and challengers basically deny all fundamental rights there's no way that there can be any confidence that this is a reliable counsel of course you're very much aware that we are here on haiti as to the state of the bar in terms of our review what i've been trying to do in federal court since i filed a petition is to get the court to look at what the state court of appeal did and what actually they avoided substantial evidence of an unconsciousness and instead ignored some california law as to what constitutes an consciousness essentially conscious acts and in a manner that is is inconsistent with california law california law does not require him ability it allows for the defense of unconscious because people can act that he was such a high blood alcohol level because that indicates conscious and consciousness the many works were got that the defense attorney had no clue the gather what you're suggesting is that the jury instruction was inadequate or not exist or what the problem that has his count so far is that i've been trying to get the court to i'm talking about california law in this context but in terms of what had to be proved to justify a verdict in this case beyond reasonable doubt the people had the burden once the evidence of  was was presented the people had the burden of proving beyond a reasonable doubt that he was conscious and there had to be instructions to find for the jury the factual issues which they had to determine are you got nothing of it ok the problem we have of course is that we're not in direct review unlike the court of appeal of the state of california where you hear on a hideous challenge and the question is whether if there is a manifest deprivation of a federally protected constitutional right correct and the basic  presented them with the factual question they had to answer and in fact lead them away from it we were relevant considerations well what is the jury was instructed that the m disregard of human life correct now how can a jury find that somebody is conscious that is has a conscious disregard of human life as part of the state's burden of proof and then we have our here this other concept of the defense of unconsciousness now if he's unconscious  unconscious the more that it's regard of you that conscious disregard of human life why are and and are you telling us that california law has a i'd like for you to focus on my question yes are you saying that california has some doctrine of law that says in addition to the state having to prove that somebody is unconsciousness is significant under california law only in this case is that what you see in this case given the peculiar application of murder evidence that his decision to drive was made while unconscious now the instructions did not throughout the jury to consider that as to whether or not that was the point that they were determining mental state in stead it focus them on the decision to drink his knowledge of the effects of alcohol in his body essentially they in this case  partial defense in the on the mouse point is there is there is evidence there is there is law about unconsciousness as negating that conscious disregard not as a defense for the entire charge but just reducing it to me answer they didn't get that instead they were given instructions which essentially told them that they should look at his decision to drink with and that he inferred that he had knowledge of the effects of alcohol on his body essentially allowed them to find that conscious disregard in his decision to drink with knowledge that he might blackout and do something where i was not consistent with california law and the requirements under watson for second degree murder in this type of situation it's a specific case it's very fact the facts specific in terms of the law of california in the st well now the question that i started focusing on is is the burden of the government of the state prove conscious disregard for human life separate argument is that the jury was somehow missed the lead in to focusing on the question of whether or not it constituted a conscious disregard of human life by him every step every choosing biology stone sober to take the first drink correct is that right essentially that's a point and those are two separate issues well i think in in this case but they merge because the effect of th fact that unconsciousness was presented in the evidence but not in the instructions or in the arguments what the jury can flee unclear and what they had to find the evidence and if they found unconscious under the but conscious disregard of human life might not be because that a firstly a soul well informed that he knows that if he takes one drink or allows himself to be put under the influence to this extent he's still go able to function and kill somebody well now that would make it pretty criminal to take the first drink if he was armed with all that knowledge and there is no california that is ever allowed that fact  and consciousness either in the form of conscious disregard or unconsciousness irrelevant if they're going to focus on the on the first three i think the problem with the instructions was that it did lead them to that now they both have to be taken together and understand that this jury didn't get instructions to allow them to make a decision on the facts that were given ok i know it's indicate that the defense counsel at trial did not request jury had to be instructed upon factual issues that it had to determine and in this case the combination of no instruction on consciousness and its relevance to this case and the erroneous  put on an expert who basically testified that he was in a blackout and that there was a shutting down of cognition of conscious thinking that time in the bar before he ever got in your car and didn't ask the question do you mean he was unconscious programs did not do a competent job putting this on as a secondary point and we never got an evidentiary hearing on that point it's clear that he state court we haven't gotten one of them and this record we've never had an opportunity to do any discovery or investigation or been no funds to to do anything in this case to district court did not have the entire record that's well it's both it didn't have the entire record and it didn't review for sure it didn't have the exhibits having to do with the  morning gregory offer respond to this film's case there is a real house of cards aside from the individual merit of each of these claims which i'll get to what we have is a lot away by the california supreme court and by the district court there isn't a conspiracy to ignore the record ignore what's in the record the record speaks for itself and the bulk of it especially only in consciousness or all of it is before this court in the response to other actions he stopped and talked to a woman in a parking lot he he got in the car and drove he drove her sometimes as the state court of appeal found this sort of this sort of active conduct over a period and responsive conduct is not evidence of an consciousness the state court finding that this evidence doesn't meet the state's definition of unconsciousness is also a finding that is didn't understand it counsel understood counsel says in a declaration i didn't think a blackout was in consciousness and that's supported by the state court's finding as well it's just not at least not under dr globus this testimony  thought and something about conscious thinking if you read his testimony on the whole what he's talking about is the ability to to do unique tasks complex tasks puzzle things that are new he goes through and i can quote somebody i have here the part of the brain that walks that makes a lot of the drinks turns the keys of the car to make the signature doesn't shut down if you give a person a puzzle for instance that's the part of the brain that shuts down he equates cognition with social judgment is very different from consciousness he says he confirms they can do a lot of things people are capable of fairly complex tasks in a blackout period they can interact with people and you confirm that that happened here he just he was going to testify he recounts of i didn't think a blackout was on consciousness i think it should be implicit in counsel declaration that when he had those thoughts he had talked to his own expert his own expert before putting him on the stand  prejudice there are two things here one is the jury necessarily found a conscious disregard for others in convicting  finding that of conscious disregard and eye and a finding that the defendant was unconscious but that can't be reconciled and there's no california law suggesting that it can be reconciled the finding want i think necessarily negates the other the other aspect of this is the instruction which is conflict four point two one and that is that the jury was told that it could consider the schuler's drinking well if the jury didn't think he drank enough to win a game alex i don't think this is i don't see how he could find that he was unconscious which is a lot farther down the road on the spectrum those two can be reconciled either and i think that's that is why the course of consistently found that there was any prejudice under these instructions given that those two those two instructions necessarily reconciled the the the defense argument or the argument that she was trying to all portions of the record that it deems relevant we as counsel corresponded have never had those articles in our possession those were shoes articles a trial court and  although the prosecutor i don't know the prosecutor probably received a copy in the trial court but they have never been in our hands and since that time the parties ruled on relied on an abstract or a summary of those articles which was prepared by s that if they're covered by the summary schuler could have put those in with his petition could have put it in this reverse but he didn't and i don't think the state can be can be faulted for that we did not mean that the articles themselves as opposed to the summary to be so relevant that it required us to put those in you want to see something about ineffective conclusion he also never says he didn't understand consciousness or that he didn't understand what evidence he was going to put on or that he didn't understand what dr love this was about to testify to that's also opposition here coun supporting evidence and the instructions that i talked about earlier they conscious disregard and also the kalvik or point to one eliminated the possibility of any prejudice as far as objecting to limiting instruction the limiting instruction is is there's there's nothing wrong with that limiting instruction the trial that the jury knew at looking at the instructions of the whole that the act had to be simultaneous with the intent that the issue was conscious disregard while driving and the fact of the matter is if you have this knowledge he had this knowledge while he was drinking he had it while he was driving he had it however many years back when he got the last conviction the jury was aware that this knowledge existed over a large time span what's more important is that they knew that the intent had to meet the act and they knew that under various instructions if you look at the instructions of the whole the jury couldn't have been confused that it was thinking about somehow thinking questions on these issues or the venue issue as well this has been i didn't find one it's the first case in the county to deal with vehicular homicide as a second degree there are a number of there are a number of california cases on this subject because it seems to be in a twist of irony there the drunker a person can prove that he has the defense and these cases ice to whether there is case law on this various case law on ok the exceptions of murder two under these circumstances how much there is on the issue conviction of the charge of second degree murder i did not request instructions on my conscience nor did i argue on consciousness as a partial defense of the jury i did not make a tactical decision not to raise the issue of unconsciousness rather i did not consider the defense unconscious on i have not been relying on the abstract i've been using it because it's all i had i have been trying to get the actual exhibits to the court  since the traverse motion to expand the record i've brought it up at every step that i could house your time has expired thank you very much