcript was made but according to your best understanding of the case no court the state supreme court level good morning may it please the court bruce edwards michigan assistant attorney general i mean half of the horn i take strong exception to counsel is arguing that this court should be engaging and in our review that argument was never made to the district court and it was not made in the original brief that petitioner filed it was only made in the reply brief judge pearson i believe you brought that up in an earlier case this morning how it's not fair to raise an argument in a reply brief for the first time i would cite to you page thirteen of the initial brief mr ray filed where it says ray must show that his state court decision resulted in a decision that was contrary to or involved an unreasonable application and i would also refer you to page forty one where it specifically says that the decisions of the state court should be viewed as merits determinations so in the initial brief they said yes ed per applies and yes this chronic claim was decided on the merits they should not be able to change their argument and present an argument now that they did not make below or even in their initial brief they didn't make it in the reply brief that's correct your honor and this court routinely rejects arguments that are race for the first time in a reply brief my office has learned that and you know it there are many cases where this court has  what you didn't argue below you're not going to be allowed to argue above is it something that you're prepared to discuss during the oral argument well sure but it is you know unfair and i would remind the court that there are several cases where you said you will not consider these new judge keep in mind this was a partly pro per motion for relief from judgment and a partly assisted by appointed counsel there were eleven separate claims there was an earlier claim that by failure to turn over these alleged documents romulus police department it was a violation of you know you had to turn over documents that might be exonerating that earlier argument had been made this was a slightly slight variation on the claim that well we should have had somebody in the room when you were looking at the documents judge and the judge he may have conflated those two claims a little bit but he did deny it on the merits and when you deny a claim on the merits you are entitled to deference and they conceded as much and you know they are but i have argued that really what happened here was a violation of white versus maryland chronic and belviq home as for white versus maryland that was in one thousand nine hundred sixty three obviously it was a death penalty case is a direct appeal case what happened in that case was nothing like what happened in here and then you go to chronic and chronic there wasn't even a missing attorney it was a footnote they just looked at earlier cases that said well sometimes if you're in a critical stage and the attorney and in that case the united states supreme court unanimously held that you shouldn't look at the issue at too high a level of generality and that when the precise contours of a right remain unclear courts have broad discretion but the language i would as it says this is all that should have mattered to the six circuit is that we have not held that chronic applies to the circumstances presented in this case that exact language applies here in my definitely would be donald is dealing with a chronic type of situation but i guess the question that i have is given that that there is the right to counsel in the critical stages and this is a hearing on whether really a key witness is going to be able to be impeached on the basis of a relationship with the police department that is at least suggested by fair or possible reading of chronic that this is the deprivation of counsel at a critical stage and and i mean isn't that a serious problem for  itself and it's sad as an ex parte hearing can be justified by compelling state interest united states versus carmichael that says not every time that the judge and the prosecutor have an ex parte hearing is that a critical states where there are six circuit cases hearing and the fact that there is this transcript is is of interest i don't know whether that would mean that the first stage would be the have simply disclosure of the transcript as opposed to having an evidentiary hearing in distr opponent was addressing some of that in in the end of her argument i cited in my brief case of ballenger where it says even though it might be really nice to see what else was there even if the titian are trying to get it so we could see that it's precluded by penn holster inherent in the federal courts just can't do that it would be nice you know for you to know this perhaps to be able to see what was i'm a transcript has never been transcribed it wasn't anything in front of the michigan court of appeals or the michigan supreme court just that it wasn't transcribed that's correct that's what the letter from the judge secretary says i thought it said that it was transcribed and it says it was recorded but it's sealed and you know it so i assume that it could be transcribed if they still have the recording but this was twelve fourteen twelve years ago so i don't know you know if they can find something like that or not with the ballenger case suggests that the federal courts can't look at something that the state court didn't have in front of it to can expand the record and yeah it seems to me that the truth point mystery may have been that the state court myth or mis identified the correct legal principle as a critical day the council should have been present could you speak to that because i think you'd agree good the language is somewhat regrettable it doesn't mention chronic it doesn't mention pardon that chronic but critical in the name of the relevant state case that doesn't really matter all that you look to is whether or not there were result they reached violates the clearly established supreme court case law so you can there was a second circuit case that says the state court can say we're deciding against the defendant because the terror cards told us to do so and the seven circuits up that we would just ignore the reason given and then look to see if there were other reasons that would have been proper had they been given and if they exist we will deny relief so the fact that the state court identifies perhaps the wrong test is really doesn't help the defendant because the defendant has to show the petitioner that what happened is contrary to or not a reasonable application of the and in that circumstance the federal courts in this he has action can determine the principles necessary to grant relief see pinetti but even if this court doesn't look to the principles the principle is chronic the principle of chronic and then we go regarding starter be not a critical stage here when has the key witness he's one of two key witnesses ebony booker was another cuban the she personally identified mr ray as one of the people that was there that held them at gunpoint while the other two defendants were in the house and murdered two people including one who was four months pregnant so there are definitely two four witnesses and really i mean and i didn't put in my brief that post chronic we have the decisions of satterwhite versus texas and davis versus iowa that applied a harmless error test to a critical stage a violation so you have two eyewitnesses so let's say they were able to establish to the jury that one of the two p r witnesses he's cooperated with the police in the past in a totally unrelated case i don't know how that makes him not credible he was a victim in this case he was assaulted he was rob and you know only because the gun misfired or it was empty was he not also you know hit by a bullet how do we reconcile that the presumption of  to permeate the entire trial and this error didn't permeate the entire trial by any stretch i mean more than one person identify the defendant the defendant and his cousin or who they were some sort of a short skin relative you know he knew the fellow when they went to him him in the police he immediately said to the place you better talk to my cousin so i'm there because you know it doesn't permeate the entire case at all there's no reason i mean mr straw her was not up to ending citizen by any stretch the reason they chose to rob him was because he was reputed to be a drug dealer who carried a lot of cash on him i don't know if he had cooperated with the police or not we don't have that transcript i'm not aware of what happened at twelve years ago when they had this brief  parte meeting but it is my contention that if you apply what city donald and you look to the ballenger case and then there's another case that this court just put out after i filed my brief it's coleman oral motion for a new trial after a conviction and the six circuits we never you mention are granted a certificate of appeal ability they vacated their significant of a pill ability because the united states supreme court had never said that such a hearing was a critical stage ray's counsel has correctly conceded that the us supreme court has never said an ex parte in camera hearing is a critical stage there's carmichael from the six circuit is says it isn't there is here ford says it isn't and then there's minsky that has a mixed language it may be but it can be justified by a compelling state interest that's hardly something that you know you've got a grant relief kind of a scenario is not had been an extreme malfunction and the slightest claim was rejected on the merits even if they didn't cite the name of it and the name was in front of the michigan court of appeals and the michigan supreme court and they denied leave as well so even if a state judge overlooked it i don't know that he did but even if he did the michigan court of appeals in michigan supreme court had the name chronic in front of them and they denied relief they are not we're not required by the federal constitution to grant relief so i would ask that you would affirm the record i would specifically ask that you not allow an attorney to put a new argument in a reply brief that's just not right that's not fair and there's plenty of cases from this court that says you review the case that existed in front of the district court not the better case that you first to address the waiver point i think there are two reasons this is certainly not waived this court and the fifth circuit more recently citing a numerous court of appeals president talking about the briefing part and yes the briefing has stated cites an earlier sixth circuit case brown versus smith where the defendant had not raised it before the district court the issue of stand up whether or not there was a deference the court said that's regrettable but d four to four it was overturned on other grounds by the supreme court but not the not on background and again if you persist even cite that as good precedent the number of precedent from other circuit courts of appeal to the same effect i would also note that the state brought up in the in its response brief that this this the state courts determination could not possibly be contrary to a federal stablished federal law because there was no supreme court precedent on point it was then incumbent on us to correct that error there are two ways in which some state courts determination can be contrary to state  established federal law one is the way discussed in woods the other is the way discussed in latin last flare and that is what is its stake here and under laughter it is the case that when a state court has applied the wrong inquiry has applied the wrong governing press has not applied the supreme court governing precedent then that the state courts determination is contrary to federal law and the appropriate step therefore is for the this court to determine the legal issue as a matter of first principles but i mean the language of leffler suggest that if the state court applied if the state court looked at the matter as in our case and used irrelevance is that what l targeting when it says or used the wrong precedent that it seems more like we're the court is using strickland and it's and it's chronic or it's some gross error what happened in that case is a hit and a fight and ineffect assistance of counsel claim in it it's simply an undertaken the wrong inquiry which is actually a little bit more than we have in this case where they don't even identify the conic claim but cited on and of an alternative feature it did it didn't identify the chronic claim but and ends up saying it was irrelevant in terms of a harmless error which is not permissible on a chronic so again it's simply the wrong inquiry and where it's the wrong inquiry then we have done over a review way by the state court that it was irrelevant evidence that me for any purpose i mean the role of evidence that ms will for any purpose when we know that we're speaking about that with took place in camera was recorded and under seal doesn't necessarily mean it's been missed but it's just in there wasn't specifically articulated if you can say something to help me with that so the d issue is the only finding we have on relevance resulted from the one sided hearing so if the state court was relying on the fact that there was a finding that the evidence was irrelevant was relevant which it appears to have done then it was relying on the result of a one sided hearing which would be the equivalent of saying yes counsel is absent during trial that the defendant was found guilty so there must prejudice is presumed he also mentioned davis vs i allah at in davis vs iowa the defendant has actually conceded that harmless error analysis applied that this was not a sort of chronic situation it was not a structural error so that certainly isn't does not indicate that when it is a chronic error harmless error analysis could apply thank you thank you both for your argument and this and i understand that your point in pursuant to the criminal justice act and we thank you very much for your representation of your client in the interest of justice thank you both for your argument case will be submitted