case to realize that this is not a murder case why isn't that answered just by with the judge said that brought a gun to a fistfight well you want to do is nothing wrong with harming yourself when you've been threatened your life somebody has threatened you to bring a gun one inference would be that's just in case you needed to protect yourself from death or or grievous bodily injury and another possible inference is maybe they're thinking of a fist fight where you're thinking about  have to kind of jump over to because there are what ray now had had a one night stand with one of the deceased correct correct and so that was part and parcel  earlier incidents that we're counting on how you got a jury looking at well yeah he's got a lot of reason to not like these guys that are making fun of them and one of them had an affair with his girlfriend initiative and hurt him but you know if you read the record shows that mr alvarado declined to fight he didn't want to fight they arrived initially outside the apartment building and ozzy was the one is saying hey look if you want to fight you want to know i don't want to fight i really don't you could you could argue that he declined a fair fight and then in the interim he decided to get what was that mack eleven or something and then take that baby to a fistfight i mean you have a good point what about the baby i mean he says i will only go out and talk to us if i'm holding a baby these are all great arguments that apparently the jury didn't buy it that's the whole thing i mean you know i could argue this either way and apparently they thought ver is he also again after he shot the guy that was to take a look at the other incident sort of for gratuitous shooting the guy that he wasn't dealing with face on and he hit some three times in the back that probably didn't it the head in the stomach by two people stands up he shoots one in four seconds later shoots the other that is one there is one transaction but you know on top of that your honor you look at the if you look at the application of case you look at the way the state court wrote the decision and it was absolutely an unreasonable decision because they relied on facts that were both irrelevant and other facts that were simply incorrect for example they said that  again he came out with the baby and he was assaulted and beaten to the ground and then he stood up so there's those kinds of facts in the state court opinion and make it unreasonable but i would like to pass on to the  and we know here based on a comparison of this case for example with other self defense cases of people versus ministry which we talk about it some it's not quite the question the question is whether we fell below the very minimal st relatively close and you have evidence that the victims had previously assaulted the defendant i thought it was kind of big whether there even was evidence that these them well it may give them a motive and again i come back to my point that in self defense he's got a lot of motive there's always a motive however in california the law in california as in this is terribly important if you have been previously assaulted  by a person who ends up being the victim you have the right under california law to act both more harshly and more quickly and that's instructions given to the jury is now for the longest time it was not it was not a standard jury instruction has now been incorporated into the count california standard jury instructions you know i really i agree with you on that that's where i'm struggling when attorneys are if you know if you've been a trial lawyer you know that you struggle on tactical tactical basis when you're going to bring in anything that six training and ending when it's been you know when the whole issue involves violence and then you start bringing other fights and you have to you really have to look at that carefully to decide is that going to put my client and another you know if i mean you bring in the satisfy it's when you bring in these other situations and i think that you've got you've has you know it's just you know i'm right before you've got here that one night stand following on i mean the attorney is dealing with a lot of tactical decisions there on how can we second guess that not to bring in other struck me i don't know how strict the court but it struck me as fairly incredible the reason that they speculated why he did this the district court basically followed suit to speculate i don't know why mr clarke that i wrote him a letter and he wouldn't respond to me most important thing you can sort of stack particle it seems peripheral i mean what it is is about another another fight it another time and that on the one hand could make a more free that these guys on the other hand could make them more hostile and interested in killing these guys but you're one of the the whole it's not about this fight but that's just the point you cannot take a snapshot and say look you know the whole thing and arguably he'd succeed but probably get it in but then it seemed to him given i mean i can see the prosecutor making an argument from it for vindictiveness and the defendant making an argument from a for greater fear of these guys that you mr clarke said he could prove it but he didn't he didn't put on any evidence period that ever had anything to do with mr outright and that went on and on for another couple pages about you know the promises defense council made that these guys were big ba defense lawyer could suggest to the jury that they draw the inference from the colors thank you you can say he is wearing a red bell pin but without any of the prior harassment i mean it's kind of like big deal ok so he's wearing a red belt the fact that he's wearing a red belt and he's a member of  wearing a color belt because he was not a gang member but the point is is that in order to give the entire picture of this transaction so you have to get inside mr alvarez mind that self defense what did he reasonably believe what are the appearances that he can rely upon and he's entitled to draw on his whole breadth of experience with these thugs and he was that's what i mean that's how we got to this situation and by saying that well it wouldn't have been a big deal for you know if he didn't talk about this  report where mr overawed was attacked and being with a baseball bat i mean come on i mean this is important stuff when you're putting on a self defense case and it didn't come in and we don't know why it came in  agree with your honor it would be really it would be lovely to know why mr clark did not put this evidence in but we don't know all we have is speculation and that's why we need an evidentiary hearing in this case and that's all we're asking for  specifically i don't recall but i believe that reference was to the subsequent interview with raina where she recounted additional information that she had withheld from defense counsel a trial defense counsel had no information regarding baseball bats that went to come in a first time he was he was beaten three times by these individuals the first time he has a as a translator so the translators paraphrasing the first time you said they hit you with the back or something like that if you get examined by a hospital or t mr andrei when he was coming out of the house and the defendant was being beaten and he had blood streaming down his head you put that together with the threats of death on this night on this night alone where they said we're going to slice you up said he had a knife she called the police she was hysterical there was a nine one one tape which you said there's gang members out there they're threatening to break into my house break the windows that sort of thing there was ample evidence that these people  case involving a very similar situation but far less explosive situation where the court reversed a murder conviction for this very reason because there were antecedent threats from the victim's gang that didn't get in the record our case is much stronger than m inquiry now if you go back and say you know but that doesn't address the fact that the jury you know why didn't the jury hear this information absolutely let's hear why i don't see how the fence or maybe a good case for the instruction and the terror from the gang that needed to establish without the defendant testifying it seems to me the girl from wouldn't be an eyewitness to most of it there wouldn't be eyewitnesses except uncooperati gang members sort of hard to do unless you can put the defendant on and get the jury to believe what you're on the defendant's mental state first of all contrary to the attorney general's decision does not have to be proven by putting the defendant on the stand we know that that violates brooks versus tennessee you can't require that not talking about what's required is a matter of law like talking about a lawyer make some mistake that was prejudicial here and i'm thinking nothing really matter other evidence that you just described did not he attempted to quit and he attempted to put in the some of the andr testimony but he was stopped because he was unable to take the evidence out of his basis for the rivers they said this was admissible to prove that i mean there's lots of examples where that comes up in a battered women syndrome that sort of thing without the defendant testifying other people you know for example