just eighteen at the time and it's serving ninety five years about a prison system for attempted murder trial givens moved to dismiss his lawyer because he had never come to visit him in record and that's at page two forty nine to fifty of the record i didn't know i was going to trial yesterday the second day when he obviously knows he's coming to trial he appears in his civilian clothing so i think it's definitely fair to raise the inference to make the inference that he was surprised and unprepared and had he known like he did the second day he would have dressed in civilian attire there is nothing in the record there's no statement by counsel or an affidavit of any kind to suggest that this was on the part of coun close like everybody else where my that kind of this state did concede on the record that and that's three forty four that he was in prison garb during jury selection they don't say what it is i don't think it's clear what it is but it was clear that he was in jail at the time and i don't think the practice has changed in clark county when you're in jail you're wearing an orange jumpsuit when you're in prison in nevada then they wear the prison blues which are normally done with a shirt and jeans and a shirt very different than the  s you're saying he wore the orange jumpsuit right that's correct then at the trial  doesn't really present any kind of defense i think if you read the closing argument in this case at best what counsel is setting up is a sufficiency of the evidence defense as he goes through each witness's testimony and id of my client  and simply says well was that beyond a reasonable doubt he totally ignored the strong evidence supplied by the uncharged as a planet in this case wayne williams when williams and his statement  says that with and that he and givens had been drinking heavily since four or five in the afternoon the day before they continue drinking at four o'clock in the morning or maybe was four thirty in the morning they get kicked out of someone's apartment because givens is acting up in a way that wayne according to wayne williams is consistent with him being intoxicated and wayne williams described what it was that each had done and he said that humans had run to forty  pages eighty five to eighty nine are the records that he was cussing at cussing at the women that he was with he was tripping in quotation marks i say that and that he got kicked out of the apartment directly before those two go to the case and he is in talks with either because there were two people there so there is but that possibility but even so he leaves this very powerful defense and the problem is we don't actually know we have a strong sense that it's powerful from the statement we know the trial counsel has that statement he says he doesn't try at trial on page twenty six of the record he's talking about how he talked to williams before trial about the fact that williams wasn't going to testify wasn't going to change the statement there's a couple of choices that would have had to me had his counsel even try started to investigate that defense that was the first step was talking to williams to find out about it williams also mentions other people who were there he's going to get a great deal because he testified and he would not plead the fifth for that reason but it is surely this is also just going to investigate he's naming other people who are with them that night they were kicked out of a woman's apartment joggers run by they see him staggering they thought he was the speech was word for the victims didn't understand what he was asking them at first they weren't sure he was asking for money or what he was asking for directions because the speech was told that he was there anything quickly perhaps the very fact that he was trying to rob someone who's jogging which is not a particularly wise decision it seems in terms of how much money people carry when they're exercising that may be something that's just sort of th the whole trial happens with four witnesses in one day so i don't think they sort of go off track much in terms of describing his conduct well that's a lot of criminal activity that's hard to explain obviously don't have much money or  it's not like these people were by themselves for the twelve hours prior to this time they were actually socially together with other people since four in the afternoon and had just left someone's apartment by the park there are other people when williams was the gateway to those other people but and a very powerful gateway but he was not the only person who could have given this information and it's not clear that he wouldn't have given this information had that been explored with him he just simply said that he was going to implicate givens in his testimony and had the choice to me to inquire into this intoxication defense even if the testimony were the same as the statement it would have still been powerful evidence  three of evan in his affidavit supporting what was a motion to show cause why he was causing prejudice to file his petition my client says that he sent copies to the a g to the d mailing of my research to and that's exactly what the rule isn't about it that's exactly what givens did this actually corroborates that on that day when he was doing this he actually was putting these things in the mail he also follows up his petition and nothing happened under nevada law all he's required to do is to alleged those facts that say that you tried this before this is that in time before they prohibited mailbox or and the case some point on that it's an issue of state law here than about a supreme court hung him on the fact that he served the a g and they said he only served the a g they made that finding illegally in our view under state law because there was nothing to rebut his contention there was no evidentiary hearing the only way to get to the nebraskan courts conclusion is to make a factual finding without an evidentiary hearing on that point and it's an unrelated point in the record that's a problem take your point of view that we're fighting that's about a supreme court running my names victuals and senior deputy attorney general of the state of nevada it's an honor to be here today i think the procedural default issue as the judge indicated is a gateway issue for us today and i think these devolved issues are important i would respond to different ways and they're somewhat contradictory my experience is that in dealing with the hundreds of pro se petitions i've received in the last twelve years it almost always happens that the court addresses on there because the court that that that form did not have a specific line for the address of a court and that is not on there i would suggest though however that the district court erred in a couple of areas on the issue of procedur three and it doesn't seem it doesn't seem unlikely or an unfair or a position that mr givens is not an attorney that he's done what's what counsel in this court usually does that is they put that they put the addresses of everybody else other than the court our office had received the attorney general's office had received a copy of that document shows in fact that what mr givens did was he served that document on lawyers he didn't mail it because whether he alleges he mailed it in self which was the allegation in the motion to show cause and prejudice or whether the district court properly applied the mailbox rule under the theory that givens handed that document to a prison some unnamed prison official we don't know who that is wherever givens wanted to get that document got the document and the proof of that is that the attorney general got the document it's highly unlikely that only some of the people got the document but not everybody did and i would suggest that because of the certificate of service because of mr givens youthful age yeah look at that's a that's a that's a tough position to take that because you got the  document that had he in fact mailed it to somebody else that they would have also gotten the documents i'll concede it's not the strongest starting in the world but i think it's some evidence the nevada supreme court can look at and say you serve the document you simply never file because it it raises that question keep in mind under an under nevada law under chapter thirty four it's given it's got the burden to show cause and prejudice the state doesn't have to show a lack of a lack of  effort he has to show cause and prejudice for this filing that ultimately was for five years late in this case and so i don't think the nevada supreme court was on reasonable in looking at that record the lack of a filing the fact that the a court the district court made an interesting finding the district court seem to find that the nevada supreme court and you asked a question relevant to this a few minutes ago the district court at the u s district court seemed to make a can make a finding that a state court erred in the application of state law in this case which would be the whether or not he met his legal burden for causing prejudice that i think is a problem i would also suggest that the u s district court erred in misreading that in zall this case he read gonzales judge hicks read can solace to read that a petitioners allegations of cause and prejudice are presumed to be true sort of like the last argue when doe if the facts in that case it consolidate in fact had done what he said he did he still doesn't get relief under chapter thirty four of the nevada revised statutes it is always true that cause and prejudice is a burden that address very briefly the issues that are before the court on the three issues on the identification issue i think it's a misreading of the law in the opening brave that somehow a show which is alleged in the opening brief it is also not true that the police have to come up with exit in circumstances or urgency this court in the kessler said case specifically found the opposite there is nothing inherently improper with a show of identification if you go through the five standards those five points in the verses figures every one of those goes for the state and we think the district court made that ruling properly on the show of identification the show of identification by the two new four witnesses one of whom was jogging in the park one of whom was walking both who testified that show identification occurred only forty five minutes later and maybe six or seven blocks on a street called comst street also in the neighborhood where the robbery and the shooting of those two victims took place the full face view of the givens in this case there were two african americans involved the not only did the two neutral witnesses but also the young woman the daughter of luther white live birth of elmore also testified that givens was the man at the preliminary hearing and at you and she said i am very sure that's the man that shot my father and shot me pointing at givens and that was corroborated by the testimony of the two neutral witnesses when mr white the seventy one year old shooting victim in this case i point out he was shot in the leg and shot in the neck ended up in a wheelchair and had to have multiple surgeries in that time frame prior to trial mr white was asked what were the lighting conditions like in the park it's four thirty in the morning it was  august as those of you know those of us who live in las vegas or visit we get a little warm in august lot of people do physical things early in the morning around sunrise makes a lot of sense they were out walking through the park and all the lights in the field around the place was lit up by lights shea stadium according to mr white's testimony all the part lighting was on sure that that gives was the person that i would concede you that at trial his identification was don't know what the question was how would the how or the what were the lighting conditions and his response was all the park lights off and so there from the testimony of the birth of elmore who was the victim who shot in the examination no had direct identification no hesitation they had an opportunity to view the show of identification was just forty five minutes later moving to if i could moving to the failure to object to the jail car clothing  clothing issue i do not read the record as indicating that the district attorney ever conceded that mr given showed up in jail garb that fact has never been established it's nothing but an allegation in the opposition to the state post conviction petition again i think what the district attorney said was argue wendel didn't use that word i can see that the argument read reasonably was argued window if he had there was no prejudice i've got to be honest with you and tell is a mandatory element as your honor testified the u s supreme court has said sometimes it happens that these guys want to engender sympathy by showing up you know i've never been a defense attorney i can see that would kind of be a strange strategy but apparently sometimes that happens but the fact of the matter is one of the mandatory elements here is compulsion they've never even alleged compulsion in fact what he alleged was essentially oh my mistake sorry i think realized this  i thought it was something else that seems to me to indicate it was his negligence not the judge and not the da or not one of the bailiffs or one of the jail ceo's who required him to show up in jail garb the previous days that in there i don't see i've never seen anything in the record where this issue ever came up that's that's the point there is there is no factual basis for this issue there was no objection the allegation is he then showed up in street clothes and that not unlike my logic where the a g got the letter and the court didn't it's sort of a indirect reference and it's not logically not different from my own argument but the argument is well look the next day he showed up in st clothing they're for he must have been in prison clothing the first day i mean it's not clear what the argument is but in fact it's never been established there was a little objection and although we may in clark county have quite a range of talent within the defense community i don't know of a defense attorney who either wouldn't object or would think to himself no let's let's let let's engender some sympathy here but the relative here from the u s supreme court case law that the district court i think correctly applied was there's no allegation no evidence of state compulsion and i think ultimately that's that's probably the most important issue last fall voluntary intoxication defense if i might under state law voluntary intoxication is a defense under nevada law to a specific intent crime and the attempted murder counts are voluntary or involuntary i'm sorry that's involuntary voluntary intoxication is a is a defense to specific intent crime not to a general likely that givens was intoxicated at the time likely intoxication is an insufficient allegation and would be an insufficient showing i would also suggest that under new that a law intoxication is not a defense in this case beers or a martini you have to be so strong out on alcohol or drugs you can't form the intent to commit the crime and i would suggest the best evidence that shows that's not true is simply going back to do a little park and looking at what this guy did and walks up to two people who were walking at four thirty in the morning a seventy one year old man easy target i might add and his forty forty five year old daughter points a gun at initially has got a gun to decide he demands money they say we're jogging we're walking we don't have any money with us points the gun at them demands money again demands money repeated lee i would suggest the repeated demand show he knew exactly what he was doing he knew what he wanted he knew how he was going to get it he gathered his his weapon he loaded that weapon he was ready to go he got himself to the park a lot of complicated mental activity going on at one point in time the birth of elmore testified she she opened her pockets to show him we don't have any money thereupon he shot her father twice once in the leg and once in the neck bullet exiting through is under his ear she fell on him to protect him from being shot further and given shot her shot her in the head it was a flesh wound it didn't didn't go into risk ultimate shot her in the head and it caused her to end up that you know university medical center for medical treatment his injuries were very severe he and showed up at trial months later in a wheelchair after three surgeries according to his testimony so the facts of that case i think negates the inference that having had some alcohol the night before somehow would have been a successful defense under both versus rains counsel is never under strickland counsel is never ineffective for failing to raise the merits of jackson or motion or issue and i would suggest that because of the law and the requirements in these three issues on the merits none of these would have been successful therefore givens can show neither defective performance on counsel or of counsel or prejudice under the stric are filing from prison and what would be the point of the mailbox rule if you had to show that the thing that you filed was timely filed then you would need about possible you have to show or allege which is what he did document and because she didn't even have a copy of the document she had to use her letter of acknowledgement of receiving the file the document as proof of the notice of appeal that's an example of that is how you can send something to a court and it never gets filed airily dismiss when when the petitioner has made allegations in this case those allegations are unreported in this record that he did what he said he did which is that he put it in the mail that's what he has to show and that's what he alleged and it's under about it and then just on the intoxication defense very briefly there's no strategic reason ever given in the record for why council did not investigate whether givens was intoxicated and the standard under wigan's and strickland is that every decision to investigate has to be reasonable there's no justification justification in the face of strong evidence that he wasn't executed that that was a no go defense that he chose not to pursue that for strategic reasons and in the absence of that kind of strategic deliberation there's nothing a codefendant uncharged who says that at four thirty in the morning right before they were at the park that they were kicked out of someone's apartment for testing and tripping and yelling at people which is what  additional hurdle to get over on this one i understand and i recognize that but because the state recessed at least the court has what it needs to decide this issue so in working that failure to investigate leads to whether to put williams on the stand no need to put williams on the stand if you've got other people who williams refers to in his statement that have seen givens that night the person for example who just kicked him out of the apartment but even if you put millions on the stand you just have a different strategy which is that givens is the person who did it and he was intoxicated so i mean that's a decision that could be made but the problem is you don't even have that gateway issue which is nobody investigated or there's no proof that any investigation was done on this powerful issue and there's no strategic reason in the record ever given as to