well i will say that honestly i said in my brief this was never a freestanding claiming mr fletcher's never said it that the simple that one question one question of the officer about whether he believed my client in his wife's the superior court barred this on dixon grounds that it could have been raised the prostrate misconduct claim could have been raised on appeal as did the appellate court the california supreme court did not differentiate between claims and didn't it did not differentiate between procedural bar allegations and this court has said in on paanch that when the court doesn't distinguish between which claim which which bar a place which claim it's ambiguous and there's no procedural bar that would be my position the second one would be in if in fact there was any consideration of a procedural bar this is a situation where mr fletcher was placed in an untenable kitch twenty two he asked his attorney his appellate attorney to raise  the attorney refused mr fletcher read the opening brief saw it wasn't raised addressed it was his attorney who said file a supplemental brief in the appellate court so he did so then the appellate court says you can't file that because you're represented by counsel so fletcher did to get that case to get this claim before the appellate court and so if if there were to be a procedural bar he certainly has reasons for having having not been able to comply with the rule and so i was asked it at the very least that this court you with the district court did address the merits of the claim and not to deal with the procedural bar issue the third issue i'd like to address is my request to expand the certificate of appeal ability on client or his wife to the to the to the murder and we have a situation where jennifer my client's wife tells the police that she hears a statement that sounds like it's made by a black man in a bond type language and the prosecutor lambaste her the entire trial that this is a lie there's no evidence to support this and this is just all made up part of their  to frame somebody else for murder or whatever when in fact there was a black man who was a gang member with who had been in prison for burglary that was committed through a sliding glass door who lied to the police when he was asked about his whereabouts that night who there were neighbors who said a number of neighbors who had been accosted by this man that night on the same street on the cul de sacs treat where the murder took place that he had been aggressively asking for cigarettes that he was working for an alarm company that would where he was employed by another gang member where there was evidence that this gang that that he was associated with had an history of committing burglaries in that area and had been doing it through the alarm companies there was evidence that another neighbor around the time or shortly after the time of the murder who had have had heard somebody trying to open the door to his house there was another neighbor who said that their dog had been barking that night around the time of the murder which was contrary to in one neighbor who did testify that there was no dog barking and none of this new evidence was allowed in none of it and the standard for admitting third party culpability is that have it every have the ability to raise a reasonable doubt you don't have to prove that the other person did it so we have a situation where my client adamant that they did not commit these murders they both testify and but there's no opportunity to present to the jury that any other plausible scenario when there is one and in on top of that you have the prosecutor repeatedly telling the jury that this that jennifer statement about hearing this black man is a lie when there is actually evidence is that there was a black man who was again member on the street at the time of the murder and so i would ask that that there this is certainly an arguable raises an for the prosecutor misconduct claim itself i am not going to address that there that there is he's relief intitled for the one question that was asked i just i can't i can't argue that with a straight face but in terms of the totality of the it you know i tried to summarize the different aspects of it in the briefing i would have taken another hundred pages or more if i could recount every objectionable thing that this prosecutor did what he said his repeated refusals to listen to the court orders is taking advantage of my client having represented himself the court not allowing jennifer's attorney to to file object to raise objections it is it's it's i've to the crime the petition was prepared by a pro se and made a thirty nine year old mother of three who until this case arose had never had any contact with the criminal justice system there are two basic prosecution's first witness at trial that he didn't believe her the second issue is whether she's entitled to relief as a result of the onslaught of testimony by l enforcement officers and others offering their an expert opinion assessments of her credibility and her character issues the state court did not resolve on the merits and therefore are not subject know that we were there she focused on the fact that there was one there in fact two people who were present in the area committing robbery or committing burglaries and that although there was a discussion about that  they were asking for cigarettes in fact the testimony was aggressively accosting people asking for cigarettes and law enforcement officer said that behavior is a way of approaching people having an excuse to approach people to try and see whether or not you can break into their house or take advantage of them is not simply somebody with a nicotine habit do you do you agree with your colleagues  introducing evidence of girders murdered were other people write that do you agree that that issue is not certified and that it would have to be for the grief to the the third party culpability has not been briefed i think i said because i didn't say it right then my question to you and let me break it down into two parts there's an issue as to whether your client's argument as to the  specially when you put it in the whole context and she doesn't want to rest on that in this case it when we talk about a law enforcement officer who's not just a street cop this is a detective with an extensive history and he got up on the stand and talked about the high profile cases that he had investigated and that he was the expert in a lie detector so when we're talking about him of all people as the prosecution first witness introducing packaging the case giving the jury a framework in which to understand this case they're being told an expert has already told them and it's already concluded extent they get expert testimony this is not a subject for expert testimony and is the first witness with his extended with his extensive background that he went on and on about in the client's claim i mean twenty to fifty four petition included at all a claim about prosecutorial misconduct with respect to this detective right seven other words i think  just take positions you never raise that in the industry know the state's business know it was clearly raised in state court there is some ambiguity as to whether it was raised in federal court and in the twenty two fifty four petition that is correct her petition that quote other people think jennifer is guilty and then he joins she quote joins in all contentions raised by her cope of history matthew fletcher  that is the the substance of why this should be deemed included within her petition i think it's very important to focus on the fact that she is cross referencing a petition that was filed within district judge federal rule ten expressly authorizes incorporation by reference that is all she did and it is perfectly acceptable they are two individuals struggling with a very difficult to see the rule area of review and i think they did that they did the best they can they didn't do what an attorney should have done but i think they did the best that they could and that's why i believe it should be i think it's unfair to penalize a pro se havey it's petitioner who's serving life without parole for something as trivial as not being told at any point that her incorporation by family both said that but if there's any questions about procedurally fault or other issues ok thank you thank you your hon and the answer is no for four reasons first the constitution does not prohibit a prosecutor from asking a witness if a suspect was being truthful when he was interviewed in the course of a criminal investigation in this court's cases us versus career and us versus gaston which hold that it's based conduct to ask a witness about another witness is recipe arise out of this court supervisory powers and you interpret the constitution witness whereas in this case the issue was commenting on the raspy of a suspect at the time he was interviewed six years prior to trial moreover a prosecutorial claim to the valuated at the time it occurred and when this alleged error heard the prosecutor would not have known whether the defendant was actually going to testify at a trial and it doesn't really make sense to make a prosecutorial misconduct claim hinge on a defendant decision to testify in other words a question that's properly asked does not become improper because of the subsequent act fourth petitioner open the door to this line of questioning by detective mccartan because he asked about detective mccartney's investigative techniques and about whether he lied in interviews which is constitutionally permissible in addition to the jur jury was instructed and in this case that they were the sole decision makers in terms of witness credibility and it's it doesn't make sense to think that they would believe they were supposed to defer to a detective  petitioner from six years prior also if we could just take a step back for a minute the evidence that we're talking about that came in was that the police officer thought that petitioner was incredible this would have been obvious to the jury obviously the jury would have understood but the police did not believe petitioner and jennifer story because they arrested him even if this corner found that an error occurred any air would have been harmless because there was abundant circumstantial evidence in this case that confirmed petitioner's  reading what was the abundance of comes from i'm going to focus on four of the most compelling pieces because really there is a large amount of circumstantial evidence in this case but the pieces that i found the most compelling were first petitioner admitted in jail that he killed a cop four years prior back and he showed consciousness of guilt when he lied about his alibi third there was overwhelming evidence of motive both financial and romantic jennifer and petitioner were instability jennifer reinstated the million dollar policy just before her husband jules murder and the claims adjuster involved in this case that he hadn't seen a police officer with that level of our insurance in his twenty seven years in the business in addition jennifer's mother who discovered the victim's body and who dial nine one one in this case said a petitioner and jennifer how stupid are they to think they could get away with this those poor children are going to grow up to never know their parents they're going to spend the rest of their lives in jail she also said that she was sent to oregon because the heat was on and petitioner and jennifer were apparently rightly afraid she was going to talk too much and slip her he essentially concedes that he cannot win on the narrow issue that certified before this court for all these reasons the district court's judgment should be affirmed thank you you know that's what petitioner and now i'm talking about jennifer never raised the court never ruled on it and petitioner importantly never objected in the objections that she filed in her report and recommendation that the court had failed to consider any not sufficient under rule to see of the rules governing federal hey vs proceedings rule to see requires that petitioners specify all grounds and supporting facts and every district court that's considered this claim has found that this type of joinder language which is as petitioners have mentioned a holdover from what the rule rule doesn't say so many words that you can specify by incorporation right now and in fact the hof diver's is half our case anticipates that incorporation by reference is proper at some point but that case says that you need clear and repeated references to a specific claim and that you have to attach an appended document and none of those things happened in this case in this case we have one sentence at the end of a one hundred one thousand page petition in which petition it says that she joins in her color palettes claims that a creature her benefit which really puts the onus on the district include it in her federal haiti's petition when she had previously included in her state a b s petitions that she and furthermore that she knew how to make a claim like this and she did not do  she she got a lawyer not until she reached the ninth circuit but after she a certificate of appeal balloting had been denied and then there was a request to reopen after the certificate of appeal that he had been granted as to matthew and then at the seems really convenient now to say that the prosecutorial misconduct claim was in her original petition when all evidence about that points to the contrary was affected basically the same way by the prosecutorial misconduct i don't think that i think that if this court really feels that the prosecutorial misconduct claim is meritorious then perhaps it would be in the interests of justice to allow her to raise it but because this position with regard to the it's the scope of the specific appeal ability is that this court cannot take a claim that mr fletcher raised and then turn it into something different he wrote in his that was his claim underneath that claim he wrote supporting facts by use of questions innuendo and by giving and sworn testimony the prosecutor throughout the trial improperly asked witnesses to give testimony and to ask their first of the nine examples and then he goes on to give additional examples and so i'm not sure how it is that the c e o won't get a look on there or it is the right the request is granted with respect t broader way then aren't we expanding it and then doesn't get a chance i have no objection to allow i mean i believe it should have been read expansively but i have no objection to allowing the responded to address the merits it's not addressed and made it hard to do a reply brief because it was somewhere were about straightening out the briefing problem if we i have no objection to it i have not conceded that he can't win on that i just my argument is it is such as it's  way it was a detective detective mccartan said he does believe that jennifer he disbelieved jennifer is the one that he said was a liar so that is just spillover from math the fact that the defective might be able to say that there are conflicts conflicts in the statement that he identified one statement here or another is totally different from saying he disbelieve somebody he concluded that they were a liar there are many reasons that people might have conflicts or make mistakes the fact that they were arrested does not suggest that the police disbelieved her or disbelieve anything there was probable cause for arrest the prosecution made a decision to bring it to trial that is not a and as far as the objection ms fletcher did file an objection and she said that the district court ignored the mountains of evidence  i would just add as far as the quote overwhelming evidence what you didn't find what you didn't hear was anything connecting them directly to this murder what you did here was disputed evidence that the jury didn't even get a second  the other side of everything she regretted was either disputed or taken out of context and even the level of insurance was a disputed issue there was plenty of evidence of this that joel who sold insurance  had one forty had one point four or one point nine million dollars of insurance he always wanted more than a million dollars in insurance and he actually didn't even have that much i think you