resonates through each and that is that the narrative presented to the jury about martin care and the crimes he was charged with committing in this case was deeply flawed and prejudicial the prejudice started in the guilt phase when the jury was erroneous lee permitted to consider highly inflammatory evidence about an uncharged ravan homicide in support of the most contested fact at trial whether mr kim raped or attempted to rape the entire howard and was there for eligible for the death penalty this prejudice was compounded by germans conduct during guilt  deliberations despite the unconstitutional inclusion of the first cell evidence in the howard trial at least several jurors remain unconvinced by the prosecution's case in chief and took it upon themselves to bring in and rely upon impermissible extr to find mr kitty of homicide an attempted rape and throughout the trial to a child due to trial counsel's ineffectiveness we had a bias sure who expressly stated that she could not give mr kemp a fair trial sit in judgment of him finally the purchase was perhaps at its most extreme in the penalty phase when the jury never heard the reality of mr kipps tragic upbringing and the trauma that he experienced these are the main areas of the hope to cover this morning i'd like to start with the germ misconduct claim if i could the constitution requires that a criminal defendant be tried by a jury capable and willing to consider slowly the evidence before it and unfortunately mr juries mr kipps jury did not abide by this essential principle the experiment on the parents and the fire explaining that the effects of cocaine works forensic evidence which raised a presumption of prejudice that respondent was obligated under clearly established federal law and medics and rammer to rebut but did not and in fact  extrinsic evidence for the of the fire and the experiment the foreman of the jury the same man who brought in the firing cocaine set himself forth as an expert on the matter by referring to the fire and discussing yes his own personal experience with cocaine but purporting the way that he did it was in such a way that it turned him into an expert and his expressions more of expert like statements which this court in moxley stewart found in permissible so evidence existed responder was obligated to rebut it with other contrary evidence not coming from those declarations themselves and they did not do that so where we stand now is  court could not have reasonably found that respondent adequately presented the other contrary evidence in order to rebut the presumption at the very least the state court should have held a hearing on the matter this court most recently in set forth that standard and again the state court erred in not abiding by it therefore therefore we satisfy d one on that problem so you're going to want to make sure i understand why you think there produce even if there was joy misconduct why there was produce what's your strongest argument as to prejudice with regard to each of the pieces of extrinsic evidence they went to an essential element of the attempted rape charge and special circumstance consideration the jury expressly relied upon it in order to come to their decision that mr kip did in fact commit that crime and was guilty of that special circumstance and objective statements in the jury declarations which we are allowed to look to give the indication that prejudiced in fact exists because the jury was affected by that evidence and relied upon it in coming to their verdict on the matter again to emphasize where we stand is that there's been no rebuttal it's not our burden to demonstrate prejudice but we do believe that precious exists based primarily on the fact that it goes to as a specific element of the crime charged and the special circumstance if your honour's have no questions about the germans counter claim or move on to the certify claim which is the due process claim as i stated before the admission of the first cell evidence was highly inflammatory evidence the most inflammatory evidence presented at trial and it was hotly contested during the state court proceedings the trial court acknowledged that the question was a close one and unfortunately the trial court made the wrong choice in allowing it to be admitted and i believe that evidence  in the record that shows that this was this evidence was presented more for propensity or to go to character than anything else is the fact that the prosecution opened its case not with witnesses for the howard murder but with the mother of tiffany who recounted every parent's worst nightmare sending their child off to a new town for college and two days later she's murdered fifteen witnesses nearly half of the witnesses in the howard trial testified about his first out so you can there's getting to for us to be able to review that piece of evidence and i guess that argument we can do that in two ways we can we our belief is that the court actually never addressed the federal constitutional question and you see the state court the california supreme court never addressed the federal constitutional question we can overcome johnson but more specifically going to twenty two fifty four d we satisfy twenty two fifty four d t o primarily because the suppose it's similarities between the crimes as found by the california supreme court were not really such striking similarities at all there were five specific factors that the state court relied upon to say that the crimes were similar and if you go through and look at the record for each of these factors the court either misinterpreted or applied an inference that simply was not supported by the evidence presented at trial so let's say there was age gender in terms of the similarities yes age gender the method of killing strangulation yes right and those are those are factors that are true state court  belonging to the victim howard to her car for sol to her motel room and covered with bedding so why is that not sufficiently distinctive or at least if we are under the  state court to think that that's sufficiently this thing can you address that issue yes or i actually think that the state courts reliance on the suppose it fact that they were killed in one location and then moved to another enclosed area is not supported by the record it's an inference that simply is not strong enough to make it was a reasonable inference in his howard's case but it was not reasonable in this for cells there is actually no evidence presented a bed and the absence of any signs of force and tree into the motel room or struggle within that room so tell me why that inference is not supported it's not supported because during preliminary hearing testimony by one of the investigating detectives  since we look to the evidence that the state court relied upon in coming to its conclusion that the evidence was properly admitted and the state court explicitly said in its opinion that it looked to the preliminary hearing testimony in addition to the trial testimony and during the hearing the detective stated that in his opinion mr zale was killed on the floor adjacent to the bed and then moved to the bed right with his let unusual why is that not distinctive to have murdered her on the floor but then carried to the bed place her under the bedding neatly lay her out and pull the covers over her body is that not a distinctive way of sheltering the body after that is the only ssion that itself could be deemed distinctive but in comparison to what was supposedly the strikingly similar fact in his howard's case the two do not correlate mr howard's crime looks much more like the killing occurred yes outside of the car and then in an effort to hide the body she was placed back inside the car potentially there was also evidence presented at trial though that mr howard and mr kit actually went out to the beach together so some of the dirt who are due to argument what is the unreasonable factual determination the unreasonable factual determination is that the state court did not did two things one made inferences from the facts presented that were not supported and therefore no inference of identity could or should have arisen and then it ignored the differences between the two cases and there for what we're not supposed to do that's sounds like you're asking us to do it in ove review or for us to review the facts and say hey we would come out differently it seems the case law regarding unreasonable determination of facts is very specific that we're not supposed to do that what's your best case support your point here that they had they their process or are there or determination of the facts was unreasonable but i think that u nder twenty to fifty to forty two that in analyzing what the state court did this court is permitted to look at evidence that the state that the state court did not that was present but that the sea court to not consider that the state court ignored  what's your best case for that i'm sorry i would have to get back to you on that i apologize for that maddux yes thank you yes maddox to speak to that i apologize your honor for that going through court really has an address twenty two fifty four  consider evidence in the record or something there's i think there were three criteria and i also think the united states supreme court in brumfield mccain also touched on this question in the context of and i can see here and with the state court looking to all that the evidence there when determining whether whether a hearing should have been should have been held but i agree that there has not been extensive discussion by the court on this matter it seems on the cases that have discussed they focus on a complete mis apprehension of the facts by the state court or mistakes i mean that it wasn't accurate is that the case here that the speaker completely misapprehended all the facts and that there was an inaccuracy so what they what they determined is that the case here i believe that there are inferences that rise almost to the level of an inaccuracy when you're looking at some of the suppose it's similarities that existed between the two crimes the facts were misstated it's the inference is that you're disputing is that right well there are yes but there are also some facts that were misstated for exposure but i guess how for zones body was covered not whether she had on a shirt when they remove the bedding there's questions about the way that the clothes think the clothing was placed on each body and the purpose of covering the body with the bedding so again going to the  found on the upper body there is no testimony to the effect that first cell was uncovered in the way that miss howard was but the state court specifically said the two bodies were left with the shirt on and exposing the breas so that is i think an incorrect statement of the facts that were presented at the preliminary hearing evidence of that factual inaccuracy comes from the photograph it was really also testimony in the record there was there was testimony in the record as well a four ninety five in addition to the photograph the state wanted to use this eleven zero one evidence for purposes of identity correct yes it was one of the theories for the admission of the evidence below the petition left his fingerprint at both locations that was a fact that was not cited to by the state we permitted to consider that fact and if your answer is no is there a case that stands for that proposition you know you are permitted to consider that fact but again the fact that fingerprints were found in each location is not necessarily such a common signature or the highly similar evidence of identity that indifferent everything else in terms of the differences between the two cases additionally the fact that the longer we don't we don't we can even though the state the insight to it considered the fact that well wait a minute there were fingerprints along the same person found at two different crime scenes and so we can we can look at that even though that's not cited to by the state i believe that's correct but it doesn't i believe one of the reasons the state court didn't rely upon it as something that was so strikingly similar is that there was evidence that mr kemp was with miss howard for example and the fact that his fingerprint was found in her car on an evening that he had spent time with her was seen leaving the bar with her could certainly have gone to the vehicle with her is not sufficient enough to show a signature between the two crimes of it and homicide i just want to be super can i ask a follow up on this show the identity that he committed the attempted rape that was the most yes that was the key issue for this admission of this evidence yes and also the murder obviously because that this the argue it was at the same person committed both crimes but i believe that the prejudice was particularly strong with regard to the attempted rape out there howard evidence what was the state strongest mr i'm so sorry without the howard without the present evidence what was the state's strongest case against mr kim i believe that the fact that he was the last person seen with her that night the fact of the fingerprint in the vehicle and the night knowing her at all he did deny knowing her at all when that was not the case that he had spent time with her that evening i think that's the strongest evidence and it's not very strong at all which is why the state sought to admit the first cell homicide in the first place and then just going back you prefer that they needed to establish a special circumstance the practice they needed special circumstance and just going back briefly to the germans conduct issue the whole reason that the jury brought in this extensive evidence in the first place is because the prosecution had not minutes burden to show they kept committed the attempted rape it was only after the consideration of the cocaine fire and the experiment on the pants that the jury came to the conclusion that he had in fact committed the special and i think that goes to the fact that the crimes were not sufficiently similar that the state court erred in admitting it was saying that it was error just the sake of argument that it was an error to the for sale evidence could the prejudice analysis differ with regard the murder and the special circumstances in other words could that analysis i think that it would be a consideration for yes a separate consideration for each our primary argument with this claim is that it most directly affected the finding of the special circumstance can i ask you about the ineffective assistance of counsel claim yes which one of the mr qur'an i'm trying to figure out is he didn't submit a declaration from m beginning i believe and then he did die during the preparation of the hideous petition and so no the petitioner of the federal i believe it was to state his petition but i can i can check on that and what about the declaration from your client  recounting any discussions with him regarding the mitigating evidence was there any thing like that submitted you know there was no declaration from mr kipps submitted there were declarations submitted for mr kipps family members however and do we know what was in the in the explicitly stated all of there's not a list or an index of all the documents that mr e car gave to mr hariri and there was mr e car did state that he turned over all of the medical and police records that he'd obtained up to that point i believe some school  and had informed mr hurry and that they were at the beginning of their mitigation investigation that they had retained craig haney as the social historian that mr haney had started his investigation but again it was at the beginning  so that should have alerted mr her to speak with mr haney who is the main person getting the social history in the medication information from the family mr her and did not do that he never contacted mr haney never got mr haney's files and proceeded to the penalty phase without even speaking again to dr foster who had been retained by mr e car and was the main penalty phase witness at trial so wasn't until just prior to the penalty phase that mr han even reached out to dr foster through whom all of this mitigation information regarding the family was coming and told him i'd like you to testify can you do this dr foster reluctantly agreed as he stated in his liberation but he was not given any additional materials any additional information was not prepped i'm trying to figure out why mr her an inherited a pretty investigative tool a pretty extensive two year investigation from the prior more your he could have read the results of the investigation the notes from family interviews reports from the three experts and you know could have reasonably determined that he did not need to conduct any further investigation was why would that be wrong i think it's wrong in this case for a couple of reasons first because former trial counsel explicitly tol mr her and this is not done this is the beginning and i think also it's impossible for mr harangued to have determined based on notes from initial investigations whether or not these witnesses were necessary important to come and testify and uninformed trial strategy has no strategy at all as this court said incredibly ryan you think you could have concluded that well i can get all of this out there mr mr foster d foster that's possible if dr foster actually had all of that information and there's no indication that he actually did he's not receive any of the there's no indication for example that he received all of the records that dr haney and presumably investigative notes that mr haney had prepared himself they were turned over to trial counsel no indication they were given to dr foster and that's information that existed and i think that unites it supreme court cases from wiggins specifically say when you have these indications that further mitigation investigation is necessary it's incumbent upon child counsel to take it as a service of the same for a moment deficient performance review if had there been additional investigation or dish and presentation of family members or other experts who investigated recently likely that the verdict would have been different yes i think absolutely there is the difference between what was presented at trial and what was presented both in the state post conviction proceedings and then subsequently at the federal evidence cherry hearing where differences of both degree and kind the presentation of mr kipps childhood that the jury heard was striking old compared to what he actually experienced and the trauma that he experienced actual experience in his childhood directly impacted later choices that he made so the substance abuse that he engaged in from the time he was eleven years old through the time of the crime was explained at least in part by the trauma and these family history going back generations of substance abuse and alcoholism additionally the fact that mr kip i see him well into my time i'll just make this final point the fact that mr kipp was being charged was charged with crimes involving violence against women and then for the jury not to hear that through his entire childhood he was both the witness to and victim of extreme violence that was necessary information for the jury to hear you also are arguing that the counsel did not adequately prepare believe wiggins also speaks to the fact that when you have information that goes only so far it's unreasonable to stop without moving forward and getting the additional information that you know that you need from the information you already have the court noted earlier in talking to counsel the u s supreme court has never held that it violates due process to admit other crimes of a dance and the california supreme court's denial of kipps claim here is consistent with  a style which held there was no due process violation in the admission of other crimes evidence where it was relevant to an issue other than propensity and the jury was instructed not to consider it for propensity and here the jury was  if i heard counsel right there's a lot of i heard or understanding that the courts the state courts inference is that these were substantially similar was mistaken factual determination under presumably the two and i would argue that it's that's the  overall conclusion well the ultimate conclusions that strikes me as a legal conclude yes that you have but you have that legal conclusion has to be based on a set of facts absolute right yes and i understand your argument to be that the set of facts that formed the basis for that legal conclusion was determined in an unreasonable manner or an unreasonable way all right i just wanted to clarify that i thought i think you know have any problem with i mean i think that's right that the that you know this is both a fact law guess why does that show an unreasonable determination of the facts especially under the standard that was set out in taylor versus matthau i'm sorry i think i misunderstood the court's question how why isn't that an unreasonable determination of the facts when they completely ignore or don't mention at all the some some significant differences i know that they do you know a review for whether or not this is not just a distinctive pattern but a highly distinctive pattern and so for that the it seems like the supreme court said that this both these women were the same age the movement of the body and the blanket i think were the main things that they that they were focusing on some of which i think counsel has has pointed out probably a current and unfortunately many rape cases and try to figure out why this coast how do you distinct a pattern  especially when they did not note that the bodies were found in different places like a car versus a motel there was clear evidence of sexual intercourse and only one of the victims there's evidence that mr kipp knew one of the victims but maybe not the other the property was stolen from one victim but not the other one murder was by manual strang ulation the other was by ligature strangulation with the belt evidence that one victim was intoxicated but not the other one victim had defensive wounds while the other did not one victim had dirt on her body while the other did not the one victim had a garment placed over her head while the victim while the other did not the perpetrator removed and took one victim's brought up the other victims brought on her body one had a head injury and the other did not  i guess i'm trying to figure out and dirty eyler vs mad out why isn't that an unreasonable determination of the facts well i'll preface that by saying that's certainly the crimes not in the in the howard case it must be removed remember that howard's body was found with her pants and panties at her ankle and the jury determined that he attempted to rape or you know the jury can term and that after hearing all the evidence were guarding for  what's what were determining today if that was a fair trial when fifteen of the witnesses were for zero written says in this in this case in this case where miss howard was the victim well the fact with that with the evidence of sexual intercourse of the fact that there was decomposition of howard's body essentially precluded the finding of any any sperm on her body at the very least the evidence showed that there was sexual intercourse with for sale and attempted intercourse with howard in those circumstances on that issue support a finding of similarity and contrary to kipps argument that there was evidence he knew howard but no evidence he knew for zel the evidence only show that he met howard the night  at the bar the evening each other and he similarly had just met for zell right before he killed her too while there was while howard is manoli her death was caused by manual and for sale was by ligature the fact that both were strangled to death is really the key similarity and for that matter there was evidence of manual strangulation for but i'm looking at what was announced in maddog which which held that the state courts fact finding process is unreasonable under twenty to fifty four d to win and i quote the state court has has before it yet apparently ignore evidence that is highly probative and central to the petitioners claim why aren't these differences that we just reviewed briefly there may be more i don't know why isn't that highly probative and central to the courts determination was unreasonable is correct yes i agree with you on that and while there are differences the state courts are under twenty two fifty four i'm sorry under twenty two hundred forty two if we determine that they did not have a sufficient they were incorrect in their fact finding process is it do we review for whether it was unreasonable or does that take us to a dyno vote or if you know it it's the state courts factual findings are presumed correct and can only be rebutted by clear and convincing evidence and once if that presumption is rebutted by clear and convincing no i'm saying that it's not a limitation on the two i'm saying that if we're in the context of a factual determination it's presumed correct once it's rebutted by clear and convincing evidence then it has to be a reasonable under do you want so there is that interplay between he wanted to but once but once we if we were to determine that it was the factual underlying determination was an reasonable why didn't the just get us out of the i presume that if the court doesn't reach that conclusion that it wasn't a reasonable then that could take it out of the the the d want to claim work yes can i have you go back to the question of whether this was an unreasonable determination of the facts because i'm not sure that i quite got your answer the state court indicated that there were common features that revealed a highly this thing the pattern and then it goes on to talk about the similarities that it believes establishes that highly distinctive pattern right is it problematic that there were a lot of dissimilarities as we count it that wasn't discussed in the state court opinion or reasoning no because we have to look to whether there is any reasonable basis on which the state court could have made its conclusions and looking at the circumstances as a whole as we talked about we touched upon the fact that the really important similarities here is both victims being nine hundred eighteen or nineteen neither acquainted with kept both covered totally with the batting both i'm sorry go ahead i was just going to point out but both having their pants and panties removed leaving fingerprints one of them did not have a while one of them did not have a completely removed one of them had it at her ankles the other one was completely removed and when we're looking at highly distinctive patterns does that matter and i don't know i'm just asking because i want to give you an opportunity to help me sort this out well both were removed from covering the genital area whether they were totally off the body or down at the ankles that's this distinctive pag passage amongst all the other ones that the court could reasonably conclude in finding that in distinct enough under eleven zero one t does it matter i want to know is it relevant is a matter that some of these similarities that the state court found are somewhat generic and common  to many rapes it's certainly relevant to whether they are the state court reasonably found they were distinctive enough but while there may be some that are relatively common in looking at everything together it presents a picture supreme court identified the doesn't seem to be accurate and that's the statement regarding the shirt but it was above her breasts with respect to brazil yes and if you look at the photograph  that's correct while this seems to be like a just an in accurate factual determination i think that seems to be like unique on the other hand as well i think on that issue the court kind of group them shows her shirt lifted and covering her breast still but as we point on the brief her bra was removed as was ms howard's although it was still left on the body so in that sense the breasts were uncovered by the bra that's how the supreme court said though correct but despite that one factor we have all the other factors that i discussed and laid on the bridge what do we do with then that just drop out of know you look to aside from that are there other numerous other similarities that were sufficient for the supreme court to reasonably find that they should be admitted under that eleven on  me ask you there was a question that the judge when asked of counsel a moment ago a few minutes ago whether it's possible to draw a distinction between the murder and the special circumstance with respect to this to the question of prejudice can the prejudice and the alliss differ as to the murder and the special circumstances another words can we say well that was made it was the evidence sufficient for the jury to return a first degree murder conviction as to ms howard and it maybe we'll have to talk about it and analyze the evidence given the fingerprint evidence the faults denyer etc but i don't see how that could then rescue the special circumstances of attempted rape i think that's a much taller mountain to climb for the prosecution in this case if we conclude that the physical evidence w and her blouse pulled back and her bra twisted above her breasts and her jeans and panties are iran feels that sufficient jury could sufficiently found he attempted to rape her based on that evidence physical damage to ms howard's body in fact more severe certainly than it is for her her head was beaten badly if i recall correctly and that would certainly w special circumstances it seems  so moving on to address the i guess why did you use the for cell i mean if you had the case i mean if there was enough evidence why did you why did you need the for brazil evidence well murders well i mean if it's relevant evidence sure it's relevant it's certainly you know i have a very well aware of the use of prior prior acts evidence to prove and it was it was help for the prosecution's case and there's no reason they should have been limited in and using it and if you have good evidence this was three months apart these these murders happened three months apart so this this pattern was was powerful and was an accurate one has to realize what dr foster and mr harang we're working with in terms of the reasonable us of their actions has to be determined or substantially influenced by kipps own statements and he made clear that he did not want her and to bring in family members or bring up his background or disparage john chip yeah i'm just asking you was it  accurate i know they may have had issues but it was inaccurate i think there was some portions that didn't have the degree of well when dr foster sent mr kip was not physically abused as a child would you say that is true information no there was a depending upon what age we're talking about there was evidence of that i believe that there was evidence admitted at trial is a recent incident where john chip hit chip in public which was a big humiliation so there was some of that physical physical evidence and the investigation cannot necessarily be faulted for information of the client doesn't want to provide i mean we have some of this evidence that came out a decade later after years of investigation and hey b s that may not have been apparent to to the defense team at that time and well that's when the ages of two and eleven which are formative years for any person it turns out that he was physically abused and description well you have the descriptions of how he was physically abused by his  father stepfather you'll remember that relationship in just trying to figure out how that was would not have been relevant and here dr foster was said live and he had a wonderful life during that time that it's and it makes it seem like mr kip sort of made the choice of how i mean more that he was making a choice of how he was going to live his life when he had a lot of adversity it seems to overcome i'm not saying anything that that justifies what he did but i just wonder if this is relevant for the jury and they never heard it it may be irrelevant but trial strategy is trial strategy and her and wanted to go with  he was a good that chip was a good kid some of his friends admired him and the jury should have mercy on him and that wasn't necessarily an unreasonable tack for mr and to take in light of the  complete organize files of two years worth of investigation that was done at the time with dr foster dr haney dr poor and with the reference to counsel's remark that mr and never had hanny's files i don't think the record supports that i think all the investigation for the two years that happened were before mr her ran and auster stayed on with her rant as did the defense investigator as did the co counsel so that was a pretty extensive investigation you would think if there was such an extensive investigation there and would have provided the notes from these other right and given them to foster foster says he didn't speak with her really well i don't think foster well over what he was going to testify  to well what dr foster may feel you know what the benefit of hindsight he could have been better prepared to testify if the court looks at his testimony it's difficult to relate it as read it is anything but but compelling and diligent and the prosecutor no th en the court which was a very good doctor foster i think you know he says it appears kipps mr cripps defense counsel called just one key witness that was dr foster and you know that could be a strategic decision  but counsel from what i read did not ask him to testify until the trial dr foster had never testified in a in a and a death case before and counsel completely failed foster saying well but you just did earlier to speculate on the strategy so that would you agree that's not that's not a reasonable strategy though because dr foster set forth a whole bunch of knowledge about what it was like to grow up on the blackfoot reservation our native american reservations and much of what council was trying to do was show the the the poverty neglect the alcoholism etc that went up went into growing up on these reservations and rather than necessarily bringing in a bunch of bad acts of of physical violence with you have to remember also that chip fired her because he didn't like the tact that he was taken he made it very clear in his letter that he had very much disdain for the experts at least most poor dr poor excuse me and mr eager have but i think he greatly disparaged the notion that the people were investigating his life and his upbringing and some of this type of mitigation thing that you know he commented that they don't know what they're talking about or their stuff is foolish so he was there with that article that came on the reservation that was very embarrassing so mr harangued focusing on some more general concepts of the difficulties that living on the native american reservation and chips experience and focusing more on that he was a good person deserve mercy it was  reasonable and i would point out just with respect to prejudice i think we may have touched upon that earlier that the california supreme court here also may reasonably determine that to fail to demonstrate any prejudice from this because regardless of  the mitigating evidence discussed there was overwhelming aggravating evidence here kip raped or attempted to rape four young women and ultimately strangled to death they were both one thousand or nine hundred eighteen and a reasonable jurist could conclude the failure to put on the dish and all instances of physical or abuse or neglect would have changed the balance of aggravation against mitigation we turn to jury misconduct issues because i'm running short on time  with respect to the juror experiment involving the pants as pointed out in the brief much of the proffer testimony in the declarations in missable because it concerns the jurors mental processes outside of the objective parts if it would be admissible and the same is true for the statements of other jurors and both of california lower federal court law hold the jurors can conduct experiments with evidence received in court so long as the experiments are within the lines of offered evidence and don't invade new fields that the pants experiment if you will did invade new fields because both  pants of that used by the jury as well as miss howard's pants were hemmed with tape and this experiment was not outside of the scope of the evidence the trial the jurors could have conducted the same experiment with the pants emitted in evidence but they had a terrible smell from the condition of the body and jurors can use common experiences and illustrations in reaching their verdict so you think it was proper the you would condone that the state court could have reasonably found that it was not misconduct yes and the stake or could have found that even if it was misconduct it was non prejudicial because the results of this so called experiment are hardly remarkable that sticking at toes through  pants that are taped up the ham that had become loose and also that of the state of the pants i guess you're saying it's not extrinsic evidence that came in improperly or yes but yes i don't think it falls within the type of extreme is your best case for that i believe i've cited some in the brief but i don't have them off the top of my head i believe as there isn't a number of them in there i'm sure that's not very helpful so help me with the prejudice and respond if you can to ms was watching hockey as arguments regarding the prejudice on on that now first as i noted that that was was hardly a remarkable result up and the state of the pants didn't show whether any attempt or occurrence of intercourse was consensual or not consensual it didn't increase significantly any evidence that ship attempted to rape  holiday and as we talked about a little bit earlier side from the consideration of the pants him the evidence supporting the attempted rape consisted of the state of miss howard's body and her clothes and also of course the inference from the the long beach case and then jumping to the the flier the state court here first of all the the  am can't properly be characterized an expert on cocaine an alcoholic and alcohol just because he was a recovering alcoholic that sort of overstates it and the california supreme court could have concluded that any presume prejudice has  rebutted there was no relevance to kipps guilt because in the guilt phase there was no evidence that kip used cocaine there was evidence that both were intoxicated from alcohol and the jurors would have expected them to be less sexually inhibited if the jurors and learn that cocaine can increase a sex drive that would likely have influenced the deliberations as to whether kip attempted the rape hour and the state court also could have reasonably concluded that this single page  flyer designed to give general information contained little or no information outside of the knowledge of the jurors and for the same reason it was reasonable for the state court to find any prejudice was re  california's moratorium on the death pelly has any effect on this case or if there's any prospects for mediation no our position is a state in the letter that we can't identify a direct impact that the language of the order specifically provides that it doesn't provide for the release of any person from prison or otherwise alter any conviction or sentence and doesn't create any rights benefits or substantial substantive other otherwise and with respect to mediation this case is a man ability to mediation is is not affected by the governor's orders as we see it and we don't believe there's any basis for mediation here i take it though that the a g s office is evaluating because i we've gotten letters in other cases as well that there's that your office is in the process of evaluating how to proceed moving forward and if there is a a change or decision by the agency you'll immediately notify the court yes absolutely thank you thanks your honour's i'd like to just quickly mention a few points and judgment i'd like to apologize because i think i misunderstood one of your questions earlier regarding the extent to which we could rely on the fingerprint evidence i want to clarify this is in the due process claim twenty two fifty four d does require that this court be limited to the reasons listed in the state court opinion and specifically then as to the attempted rape issue with the fingerprint evidence would not be considered it would be considered for the murder because the court did rely upon that and i think i improperly conflated that in my answer to you because the state court did not rely on fingerprint evidence correct in the five reasons that it gave it did not include the fingerprint evidence as part of that distinctive signature  additionally just quickly the fact that the jury was instructed not to use this as propensity evidence while juries are presumed to wouldn't follow the instructions there's evidence in the record that this jury did not specifically by considering extrinsic evidence in conducting an experiment says when you have evidence in the record like that you can presume that potentially the jury did not follow the instructions specifically here as a propensity and then finally with a due process claim i think it's important that when you get one five out of one fact out of five wrong which the state court did in this case with regard to the clothing it matters that's one more thing taken away from the supposedly distinctive and highly similar  facts between the two cases then getting quickly to the icy and penalty phase claim dr haney stated in his declaration which was turned over to the state court that he did not turn over his file  that mr kipp forbid mr her ran from talking to his family as mr her rance statement on the record in the motion for a new trial but additional evidence in the record just completely cuts against that specifically declarations from his family members who said they were willing to testify who had freely spoken with mr eager was the attorney and who subsequently came out and testified in los angeles trial with no objection from mr kipp and i think we need to distinguish this case from a case like sure we are aware the defendant stated on the record i'm instructing my lawyer not to present mitigating evidence that didn't happen here so i don't think that that there's there's water council said that there was when  anything in the record the documents know the documents that he was frustrated only with with regard for investigating the case by reaching out to his family and i believe there was a letter where he indicated some frustration with ms pour the social worker who assisted on the case but there's no explicit statement that he said i want you guys gone because he's conducting a medication investigation that i don't agree  with but that's the evidence that one state that he was frustrated with the fact that the mitigation that's the geisha was going in through his personal life and he was unhappy with that i think yes but expressed some frustration in that regard but i don't believe that that negates mr harangues obligation to continue to pursue that evidence just quickly in my remaining twenty seconds with regard to the germ is kind a claim i want to note again that  responding conceded misconduct in state court specifically as to the experiment is extensive evidence and they admitted so in state court and i don't believe they're permitted to now change that perspective  responded also argue that it didn't increase the likelihood of the conviction for attempted rape except that the trial the state specifically argued that the condition of the pants did support attempted rape so in an experiment that goes to that condition does in fact improperly increase the likelihood that he was convicted of attempted rape in a special circumstance improperly if there are no further questions thank you for time thank you