one of the questions of course is would have made a difference had the jury heard that defense were to mean by that to have the opportunity you mean because the defendant chose not to testify the defendant didn't testify your honor i  fall away from the word shows because his counsel advised him not to testify based upon the trial court's ruling that the rest would not be a defense to felony murder which was wrong supreme court has said well the qubad because in order in order for you to take i think advantage but you know to have standing to raise an area you had to be you must have testified and i'm thinking for instance in cases where could have been impeached with that but still you have to you know exercise your right to take a stand in order to you know who challenge you're right that that's pretty fundamental concept your honor and that's one of the reasons why i am relying heavily on the theory of ineffective assistance of counsel to present this issue because in this particular case i think it's interesting to note and i know th the court has expressed the doubt that i think is always there what would mr williams have said if he did take the stand and to get a feel for that you can look at what he said to the police shortly after he was arrested it's in the records it's in the excerpts of record pages there's a transcript of it at pages thirty nine to fifty two where shortly after he was arrested he admitted to the extent of his involvement but was continually throughout that interview talking in terms of addressing this without talking having talked to counsel it isn't like he had had an opportunity to shape his statement to the police by based upon things that maybe a recently look at that statement that mr williams made to the police that it's worth going back and looking out at pages thirty nine to fifty two because that gives a very good idea of what mr williams would have  even raised correct that the clearest authority for this was decided came down in the second anderson case which actually came down after this decision was made by truck council so yes that was not a crystal clear decision for trial counsel which is case goes it's probably not going to be a full defense but it would make a huge difference to me g well might have waived the issue on appeal i think i think that's when it's clear that counsel knew this was a very important issue he raised it in a pretrial hearing he continued to to litigate this issue throughout the trial obviously counsel understood that there was some on his side and that he did have a chance of winning this issue and the time and the best way to preserve the issue would be to either have mr williams testify or and of course  advised them not to or to have secret relief so that you could correct the t opinion in ruling on the claim of ineffective assistance of counsel i am very concerned about the the inconsistency these between what the court in dealing with ineffective assistance saying well there was no problem because the issue was preserved for appeal but then when dealing with that same issue on appeal the court says really in three different ways that pages nine ten eleven of the court of appeal opinion in separate statements in separate ways is thing the issue was not preserved for appeal page nine the court says there was no error at trial because no evidence of dress the court purports to deal with the issue as as error but it really doesn't because the court gives four reasons why it says it's too speculative and could not be prejudicial for that reason under any theory and the second of those four reasons is that with the trial court have continued to refuse to instruct under arrest as a defense to felony murder had evidence actually been presented which really is just another way of saying waiver when you stop and think about it so every time the court of appeal deals with this issue in the context of the appeal case can you point out clearly established supreme court ruling saying that without test the issue is preser and it was ineffective assistance of counsel because he didn't take note of that footnote in the end in case what was the effect of this is the cause of not getting a writ it was which one was it or both is a combination of the advice he gave what was act or omission constituted deficient the act was saying i'm advising you not to testify based upon the trial court's pretrial ruling that the court will not under any circumstance instruct under arrest as a defense to felony murder and giving that advice knowing that there is a footnote in the case law that says the contrary so you just said that we can put you on you should have said we're going to put you on the stand anyway even though you don't get arrested you're going to testify and if you get convicted we keep this error on appeal or we should've sought interim relief by writ yes it's my understanding that counsel told his client application and appellant simply cannot meet that burden in this case as judge cashman pointed out or titian forgive me pointed out  s really came down to enders it's pretty clear a trial court would not give it a rest instruction that is the indication that the court gave however again at supplemental excerpts of record page twenty six the court states i don't know your scenarios and i don't know your evidence so i can't really make a fully informed advance judgment on that but you've got the cases i will follow them they gave instructions investigate lupo and if they're appropriate here i would consider them i don't know that they had to under the existing case law i think that judge probably went further than even on a felony murder theory but i think it is at least arguable based on that language the court certainly made no impediment to the defendant presenting the evidence to present struction the defendant not present tatement to say that the only defense here was the defense and the rest of the defendant proceeded on a viable alternative defense theory namely putting the prosecution to its proof claiming that there was not proof beyond a reasonable doubt that the defendant at the scene to demonstrate his involvement in the offenses and in fact we have the jury come back with a second degree on that crime but there were no eyewitnesses i mean this was certainly not an easy case for the prosecution has a good defense counsel taking this raid up in the middle of the trial why isn't that issue could have been rid of that writ procedure was available but it still puts trial counsel in the position even assuming that the myspace court putting his client on the stand as the district court magistrate judge noted in the report recommendation if you are one twenty one felony murder was not the only theory of murder presented to the jury there was also a first degree premeditated theory presented us to both victims the defendant would have had to get up on the stand and admit his presence his involvement again now all the ambiguities in the physical was surreptitiously recorded in the jail does give an indication of his involvement is much more vague than the statements made to the police officers which were not introduced at trial had the trial court's full of any indication been correct there was still a tactical decision to be made and to say that the only decision that a reasonably competent attorney could make in that circumstance is to put the defendant on and present that arrest evidence i simply don't believe is borne out by the record and certainly there is no case law that i'm aware of that supports that position well let me courts the report recommendation is a citation that when the defendant indicated that he would not take the stand trial counsel stated and the defendant affirmed that his reason was the state of the evidence what would have happened had the evidence been presented a balanced own statements to the police that he claims give a good indication of what he would have said there are problems with those presumably now the statements to the police again my recollection proceedings was that there was a challenge based on the ledge miranda violation of the prosecution elected not to present his statements at trial but even assuming  miranda violation i believe that had the defendant testified those statements still would have been available to impeach him at page forty of the letter appellants later offer proof he indicates that he didn't know that and i said then killed that he saw simon shoot into the car but he didn't know that that there was she would survive that encounter but she wouldn't be killed to eliminate a witness to both the rape and the murder his to rest defense again would not be applicable in that first degree premeditated situation i think on this evidence even though a felony murder theory was presented as to mrs mack polly on this evidence and particularly in light of the second degree implied malice murder verdict as an aside i think this is premeditated first degree murder this isn't felony murder and again i think that goes back to why under matthew s this court's decision i believe roundly that you need to have substantial evidence to support the instruction the defense instruction because it gives the reviewing court something to to look at and otherwise this court will be forced to play what ifs and the california state court in determining that it was not unreasonable it was not in effect it's a counsel to make this decision was not unreasonable and did not apply strickland incorrect fared on the witness stand and he wouldn't have known how he fared because his testimony of you was there at all moments might have been used by the jury to find him guilty of premeditated murder as a you're no better indeed that mr williams was actually with premeditation on that second murder they would have returned the death penalty i think the the returning the wife without parole was to some extent an act of mercy that was based on their understanding that he was subordinate throughout the entire event the court asked did was there any indication in the record about as to whether or not counsel had a tactical reason for doing what he did and i would say that the record contains the just the opposite in counsel's declaration and i'm looking at page twenty seven in the excerpts of record counsel addressed was the question of why he didn't secret relief concerning the trial court's ruling and remember the trial counsel initially started a litigator that's about forty five days before trial so he had time if he wanted to to take this to the court of appeal but he said they did you talk to his co