it please the court my name is lisa michaels and i represent the state of colorado this is a twenty two fifty four case which means that deference is owed to the colorado court of appeals on the claim on which it reached the merits and petitioners other claim fails because it was defaulted and planning to discuss the two claims that the district court grant on which the district court granted relief below but i'll answer any other questions on the other issues as well before you get too far into this so you're saying we do have a final appealable order all claims were resolved by the district court in some way all the claims were not resolved but i i think that given the nature of the relief that's request i think because relief was granted i think this court there is a final appealable order of the claims that were ruled upon as to the claims that were not ruled upon i don't think there's a final appeal order with regard to those claims but but in this case since it's a state habeas i sorry to get into the weeds but it's troubled me wouldn't the petitioner have to have sought a certificate of appeal ability on those additional issues that were not addressed yes that's the state's position that all those claims are not properly correct so the claims that i believe are before this court are that ineffective assistance of trial counsel claim and petitions right to presence claim those are what i plan to discuss starting with count petitioners claim that council was ineffective for failing to call an expert to testify about the victim's medications because the court of appeals reached that issue on the merits under twenty two fifty four the question here is whether that ruling was reasonable it was the court of the court of appeals ruling that petitioner suffered no prejudice was reasonable because extensive testimony was presented at trial about the victim's medications the testimony of the expert of the post conviction hearing was not appreciably different furthermore the jury heard actual evidence about the victim's mental status at the time near the time of the attack including audio and video recording of the victim just before and just after the attack whereas the expert could only speculate about what the victim may have been experiencing at the time mr hobday argues that the colorado court of appeals applied the wrong standard looking at prejudice under strickland can you address that i believe you're referring to what the district court the district court based its ruling on rather disagreeing with the court of appeals that there was not a reasonable probability of an acquittal the district court based its ruling on a reasonable probability of a hung hung jury so that's just not the standard we know from the even the supreme court cases the language used there indicates that in the trial context in the trial on it on the guilt phase the standard is the language that's used there reflects that the different result under strickland is an acquittal and petitioner cited a case in his brief wiggins v smith but that case does not bear on the question here because that was the penalty phase of a capital trial where swaying one juror does not result in a hung jury but it results in an acquittal on the death penalty so that case has no bearing here at the very least it was reasonable it was a reasonable application of strickland to require the petitioner to think that's exactly right because given the standard here under twenty two fifty four again because that's the type of case that we're that we're talking about now this court can also also deny petitioners claim on deficient performance and that would be under to novo review counsel's performance was not deficient again because there was extensive testimony about the victim's medications the trial and it was reasonable for counsel to rely on that in fact we know that that strategy was effective because the the jury actually struggled with the victim's credibility with regard to his medications you said our review was the no well if you if you were to you could deny the claim on a did novo review and that's how you would reach the deficient performance problem so if you're looking eight didn't reach the deficient performance issue correct the court of appeals did not that's correct so if this court found that petitioner fails to satisfy twenty to fifty fourth it should be denied on that basis only if the court found that petitioner did satisfy that bar then the court would move to do novo review thank you there's no additional questions on that claim  discussing petitioners other claim which is that his right to presence was violated when the trial court allegedly failed to disclose a jury note to the parties and that's the so called attacking no that claim is both defaulted and it fails on the merits it was its defaulted because petitioner failed to fairly present it to the state courts and it's now barred under state procedural rules the only time that claim was presented to the state courts was in a written closing argument to the district court following the post conviction evidentiary hearing it didn't appear in his post conviction motions and it never appeared as a claim in any of the appeals mr recollection is that it was very odd in the in the supplemental motion yes the supplemental motion i don't believe that's true my review of the i mean it may be true that he that that's what he's arguing my review of the record is that the only place that that claim appears is in again the written argument following evidentiary hearing a claim a related claim was raised in the post conviction motion in the supplemental motion and that was ineffective assistance of direct appeal counsel for failing to raise that but but that claim does not preserve the claim that that we're addressing right now the right to presents claim itself now with regard to the merits of that claim first and foremost it fails because petitioner has failed to prove the factual premise of the claim and that is that the jury actually sent the note to the trial court the record does not support that that's an assumption that is made by the claim but the record does not support that assumption that only of a finding that it was that it that it was in the court record are you referring to the state district court order yes there is so there is the way it so that factual premise appears in both the state district court order and in the the opinion the court of appeals opinion and in the state district court order it appears in a section that's that's titled findings but i don't believe that the court actually engaged in a fact finding process with regard to that which with regard to the factual premise i believe both courts were merely reciting that factual premise for the purpose of then denying the despite its inclusion in the record the direct appeal failed in the court of appeals from the conviction in other words the in this context the question was whether the attacking note was before the court of appeals this was a post so whether that's true or not i mean you know if you look at the court of appeals decision it's arguable whether i mean that the direct appeal decisions are whether they're talking about the attacking other note but you've got to take this record that has made a finding based upon a question that was raised as to whether it was before the direct appeal before the court of appeals and direct appeal in the courts as yes it was so i mean it seems to me the worst stuff that you're stuck with that in trying to evaluate whether it was out there or not that doesn't go to the question of you know the the procedural bar questions that you're talking about really well i appreciate your position i think this it's very confusing when we're talking about what exactly happened with the notes and i guess my response to  your comment would be that no i don't have that order in front of me so i'm not looking at the exact language but listening to your reading of it it sounds to me like what the court was talking about was whether the note a was actually in the record itself which it most certainly was so there's no question about that but my reading of it my reading of the record is that the opinions i should say in the orders was that the question of whether this note was actually sent from the jury to the trial court during deliberations was not posed to either to any to the state courts at any time and so i don't ever go we have no evidence that the trial court ever saw it or that it ever got out of the jury room correct i think i think it's a valid interpretation of the rulings we have that all all that discussion tells us is that this note is in the record was in the appellate record carets all we know  i believe that that's true i believe that that's the case and because it's petitioners burden to prove all aspects of the claim and he has not proved this factual premise the claim fails on that ground alone of course the claim also failed even if the jury did send the note that the claim would also fail because any error would be harmless in the given the circumstances here it was apparent that the jury was deliberating actively deliberating throughout the deliberations period it would not have been certainly wasn't  and i would argue not even appropriate for the court to respond to that no if it had been sent or take any other action if there's no additional questions at this time i'd like to reserve my remaining time for controlling clearly established federal law is strickland everyone agrees with that stricklin clearly an ounce that the prejudiced standard is governed by determination of whether there's a reasonable probability of different result and a different result depends on the facts and circumstances of the case that's the controlling the the controlling law that is the controlling law in order to flush out the law so that it covers a mistrial you would need to have a supreme court case in topping strickland that that's exactly what i meant that in this context this would also be a different result and you don't have that and i would respectfully disagree and i can't remember the name of the case off the top of my head but this court when it was faced with the flip side flip side of the hill the locker case you know which was judging trial and had a fair trial but had bad advice i think the lawyer was threatening to withdraw if the defendant accepted the plea it recognized that the different result although result means mistrial or you have to have us interpret ing the supreme court in saying different result means mistrial and in that latter situation you having us and this is what we understand the supreme court mean and therefore that for our purposes that's what you don't have either one of those well i think if this court agrees with us that d one n t two did not apply and there are several reasons why they don't apply for example the court of appeals the colorado court of appeals relied on the fact that the jury over came it struggles eventually and returned a guilty verdict that's not a strickland announced analysis that's objectively unreasonable determination a prejudice and what's in what supreme court case you have which would tell us that that's an objective and reasonable determination of reviews it's a logical it's a logical inference you may disagree with it but it would seem to me that that suggests that they had a lot of information before them and they were struggling with well i think i think it is an unreasonable and an illogical end and objectively unreasonable application of strickland and and this is why under that analysis when ever a jury returns a verdict that would weigh a verdict of guilty that would weigh on the non prejudiced side of strickland and it it's simply doesn't hear you have th dr moore morton or an expert in toxicology that the jury did not have as a result of deficient performance because this unlike many cases it's not a case where the state court said there was not deficient performance our state court said and it happened in the trial court said using the deferential standard of strickland that the jury should have had this expert's opinion and this experts have pinioned goes to the very heart of what was being disputed in what wasn't a strong case and strickland recognizes and i've quoted it in my brief that you look at all the evidence and some facts and some errors are going to affect some facts more strongly and in this case you have and it is so critical i i think to look at what the prosecution was arguing in opening and closing and compare that to what dr morton or someone like him would have testified to because the the prosecution told the jury we're giving you everything the good the bad in the we understand that our witness who you will not see because you are seeing his testimony in a deposition format we understand that he was sick and we understand that he was taking a lot of medications and we understand that sometimes  but the prosecution asked the jurors to to accept that there were times when mr williams was lethargic and tired but that didn't mean he was confused and there were times he was l so is just drive home that that was not correct it would have given the jury what it needed to see and rely at reliably determine how reliable this this witness was when we're talking about strickland and what it means or what it can be extended to me and whether we need the supreme court to tell us specifically what it means don't we also have a problem here that the district court relied on a theory on an argument that is mistrial or hung jury that was never raised by the petitioner you know it i don't know that it is true i  well isn't it a problem that the district court addressed an issue that was not raised by the petitioner well i i think it was semi threshold issue whether deference applies you know less than a new claim the question was and and i hope that will apply on on both sides in this case and when i get to arguing the second clain but what i will say to this court is that we argued that deference was not allowed to the supreme the colorado court of appeals determination of prejudice or lack thereof because the court the court of appeals failed to consider the weakness of the case appeals recognized there was a weakness but found that because the jury overcoming in their struggle with the exact issue that the expert like dr morton would have testified on because they overcame that without that evidence that there was no prejudice they the court of appeals and this was an argument we made before the district court said that the legal expert said that he could not be certain that dr morton stipe of testimony would have changed the result and that was unreasonable to rely on that it's not the standard and in fact it wasn't the legal experts opinion but the trial court the state trial court kept that evidence his real opinion out so i would just refer the court to the several areas in which the colored court of appeals really wasn't strickland tells the court to review the totality of the circumstances and it tells the court to look at the facts that are impacted by the deficient performance in this case the failure to call expert in psychopharmacology  our our court of appeals our state court of appeals said that there was some duplication of evidence and that's true there was evidence that came out that of the type of drugs that mr williams was taking the amount of drugs but what this expert would have done was let the jury you know what that meant this expert reviewed the deposition testimony of mr williams and could talk to the reliability and the medications he was on during the deposition testimony this is a case where the prosecution relied on the fact that the deposition court asked a few questions at the beginning of the  deposition saying like do you know where you are do you know what day it is i find you competent and reliable you may testify and that went to the jury and that was relied on by the prosecutors in showing that jerry williams could be trusted you know the prosecutor's argument in this case said you can trust jerry we've given you all the information it's only fair that you knew everything but there was a real hole here and you know dr morton looked at all the medical records looked at the deposition testimony looked at all the evidence that he could and he determined his opinion was that gerry williams was not reliable and you know i would refer the court you know for a a graphic of it to the end of volume six of the transcript which just presents you know dr morton's testimony it shows that one of the key things that the prosecution was doing to show that gerry williams was reliable was having people look at him say look at him and listen to him on the nine one one tape look at him on surveillance officers because he was an undercover officer and tell me if he looked like he was his regular self versus being versus being under the influence of morphine and what dr morton would have done is say it's not like that it's not like the switch people cannot always tell just by ewing whether someone is impaired and their reliability their visual acuity their perception of things is not impacted and in a case like this it was so important for a reliable assessment of whether mr hobbs was truly the a single it because you think there's a distinction with the difference between an expert who's talking about a hypothetical case and talking about it and he saw the deposition but he's still you have no interaction personally with the victim he had no ability to assess how the victim responded to these drugs i mean presumably there's a continuum on all of these things and so it's not clear that this victim is going to fit the extreme in responding yes it's because all of the testimony that you just referred to there was a side of that testimony that the jury never h and yes he didn't see this man but this is a man who was a real stoic he also was able to explain he was also able to explain how the other experts the prosecution experts were minimizing the impacts and he asked an expert in psychopharmacology not an oncologist who's just directed a pain management at that point in the treatment he he would have he would have told the jury that there was another explanation and would've allowed them to understand what all of these medications were doing and how it impacted in a negative way reliability and it was his belief looking at the medical records and admittedly he didn't see him you know and that's one of the things the court of appeal said they said you know he didn't see these people these others people saw and they couldn't dr morton couldn't duplicate what they had said but he gave something that none of them could but the question about whether he added as you pointed out we have a state ruling that indicated that there was deficient performance and so it's not a question of whether the court i mean the trial lawyer was adequate in not presenting somebody like dr morton the question is whether he added so much that he affected the balance that that this   i guess it is up now you have twenty one so now twenty eight no wonder you're being so kind to me i thought i was out of time it won't happen well  know i just ask you to with an open mind look at dr morton stastny monye and see how it put in a different light all of the repeated testimony of individuals that jerry looked fine to me and dr morton would have his sort of testimony would have said that's not the be all and end all he in the expert's opinion was unreliable thank you thank you the jury didn't need an expert to tell it that the victim's medications could have affected his ability to perceive and remember and we know that they came to that conclusion on their own because they struggled over his credibility with regard to his medications the jury is capable of assessing credibility and that's what they did here they considered the issue and they resolved it but more importantly what we're talking about here the question is not whether this court as this court knows the question is not whether this court would come to it would decide that there was not that there was a reasonable probability of an acquittal but whether it was reasonable for the colorado court of appeals to make that to make that ruling and it was so given the devore the deferential standard and the procedural bars on the other claims i would ask this court to reverse the district court's order granting relief thank you cases submitted thank you both for your arguments this morning