is appointed counsel did not disclose this to the court in any kind of timely manner i believe it was at the time of sentencing that is relevant and i would get into that later on regarding the conflict of interest and whether it affected the trial during the trial the prosecutors a strong armed his co defendants and testifying against him even though two of them had made statements to the police that a third party  had been the shooter after they were given deals and after they testified well after they were given deals they testified that naz b then was the  into the car under the guise that he was they were all going to go out and smoke some marijuana in the desert and shoot a new gun that he had  according to the testimony of some of the witnesses now as b was the last to be picked up their counsel for you kind of recount the whole case here my understanding is that one of the deficiencies of the district court according to you is that in  whether counsel was constitutionally sufficient the trial court didn't have the record of what happened the trouble oh correct that's correct so let's let's just start there ok so go ahead if i may proceed so there's a case i think understand the point you want to make and but if you're right if you're right that you can't consider whether a lawyer was ineffective if you don't look at the record to make the call do ease of doing more in this case or do we just send it back and have a full blown review which maybe should happen the first place but my brief answer to that is yes that's what needs to be happening i wanted to give the court the full story and so i don't understand that this isn't just a procedural things there are real oh sure factual issues that are involved here in virtually every stage along the way but you look at the end of day that's what you're looking for in this case is it basically just be sent back so a record shows that neither the trial proceedings nor the state havey as proceedings were viewed by the federal district court now judgment was decided shortly after the passage of ed put it correct i believe depo went into effect i'm going to not get the month but it was one thousand nine hundred six right and jones was decided at least mid and i have the date of ninety seven but it's later in ninety seven and but it was still a pre at the case because the petition or the petition would have been around before the enactment of it but is there anything in it ed but now that would effect this case that would change jones in some way i don't believe so none of the state's going to get up and tell you that  changed everything and that we don't we don't need to do this because the federal district court has all this deference but my i mean it adopted didn't change the common sense right how can you make a determination as to the reasonableness of the state court factual findings if you don't review the factual findings you still have to review the factual findings and look from the looks of things all they did was look at the nevada supreme court opinions and just uphold them i don't think that that's sufficient under a definite or you know certainly not predictable and we know that this is a i'm sorry we know that the federal district court did not look at the underlying records because so going back that the the conflict with regards to the appointed counsel who took the job the public defender's office there are several things that are this is another the claim of ineffectiveness of counsel was result in that case on the merits yes the federal district court actually looked at the merits i would still i would still say that if if the district court the federal district court is looking at the state court we find that this is procedurally default and that's all that they're looking at they're not looking at they're not looking at the evidentiary hearing they're not they're not taking it any deeper than that i don't even know that you can make a and adequate review of procedural to follow the file you look at is the nevada supreme court's opinion on that you know you're right that in other matters it loose if you've got an effective assistance of counsel the nuts that's what you blame if there's a finding of procedural default there is there is the issue in the in the with regards to the conflict that the wrong standard was employed as well and that that all they did was look at strickland instead of conviction from the jury came down before by for it was decided but but then by for it was decided before it was briefed on appeal and his counsel actually included  case out of the circuit i will vs judge had an apparent conflict she'd been accused of being financially connected showing favors because of financial issues to now  conviction hey vs counsel and so there was she didn't recuse herself from that case she should have she may have had a reason to deny it and that the now as we get up to the federal district court they kick the by ferde claim we just finished that the buy for claim on the same erroneous issue that that his conviction predated by ferde which again is not the standard because it was still under wrecked appeal and there was even a finding from the federal district court that his appointed counsel was ineffective and that the library access in isla he was inadequate and so that there was a ruling that he did not have meaningful access to the courts during please the court my name's victuals im senior deputy attorney general for the state of nevada representing the warden and the attorney general in this case because this is a state havey is case under twenty u s c twenty two fifty four this is a case that's going to be governed by the statutory standards in fact development the way the district court handles cases on the merits and it's also a case that's going to be governed by the u s supreme court's procedural default law under coleman and this court subsequent decision in the bennett case one difficulty you're going to face in reviewing the opening brief and perhaps the tape of argument is that much of what my opposing counsel argued does not relate to a certified issue and was not made a gaited in the court below what happened in this case relevant to fact presentation in federal was that naz be presented a baby is a pro se this petition handwritten he was assigned counsel counsel given a date to file an amended petition she failed to do so i filed a motion to dismiss for lack of prosecution that was denied because there was a change in counsel around that time that attorney in reno filed a notice that she wasn't going to file an amended petition i then moved to dismiss that petition and in my first motion and what i argued was that claims one to waive and four were procedurally defaulted because the nevada supreme court had held in the post conviction appeal the first post conviction appeal that those claims were raised in the post conviction appeal rather than direct appeal they were direct appeal type claims in under an arrest thirty four eight and they were defaulted because they weren't raised in the first proceeding where they could be raised i also argued the claims six and seven were an exhausted judge freed of a key issue in this case dealing with the default of claims they did not file an opposition to my motion they didn't oppose it they therefore didn't present any argument on cause and prejudice judge reed granted judge read up in reno granted my motion after doing an independent review of the record there was then a i'm sorry independent review of what the independent review of the exhibits that i included the procedural record that i clued is as far as the state petition findings of fact conclusions of law and the nevada supreme court rulings on the default of claims one two way and four and the lack of exhaustion on claims five six and seven he agreed with that much now at that point time  filed a motion for reconsideration in proper person and i will concede he did a pretty good job he must have had pretty good access to the prison law library because he argued exhaustion at length and court of that motion for reconsider was judge reads denial of his request for a stay to go back to state court when hey b s counsel up in reno filed her motion to stay under rain under ryan's it was pretty bare bones and there wasn't a showing of good cause judge reed denied that motion because there was nothing in it there was no in fish an argument in the motion now speed did a pretty good motion for reconsideration he argued two things he argued that state issue at great length an argued the exhaustion issue judge reed overturned himself on the stay and ultimately granted his stay and now as the went back to state court to exhaust claims five six and seven as to the issue of whether or not claim to have been presented judge reading agreed to be had been presented but it was defaulted for the same reason that claim to a was but he did grant the stay he denied the motion  reconsideration on the remaining issues and five six and seven run exhausted i'm not trying to bore you with these tedious procedural facts and i know it's a b s and it's hard to keep people's interest with this stuff but my point is when we went back to when they went back to state court claims one two and four had been ruled defaulted there was had been no showing on causing prejudice five six and seven had been ruled to be an exhausted three was ripe for the matters they went back to state court thirty four seven twenty six which is our timeliness statute because this was ten years late we go back to federal court i filed an answer and i included some procedural arguments i answered on the merits claim three  things a three g and then i argued that five six and seven were defaulted under the nevada supreme court's ruling this court has held that in non capital case this court has repeatedly held in non capital cases an arrest thirty for  and i say you to the discords vang versus nevada decision that we both braves judge at this point it was judge hicks now judge hicks reviewed what the nevada supreme court did and judge hicks's merits decision is at the order e o are one seventy three and judge hicks then went through what the nevada supreme court held dealing with the claims of ineffective assistance of trial counsel ineffective assistance of appellate counsel and pursuant to the command of an era of i'm in the wrong area of law twenty u s c twenty two fifty four d federal law he applied the deferential standard that we've all been working with for twenty years and he denied the claims based on the decision of the nevada supreme court i would point something else out this is one of my favorite arguments i get to make when i come to san francisco on federal by state inmate there isn't just a deferential standard for a claim of ineffective assistance there is a double deferential standard under strickland in cullen and the decision of the nevada supreme court is virtually impossible under the double deferential standard for judge hicks to overcome one of the one of the c away issues that i have a problem with because i confess i don't understand it is the issue where the question is raised why didn't the federal judge below deal with two of those issues on the merits the ineffective assistance claimed in fact he did if you will look at his that the order i just cited what the was no cogent argument made made no citation to fax little citation to law and they denied relief but that is a ruling on the merits under twenty two fifty four that is susceptible that is deserving of the double deference standard because that was those were the claims that were set forth that were given to the nevada supreme court so what we have in this case is we've got claims one two and four for which no cause and prejudice has ever been presented to federal district court not in the they didn't respond to my motion and when the motion for reconsideration was filed they did not argue procedural default and no suggestion of cause and prejudice was made that's why one two and four were kicked out because they were defaulted and there was no showing of cause and prejudice five six and seven were kicked out in the second avi's appeal because that petition was filed ten years light and under four d there's really there's i have to admit there's there's nothing surprising there's nothing really sexy in anything that happened here it was a standard application of law if i could step back and discuss the one issue that i know you have an issue with and that's the issue of whether or not the district court below the federal district court was required to have the transcript so that he could go behind what the nevada supreme court said in its rulings under twenty two fifty four one an e two he can't do that because the question of whether or not the nevada supreme court's factual findings were reasonable or whether or not they were reflected in the record or whether they were right or wrong isn't before the court because twenty two fifty four he creates a presumption and yes the earlier preempt the case law was drastically changed by the statute and one way it was changed was in the presumption of the correctness of state court fact findings under twenty two fifty four b those claims going on those facts can only be challenged based on a showing of clear and convincing evidence not only was the showing ever made but there was never an argument that the fact finding by the nevada supreme court in the district court there was no argument made that the nevada supreme court's fact finding was incorrect therefore the presumption governs under twenty two fifty four and the supreme court's findings of fact are the facts that govern and i'm at the same time i have to say i'm a little perplexed by the argument and i would expect is twenty five years ago but not not today do you have any cases that say john has been overruled jones was i can't cite to a case specifically mentioning jones but i would certainly cite to harrington in cullen where the u s supreme court said that district court federal district courts don't do fact finding there they are so in trying to play this through you're saying that if a district court like this district court here had in fact received a request really said you know i want to be sure about this is the length the sense i want to be comfortable i'm going to order the that the only priority i have for that argument is the words of the statute itself and cullen the supreme court's decision and cullen where they said that federal district courts don't do fact finding and they are they must rely on the fact finding by the state court but the best calling cullen abrogates but counsel these are different things it's one thing to to have hearings in district court to come up with new facts isn't different just review the transcripts that were created by the state court to what and to see if the state court got it right it's exactly correct and unless that issue is raised in the district court twenty two fifty forty governs and the defense being court made findings you the transcript of the evidence rehearing on on post conviction and at that hearing the two trial attorneys were the only people who testified i would point out that because it was the trial attorneys who were the only two that testif at the evidence rehearing all the other claims have to die for lack of factual development because there were only two witnesses who testified and they were asked about their trial strategy you've got that in front of you that that is what court cited to when it made its findings fact now if it is say just your your your concerns about the continued validity of jones post as in post cullen you can review that and you will see how the district court didn't but you could do that you could review that because you gave it to it and you're going to see that the nevada supreme court was one hundred percent correct but the problem is the district court didn't do that because he didn't have to do that the question here is one what the district court did incorrect and the answer is no because if you frame the question according to the mandate of the standard because twenty to fifty four he tells the district court judge you are dow required to have to follow the fact finding of the nevada supreme court and because there was no challenge ever made to that that standard governs and that's why i didn't place those transcripts before the district court because they're legally irrelevant in light of the nevada supreme court's fact finding and i can i can honestly tell you if it would be improper but in this play in this case it didn't play any role because the challenge  think your honour's just briefly there is a huge difference i believe between backed finding and reviewing the findings for unreasonable as if if if a court cannot i mean what is the what would be the purpose of a do novo review number one number two what would be the purpose of a federal habeas statute if there could be no review of the state court factual findings to find whether they were reasonable or not definite did not do away with their view with the reasonableness review the second thing is that the state has a double standard with regards to issues of procedural default because twenty two fifty four rule five b requires the state in its answer to in its first answer to address exhaustion and procedural default issues to allege those and the state did not in its first motion to dismiss the reason not any allegations of exhaustion or procedural default until it came back for a second bite at the apple and my last  point is that and i wish i had the case here with me but i did look up jones we would and it is still good law thank you very much and i would ask you just send it back for a review of the