good morning in may it please the court emily grand ike from the office of the federal public defender on behalf of petitioner appellant michael rose i'd like to reserve three minutes of my time for rebuttal this case presents to serious sixth amendment claims regarding his claim the district court correctly concluded that the claim in its entirety must really be reviewed do novo it is not subject to the restrictions a section twenty two fifty four g because the last reasoned decision by the state court what did not decide the merits of either prong in this claim mr rose alleges that his attorney was ineffective for failing to present available testimony that would undermined the main prosecution witness and corroborated rose's testimony in his own defense now normally courts defer to a trial attorneys reasonable tactical decision making but that deference does not apply in this case because the record demonstrates that counsel was not making reasonable tactical decisions there are two main categories of evidence that i'd like to address first there were witnesses who were available to impeach mr denman sed statement that that rose carried a gun now trial counsel during the marzan hearing stated that those witnesses were simply unnecessary because mr denman had already admitted that rose didn't have a gun but the record shows  testified three different times during the trial that he was pretty sure that mr rose did have a gun although he said he didn't see it he did say i'm pretty sure he had one he was also impeached with his own collimator hearing testimony which included an affirmative statement there was mr rose did have a gun and the jury was actually instructed that that testimony could be considered not just doesn't pietschmann but for the truth of its contents so to say that the statement is that mr rose affirmatively did not have a gun would have been redundant with anything that happened at trial evidence is a misunderstanding of the either the available testimony or of the evidence as it st presenting this evidence would have been very important for any attorney any reasonable attorney would have wanted to present this evidence because if the jury believed that mr rose carried a gun during this incident it would devastate his claim of duress it would also be important to any reasonable attorney to impeach mr denman and undermine his credibility because as discussed at length in the briefs this trial was essentially a credibility contest between the two main prosecution witnesses mr denman and his mother versus mr rose who testified uncorroborated in his own defense and the impeachment evidence would be that the video of the impeachment evidence would be the video and also the testimony consistent statements and premised on the notion that mr denman admitted at trial that rose never had a gun but as i mentioned before that's just not an accurate statement of the record as i understand it from the record correctly but wrong the issue of the video being available as impeachment evidence was brought up for the first time in the second state petition correct your honor it was first alleged in the second  the first time that mr rose provided briefing on his strickland claim i couldn't tell from the record at what point during the proceedings the petitioner knew that there was a video available it seems to me that the petition suggests that this was something that was given to a trial counsel prior to trial is that right your honor the position alleges that the video was given to trial counsel before trial the record is not clear about whether mr rose was aware of that fact the allegation is that members of mrs mr rose's family conveyed that video to trial counsel but again we don't know whether mr rose was aware of it and it was not discussed during the march and hearing that was so there was no opportunity to question counsel at that point now imagine when government counsel argues he's going to say well you could have been prejudiced because a week or two after these murders occurred your client was in las vegas with the bad guys and so if you really was you know not in on it why you hang out with them in vegas a week later what's your response to that or your honor that takes me to the second category of evidence that's at stake in this claim which is evidence relating to threats that mr rose's family received the other part of this claim is his allegation that his mother and his sister would have testified that they were threatened by members of mr short's his gang and that mr rose finding out about that threat is what caused him to go meet with mr shorts in las vegas now counsel said that he counsel had two reasons that he said he didn't present that evidence first he said he was afraid that it would have opened the door to rebuttal evidence and second he said that it would have been redundant with mr rose's testimony in his defense but those two explanations are in conflict with one another if mr rose as he did testified about those threats the door to any available rebuttal evidence was already open and so that doesn't provide a reasonable tactical decision for counsel's failure to corroborate for counsel to say that it was redundant with rose's own testimony i think just discounts the value of corroboration in this case what we're looking at is a defensive dress premised entirely on research rose's testimony which the jury would rightly of us self serving the prosecutor and counsel for co defendants commented on that fact and said you know he didn't present a sister he didn't present his mommy didn't present anything except his own word and so i think as this court recognized in brown versus meyer putting up a defendant to testify in his own defense is a substantially weaker presentation than offering any cor testimony you know one of the things we asked herself in the briefing on was the impact of twenty two fifty four u two and you i think correctly pointed to the horton case i've read that footnote in horton and i i think it's a very good footnote for your argument this case i don't entirely understand everything they were saying but that being said i think it's a good footnote for you do you know of any cases subsequent to horton that have a tried to explain that footnote or provide as a new other guidance on how to interpret twenty two f jury believed arrest offense then that would have provided a defense to all of the charges so his testimony was that he never wanted to be involved in a robbery he never wanted to be involved in a carjacking and so the felony murder liability if he had a defense of the underlying felonies then he would not have been liable on felony murder as i said before the case was truly a credibility contest and it's clear that the jury found this to be a close case as i noted in the briefing they submitted seven questions most of which related to mr rose's guilt and then ultimately inform the court that they were deadlocked as to mr rose only having convicted two other co defendants so thinking about any evidence that could have changed that credibility evaluation even a little bit might have made the difference in this close case now with the district court said was that there was no prejudice because there was ample evidence that mr rose willingly participated but that's not the standard under strickland under strickland the question is whether there's a reasonable probability that any juror would have reached a different conclusion and in this case i think given how close the evidence was there's a strong argument to be made that in at least one juror would have continued to have reasonable doubt if the record demonstrates that an evidentiary hearing at the second state hey b s petition but is that enough under horton i think it is enough and it should be noted as morgan explains you know his position was summarily denied so he hadn't even reached the appropriate stage in state court for seeking an evidentiary hearing so the fact that he requested an evidentiary hearing was really above and beyond what was necessary at that stage so and it's also worth noting your honor that the video is not the only evidence at stake in this claim that there is witness testimony so even if there was a question about the admissibility of the video or questions about diligence on the video mr rose has been pressing the issue of vailable witnesses and their testimony since the beginning you arguing that there should be an evidence rehearing in federal court now or that or that there should be remained to state court for an evidentiary hearing at this point your honor there should be remain to federal district court for an evidentiary hearing  think that's typically what happens in these cases where the state court has already assessed the claimant denied an evidentiary hearing  good morning your honor smith please the court deputy attorney general christopher beasley on behalf of the respondent with respect to the availability of these witnesses bell in boulder the court of appeal actually ruled that that this was a tactical decision on the part of trial counsel that counsel decided i don't need visas witnesses to testify because a what they have to offer was already offered by  would have been inadmissible under the hearsay rule in california state court so the trial counsel made a tactical a reasonable tactical decision not to call bell and ball them to testify here bit ready knew if  trial and is able to make discriminations that reasonable after denham changes his testimony to just rely on that yes even though it's he's clearly giving  contradictory testimony in the two occasions it's reasonable to conclude that based on demonstrable testimony in which he repeatedly asserted that i never saw rose with a gun that that's not going he's speculating that rose had a gun and he doesn't need to try to bolster that he doesn't need to undermine that counsel doesn't need to undermine that because he can then make the arguments look he's all over the map but what you do have is him repeatedly testifying i did not see him with a gun and therefore the jury can conclude from that he didn't have a gun plus coupled with the fact that denman repeatedly testified that rose never did any violence to him and participant coupled with roses and national trial testimony that he was a passive participant that he was acting under duress trial counsel could make a reasonable determination in the heat of the battle of the trial that he did not need to call dell or baldwin to testify is the analysis the same with regard to the videotape which according to the petition was available to counsel prior to trial i think that that's also correct that with respect to the videotape there's a couple of pieces to that first we have an allegation that counsel was given the videotape before trial counsel can view that and to make a determination what to do with that if indeed the video existed but there we also have the fact that that video the fact that it was even brought up only later much later suggests that this is just avocational we don't know we don't know in that and so if we don't know why not have an end of evidence you're hearing at the soonest possible juncture we don't know when he learned about it do we we don't know but we can infer well hold on that's always dangerous it is it can be ok so i think we don't there's a lot of things we don't know and the reason why we have evidence you're he learn but we don't know i think your strongest argument on this one is not to infer things but to say why maybe ultimately it doesn't matter that's true but ultimately well it wouldn't why why would it not matter in this case because it wouldn't affect the precious analysis suggestion in the video that he wanted to have that he wanted the rose in prison that's not particularly surprising you know any juror is going to conclude that given the fact that dunn testified on behalf of the prosecution doesn't there something about him framing rose those risks those are things that bell and bolden had said that then and told them and that was something that was presented early on in the the in and she wasn't present in the mother's than it was presented later but it was something that was never brought it was never fully litigated in the morrison hearing but again it goes back to the idea that the jury already knows that denman is testifying on behalf of the prosecution so to suggest that denman had said to  some had said to bolden or to bell that yeah i'm glad that he's gone to prison or that i'm that he's in jail that doesn't add anything to what the jury already knows and whatever bell and book and holden could have testified to still would have been hearsay in still would have been miscible why wouldn't it be used to impeach the credibility of the government witness not for the truth but to say this guy has a motive to lie i suppose it could have been admitted in that respect but again it wouldn't have done it would not have undermined what the jury already would have known given that denman is testifying on behalf of the prosecution and the fact that they know the relationships of the parties that are that are at play here they know that denham is a friend of rose and they know that ro betrayed and then according to them is testimony so it doesn't add anything there is no prejudice here when you take that together with all of the evidence that does show that that rose is an active participant that he was not acting under duress that he never did anything to try to stop this they never did anything to suggest that he was an unwilling participant the fact that he ends up in las vegas later with the bad guys as judge owens you commented earlier that also undermines the idea that he's acting under duress and with respect to his mom ms ramos who might have said might have testified that she had contact or her daughter had contacted ro to let them know that there were there were gay members outside and that they felt threatened that's just what rose had already testified to and council made a reasonable tactical decision even though we had ms ramos on on standby to call her he made a reasonable decision not to call her because he does not want to try to highlight evidence that could then be impeached the entire like countless suggested this paste turned on credibility anything that counsel does to undermine his own client's credibility is going to be a problem in this case and by calling ramos to then testify and provide additional fodder for why rose left bakersfield to go to las vegas just opens the door again to the prosecutor deciding i will face and did the best that he could with that case and that we can't send we can't sit here with twenty twenty hindsight and criticize council for the reasonable objectively reasonable decisions the council made what's your response to the horton case on the question of twenty two fifty forty two so i think that we need to understand taking a step back and looking at what california state hideous practice and tails really provide a tremendous amount of opportunity for factual development just because an evidentiary hearing is not granted does not mean that a petition is an able to present facts in evidence that there is a suggest that relief should be established and ask the petitioner to append all reasonably available documentary evidence declarations affidavits anything that can be presented to the court to help support the claims that are in the required to establish the prime aphasia case under people who do all devolve and so when you've established that prime facie case that yeah there's a likelihood that relief may be available here what happens then is that the court grant one of two things from the respondent it will either ask for an informal response or it will go the formal route and ask and issue what's called an order to show cause if the is if the if the order to show cause is granted there are issue then we do go towards an evidentiary hearing because the court feels that there is additional material that needs to be fleshed out but if we don't don't get to that stage because there has been an insufficient showing at the prime official level stage that first stage then we don't get there so what i'm trying to what i'm trying to highlight is that we've tried to make it as easy and efficient for a petition as possible present everything that you have a fro could make your best strongest case if there's something there then you go on to an evidentiary hearing it's a matter of preserving tradition resources here rose did none of that he was exactly like the defendant in the ba case that i cited in the supplemental brief and i think that thing circles back to the question of at what point he discovered the existence of this video i mean i i understand your argument and it's a compelling one particularly under deferential review that that there was a tactical decision made not to call witnesses to try to undermine the primary prosecution witness because as you know trials are messy and these witnesses could have kind of mucked up the defense case so why not just rest on similar statements that mr that meant artie admitted on the stand and utilize that to craft the closing argument i think there's a compelling argument that the video though falls in a different category because if you have all you need is to lay the appropriate foundation so doesn't have some of the same messiness of witnesses being subject to cross examination but on the record that we have now we don't know whether that was a total failure to review the video and make a a proper strategic call because we don't have counsel's explanation as to why he didn't review it and so i think on that portion of it why not have an evidentiary to figure out what counsel's thinking was with regard to the video which i have any declarations whatsoever about anything all that this petition had to do was ask this trial attorney can you please provide a declaration as to the things that you did do in preparation for trial the things that  you viewed the things that the witnesses that you could have called and the rationale for why you didn't call them or present whatever evidence you had that kind of declaration could have helped and that would have also established a modicum of diligence hearing so the council also is response specifically to what the issues that were raised and because the failure to call these witnesses were presented directly as a ground for substitution of counsel or ineffective assistance of coun responded directly to that i don't know that he would then you know search his entire file for saying oh yes and there was a videotape no one's talked about it before here's why i didn't do that all right and and that also that also lends itself to the fact that that is still speculative and the district court recognized as much because mr ramos claims developed and became more and more self serving as time went on i see that my time has expired and if there are no further questions we would submit all right thank you very much coun just very briefly about california habeas process and what the warden discussed is the california standard which is that petitioners are expected to provide reasonably available evidence and i think there was a lot of discussion about what was available to an indigent incarcerated petitioner and i think it you know i'm sure the court has seen a lot of ineffective assistance claims and some of them had declarations from defense attorneys but probably just as many of them have defense attorneys who refuse and i don't think that we're in a position where we can assume that mr rose would have been able to obtain a declaration from the defense attorney that he was calling deficient a this required and again at that point he had no access to any kind of factual development he didn't have subpoena power it's not just about an evidentiary hearing so we didn't have the ability to you know obtain through court order counsel's files its videos etc what he was required to do is allege a crime a face a case and his allegations according to state law are presumed true and his factual allegations were quite detailed petition  the warden has cited a few times and i think that he says distinguishable in two important ways first the petitioner in baja had counsel during his stay post conviction proceedings and second he never requested an evidentiary hearing at all  finally i just wanted to make clarify one tidbit that i think your honor already mentioned about the videotape mr rose's allegation which should have been presumed true was first the counsel didn't view the tape at all and second it wasn't just that he wanted rose in jail it was that the quote is bragging about having mr rose incarcerated despite his knowing that petitioner played no true role in the crimes i think that evidence of that kind of admission would have been extremely damaging to mr dennis credibility as evidence of his bias so in the petitioners actual petition when he talks about the video he says it's on the internet so anyone with access to the internet right would i don't think we can assume that mr gross incarcerated had access to no i'm not assuming that i'm just wondering why we don't know anything about this video if you could access it on the internet well mr rose has been per se and was per se end in the district court as well council was only appointed very late in the district court proceeding for a strictly legal briefing about rogers and so there hasn't been you're saying no one to search the internet to see if the video is still there or anything of that nature there's the videos on the record well and counsel i take it when people say the videos on the internet that can mean different things that could be on what we think of as you tube where i guess viewable the world but also could be on some sort of file sharing napster type service where only if you have nowhere to go you can find it we just we just know it's somewhere in the ether how accessible it is we don't know at this point ye