good morning and may it please the court my name is stephanie attacked us and i represent the petitioner joseph rice a bedrock principle of criminal law is that the defendant shall be judged based on evidence of the elements of the offense and not character or propensity accusations the most important issue at rice's trial for murder was whether the murder was willful deliberate and premeditated prior to trial rice's counsel sought to exclude evidence of rice's prior robbery conviction because counsel was concerned about the potential for unfair prejudice if the jury knew about his prior offense trial counsel was prejudicially ineffective because he failed to object to the prosecutor's criminal history exhibits which contained more than one hundred pages of inflammatory facts and opinions about rice and gang members of the members of the same mean we agree with you where is the prejudice your honor the prejudice in this case flows from the inflammatory facts in the more than one hundred pages of records for example the probation officers report which begins on excerpts of the record page ninety includes opinions that in rice's prior conviction for attempted robbery where he also used a gun that rice conduct was deplorable that it was planned and sophisticated that in the officers opinion rice needed to be incarcerated for at least thirteen years because he represented such a serious danger to the community there were numerous other accusations and opinions about rice that could and must have been misused by the jury to infer that in this case there was premeditation and deliberation prior to the offense the lever however the worry that i am over and i guess again we're talking about the prejudice the california court  the question of strickland prejudice on the merits so it seems to me then that this is said to review and it seems to me that this is at pr review under twenty two fifty fo one and if it said purview under twenty four twenty two fifty four d one then it seems to me that my standard of review is that the state co determination that the claim lacks merit precludes relief and i'm quoting woods the atherton so long as fair minded jurists could disagree on the correctness of the state court's decision must be so lacking in justification that there was a where error well understood and comprehend that an existing law beyond any possibility for fair minded disagreement now that's the worry it's not a matter of are we arguing prejudice we're arguing are we arguing prejudice that no fair minded jurist could disagree with understood your honor and in this case the claim that mr rice bring here meets that high standard i'm trying to i'm troubled with that i understand your honor the reason i'm troubled is we're really talking about premeditation and deliberation and we're and as outlined by the california court of appeals who i guess i'd have to say is not a fair minded jurist if i'm to adopt your position they said there's enough here one of the plaintiffs friends got into an argument with williams on the night in question williams hearing this argument said that he would handle the business in other words saying i'll take care of that guy who's disagreeing with me  strengthening that guy and then the plane have thought i'm never going to let this happen i'm going to do something myself now i didn't say those words but they words he said were worse than  it was fuck that yes your honor so then after doing that he stands up from the position he's in walks over and shoots williams in the head right now i g recorded on a on a video yes and your honor that's not what happened on the video if you look at the video there's no walking over there's no standing up there's none of those physical actions that the court of appeal unreasonably found had happened this is a case under either twenty two fifty forty one an unreasonable application or twenty two fifty forty two there's a very unreasonable finding of fact here the finding of fact being that mr rice's physical actions indicated did your answer is good but i'm just saying when i can see why you can argue about the video but nonetheless i can also say why is it that there is not enough time for premeditation deliberation your honor there's there's not whether or not there was another time wasn't the issue in this case well then what was it the issue in the case was whether the the properly admitted evidence whether there was a reasonable likelihood that the jury would have found premeditation and deliberation without this very damaging very inflammatory evidence and in order to meet that standard rice needs to show only a reasonable probability that at least one juror might have harbored a reasonable doubt as to whether or not until reading about juror here we're talking in twenty two fifty four the one if there would be the judge who would suggest that this is ok your honor under the strickland standard we look to for prejudice as to the effect on the jury whether there's a reasonable probability of an effect on the jury here there is that on hay vs we have double deference we have the strickland deference and then we have the differences so that's a very high hurdle for you to overcome and your honor it's that's  twenty twenty two fifty four pressure standard it amounts to the same thing whether there's a reasonable likelihood that at least one juror would have held a reasonable doubt if one looks at that video this looks like a spontaneous unplanned act  asking you what are you basing that case are you basing that argument on your honor after having done several strickland cases in the twenty four to twenty two fifty four context i know that i have read and you should have the case that your honor i'm happy to submit a letter to the don't need a letter we need the case i can supply a case and i don't know the only thing that i'm trying to get to is whether we have double deference or deference your honor there is it or whether there we have either the point where we're looking at this under twenty two fifty four d one review it seems to me that i've got to say that on this record you can put in what you can make your argument about what the what the video says and state will make their argument about what the video says i've got to say there's no fair minded jurist who would disagree with what happened here your honor no fair minded jurist would have found without even acknowledging how inflammatory this information was the court of appeal opinion doesn't even acknowledge that the probation officer called rice deplorable said that his prior incident w planned all these other of appeals passed over and decided to do the prejudice pronk first that information does go to prejudice your honor because the jury read those words they had all of that improper information in the jury room and so it is relevant to prejudice if a juror not knowing that it's improper for them to even consider this information is told that the person on trial is a deplorable person someone who planned his prior offense somebody who should be locked up because there are a danger to the community no juror could have been immune to that when apps was this premeditated and deliberated and it is absolutely improper for them to have considered that evidence in deciding whether there was premeditation to be bored of i mean let me look at this of herman different lands seems to me that what you're really suggesting is that there was some maoi evidence that was in this record that was to a different case or a different issue and that that of that evidence was so prejudicial that we can't get to that point seems to me that's somewhat like a missed joined or no your honor i'm not arguing th in but i know you're not arguing it i'm just suggesting that it seems to me that if i look at the wrist joint or if you will the application of missed jointer and the rules missed jointer i wouldn't suggest this was a missed joint or well your honor this the information given to the jury went far beyond what would have been done if there was in its jointer because it included not only the fact that the fact of the conviction but also all of the improper opinions of the probation department calling mr rice these various names essentially deplorable among other things that the california supreme court didn't seem to think that there was or an overabundance of evidence as to the gang crimes in fact they thought it was insufficient well your honor it should have been more evidence that the the there was the issue that that caused a reversal to games i was the wrong answer was given by a police witness and it's really not relevant to this i know it is i know you don't want to be relevant but the problem comes that if i have to think about what was let in and i have to think about what the prosecution had to prove in order to prove the gangs criminal street gang or any of the pattern of criminal gang activity or any of that then i have to think about well was this evidence really necessary to get there and then i look at the california supreme court and i say do they say that it was insufficient no there's nobody who it was over there was too much evidence about any one fact they don't say anything about that the only thing they say it's insufficient to convict them on their end the defendant received if you will help by them because of that so again then i'm back over to premedication station and deliberation your honor the the issue record in the reversal of the gang begin it hasn't really has doesn't have anything to do with the improper information that was admitted the improper information is what's in the excerpts of record starting at page ninety where you can read the comments of the probation officer which were supplied to the jury as well  like mr rice was arrested while he was on parole mr rice was sent back to prison there was there were numerous references in those records to things that the jury should never have been towing under counsel we understand your argument you could see that your time thank and for the substantive gang offense the people are required to prove a pattern of criminal gang activity for the prison a probation report with hearsay who were there with opinions of the probation officer what was going through their heads so i think that probably what happened is that it was an oversight and that there is a good argument to be made that the narrative portion of the probation report that contained sentencing considerations in the prior offense and that sort of this deplorable language is coming from probably to have been redacted the probation report itself in california is part of the record of conviction and so properly could have been put before the jury to prove up the prior but again i think because the california court of appeal assumes deficient performance and gives right to prejudice and the fact is that you've now had the california court of appeal deny rights relief on the ground of insufficient  california supreme court deny review and now you've had the district court deny real rice relief for the same reason and the fact is that the poll premise rises argument is that the evidence of premeditation deliberation is weak because i was essentially the contested issue so rice says well if the evidence is weak then of course it's an on reasonable decision by the california court of appeal but the fact is that's not so first of all under california law a point blank shooting with no signs of provocation or rice's own statement now this debate about what the video actually shows this comes from rice's statement and to the extent that the video is inconsistent with reisa statement i actually think that hurts rather than helps him because it means that he's adding steps mentally so his statement is that he hears the person who williams is arguing with wins the victim he hears that person claim to be in a gang rice's response to this to think f that and then in a rice's words wright says he walked over to williams well if you have an opportunity of you the video you'll see that they're sort of on a patio milling around and you know various times williams back is to rice and they don't really appear to be engaging with each other but in fairness they're also not especially far away from each other well if reisa saying he walked over to the victim before he shot him he's adding mental steps i mean that really tells us that he hears the guy claim a gang he doesn't like it and as he's walking over he's reflecting on what he's going to do and of course in the video you see the very i think he does raise his arm up pointed to the man's head pull the trigger and then walk away and it's interesting also because after the shooting is done rice doesn't really do much he doesn't panic he doesn't freeze you see him sort of disappear in this crowd in a very cold way and that is very strong evidence of premeditation and deliberation the only thing i'll say is that in some form and this goes to the question yes judge harmon this evidence would have come in in some form and so the california not not all of it but in some form a lot of it would the prior conviction would have come in the prior convictions for the fellow gang members would have come in a lot of this type of evidence would have come in and was properly admitted and so i really don't think that ri morning my understanding is that you get double deference on deficient performance because we defer to counsel's tactical considerations and then add to our view we defer to the state courts the termination of whether or not this tactical considerations were reasonable and so that's where you get the double deference in this case the california court of appeal doesn't consider the tactical performance or the tactical decisions because it skips right to prejudice ok so if it's a prejudice case you think there isn't that double deference listen i have no other course thank you thank you very much will give you one minute for a bottle counsel thank you your honor in this case i disagree that the jury would have received all this information even if counsel had objected number one coun within admissible opinions also counsel argues there's strong evidence of premeditation in deliberation but his argument is based on after the facts statements by mr rice and the like the issue before the jury was whether he thought about it beforehand rice look at the video and you can't find it happening i didn't want to call you on the carpet about it but it seemed to me that your client statements about what happened if it's not in the video which i think you have to take your interpretation of that makes what you're arguing a little bit suspicious we honor mr rice contested that he even made that statement there was no recording a written statement and in fact as mr rice himself pointed out in the district court  the detective who said that rice said that he walked over later in the trial gave a different statement that didn't include the walking over and writing for the jury to decide i understand that your honor but if one resorts to the objective evidence it's clear that he didn't if one looks at the videotape there is no walking over to the victim there is simply mr rice standing there and very suddenly raising his arm and shooting the victim the evidence before the jury therefore was very weak as to premeditation there is no indication that mr rice thought about this beforehand that he weighed the considerations for and against committing the crime that he decided made this conscious decision after reflection to kill and so a jury that had not received all of these very damaging opinions about him and about in the facts about his record that were inadmissible at least one juror would have harbored a reasonable doubt as to whether this was a premeditated