governed by state law the united states supreme court has still required the defense attorneys act affirmatively to effectively protect those rights during trial proceedings that makes this this a matter for the federal courts to decide  because the fourth the highest court that heard this in the state was the fourth district court of appeals and the fourth applied strickland in a way that was completely unreasonable given the facts of this case robert holmes case is complex involving a multi stage fight in multiple locations and the state of ohio self defense laws complex and has multiple stages to it as well counsel had a duty to set the fight and the law to determine how it would fit with mr karr's case and he did not do so by failing in four ways that were detailed in the brief and like to focus on the jury instructions at this point the instructions on the castle doctrine in this case said that the defendant had a duty to retreat and  then gave what could be to interpret is the factors that determine whether that duty to retreat exists however in the highest state court the fourth district the appellate court held that these instructions could be read either as accurate statements of the law or as that the court explicitly said that exception does not apply and then arguably went on to say reasons why it may or may not apply but again it's that same problem of these were the instructions presented to a jury that said this exception doesn't apply and he does have a duty to retreat knows are inaccurate statements of the law of self defense that were presented by the trial court defense counsel made no objection to these instructions as presented and there were deficiencies in these instructions as they match with ohio law when the highest state court looked at these issues the fourth district looked at these issues the court held that that counsel had had no reason had could have reasonable  reasons to not object to these instructions and that just isn't that's not an a reasonable application of strickland in this case not a reasonable application of the facts is ohio i found this somewhat confusing is ohio law clear on the applicable law where someone realize that the facts in this case are complex and you could break it down and asked certain questions but hypothetically if someone starts  with force and then retreats into their home and the other person comes on the curtains of the home is the law clear whether that person can assert self defense bit based of those facts the law is not clear if the facts were that it was a gunfight outside of somebody's home and then one person retreated into their  home the law would be clear that retreating into the home is what's required of that individual in that situation it's the facts of this case obviously that make that more complex and also the fact that there are two separate sections that are detailing th defendant to assert self defense when in their own home or their own car is involved but do we have to defer to the ohio court statement that he wasn't entitle to the instruction no your honor it's  first of all that statement by the appellate court was it's not clear that he was entitled to this instruction or it appears he may not be entitled to this instruction so first of all that wasn't the basis for the court's holding but second of all that was not a reasonable application of the law in this case because the only person injured in this gunfight that took place in front of the house was mr komer and the only action that took place after that gunfight was mr connor running into his own home to escape basically this gun fight the next thing that happened after that was somebody else who was not involved with the gun fight ran up to mr commers house towards the door and those are those are the facts as stated ok but you would still he's also entitled to a he's also to a presumption of self defense under ohio law and that the jury instructions in this case are unclear and that's part of the reason why the law is unclear his he will title to that presumption if he started the fight he is in type no he is not and there have been different interpretations of it isn't it recent isn't it ohio law that they're applying it is ohio law they're applying but they're applying it unreasonably but essentially the arguments that were raised below were that it was plain error for these instructions to be given and that it was ineffective assistance of counsel to not object to these instructions and the court in the ineffective assistance portion essentially said because we found no error earlier and we you know we found that this was not playing error that there was no ineffective assistance the facts of this case show that mr komer was retreating from the situation and any other interpretation of those facts is unreasonable even under ohio law and is raised to this constitutional level because trial counsel totally failed to acknowledge that in failing to object to these instructions as given when you're arguing for him he is here you're arguing that the state court of appeals unreasonably determined what the law or the facts were doing first that the law was unreasonably determined what basically that the court you strickland in a way that is unreasonable  the unreasonable application of supreme court precedent and the reason that it's clear that that's the case is because of the facts of this case and if the the facts as presented by the state court all concessions being made the facts are that mr komer ran into his own home after being injured away from a gun fight and then somebody else reinserted that's the court of appeals were reinserted himself into the fight somebody with well that's correct but he was running up on to the porch and all of the parties testified that he was looking to fight further he was looking to injure mr komer that that's and that's the testimony of the other people involved in the fight his the victim in this case his brother testified that as does the record out the door that mr dustin wanted to running up on to his porch and shouting are you going to shoot me or something along those lines some goading language and as i said that's in addition to being supported by the record those are the court whatever you want to characterize that language as said that he may not be entitled to this instruction the question before the court was were the instructions actually given on the issue were they misleading did they reduce the state's burden  law didn't require defense counsel to do object in this case and therefore he was not acting in effectively there's no support for that from the facts and this case and strickland doesn't one support for appellate court's decision that that's the case the straight application of strickland would assess should that should the defense counsel have objected and was their prejudice as a result and the way that the state court applied  given the facts as decided by the state court was an unreasonable application of strickland you don't have to look beyond the facts as stated by the state court to see that they applied those facts incorrectly to strickland into federal case law on ineffective assistance and the other two but there are two parts to this argument one the duty to retreat in the other this issue with being at fault that there are actually there are four parts argued in the brief but that's correct that the being at fault issue there was no clear instruction on that either the court told the jury i see i'm out of time i could just wrap up and thank you very much the court told the jury they can only focus on mr converse conduct when determining determining if he was at fault for creating this incident and as was argued during during the arguments  instruction on who was at fault would have included language that said even if mr komer acted wrongfully the if you removed himself from the situation that changes the calculus of what if you what if you take out the period which we all know i mean punctuation is they added by court reporters i mean it doesn't it doesn't really look like much of a sentence if you if you leave the period in but if you take it out then says that that's correct your honor the state court acknowledged that too but the holding my state court from its own opinion was that the instructions are ambiguous and that there are problems with the instructions but that it didn't rise to the level that defense counsel should have objected so that that that transitions from a reasonable that's correct in the transition from that determination that the language was ambiguous to therefore defense instructions that's another point where defense counsel should have his ear should have peaked up and he should have said that's not a correct state the law and the holding by the state court that that is effective assistance is federally deficient is deficient under federal law under strickland those are moments when under federal law counsel had to say something and not saying something led to the jury going into the jury room without fully realizing there to presume that mr komer acted with self defense and then work backwards from there when you say i'm sorry you're saying the judge said the presumption does not apply if it's about halfway through part two of the jury instructions  the that that section starts with now the defendant is presumed to have acted in self defense etc after the period the claims of the presumption that the defendant acted in self defense or defense another when using defensive force that was intended or likely to cause death or great bodily harm another does not apply and then the cork is on to say this presumption does not apply if the state proves by graduated so there's a way of reading that that it clears up the problem but defense counsel allowing that to be said in the courtroom is a strickland violation allowing that to be said and that lets a jury go into the jury room with the thought that this presumption does not apply and mr well it's just as likely it seems to me that listening to it you know as opposed to reading it that it all sounded like a correct instruction because of the pauses and the phrases but it can be read that way that the problem here is that defense counsel did have an obligation to to check every line of these instructions and if the court below found that these instructions were ambiguous then the test becomes whether there was a reasonable probability that the jury was misled by these instructions one other question do we have  know this is the transcript with this punctuation is there is there a written set of instructions that was read from if they're not part of this record i can assure i can ensure that they are after they probably or i would i would assume so yes but but these were the oral instruction that's correct the instructions that were sent in front of defense counsel in front of the jury before they went into deliberations but do you know for a fact whether there were written instructions and whether they were in our record i don't recall your honor the briefing the the argument from this case has been about the the oral instructions from the very beginning and that's something i can present to the court now so i guess if there is a riff there is a set of written instructions the basically tracks this language with different punctuation it seems to me that it's a fair inference that that's what the judge read in this is what the court reporter this is where the quote reported chose to put the punctuation that was not the basis for the state courts on the state courts basis was on these instructions as presented to them through this transcript that this is not this is ambiguous but not enough to trigger defense and weight but one of the things the court did say was made a comment about where that period is located that's that's correct but the holding was based off of even though this is ambiguous we have decided that counsel didn't have t again the federal component this court is right thank you very much thank you  instructions to the jury are completely muddled in the jury did not know whether this person had a right to shoot if he was afraid for his life or not or whether he had a duty to retreat further into his house and separate how can it be a fair trial well your honor the consistent with the with the court's concerns  that were expressed earlier the issue of the jury instructions is strictly a matter of state court law and state interpretation of the law and the district court properly deferred were there written instructions well i drafted the return of writ in this manner and typically if the the local courts give us written instructions when they're transmitting the state court record to us i would file those i don't see where they're filed as an exhibit so we would have to check with the kind of police corps it's not clear to me what record was provided  transcripts and of course everything on direct appeal and the appeal to the house affirmed and the courts the course dismissal implicitly found that the state appellate court's rejection of the ineffective assistance trial claim was not decision is based on several clearly established principles one being that the federal who are paid to this court is bound by the ohio court's interpretation of ohio law to you that a trial attorneys performance is not unconstitutionally deficient for failing to raise a merit argument a criminal defendant has not established unconstitutional prejudice with no error has occurred that's contrary to what the state appeals court says but for whatever reason you know how supreme court grants are in this case is the federal court bound by this hypothetically totally wrong statement state law on the strickland claim i would think that the the appellant would have to show manifest injustice in order to to get to that essentially get down to the prejudice problem correct correct and in my brief i did address the constitutional issues a little bit in relation to the jury instructions but the the courts have said that even if a jury instruction is is confusing that that does not necessarily rise to the level of a constitutional violation  this case the the steak or came out and said the jury instruction was correct and also more importantly that come resin even entitled to a self defense or castle doctrine the house with his hands up in the air pump speccing up he was clearly an armed and it was time ting mr komer saying what are you going to shoot me go ahead and shoot me so when you see is clearly herb he may have a weapon in his quote right he doesn't have one in his hands right well the witnesses testified that no one had seen him with a weapon and he certainly wasn't brandishing a weapon and his hands were in the air and he wasn't making any threats to use a weapon there was no testimony that dustin ever tried to get into the house even mr komer said that he never saw him reach for the door his destines brother cody said that dustin was sho rest how he got in the house opens the door marked well that would be different that would be different because the the castle doctrine specifically has a has a is but the the in this case the appellate was in he ran back in his house come or came he came out well first about going back the original altercation at the house next door physical fight it was broken up and mr komer stormed off he stormed off in a rage he slammed the door broke it and was cursing swearing threatening to shoot people he goes and he fires over warning shot cody testified that he fired the shot it was at an angle that stayed up in the air and while he didn't appear to be aiming it dust and he shoot the gun he ran and was firing up behind him shooting and he went in the house they're being shot homer was shot right by cody correct but this is after he had already h shots by that time saying that if cody had shot homer and killed him are you saying you want to prosecute well i don't know i don't have the this is homer didn't shoot anybody he he was being a jerk and firing his gun all over the place and then cody shoots at him and hit something where when he shot behind him he was he was shooting where people were present but he just cracked at least radical so you shooting without looking and looking to find into his home he went into his home right he recreated at that point right his house i don't remember how seriously he was he was in the doorway actually was the door open yes he had propped the door open ok so then he goes into his house after being shot and apparently you say he was shot in the doorway of his own house yes because he shut the door then just the record and that right away at some point the door to get shot because he shot through it and shot and shot through the glass and hits just in the porch correct and that he deferred feet away from the door and so my basic question was could comber have done that if dustin was inside the house all the other facts being exactly the same could if justin had walked through the door into combers house could comber have shot him under exactly the circumstances but it's hard to say i mean every self defense and castle doctrine case is very back to specific i'm changing one fact and asking you how would it how would it be resolved well there's still a problem for  he's now retreated into his house someone standing in front of him with a gun and you're saying the law doesn't allow him to exert self defense because he started the business outside his house well in this case we also have the element of whether he's in reasonable fear of that i guess it is with you on that that seems to me to be a different question though i'm talking about i agree with you that his problem isn't so much the castle doctrine it's whether he's in reasonable fear but let's put that aside he's standing there in his living room this man has a gun pointing at him is he allowed to shoot or has he lost that right because he started the fight i really lost the right and that's what the state court their decision that he wasn't entitled to as you have to be shot you have to get that's what you're saying you have to take the bullet no i effect decided that he wasn't entitled to self defense instruction he wasn't title to the castle doctrine instructions the fact and decide on the instructions to try or that was the jury the judge decided you it seems to me to be very strange that i understand you start a fight you shoot somebody they go to shoot you back and then you can't claim self defense but the fact that you were bullet you know you're going to bend it's a little bit different when you've retreated into your house and it's even more different if somebody has a gun in your house pointed at you and it's it would seem to me to be very bizarre if you could not shoot in self defense when someone has entered your house after you preach eat it and i've been wondering if you're saying well i mean to me it is still very fact specific and you know maybe in directory that would be an issue but in he is because the course bound by the state determinations that he was not entitled to the instructions and well what if you have that situation the facts are undisputed there was a fight outside guns were fired back and forth somebody runs into their house retreats closes the door somebody else comes back in their house points a gun at them and that person clearly fires in self defense and the state court says you can't do that is that a constitutional issue i think it still depend on the shooter's actions before that and i mean  and how the person got in the house where they were you could you could have a state law that there is no self defense defense and that there's no federal constitutional argument there  is no this is a state a state right only right most of the states can't limit the rights you're due process right or your first amendment right but right state could say there's no self defense right it's the second the the key is that in order for there to be a constitutional violation that addressable and habeas there has to be  e assistance of counsel right he would have to show the deficient performance which in this case because the say courts said the instructions were correct and he wasn't entitled to to those instructions  he's not shown deficient performs he hasn't shown an error but it also have to show actual prejudice and he has established both not just one thank you ok over your time thank you very much your honour's that the questions that you're asking are all very important questions and i think the hard part for this case is teasing out exactly where those constitutional rights begin and the rights under state law and and if the state has granted defendants of the right to present a certain claim of self defense counsel failing to preserve that claim of self defense through proper jury instructions is it is the constitutional violation here that's the problem even if counsel's duties are created by state law failing to rise to those duties is a federal violation in this case the state court said that the jury could be confusing but confusing may not equal a constitutional violation the question is not whether the jury struction is constituted a constitutional violation it's whether the confusing this of the jury instructions created the requirement for counsel to object it doesn't have to rise to a constitutional violation on the face of the jury instructions alone it merely has to rise to the point that they that but for those jury instructions there's a reason probability of the wrong jury instructions led to this conviction and defense counsel had the obligation to correct that that's as far as it goes as defense counsel's obligation in a murder proceeding or self defense is critical holding by a state court trial counsel has no obligation to object to confusing jury instructions is unreasonable in light of strickland but what about the alternative holding he wasn't in any way that would be an unreasonable application of state law as well and that i know that's not directly in front of this court this question of whether it was a violation of mr connor's constitutional rights to deny him a self defense instruction if he was entitled to it by state law that's not before the court because he did get the instruction  so that you know that that issue could be fully teased out if he was denied this instruction and i think there would be a constitutional claim that his due process rights had been violated because the state law the court applied state law contrary to the state's own law in some way and the highest court ignored it ohio's supreme court review process is is essentially the supreme court can decide whether or not they want to hear cases and they don't hear most cases and so the highest court is obviously the appellate court in this case any of those issues are not a part of this case but they could be if the instruction had not been given but in this case not giving the instruction is an unreasonable application of ohio law and failing to object to the instruction as given is an unreasonable is unreasonable on trial counsel's part and failing to recognize that is unreasonable on the part of the highest state court so there are no further questions and you  argument the case will be submitted with the