there was no clearly established supreme court precedent governing professional claiming that the california supreme court failed to apply the cases that the district court relied on rock versus arkansas and washington versus texas concerns state rules of evidence that arbitrarily and automatically excluded entire categories of bevan's the ruling in this case was a discretionary one in addition the evidence was admissible if expert testimony had been admitted to lay a foundation for it as this court stated in brown versus rural and moses vs painting the supreme court has never addressed the constitutional right to present a defense in the context of the discretionary exclusion of evidence in addition the supreme court has never held that a criminal defendant who is presenting a defense based on the lack of specific intent to commit the crimes must be permitted to testify about us history of mental health symptoms therefore the california supreme court's decision did not run afoul of any clearly established supreme court pr to commit the crimes but you sure wanted to present evidence that he was hearing voices and experiencing flashbacks and blackouts at the time of the crime and he wanted to present evidence that he experienced those things in the past to show that you'd experience defense counsel if you wanted that instruction given and he said that he did not want to do that he felt that it was not consistent with the just there's testimony so he specifically decided not to present that instruction on experienced a blackout at the time of the crimes and these other mental health sometimes as well but what the trial court said was that expert testimony was necessary in order to present the foundation for all the laundry list of testimony man before he started to attack the victim and every any evidence as to prior flashbacks to support that also would not have shown a lack of insanity in fact it would have shown his motivation for the crime if you detect a victim because he was taking his anger but even if it was offered for the purpose of supporting some sort of mental psychosis again that wouldn't show a lack of intent if anything it would have shown that he was as his mental health expert stated in the penalty phase that he was actually in acting out against the victim believing or if the object the victim the object of the attack was his mother against the victim and that was showing his intent to express mixed as far as the california supreme court making an unreasonable determination of fact i don't think they said anything that was factually incorrect they talked about hearing voices and that that and hell that any exclusion of that evidence would have been harmless and again the california supreme court's determination was reasonable in this regard they said it was harmless because they they believe that if petitioner testified it would have been a recent fabrication because he never told his mental health expert that he'd ever experienced these things in the past additionally the evidence his credibility that assessment of his credibility would have been affected by his testimony that he experienced them of one time and because he experienced them at another time and from his own testimony that the jury should believe that so for that case and unlike the claim that was presented in the california supreme court regarding just mental health systems symptoms the ruling in this case was based on a laundry list of items related to fishman childhood and the symptoms were just very inside that offer of proof so the trial court's ruling was based on the entire panel plea of evidence it was perfectly reasonable for the trial court to require expert testimony for admission of that evidence in fact jury so that is the st it was a perfectly reasonable ruling by the trial court and so regardless of what this court finds with respect to d and the reasonableness of the california supreme court's ruling once we i'm wondering if that's really the best frame to look at this and are whether the issue is more that it's the conventional rulings in the sense that defendant could have presented this evidence as long as he put on an e that doesn't really go to the discourse discretion as much as a choice that the defendant has to make yes i agree with that one hundred percent and i think those are both reasons why the decision in this case did not violate any constitutional did not violate the constitution yes it was a decision by the defense not to present this evidence in fact that's one reason why the evidence in this case clearly was not any it was not critical defense evidence because if it had been critical the defense could have laid the foundation and presented it and there's no constitutional violation if the evidence was not even critical it's not excluded so i agree with this court because this was a conditional ruling in the supreme defendant who is presenting a defense based on lath of specific intent must be permitted to testify about his history of mental health something and that is not a rule that was dictated by existing precedent at the time the judgment  in new it would it require a new rule of law in order to grant relief i think when you articulated what the new role would be you focused on the ability to represent mental health evidence i think it's how you  act that right yes thank you your honor and i agree completely i think it would be helpful to modify that rule to add a conditional you know the conditional admission of evidence because you're exactly right this evidence could have been admitted with the proper foundation and it wasn't and so therefore the rule is is there's there's no law that would have that with that that at the time the judgment came final that would have you know looking at the legal landscape that would definitely be a new rule of constitutional council where are we procedurally with the district court if we were to agree with you today one other plane two other planes have been was all the the claim that was reversed in two thousand and fourteen by this four concerning the constitutionality of california's death valley and the court also resolved the  mr jones is entitled to the novo review and because the state courts clear factual errors are relevant to its unreasonable application of established federal law now the court concluded that mr jones as proposed testimony about flashbacks and blackouts would have been a recent fabrication so you saw in the fact that dr thomas failed to mention any such history but this was not a fact and it was actually a clear factual error so thomas describes mr jones dissociating in the past specifically during the assault on ms harrison one hundred and eighty five dollars he also explained the dissociation as psychotic a nature and that mr jones was psychotic at the time of the harris crimes and he also referenced flashbacks unreasonable determination of the facts to conclude that the jury would not have found mr jones's testimony not credible and that too was on reasonable grain and she for both clear that the pro bit of weight of testimony is a matter exclusively for the jury to assess and the jury is a lie detector and the court failed to consider evidence in the record that contradicted this conclusion as in tests or became bruff fail to come to consider the evidence of what dr thomas actually said and they failed to consider that every indication that we have from the record is that the jurors found mr jones credible the joseph believed him when he said he did not enter the miller home with the intent to commit any sort of felonies including rape and they believed him when he said that tim miller gave him his mother's story and he sold it before going to the miller homes and we know that from their verdicts on the burglary and robbery special circumstances  the intent to commit any sort of felony and the jury clearly believes him that doesn't mean that he didn't take that they didn't they didn't take the jewelry that he could take the jewelry can form the intent to take the correct but the jury also did not reach the lesser included verdict on the jury could not reach a verdict on even the theft charges and that was actually an issue that trial counsel conceded in his closing argument and yet still the jury hung on the question of whether mr jones had committed fests with respect to the court's conclusion about error but also involved an unreasonable determination of the facts as judge fr alluded to the court focused in on just one aspect of mr jones's proffered testimony and that was his prior history of hearing voices and the court's failure to consider te aspects of the record is evident from the fact that it sidesteps all of the other testimony mr jones wish to present and by overlooking or ignoring highly probative evidence in assessing error the court unreasonably determine the facts as into movie maddox and specifically what the court ignored was mr jones efforts to testify about things like being in bed with his mother and another man when he was a young child his father finding them and inflicting both physical and sexual violence on his mother as a result and his mother severe physical abuse of mr jones as well as a history of blackouts and visual and auditory hallucinations and there are three key facts from the records that tell us that the determination about a history of hearing a voice voices being irrelevant to the question of specific intent to rape was unreasonable and that is that the jury was instructed that evidence of mental disease can be considered for the purpose of determining whether mr jones actually form the require prosecutor argued in closing or someone could testify that mr jones had heard voices before the crime would within the defense have brought them in to testify to quote that most crucial part of the case and finally the prosecutor of this record the two is satisfied because this court cannot reasonably conclude that the state court findings are supported by the record as in that's well the row and these clear factual errors and discounting and failing to consider the testimony and other evidence a couple reasons trial counsel was blindsided by the trials court's ruling he believed as we believe that mr jones was entitled to present this testimony testimony and the case was clear that the defendant has  statement that a defendant has a right to present to present witnesses not but that's a darn well please defense but i don't think the cases will support south about the court's been quite clear that it's subject to regular evidentiary rules well the california and new york the hill are clear that a defense has a due process a defendant has a due process rights to call favorable witnesses to cross examine adverse witnesses and to decide how to present evidence fundamental is literally or do we have to go back and look about rules well your honor equally fundamental is a defendant or more fundamental in fact is a defendant's right to present testimony in his own defense and specifically to present his own testimony and w chambers tell us is that the court must consider whether the preclusion of testimony is arbitrary or disproportionate to the interests and might serve and here are going back to judge lee's question the arguments that the state is making that the defendant invited the error by his own actions is an argument that the court rejected and rocks there are so it's a court held the defendant responsible for any prejudice resulting from the exclusion of her testimony because she chose to undergo has noticed this and the u s supreme court in footnote thirteen rejected that argument because it said the state had given no previous indication that it looks with disfavor on hypnosis and there was no previous state court ruling on the issue and that's exactly the situation we have here state law actually suggested that mr jones couldn't put on this testimony and then the court didn't actually tell him he couldn't see the court just said you have to have an actually offered to narrow the scope of the proffer and narrow it to just information about with what mr jones had personal knowledge about at one hundred and thirty five to one hundred and thirty six and the court said essentially if you're not bringing in an expert he can't testify about any of it and that's a wholesale exclusion of everything that maybe they don't want to discuss and so i was like why is it inappropriate for the court to require an expert to be cooked it wasn't an exclusion as long as he also had an expert and as i understand it there was an expert available so i'm just not sure why that counts as an exclusion as opposed to an extra inclusion it's an exclusion because it was all betrayed and disproportionate for the purposes it was designed to serve there was no need for an expert for jurors to understand things like the details of what mr jones was picturing when he flashed back to his mother being in bed with another father or that he blacked out and heard voices going to or we might agree with you but we'd have to think that it was an abuse of discretion for the trial court to think otherwise and then we have all that's just standard on top of that but just as fundamentally an evidentiary ruling it seems like one arguably could go either way maybe a court would say yes you can do this without an expert but i'm not sure why some reasonable for a forty say you can't do it without an expert's it's unreasonable also because of what the state did here and that's two things the state all gude and introduce testimony of mr jones the past behavior to prove his specific intent and there was no expert testimony required for any of that and the jurors were actually instructed that in ten in one incident the harris incident could be used to prove intent in the other incidents and the nd issue is that what happens here is that the  capitalizes on the exclusion of the testimony and so on cross examination the prosecutor goes into great detail with mr jones about what he was thinking at the time of the crime whether he could explain his conduct whether he was thinking clearly are not clearly and when counsel attends a much more narrow reason racks on what was going through mr jones's mind whether he was thinking clearly the court excludes that testimony yet again  troubling about the way that this was presented to the trial to the trial court was this was much broader than actually what you ended up arguing before the california supreme court before the california supreme court you focused on the flash on the flash back and fit in with a common experience that mental illness can be heritable but importantly that wasn't the the and suicide was not the only issue here and mr jones's prior mental health symptoms and his his history as what he flashed back to at the time of the crime that particular history was evidence that he was precluded from testifying about and that really is the heart of the issue here because again the prosecutor jones can come in and tell us about elucidations during your childhood and about lots of really bad things that happen when you're a jet you've got to be able to have a witness in here that can present some kind of linkage and explain so the jury why this is relevant that the that is what the trial court said what the california supreme court said was was the opposite that the that mr jones would have provided the foundation for the expert testimony and that is typically how this  normally works normally an expert relies on what the defendant says and here the trial counsel actually said i would like to see what mr jones says st before i make the decision about how to whether or not to call an expert and the trial court prevented again prevented him from doing that prevented him from telling his story to the jury and as in rock and green that was testimony that was just absolutely fundamental defense on the specific intent to race but the problem is even if we think that everything the california supreme court said was unreasonable we still have to agree with you as an overview and we still have to get  portions of a defendant's testimony and that restrictions on a defendant's right to specify may not be arbitrary or disproportionate to the purposes they are designed to serve and that again is exactly the situation we have here  looking at the state courts and broad preclusion of mr jones's testimony again what the trial court did was it said you cannot testify about any of this information unless you bring in an expert even though the prosecutor wasn't saying the harris crime when the prosecutor had used that and cross examine mr jones about that to prove off his specific contents is there any case that said at the time that you can't be required to have an expert to explain how events in your pa suspected your mental state there's no case that specifically says that but the cases that we rely on like rock and green also arguably had a a pre condition on the testimony so in in well off the argument was that if the if the defendant hadn't undergone hypnosis then she would have been able to testify about all of this information and that's the same situation we have here so we don't know if she even would remember have remembered issues having undergone hypnosis that's kind of a hypothetical but i don't know how to conceive of this when she says she says there are notes from her interview with hypnosis in which some of the information about what she remembers is is written down and that's what the court limited her testimony to how do you deal with the statement agreeing that suggests that it would be appropriate that required in greens it was the defendant who wanted to introduce the expert testimony and in that case the court also  the court also said that that was a feature of washington state law potentially and that is not the situation we have here here there is no state law and the state has pointed to none that requires an expert for this type of testimony and in fact again state law is to the contrary we have counsel and defenses that are saying there's no reason why a lay witness cannot testify to any mental condition less insanity and the testimony in those cases is about in dissin counsel it's about witnesses opinions about whether the defendant has an intellectual disability and in descent it's about the defendant having memory issues due to his problems with his brain cells and the court said that that testimony was admissible if this judge those thought that an expert was needed for our purposes on federal your honor because there is it's not a state role and in fact the california supreme court in this opinion doesn't rely on that state will because because it isn't one and the courts it's what this court's inquiry  is about whether the federal constitution is implicated in whether mr jones us federal constitutional rights is specified as implicated and that certainly is here but it seems like you're saying it mattered that in green there was a washington law i mean jones for his counsel not being prepared to have an expert testify at that point in the trial all the the condition was unreasonable because there was no state law that required that testimony there was no there was nothing that required mr jones of counsel to to be in a position where he could have an expert testify and we know from the records that he wasn't in a position at that point to testify dr thomas says in his testimony that he completed his consultation with mr jones on february st which was days after mr jones completed his guilt phase testimony so counsel simply wasn't in a position to the circuit is waves ok but yes but waiver has a particular meaning after a long haul which is the supreme court's decision distinguishing between forfeiting which is a failure to write something and waiting which is an affirmative decision not to not to chooses to but again the circuit and the u s supreme court have declined to do so in cases where the courts where the state has not raised c and this court actually provided guidance in oregon to vs or tease to the state of california on how to raise he has an affirmative defense and that was that it must raise he has an issue and the st issue on appeal it must articulate the new rules must explain why the rule wouldn't of this is held by existing precedents and it must explain why the rule didn't law is not analogous or clues that are close enough to read them and see go shoot to make the same points it doesn't deal with that specific question but what it says is that if the case if the state wishes to raise as an affirmative defense and must do so in in the manner that it's with my remaining time i want to turn quickly to correct prejudice since the state has made some arguments that mr jones but there was evidence of specific intent and so this court should not find prejudice under could be it goes the inquiry is not whether there is enough to support the result it is whether the air or how to substantial influence or the court is left in grave doubt as to whether it did so and here the state's argument that mr jones's expert opined that he had the specific intent to rape because the expert talked about mr jones's forbidden wish to kill his mother misrepresents the records dr thomas explains just before and after that that mr jones was dissociating and in an altered state of consciousness during the capital crime and that this forbidden wish was on a subconscious level or not fully at a level of awareness and dr thomas purpose at the penalty phase was also entirely different it was not from the the specific intent to rape but to provide mitigation for the court's consideration regarding penalties and under the penal code section twenty nine he could not have actually opined on the ultimate question of whether mr jones possessed the specific intent to race but so he also completes the definition of the affirmative defense of sanity with specific intent and so when number of the cases that the state cites in its briefing are sanity cases and insanity cases the defendant's must prove by a preponderance that he doesn't have the ability to appreciate the criminality of this conduct or distinguish between right and wrong and that's a different standard and a different burden of proof than specific intent the additional here that we have ever had a substantial and injurious impact on the jury's verdict are that the prosecutor described this testimony as going to the heart of the case when he wanted to exclude it but he describes to the jury that the felony murder rape murder theory and the special the specific intent to rape are the real crux of it and the real thing that the jury has to consider here this is a case where everyone in the case agreed that the whole case turned on whether the jury believes mr jones and his testimony and the one issue where the the we found against mr jones on intense was the one issue where his testimony was excluded and fry versus playland footnote to justice stevens noted that jury deliberations in the typical california capital trial last twelve hours here the deliberations eighteen hours over four court days and the court and the jury asked questions about mr jones a specific intent in the felony murder rule we asked this court to affirm the district court's order and grant mr jones a new trial free from unconstitutional restrictions on this testimony which he can tell his own story in his own words thank you thank you counsel and we still have some time for rebuttal thank you your hon this court has recognized the ruling in this case was conditional in defense counsel could have presented the evidence if you had presented an expert to lay the foundation it is pretty clear why defense counsel chose not to present an expert thomas explained that the attack on mrs harris and mrs miller was basically on his mother that he had a mixed sexual attraction and he tried to his mother and the object of of these attacks was his mother so for purpose phase and the elements of the crime the jury could have very well concluded that he had the specific intent to commit the crime dr thomas's testimony may very well have provided mitigating evidence for perhaps lessen his moral culpability but i'm trying to figure out whether the whether the defense had other alternatives well i think it would if i respected somebody else off i think it would require speculation assume that there is some expert who could have provided that testimony but we do know that there was an expert who in fact examined petitioner and we don't we do know what his what his findings were so perhaps but but certainly that's not enough to say that to meet the  there's a possibility that an expert might have existed because it's equally possible defense counsel may not have planning session expert in addition i'm not sure that the mental health symptoms actually would have shown lack of intent anyway as i said in some it's quite possible the jury would he use that testimony against petitioner to show that he had in south so i think that's another reason why the any error was certainly harmless in this case of therefore for the reasons i've previously discussed