evidence that would have supported his defense lawyers defense in this case was a mr hauser panicked overreacted that accidently squeezed the trigger when he shot health but he failed to present evidence any evidence a shred of evidence to support that defense and that the jury was entitle to hear that evidence and it was necessary to determine this or hauser's mental state at the time of the shooting and without considering it there can be no confidence in the jury's verdict now let's assume for the moment for the purpose of my question that evidence realistically could have persuaded the jury despite the evidence of his companion on the car bomb that this was an accidental shooting incident a purposeful shooting we've got a problem because the evidence that you're wanting us to look at was never presented to the trial court to the state court so what are we doing now while you're out of the evidence i think you're referring to the declarations were not presented to the state court however mr act houser presented very detailed allegations in the california state court  that the evidence of this prior trauma would i'm reading from the california supreme court petition here would corroborate and show that in combination with abuse and drugs that he suffered he was in an altered perception of mind that would possibly an thousand and eleven the trade so we can't ask him this question but if we could a question i would have for him is you there are some indication in the record from the investigator that yes the lawyer was made aware of this and i don't like anyone w disagree and horrible horrible childhood for your client awful but then we have the problem of once the shooting occurs your client does certain things in terms of disassembling the gun and drawing and getting rid of the clothing and getting  and changing the appearance of the truck so it's last if mr rosenberg is trying to make a p t s d defense to show that this guy had the jitters when this happened in the gun just went off but then takes these very clinical steps to my word wipe away the evidence why again we can't get a declaration from him because he died in a motorcycle accident i believe but how do we how do we evaluate whether that was a tactical decision not especially when we can't go back to that lawyer that he regrets having pulled over he knows what he did wasn't a good idea was wrong and that's and that's really what he was trying to cover up he lied to the police and it was a bad idea however that does have no bearing on his the symptomology of his p t s d at the time of the shooting and he's always maintained that it was an accident i'm turning your honest question about mr rosenberg's sort of trial strategy here i think the first the first answer would be mr rosenberg did not meaningfully investigate empowered to make tactical decisions but it must fall after reasoned decision and here there was no reason decision because there was no investigation but that said your honor there was a the argument by the counsel that mr hauser did panic that three point turn comes over parked on the wrong side of the road so that he is to his side of the the truck is facing the victim look them approaches he had to have changed the gun from somewhere in the  pushed the ammunition and then shoot him i have real trouble seeing with this evidence of child abuse is going to convince their jury that this was an accident statements to the police and in their interview with defense counsel she never mentioned the fact that mr hauser put in the clip of the gun or that mr hauser stated his intent to shoot mr valjean when he arrived at the scene it only came in has from her fourth interview to the police hours after she was in custody and had been offered a plea agreement for one hundred twenty days in prison and probation and he cim in fact told the defense investigator that the music was too loud for her to hear anything and moreover he even wrote to mr hauser a letter which he didn't think was going to be publicly disclosed stating that she was scared about how little she remembered and that was because of the drugs that she was taking which the record shows were amnesiacs which caused her to forget things plus putting all that aside the jury wasn't the jury was instructed to view her testimony with caution because she was in the complex given all those factors there can't be a fair minded jurors who view her testimony as reliable i mean a fact if you look at the jury declarations for whatever they're worth they think they do  how how impactful that mental trauma would have been notwithstanding and that's what the case against him gets worse in the sense that we got him telling a whole series of inconsistent things that the jury knows  lies so of the jury if they're going to just believe a limb they're going to disbelieve him even more your honor again mr hauser did why did the police however he never once stated or admitted or w arguing that he lacked intent to kill lack of malice and should be guilty of a manslaughter offense in this case the count i have a question for you about the the juror issue juror c j and richardson and one thing is i'm i've been really struggling with this case is that the earlier courts have said that there's a dixon bar i know that judge siegel didn't say that but to mother judges previously had and if you can help me out here where in the know your honor there's no explanation anywhere in the record there's simply a superior court's decision the last reason decision stating in a one line sentence that the claim should have been raised on appeal our position is that that is an erroneous bar and that's improper and we did find the law clerk actually for me located a letter between hauser and ms smith the lawyer patricia smith is other now ok in which he says that there was there was there some sort of relationship or the  that is not part of the record that was a previously confidential letter to his appellate lawyer letting her know that there was these germs conduct issues and i think the only indication of any injury claim in this case would have to be the victim's wife tearful offers but even that was limited to a trial counsel's i think abridged alerting the trial court of what happened which didn't even apprise the trial court of the more significant factors of the victim's life fearfully confronting the the defense investigator i'm sorry the defense expert testified about that very topic in fact that was the only topic of the defense investigators testimony was the trigger pull wait and see if you have the handgun and afterwards the investigator presto overheard a conversation that extended conversation about that issue we don't know exactly what was conveyed to the juror because we've never had a hearing on this claim and under novo review i think this is a colorable claim that it is at least worthy of a hearing because i think this was an authorized contact between a juror and a third party that warrants the presumption of prejudice under maddux that this court explained in united states versus i think was to kill so i think for that reason this court analysis here since we're not bound by a supreme court law in this situation and i think the last claim that i'd like to discuss is again the victim's wife tearful operates and i would just think that as i say that the district court applied the wrong set of challenges that he faced but there are some other there are some aspects of that that demonstrate why his tactical choice to pursue and a defensive action rather than some other defense made sense most importantly perhaps is that his client mr hauser told the police in his interview that this was a matter of pure accident that is he did not shoot the gun in self defense here but the i e c claim is not only made a mistake in pursuing the defen and couldn't answer these questions that there is some evidence and i think a particular important evidence in the record that i didn't discover until last night and there's not in our brief but i'd refer the court to page excerpts of record page three hundred thirty nine headlines twenty three through twenty five he says he told the petitioner not to claim this defense that's help mental health disorders and psychological treatment and so my line twenty two says would have found defense during the trial even going so far as to explain why i think what he means is why this defense would not have been successful and i believe i can i think it's clear why he told his client not to  try them or that this would not have been a a useful and helpful defense to raise a trial principly it is that it to have gone into his trauma would have strongly corroborated something away from which defense counsel ran throughout the trial that was mr hauser statements to the police that one of the reasons that he was upset with the victim in this case was his belief that that t sexually abused either children or a woman that he knew and that and that mr hauser had never received had never achieved retribution for the trauma that he had done so this is so this evidence that is the p t s d evidence would have strengthen the prosecution's argument about motive that is he did this because because of his own sense of lack of closure with the trauma that he had suffered as a child and it also would have supported additional arguments about his about why he reacted so impulsively and strongly when he drove past the victim on the road that day although it try to make it very clear that there was no such evidence and the reason it because he was worried about that is noted but usually because he's worried about that you're inferring that you get your no direct evidence that that's that's absolutely correct i have no evidence that the victim had actually done this but that but the question or do you have any direct evidence that was the motivation of the attorney here and for them from just the fact that house at one point accuses the victim of having done child abuse and that we have the well the other difficulties that the defense counsel faced were that his client quite clearly denied that his that he was suffering any perception difficulties at the time of the event he said that he said he was not affected by drugs or anger supplemental excerpts of record two hundred one two hundred three two hundred thirty three he said as clearly as he could have that this shooting did not involve self defense it was not an exercise of self defense supplemental excerpts of record one hundred ninety six and one hundred ninety seven he said that he never saw a weapon that is  he hasn't suggested that p t s d caused him by the exercise of hypervigilance to see something that wasn't there he said that he said that he was afraid of the victim because he was twice his size said he was afraid of him but he specifically declined to answer our declined to respond to the prosecutor's question the page excerpts of record six hundred forty one six hundred  forty two the prosecutor said did you think you were about to be killed by the victim and he said i can't answer that question so that those answers that which i presume he went over with his lawyer in advance of trial those answer would have precluded his defense counsel from successful in mounting a voluntary manslaughter defense based on p t s d finally you know i don't i don't i don't think that's true while i think the the jittery nurse might have caused him to be apprehensive in order to succeed on self defense or in imperfect self defense he has to believe that great bodily injury is imminent and he declined to say that he was and he was pressed by the prosecutor and he never said anywhere that he feared imminent bodily harm and that's essential to the defense of self defense or oran imperfect self interest in that i think we're statement of mr stewart dr stewart that it might have affected there might have been some motor impairment might might have supported the defensive actions might have supported the defensive action on the other hand the evidence of p t s then council's decision not to pursue that and explaining it to his client why he wouldn't pursue it is not deficient concert performance what about the composition of the juror with  yes and the others in this case was quite clear that this one was not such a gun that is the the evidence was before the jury that this there was and i was semi automatic and that the defense called an expert who testified without contradiction that the trigger pull on this weapon was sixteen have pounds that the new york's new york city police department had difficulties with this weapon and had it modified to have an increased trigger pull of thirteen pounds that it had had other alterations made to the weapon because of the danger of accidental discharge so whatever discussion there might have been and that remains sort of speculative but whatever discussion and might have been the trigger pull even if it did apply to this weapon there's no suggestion that it that it would have affected the outcome of the trial had any influence because it seemed it would likely have been or at best as most helpful to mr hauser that would have repeated what the defen and i think we all agree on that and i'm here again sort of trying to explain california's procedural defaults to the court and that's often a challenge but the what the  so several i think that probably clearly applies to the to the question about juror immunity it probably applies to the question about the victim think should not apply the law to the trigger pull issue because i don't see that that was discussed in the record in the end anyway so what we're left with then is is how to deal with the state with the state court's decision that  which should have been raised on direct appeal several i think means that there are others that did not have to be raised in direct appeal that would leave us at least i think perhaps the best way to look at it that leaves us with this we have a silent in our of those claims that are not properly denied on the basis of dixon and if we have a silent in the aisle then the question is is there a basis is there a rational basis for the state courts in the aisle of that claim and i think  because the magistrate judge did a centrally address those on all of those points alternatively under the noble review that explains how that how a state court how a fair minded jurors could have reached that conclusion that there's that the claim lacking there but i've agreed that i that i have to strain to make that argument i think but i want to assist the court and i'd like to be an advocate and saying what is the proper and best way to look at that molestation urine is that evidence was coming out one way or the other on that evidence came through a letter that mr hauser wrote to andrea lin and his old roommate saying stop saying that to people that looks it's not true and it makes me look like i premeditated that evidence was coming out and so i thought it counsel reasonably had take that on one way or the other and so there that can't be the reason why he chose not to present evidence of mr hauser's impairments  to prevent it coming out because he was doing coming out anyway regarding the perfect self defense point that mr hauser explicitly disavowed a perfect self defense theory here that is true he did not want to excuse justifiably excuse used his homicide based on the fact that in fact there was a real fear but mr hauser's testimony also said that mr felt she was aggressively approaching him that he saw something in his hands and that he and that he felt intimidated now standing in the courtroom i think mr hauser would know no one would be in fear for their life but you have to look at p t s d some knowledge which causes disassociation which causes i'm hyper vigilance in that situation and it causes distorted memory which mr hauser admitted to having throughout in the police statements the police and i and it testimony in fact the prosecutor in closing arguments said tried to paint mr hauser further as a liar by saying look if you conveniently forgets everything about the shooting but remembers what happened before and after well that is a hallmark of p t s d that that needed to be explained so that that's that's that's my response and that's not the claim i'm regarding the jury claim conversation about the accidental discharge i think that does that apple does cut directly to the heart of the defense in this case and we do need a hearing to flesh out what well said and that's that's the reason i think it's