charles corey may please the court for mr nathan smith the third sure all three of you have been in cases involving twenty two fifty four where you have said if i had this case de novo i would rule differently you've got it they know because of the two i've done a lot of this work and i have never seen such and reasonable interpretation that ac boyfriend girlfriend relationship and take those it was very they were being attacked and to say it any other way and even the magistrate who ruled on this case gary while pulling out what looked like an axe handle from the back of the red hatchback i got out of the jeep and told the black guy let's go right there the court said ok that meant them and they were leaving but they never read or even consider the rest of what the police officer wrote down let's go since it would be gary and i against the black guy what does that mean the black guy backed off and started to talk shit telling me he was going to call his homeys i told the black guy going to call you told him he's because i really thought we'd be gone before his friend showed up that was written in a poli report right well one i did not just show that they were at most the initial aggressors and you know verbal a challenging two i confrontation any doubt that they were on their way out of the parking lot or they were about to leave and you know i mean that's now you're talking about jury decisions which jury never heard that the protect those were the original aggressors and lied because this was brought up in the preliminary hearing and prado lives a whole i never said that i never said that so as a defense attorney i'm going to bring that up and said how can you believe what these people are identifications were awful it was awfully varied and all over the place in particular so i don't know who is hitting who is in the record so if you're going to disbelieve protect if we're going to say wait a minute but take otoh we turn this around how are this is on page thirty four of one excerpt of record the more reasonable reading of prado particular statements in the police report this is their words that they were words of aggression an escalation not retreat the petitioners defense likely would have been strangler if his trial counsel had elicited these statements on cross examination or called officer waller as an impeachment witness but i mean when you say something is more reasonable and unreasonable i mean you're saying all that the magistrate judge is saying this is a more reasonable interpretation but that's not the same as saying that it was unreasonable for the california let's just look at the how can you leave out i see what you're saying we're grading reasonability right how can you how can anyone say that what the court of appeal said was reasonable when they left out the most important thing which was after the word go which is it would be gary and i against the black guy how could they left that out and you know judge when it should have considered in deciding a constitutional claim that decision is unreasonable they refused to consider that act which made which were really his defense this is what i mean they refused wigan's versus smith five thirty nine us five ten five twenty eight supreme court of the united states they've decided the twenty to fifty four the two applies here you are not constrained by  like if you were hearing this in the district court you were trial judges or courts of review you would rule wait a minute that counsel was ineffective and he was honest there was no this is overlooked this i totally overlooked officer wall and arrest report that's in the that's in the record that was but also before the court of appeal and i may be and it's going to go back to the standard  you're looking at it because they didn't even address the issue that that first prong shredded never they never went anywhere they didn't even they didn't resign the fright facts so they never got there and  i mean i cannot imagine a juror no juror saying what the policeman said something totally different and mr prado particular said the can you can you explain to me briefly your theory prejudice again the failure to impeach it actually wiped out any defense he had no witnesses to his defense was self defense but he didn't do anything and his defense was that the mexican people they were drunk because that was that was also said that was never brought up with the other officer says that even is that it took away the possibility of one juror say having reasonable doubt that's all you have to have you have a favorable result in strickland is a chance for haven't even mentioned the the ortiz lady testified under oath at the prelim and that was perfectly admissible and just because my my my friend is going to say well wait a minute but she pled  y that's not going to that the jury is still going to hear her saying what she said yeah i was reciting the whole rattling and then being she was she testified to exactly with what is on the nine one one call her boyfriend was being attacked what she testified to was exactly what wall and heard from prado that they were after him but when it comes  place not to have brought that testimony can i respond to that of course it's a question you're asking me the defense attorney responded in his declaration see that's i think this was a consolidated you can ignore his declaration if i didn't have a declaration from the defense attorney then we'd be saying maybe he made a typo but you know what i hope my friend doesn't say oh he was falling on his swor you know when you're done when you dying when you're sick you don't want to pass on saying without saying the truth the truth was a little he said in his declaration in connection with the yeah he said he big he said i should have put her on i said put her on but he wasn't prepared he did not according to the other attorney who took over you know he's not putting her right to bring the test  he didn't do a good job and he admitted it could those to him for saying what would have got if you hadn't died he probably would have been you know brought before the bar i mean he really put his whole career on the line he's gone  doubly deferential standard is your best argument cumulative error you have talked much about that well first you're saying double the differential i want to take away the double i say you're not i'm saying don't assume double deference the c e o way my friends write the c e o way the certificate people ability lists all and by the way if you look at the record i'm the one who i had to i had to shake the district court judge into issuing a said no no no you can't do that and bounced it back to him this is all this all went on and nothing happened so i would start to send in suggestions and i did it in the record all my suggestions of what you ok any rate who knows a b and and so the point is if i have if i made a mistake and left out something because i'm the one that wrote it please consider it good morning your honor sir christopher beasley deputy attorney general on behalf of the respondent mr corey seems to be reading at scores of appeal opinion that is very different from the one that i have before me when i read this court of appeal opinion and i read what the court of appeal actually says it says according to officer wallace police report prado stated that during the verbal altercation he saw defendant pull what appeared to be an axe handle from his car and then prado got out of defendant to go ahead and call his home and see because products thought he and his family would be gone before the defendant's friends showed up court of appeal recognizes all of these facts nowhere in this decision does the court of appeal interpret let's go virtually indicating he was willing to fight and that prado and his family were trying to leave when defendants accomplices arrived so just as you observed judgment they were trying to leave when everyone else showed up court of appeal recognize all of the evidence that was before it what we're hearing from this report is a fundamentally different kind of set of facts from what is in the court of appeals decision the court of appeals decision is entitled to deference because it had all the fa far as the failure to introduce ortiz's preliminary hearing testimony is it professionally unreasonable for counsel to decide i'm not going to introduce testimony that later proved to be discredited because of a guilty a professionally unreasonable to do that the court of appeal recognize that ortiz's testimony actually helped and corroborated parts of the prosecution's case she put herself there arrival of backup she says in her preliminary hearing testimony that she did not call anyone to get back up but she never says is that the defendant did not call anyone for backup so that leaves a question that's open and then a jury could reasonably conclude even if this had been admitted a jury could reasonably conclude that the defendant did indeed call and what's interesting is that the defendant's own declaration then if that's pitted against if both of those had come in they would have been in diametrically opposed opposition to each other because the defendant claimed that she called for the backup in his declaration so when his coun i knew about it but i decided not to use it and then after the fact when i realized that the defendant wasn't going to testify then is when i should have put it in but i didn't and that was my mistake so the actual what the actual declaration from from counsel is that he didn't know about the preliminary hearing transcript and decided not to put it in and then after the fact aside oh well you got should have put it in because the defendant didn't actually testify  moving on to well i can address each of these point by point if this court wants but just so you asked about cumulative bear and if we go through all of these things that the court of stated to the police could be introduced but that statement is not entirely inconsistent because she never says he did not read the bat retrieve that again in the police statement it's just once he put it away that's actually corroborated by prada statements to police where they backed off after prado had said let's go you know the whole challenge of the fight kind of thing and the defendant backed off so when he backs off that's when he's putting the bat back when i was a significant issue because it was a wouldn't have changed the overall mass of evidence that was there because so many other witnesses including the villain waiver who was the restaurant employee who talked about it they all put a bat or a weapon into the defendant's hands being up on the on the family with his with his with his cohorts so even though crystal statements to the police he put the bat back could have been introduced it would not have done and it would have been no no no effect because clearly he how the court of appeal allies looked at was this deficient performance yeah it could be construed as deficient performance but was it prejudicial and the answer in the funeral it wasn't prejudicial because when you look at all of this testimony that came in  there was no there was no effect from that so if that's the only real error there's nothing that can cumulate to undermine confidence in this verdict there's nothing that suggests that this was a fundamentally unfair trial because of trial counsel's representation trial counsel had a bunch of lemons to deal with in his case and trial counsel tried his best to make lemonade out of that bunch of lemons but sometimes all you can get is lemon juice it was not it was not the case that was going to be easy for counsel she the defense that he actually went with was to argue the inconsistency between the different the different testimony from the different witnesses and to try to establish doubt in the jurors because each witness had a little bit of a different perspective of what happened and that's that's that's a powerful argument to to present that when you don't have very much by way of evidence to present to a jury that exonerates your client counsel there was an argument that had been raised in direct appeals not on before this court that one of the arguments that had been raised on direct appeal was counsel should have done more with the intoxication and the court of appeal reasons what  tactical responsibility to advocate who is client and counsel can make a tactical choice not to pursue a particular defense because it might in or to the detriment of the defendant and might in order to the benefit of the prosecutor the prosecutor talked about  intoxication as if there was an instruction about that well the court of appeal went through and analyzed what a defense counsel here do defense counsel went through the discrepancies of the different witnesses and chose to not highlight the intoxication material because under that theory and not just that there was discrepancies but to pull the defendant completely out of the fight entirely that he was not involved under intoxication defense he's now involved he's actually hitting people but  mental state defense and defense counsel could reasonably conclude i don't want to go that route i don't want him involved in this fight at all i'm going to argue the discrepancies and put him over here he's not involved that's reasonable advocacy that's professionally that was made to him in which no way down of cation at that initial interview and then a fide smith i think that you're referring if correct me if i'm wrong but i think your friends the claims that the defense counsel should have court of appeals decision rests upon in written in rejecting that there is ineffective assistance of counsel there rests upon the fact that counsel's going to look at this report and is going to see that there's all sorts of statements that corroborate the prosecution case and although they don't the witnesses don't specifically identify the defendant there's also a reason but they don't this is a report that's being generated on the spot in the heat of the moment and as the court of appeal recognized this is not an and after the fact kind of investigation where detectives able to sit down with not all that makes a good good argument but it doesn't mean it's not useful that's correct but just because something is useful doesn't mean that council must introduce even the question of whether there's a division forms in conclusion the court of appeals decision is reasonable there is nothing here that warrants that takes us outside of the scope of the people but there's another case supreme court case for my best case richter where the supreme court said post hoc rationalization zz by the state courts are acceptable i'm paraphrasing  but that's in there and that's what the court of appeal did here they rationalize it to what was going on in a defense attorney's mind when in the same case i had a hate b s and declarations from him saying no that's not what i was this is i feel like i'm in a funny parm some time really where i have a court of appeal saying making up all these stories about what defense counsel thought when defense counsel said no and he's honestly he's not falling on his sword he's honestly saying no i blew it i've done that when i mess up i fess up and that's you know that's what we all should do is attorneys and judges when we mess up we should fess up and that's what this attorney did soul he's gone now he died shortly after this case he said he was sick it was right and as far as he even mentioned i got to get these facts even oh by the way even though the court of  his declaration he said i'm not even sure i did have that kinship with me he wasn't and they turning you took over forms that he had nothing in his file he didn't have the transcript so what i'm what i'm saying is all the prejudice is in in judge wins and what you're prejudiced it's depriving even the chance because that's the standard a chance of one juror find reasonable doubt i think