the witnesses credibility and its weight of the evidence i remove in the question of whether mr k t acted in self defense from the jury the trial court actively directed a verdict for the state and ensured mr  conviction in violation of the constitution the state appellate court's approval of this error contradict it it was an unreasonable application of clearly established under law mr k here the hard part about the case from your perspective as you know the the general rule that a violation of state law giving a jury instruction doesn't normally translate into a federal constitutional problem that's the that's the credibility the witnesses in deciding what instructions to give up i'm not sure you mentioned those things in your opening but i would have thought that doesn't violate the federal constitution for the trial judge you know here she over this trial they're sizing up the evidence and you know i actually would have thought the trial judge was allowed to say it was sent and i look at the evidence and it looks like an ambush i don't i don't see how you would try to do this self defense instruction what part of that violates the federal constitution or clearly by rights the federal constitution it clearly violates mr k he's right to have a jury trial while the trial court can determine whether  defendant meets the burden of production and whether there was evidence to support every element it isn't comparable in the trial court assesses the credibility of the witnesses and makes those sorts of findings of fact that is exclusively reserved for the jury and the supreme court's case and holmes v south carolina makes that clear in that case justice alito writing to the unanimous court explained that the trial court could not exclude and offense evidence  for the jury so the federal constitutional rule is almost like a summary judgment case where if the defendant in this case your client puts on some plausible reasonable evidence of self defense the trial judge always has to give the instruction otherwise it violates the federal constitution if there is evidence on every element yes there needs to be an instruction especially in any case like this where the heart of mr key his defense was that he acted in self defense and so by not giving that instruction and not allowing the jury to determine whether he acted in self defense or not the trial court attractively directed a right explain the state because the jury could clear that it was impermissible to exclude that evidence based on the wane of the credibility and the evidence and supreme court cases discussing jury instructions such as cut be not in the court makes clear because its that evidence was relevant to the confessions probe of weight and by removing that from the jury that was a matter exclusively really a jury to assess and deportment on to explain the procedural fairness includes the opportunity to be heard and that's that right would be empty at the trial critics who evidence that was central to the defendant's defense without a valid if justification and that's what happened at its core compass the right of a jury to assess the credibility of any witness is that like is that your basic underlying argument that all credibility determinations by the constitution must be for a jury and the state couldn't decide otherwise windows credible new determinations go to the heart of that a fine then case central to his defense i believe the court cannot take that away from the jury now there are some supreme court cases such as holmes and others recognize that states state courts have substantial leeway in cracking procedures but there needs to be as valid and no arbitrary reason i'm so trial courts can decide to exclude providence that for various reasons such as it will confuse the jury and things like that but that wasn't the circumstance here and there is no reason or the  it's usually abuse of discretion review it seems like who are coached to this issue would prohibit that kind of review the use of discretion gives a lot of latitude to the trial judge and so including you know sizing up with there would confuse the jury can you really trust these witnesses was these witnesses really credible so i that's what's puzzling to me about your argument it seems to get rid of the abuse of discretion was that's why i said it's like a summary judgment case i think your position is if you have evidence that supports the instruction the judge always has to give it and the judge can't look at whether these witnesses are credible  that's what i understand you to send that eliminates abuse of discretion review and it makes the jury instruction inquiry like a summary judgment motion evidence still has to be introduced on every element of your honor which is why there are cases such as in tiller and hearten where the trial court could not provide a jury instruction because in those instances the defendant failed to introduce evidence on a certain element such as in tiller the defendant testified that he accidentally shot a gun not intentionally and thus he was not entitled to a subject and strange direction so the standard with night require always giving a self defense during struction only when the defendant has  stevens and the u s supreme court said that even if there is some evidence the credibility and weight of that evidence is a matter for the jury and you can tell that this court should follow that binding precedent and find that a defendant has the right to self defense during struction when intrade when efficient evidence is introduced that would allow a reasonable juror already held that the particular point in issue is clearly established by supreme hassett but counsel and taylor didn't the panel itself and explicitly concede that it could not identify a particular case  n the right to a self defense jury instruction and so since taylor the supreme court has been very explicit in telling us you need a case maybe not directly on point but really really close and so does that guidance from the supreme court allow us or require us to side step t court concluded that a state court violate it the defendant's meaningful opportunity to present a complete defense and it cited for that proposition is so common it is clearly established federal case the one thing that i'm just trying to work through in my own head is you know let's say you have a case where the trial judge says you know we've got five witnesses somebody is lying  there so there's their opposites accounts of what happened and the judge says you know i'm going to believe the mother and therefore refuses to give the jury instruction that does it does seem to invade the problems of the jury right i mean it's the judge saying somebody is lying there hypothetically five witnesses or four or whatever it is there's a bunch of physical evidence and the judge sides with one witness and says no self defense instruction i start a process that does not seem like it's i know i know you get abuse of discretion review about your instructions but yeah i got it it seems it seems brilliant for your side and i'm just wondering if it's right it's still law center statutory burt is one of them my and there are others findings one was factual findings regarding the whether he was and whether the petitioner was entitled to a jury instruction of self defense and the nd was whether he met the criteria so that it was an interpretation of ohio law i had ohio intermediate court as we guard the factual findings  it's not so much of bout credibility the petitioner failed to present evidence that he was not at fault in creating the situation that gave rise to the a for a at the last minute he decided instead of meeting his child's mother and his child at the doctor's office to meet her at the house where it was more foreseeable that he would run into is enemy prince hampton he took a gun with him before the shooting they have evidence of a motive for him retaliation so those were the factual findings in addition the court made factual findings that petition saw a knife when he saw a knife he couldn't have escaped in some other direction he could have a friend who is car but he could loss or run somewhere other than his car so he was finding factual finding question being i don't worry about this because we have lots of fact finding says here that support the trial judge's decision and the way to think about that is that said you know all you have to that's a really high bar and that's the solution to this problem what's what's odd about it though is it's the fact finding still go to credibility with or still some credibility assessment going into these facts findings and that's what i'm still struggling with and i guess you know i don't want to answer is that if it's just utterly implausible the credibility findings i guess theoretically could violate that with me but boy it s rates these things for review because credibility is a fact finding you're saying that's ok that gets really high bar for view and that's the main point of miss patterson what's this trial judge in the court of appeals doing making credibility findings than your own and we're not seeing these as so much credibility findings these are or what happened this is what the evidence showed the is what people did what was found at the scene what was not found at the scene being made in light of that it's less credibility than it is ok it's binding factual findings there has not been clear and convincing evidence to rebut the presumption is binding factual findings are correct or and also the court of appeals interpretation of ohio taking care of extreme mouth eason's and their extreme malfunction in a justice system and we're not seeing that here frankly them well are there other questions united states supreme court decision recognizing federal constitutional right to a criminal defendant to a particular jury instruction including injury and structure specially jury instruction on self defense of the cases that are getting he testified that mr hampton charged him with a knife and that he did not know that mr hampton was going to be there kendra miguel corroborated his testimony and that said that mr hampton was supposed to be there earlier in the day not at the time that mr k he arrived the state does not even dispute the fact that mr k he introduced sufficient evidence regarding the nd prong the fact that he had a reasonable and imminent fear of bodily harm a knife was found on the scene substantiating that testimony and then he testified that he did not have an opportunity it would to retreat because when he attempted to retreat mr hampton  out a gun and shot him the state makes a big point about the fact that mr casey is the only witness who testified that mr hampton had a gun but that ignores the reality that most of the witnesses did not see the conflict at all in fact joyce miguel is the only witness who testified to seeing the beginning of the end call that testimony was contradicted by her daughter who said she did not see the beginning of the conflict and most of the witness only heard the shots being fired they did not witness them one witness testified that he saw an arm be raised and heard a shot fired so he believed that he could even see back on so the witnesses also didn't even really see mr k t with a gun and regardless the point is as listing said the trial court made actual findings whether or not there is sufficient evidence to support a jury instruction is a legal question and by making these factual findings the trial court invaded the province of the jury and deny mr k he his right to a jury trial as the supreme white said in duncan if the defendant prefers the commonsense judgment of the jury to the more tutor but perhaps less sympathetic reaction of the single judge who wants to have him and yet mr k he was denied that right in this case finally  which it should be that court is not interfering with ohio's normal rules of criminal procedure and normal operations and finally as the court sat in patty the courtroom and the fact that a