good morning my name is david porter and i represent the appellant john leslie borg the principal issue in this case is whether ron macgyver petitioners trial counsel was ineffective for failing to have renewed the change of venue motion at the conclusion of our gear now the first prong of strickland requires this court ask whether mr magara ever performed up to the standard of a reasonable attorney martina's versus superior court said that the motion must be granted if there is a reasonable likelihood that the pretrial publicity well make it fun fair will  make the trial unfair now there are three important things that he said were guarding the standard first that there is no requirement to show actual prejudice second that this is an easier standard  yes it is your honor it is and that redoubles back on whether he performed as a reasonable attorney would as the district court properly recognized that analysis collapses on the first element because if a reasonable turn he would have made such a motion and there was a reasonable likelihood that the trial would be unfair then the result of the proceeding would have been different well don't wouldn't we have to conclude that if such a motion had been made and it had a chance of success it would have been successful otherwise there's no prejudice you can make a million motions that are unsuccessful but if you know they're going to be unsuccessful it doesn't meet the second strickland so what assurance do you have on this record that a renewed motion would have been granted in the california court identify five factors that they analyzed to determine whether a motion for change of venue should be granted and again all these factors go back into the question of whether there is a reasonable likelihood that the trial would be unfair first is the nature in gravity of the crime second is the prominence of the victim in the community third is the standing of the accused in the community force fourth is the size of the community and fifth is the nature and extent of the pretrial publicity there was one motion for change of venue d where there was further publicity and then there was a hard year they actually called into veneers of one hundred fifty people each they had questionnaires detail questionnaires that were sent to the jurors prospective jurors that were filled out and they have the questioning during voir dire to determine what was the extent of the taint on the jury of the pretrial publicity so there was there was a great deal to dish and all information that was available to  that change of venue motion was not well taken that was in the first instance your honor the court of appeal issued the alternative writ at the direction of the california supreme court and it was a written exhausted the change of venue issue in the california supreme court with a petition for writ of habeas corpus and that decision was a summary decision there was no explanation given by the court other than the lack of deal diligence and on the merits of why that petition was was to nine now all five of those factors i've mentioned weighed heavily heavily in this case in favor of the defendant blow to the head the blood soaked bed all of these factors were highly sensational and highly publicized second the prominence of the victim evelyn mensch was an eighty two year old lifelong red blood citizen and one of the articles community shocked by mrs mentions death a whole article that was devoted to mrs  place in the community she and her husband opened the first supermarket in red bluff and it will show up to look at the now that you've had a jury selection you don't have hypothetical questions about publicity poised on that jury panel if the answers that those jurors gave show that they could they could fairly status your well that is that's the problem your honor the answer they gave did not shell that they could fairly questionable to begin with there is an adequate understanding of the way pretrial publicity influences the thought process of prospective  i'm not suggesting that it's worthless your honor but there are many reasons why one would challenge a potential juror and it depends on what jurors were left in the box as to whether you're going to go with the lesser of two evils i mean the jurors who were in the box might have been exposed to even more prejudicial pretrial publicity than the ones that are being picked furthermore there are many tactical costs that may lead coun make less than full use of the the current theory chart peremptory the board you're questioning of juries fairness in light of publicity may antagonize other jurors by suggesting that they are not open minded that they could not take a position against their neighbors and that their community could not provide a fair trial or a great hypothetical but where does that get us in this case you've got an actual jury selection with those fourteen people well your honor the first while there were sixty there were sixty six people out of the two hundred forty seven that actually showed up for jury duty on that day who exhibited to realize that not all of the disqualifying prejudiced are going to be disclosed by every juror that's i think a very obvious proposition when you're sitting there in front of the judge you're not going to a lot of people will not display tho and it's very significant that such a high proportion of the handle did this just exhibit those but if you look at that we have  of the people actually sat on the jury and it's quite amazing mr tipton or read about the case in the newspaper and heard radio and television reports she remembered that her initial shock to the murder she knew that another person had been tried and this youth just actually worked for mentioned means her husband worked for mr or her father in law work from this mention and her mother in law was a friend of the victim she remembered reading that miss mentions home had been broken into and that she had been murdered while she was in bed reading she knew that two people had been arrested for the offense mr rodriguez disclosed during initial questioning that his wife had recently read something in an newspaper regarding the case and he remembered reports that mr bork was walking in the alley and they had found some kind of evidence in the home that's very specific information that someone who was actually on the jury remember honor but the supreme court of the united states said in early in and in many and in murphy and many of the cases that have been cited that the court cannot just simply take that and that's the end all of the analysis that at least a reasonably like reasonable likelihood that a motion for change of venue would have been granted i'd just like to mention briefly on the issue of honor he had very serious i believe he was and i believe that if the court had had a proper inquiry into the letter instead of the starting off the hearing saying oh he's a fine fine lawyer and you were not substitution well he did want more help but it wasn't so much that he like what this attorney was doing he had eleven complaints about what the attorney was not doing was not following motions was not keeping informed was not giving him the transcript  trial there were eleven specific complaints and he was you know he said i thought it was a good lawyer but then when you read the letter as a whole you have to conclude that this is a very very serious complaints against the lawyer and he i represent the the appellate in this case let's look at that jury that was actually picked five of the jurors had no recollection of the case or any of the media coverage of it at all the other seven had had minimal recollection the newspaper articles or the television or radio coverage all of them all of them so that they could be fair and impartial importantly that's one of the things that would have needed to be proven to get a change of venue was that the biases from the media coverage could not be la day it's not to debate now whether it's a tightly knit community or or loosely knit community service are the factors that go into that  equation as far as the state standards for change of venue other than what may have been altered by why here and why dear did nothing to change the conclusions of the court of appeal to go out and survey the community to find out what a fact the media coverage had on the potential jury pool nothing and why dear changed not live in red bluff many of the residents it into hamock county live out in rural areas the newspapers have very small circulation and they did say the status of the victim first as the status of the defendant in this case may have weighed in favor of change of venue but there were no political overtones in this case and importantly the media coverage that was in the papers and in the news and the t v and radio had all been basically right around the time of the crime and then again when the tried but the court found that it was all fair it was all balanced it was honest it wasn't hostile toward the defendant in fact they had comments in their i think prominent persons is what they said that some of the da is going to have a hard time in this case because there's hardly any evidence against this defendant so the the newspapers and the media learned out to hang the defendant in this case at all but what i see this case is about is that the collins arguing that his counsel was ineffective for failing to move for a change of venue but he did move for a change of venue he moved for a change of venue twice both times he took writs of mandamus after the court of appeal both times he lost once he petition for review to the california supreme court which the review was granted i mean the lawyer in this case went through a lot of work on a change of venue this was not simply a case where oh he forgot he could get then you changed or he was too lazy to move for the change of venue i mean he went to a lot of effort and finally it came down to the court of appeals saying look based on what we have in front of us based on what we know from the co defendants trial where it would they easily impaneled an impartial jury based on what appellant in this case the defendant in that case says has presented to us in the way of his published survey that surveyed the potential jury pool there's not enough here and unless what we find out of why dear changes that there's some there's no reason for the trial court to grant any motion for a change of venue so why didn't he make a change of venue motion after why dear well either he knew he was going to lose for yet a third time or it was because he believed he could get an impartial jury and you know by the time he had gone up to all this effort he pretty much was familiar i think at that point with the standards to get venue changed so as he was going through he noticed hey you know i think out of three hundred jurors that were called only fifty three of them i think the district court found fifty three jurors that were disqualified for exposure to the media coverage and even a couple of those the district courts that well they might have been excused for a couple other reasons i think counsel said that sixty six were disqualified for their for their biases but i think some of those were just merely because of their views on the death penalty one way or the other or that they knew the defendant or that they had known the victim so we're talking about what about one six of the jury pool about it i think the conclusions of the district court below found that even greater percentage of that had some recollection of the murder in this case  but the important thing is what percentage was so biased that they couldn't set that bias aside and be fair and impartial and in this case although fifty three of them were  rejected because of their exposure to the media half of those about twenty four twenty five were just agreed upon from there from the jury questionnaires between the prosecutor and the defense counsel that we don't even want to see these people and so they would never work questions about where they whether they could be fair and impartial despite their exposure to the media coverage now that the other half maybe twenty five of those jurors out of three hundred were questioned on why here and did say that they couldn't be fair for some reason very small percentage when compared to some of the media coverage and in this case the first sentence was far less than that so the question is do you know is the state court's decision denying petitioners ineffective assistance of claim an unreasonable application of the united states supreme court precedent it's not in this case because the united states supreme court has has said that it was ok in many cases where the percentage of jurors that were biased by the media coverage was higher than in the instant  case the other thing that the united states or or any other thing the united states supreme court has that is that not using all of your preemptory challenges is very strong evidence that you're happy with the jury that the jury that was selected is fair and impartial and i think that that's what we get down to in this case is that the reason that there was not another motion for change of venue is because the defense counsel was happy with the jury in fact he dismissed some jurors that had no recollection of any of the media coverage preemptory challenges indicating that he was more worried about those jurors than he was about other jurors on the jury that had remembered something from the media  and i think maybe his decision or his his trap his tactic not to make a motion for change of venue because he was happy with the jury was a good one it because his client ended up getting life instead of death in this case so you must have seen something in that jury that he felt he could work with first there were political overtones to this case the county had a projected one million dollar budget deficit the trial could as one of the reporters one of the newspaper reports said wipe out the d a s budget and a change of venue would entail a substantial additional cost that's the court's transcript one zero nine second the district court found that it was likely that ninety six percent of the jury pool was exposed to  publicity your honor i would urge you to read pages thirty four through thirty six of our opening prefer that describes in detail the actual jurors who sat and their exposure to the publicity and if after reading that the court