substituted its judgment for that of the state court and that is not permitted under the a t p a state court considered numerous circumstances of the police interview of rameses me including the detectives ambiguous reference to the death penalty and the fact that ram is jeannie did not admit his involvement in the murder until he was told much later in the interview that a codefendant had implicated him in finding that the confession was involuntary the district court seized upon the reference to the death penalty and the fact that the death penalty could not legally be applied to ram is unique because he was not eighteen years old at that time the district court however ignored some other key circumstances including that there was a one and a half hour lapse between the reference to the death penalty and ramsey needs subsequent confession and the fact that after the reference to the death penalty his ignorance up until the point at which forty minutes later he was told that a codefendant had implicated him those circumstances were considered by the state court and they apparently were not well there are two standards i think that come into play here because voluntariness of the confession is really a mixed question of law in fact the subsidiary question that's to city or issues to the search circumstances surrounding unless it's an unreasonable terminations of the facts it is accorded deference in this case to the state court had an interpretation of the reference to the death penalty which was reasonable the reference came in the context of context the question of law or is not a question of fact the interpretation of whether of what the meaning of that reference to the death penalty was was a question of fact the it is the circumstances among many that goes into the ultimate determination of whether the confession was involuntary that is a question of law and that question needs to be analyzed under twenty to fifty four g one which also requires an unreasonable application of supreme court law the district court i believe want to stray by not evaluating the meaning of the detective statement under twenty two fifty four d two not according real deference to the state court and then further not according to the state courts analysis under the totality of the circumstances test under twenty two fifty four d one the district court apparently was just as i say seized upon the fact that ram is dini was not legally eligible for the death penalty the district court believed that the investigator was bluffing when there really was no evidence as to whether he was intentionally misrepresenting the penalty or not well judge remember ailes interpretation of what happened was not unreasonable was it i mean that certainly i mean reasonable minds can differ in terms of whether it was or was not voluntary under the circumstances i i would say that that is probably true i would submit that the determination about whether the reference to the death penalty was a threat or applied to gramma's e as well as to contrast the other codefendant that the district court's interpretation of that was perfectly reasonable but so was the state courts there were two reasonable interpretations here and when you have two reasonable interpretations of evidence them cannot be unreasonable i think it's a much tougher argument to say that the district court's interpretation of the voluntariness question under twenty two fifty forty one was reasonable i think that the state courts interpretation was was much more made much more sense but even if it was reasonable that's not the test the test is was the state courts application of the totality of the circumstance test and reasonable it was not doesn't matter whether the district court disagreed with it or thought it had a better analysis the only question is objective and reasonability that's what the supreme court has told told us many times in this case that level of deference was not accorded to the state courts factual and legal determinations to your position mr bernstein that the only way that the federal district court could declare the state courts determination objective really unreasonable would have been to hold an evidentiary hearing and to unearth some additional evidence that had not been before the state courts at the time it's another way of saying it is your position that basically a federal district court could never declare a state court factual determination objective leons reasonable no no judge comment there are there are cases that  circumstances in which a state court determination could be and reasonable on the facts taylor versus maddox this court has explained several ways in which a factual determination can be unreasonable including if the fact finding process was flawed in some basic way or if the if the state court plainly misapprehended or misconstrued the record then under those circumstances you could happen on reasonable factual determination similarly you can have an unreasonable  legal determination if the circumstances are just so overwhelming that no other reasonable conclusion could be made then that is that a confession was voluntary here those circumstances simply did not exist we have a we have a an interrogation that went on for over three hours and there are many circumstances in that interrogation the state court considered every relevant one and made a reasonable conclusion after viewing the video tape of the interview transcript pretrial for evidence code section four of two hearing all those circumstances were taken into effect into consideration and the state court's ruling was was perfectly reasonable guess i could just point out a couple of other circumstances the i think the district court went astray in part by considering the officers state of mind of what the officers the agents intentions were district court concluded that the agent was bluffing when he made the reference that to the death penalty and that the death penalty reference was design to extract a confession there is no evidence that there was an intentional misrepresentation and furthermore even though mr ramsey was not legally eligible for the death penalty at age eighteen that that should not matter here in this in this context what matters is whether he in whether a ram azimi or reasonable person in the position of the suspect here would have interpreted that statement as threat and whether that would have caused him to later confess there is a very tenuous if any link between the death penalty reference and the later confession we have as i pointed out before a key intervening circumstance thirty minutes after forty minutes after this ambiguous reference to the death penalty be investigated which leaves the interview room briefly and comes back into the interview room and tells ramage xeni we've got a new development here the development is that the codefendant it turns out it's starting to talk he's confessed to his involvement in the murder and he's starting to implicate you at that point at that very point mr ramsey any so as i was there it happened that is the point at which he begins to retract his earlier story which was not true and that is the point that the state thank you are they actually used the court charles the now appearing for a petition or an apple e nathan ram azimi seems to me the court has two questions before it today one and in the broader scope of things the issue that makes this case important is what standard of review you're going to apply to voluntariness issues where the confession has been tape record most of the cases that have come before the court in the past have relied on the testimony of the officer the testimony of perhaps the defendant or someone else describing the interview and the state court has then made factual findings of what was said and what was not said and why should that have been why should the fact that the tape recording was made of the confession make any difference in terms of applying it it there is a huge watershed in ed the tween your review the findings of fact versus legal conclusions including mixed questions of fact in the law if it's simply a factual finding the state court has a hearing on it and makes its finding and that is virtually bulletproof when the case gets to the federal court as long as there's a factual record going now if it's a if it's a legal question then the state court decision is subject to deference but it can be found to be objective leigh and reasonable in light of united states supreme court binding president what do you there's a secret is do you agree with mr bernstein that this is a mixed question yes sacked in law yes all right how would you up how would you have how would you have allies it then in terms of where we are at this because i promises and threats now we disagree with that we think that promises and threats are also legal issues nics questions of law and fact which are subject deference but are not binding factual determination and i think to make this part of the law at all consistent with the rest of the law you have you have to view those as legal questions they  promised as part of a contract but don't we still have to evaluate the state court determination under the ed per standard which requires object of unreasonable innocence either in the application of supreme court authority to the facts or in the determination of the facts themselves yes and we're comfortable with we're comfortable with that review that's the river that we're familiar the problem i have with it is that the ma trate judge says in his lengthy written opinion i reviewed the videotaped confession yes and based upon my review of the videotaped confession although i have some hesitancy in declaring hereby declare that the california courts determination was objective leon reasonable yes to me that reads like nothing more than a and second guessing the determination of derogation of the ed to standard isn't that the quintessential i just disagree with the determination of those courts on the same factual evidence now that's  well it is the same factual evidence i agree with and it's and a disagreement over the application of supreme court law to the facts that there are before everybody because you can look at the tape and see exactly what was said and how it was that there's no factual dispute here that's if if if i sit down and having convinced you of nothing else that's what i would hope that we all agree on is that this is a question of law not a question of we can then argue to use that it was and that the state court decision was objectively unreasonable i think i can demonstrate but but didn't the supreme court tell us and taylor that objectively and reasonable means more than just they got it wrong yes i mean it has to be essentially saw all wrong yes that no reasonable jurist could have reached that conclusion on the basis of this record isn't that what the at the standard means i think that's an overstatement i think that the whether to objective whether two jurors could get it wrong that there are three that i i don't think that should be the standard so you wouldn't agree with mr bernstein that well the decision was plausible on the part of the federal district court you could look at the facts that way but the decision was also plausible on the state appellate side and therefore if it's a draw that we vallance the scale in favor of deference to the state no i'm not so forgiving of the state  court here's what the what i think is the core of the state court opinion here the neatest this is quoting here beneath this was merely indicating that the crime was punishable by death for countr for contreras who was over eighteen now the question is is that an objective lee reasonable statement and the magistrate judge said no it's not sad but simply slapping the label on it and now saying i declare that subjectively unreasonable doesn't help me much that well i can question i have to ask you is i'm sure you viewed the tape many times your position i guess has to be that that it's completely ludicrous that the state courts could have looked at the way that that interrogation was conducted and have concluded as they did that the reference w reach this conclusion i don't think that's what we're here for the question is whether this particular and alice's was objective lee reasonable or not it's objectively unreasonable then the roving commission to go around and overturn the decisions in cases where reasonable jurists could disagree on and looking at the same videotape it's got to be something more there's no roving commission but the federal courts have a role in this area and the force and of the constitution and ensuring and ensuring that state courts do not drain the constitution most particularly by making these disabling quote factual determination and that just simply drain any meaning out of the voluntariness review we have to be able to review it we think i think i can demonstrate is objectively unreasonable what the state court was saying was that if agent beneath this had been asked he would have explained to you he would have said when you're going down well first of all it's not an hour and a half it's more like a half an hour between the point where beneath this says this is a death penalty case he gets up a half an hour later leaves the room and comes back with the information about leo ok now here is here's what happened in that sequence a person and rams seanie situation a suspect is first of all seeking to as it were prove himself innocent i wasn't there i didn't have anything to do with it once he's told that this is a death penalty case that another factor comes down if i if they can show that i was there then i might get executed on the other hand if i can show that leno was really had more to do with it and was more that the heavy then they'll execute him and not me now that not the detectives know that so what they want to put can the suspect in the situation of arguing about his relative guilt and that was that's been recognized for years it's discussed in the in the miranda opinion itself and in fraser versus cut which is which recognizes that the police can't actually do what apparently they did and it's a case which was to say look we found the victim's blood in your car if you mean that they can mislead him yes in fact i was going over the notes i don't know if from this record whether leo even that doesn't help us decide whether this was a voluntary statement it could that factors into the question of whether this is reversible error i don't regret first labor of yes so so and that was addressed in the in the court's opinion as that this is this is well before that if that even happened this is well before that and so the what we have to determine now whether it's reasonable for the state court to have said that  the reference was only to contrary to the majesty the judge in the district court could not find any reason to make that conclusion that's why i think said it was objectively unreasonable and again i can see i have time i can demonstrate it the have the need to these did testified that he was not asked about the death penalty statement had he been asked do you  what did you mean by that and had he tried to patch things up by saying what he really meant then there would be some factual they says for this but there isn't  typically admit this evidence in cases the jury got to view the videotape as i understand it and the defense can if it wishes challenge before the jury the voluntariness of the confession and hoping to convince the jury that they should give make of the statement but but probably not trying to convince a jury that it's involuntary it's a again it's a legal question it's more it's appropriately addressed to judges but if i can just complete that line of reasoning if the need to is had said what he really meant then we would be at the at the stage of of of no longer objective lee analyzing what maryland that's the magistrate judge did a very thorough job and so did the parties in trying to find a case in which a juvenile had been told that it was a death penalty case and we couldn't find anything and  that now is presenting a very similar issue that's now before the united states supreme court where it juvenile was told this is a death penalty case so  now have that question pending in the united states supreme court but for your information the maryland supreme court has had no trouble with this saying that once you reference the death penalty the confession follows it's involuntary it's influenced by that misrepresentation of the death penalty and that's our position here the thirty minute gay i don't know what they're saying are they saying for god it was like well when we came let me make sure to see your position is it your position that any mention whatsoever even when you have an adult codefendant who clearly was facing the death penalty i mean that is a true because there's no factual basis taylor versus maddox underlies underlines this where the state courts plainly misapprehend or miss tate the record in making their findings and then this apprehension goes to a material factual issue that is central to petitioners claim that misapprehension can fatally undermine the fact finding process rendering the resulting factual finding and reasonable so if this wasn't a factual finding but if it was it lacks an underlying record if there was an underlying record if there was testimony from the neatest about what i really meant it would merely tell you that this is irrelevant information under rhode island versus mcinnis because his intent has nothing to do with it it's an objective determination what more says we need th and we can look at it and see so the factual record is never going to change it's never going to change ok and and but the state court added to it they said they reached another conclusion an additional conclusion they gave the need is a break they said you know maybe he misspoke but what he really meant was that it's just legal well as the magistrate judge that where you were is that on the tape there's nothing in the in the record that supports that finding if i take it blake versus the state of all just the juvenile and a reference during the interrogation of liability to the death penalty in blake they handed him the indictment and it said at the death penalty case one of the officers said that that makes you give a second thought about talking for less so we didn't have a situation like we have here with an adult codefendant who's also being interrogated simultaneously with right now not ok now but once you have that that information now that the if if we if i can do this the age  it would that have made a difference in your analysis oh yeah well then it would be true but it's false that's that's that's the whole problem here it was a false threat of something that was that couldn't somehow just limited the leo contrarious now if this is a legal question that this court is is feels willing and able to address then it goes to a question of voluntariness and  whether the fact that he was sixteen and a half no prior criminal record gets told that it's a death penalty case thirty minutes later which the attorney general finds you know wipes the slate clean we don't think that's true at all we think he was he had that very much in mind and he's then told that contrary to shift shifting the blame on him he adds two and two together death penalty plus leo saying i did it equals i have  to come up with some story that that minimizes my involvement that's where we get into involuntary stigmas thank you thank you counsel your time has expired mr bernstein you have some reserve time rupie versus would in one thousand nine hundred sixty the statements were i think either audiotape videotape but they were tape recorded there was no dispute about what was said between the investigator and the suspect and in that case the state court found that the statements were not threats they were appeals to the conscience and the federal court found the ninth circuit also found that those statements were factual findings which were afforded deference hundred twenty to fifty four d further mr bruno was arguing that if you have a threat or a promise from undisputed record that that is a legal determination i submit that it's not  actions on the part of the officer here the state court analyzed those circumstances and found it was not the cause of the confession in terms of the fact that the the discussion of whether the state courts determination was objective really and reasonable there are some circumstances that need to be need to be kept in mind at the point at which agent anita said that this is a death penalty case was in jail he was facing murder charges rammstein he was not arrested he was not charged he was not accused of being a part of the murder and anyway the the investigating investigator suggested at some points that ramsey knew something about this that he wasn't letting on but he never suggested to him that he was a participant in the murder i think at one point he said you may be an accessory of leo the contrary did something and you were giving him right afterwards you may be an extent saree but he never he never said that you never suggested that you had anything to do with it and stealth from from your you're not arguing to us that this was a non custodial interrogation is that your argument well there was it took place in the sheriff's office they holding facility that's correct but he was never placed under arrest he was never put in handcuffs even when he was transported out of the sheriff's office he was never handcuffed he was never told you're under arrest it was only afterwards ok and so i see your argument is that that goes to the support of the s murder charge graham as he was merely being questioned about it the the reference to the case currently before the united states supreme court blake versus maryland the facts there are a little bit different as this court observed in that case we had a suspect who was shown a charging document which which said death penalty on to refer to capital punishment on it there was no question but that he was the person that might be subject to his name was on the charge of his name was on the charging document and furthermore even if the united states supreme court finds that under those circumstances that the reference to the death penalty was coercive i don't think that helps mr ramsey in this case because what we have to look at is whether the state courts interpretation of supreme court law was reasonable at the time that the state court decided the case it was no clearly established to preen court law at the time in one nine hundred ninety eight when the state appellate court found that this reference to the death penalty was not inherently co any other questions might be able to have no further questions thank you counsel mchugh the case just argued will be submitted for decision and the