knowledge that i have to overcome to prevail i can't possibly address all of them nor would i attempt to so i thought what i would do was spend my time addressing the first issue and that is the state court of appeals conclusion at the introduction of the diary the victim's diary in this case and the evidence was not a confrontation clause violation and the district court's ruling that the state court of appeals determination was an unreasonable application of idaho v right in ohio v at a minimum it denotes a greater degree of deference to the state courts and we have previously afforded them judge also because clarke the murphy was was after lockyear which was after the decision and in our case applied the previous and we would suggest that the three reasons that the court of appeal relied upon are not objectively reasonable the first being that there was no indication that mary's diaries were made in contemplation of pending or anticipated possible divorce litigation as the state court of appeal concluded it appears marriage diaries were made as part of her regular process recording the events in her life and that was supported that supported in the record by the testimony of her son who stated that she had been keeping a diary since about nine hundred sixty second factor the court of appeal relied upon was that there was no indication that mary had a motive for fabricating anything she wrote or biased now he's a person who is not going to do me right he's twenty years in five he's cut me down to a toothpick the petitioner in the district court stated that that's every indication that she was biased in the cross examination would have been of utility here our response is twofold one we have to recognize that the hearsay exception in this claim in under california thirteen seventy is an exception for statements that purport to narrate describe or explain infliction of threat of physical injury upon the declarant and given that there's necessarily going to be language that shows anger because generally speaking domestic violence victims are angry at the perpetrator we think the issue was whether or what is the extent of the bias and whether those other indicia of trustworthy in this year and we think that that's shown by the fact that along with all of the da face another time she apologizes to the victim for lying to him on two occasions she states in the diary that she loves petitioner it's our view that all those are factors that at least keep the state court of appeals   we look at course we start with the presumption from idaho the right and the roberts vs ohio case that hearsay is presumed to be unreliable and that there must be circumstances indicating trustworthiness that are so strong that would indicate that cross examination would be of marginal utility to remember we're here on federal habeas which has a much higher threshold as you know help us figure out why the california court of appeals determination was unreasonable under federal law or certainly i was just trying to under twenty eight u s c twenty two fifty four see that yes we have the burden of showing unreasonable that the decision of the state court of appeal here was contrary to or an unreasonable application of this controlling president or indeed involved an unreasonable determination of facts which i think also comes into play in this case the thing is is it to me it's a contrary to  situation that we have here because if you look at the to court of appeals decision it never really identified the correct legal principle that the you agree of trustworthiness that must be shown is such that would render cross examination of marginal utility and it takes the statute as california evidence code statute and it deals with the two factors that are enumerated there which are not exclusive or motive and then the stake or also adds as well as only positive seemingly finding as to trustworthiness that this was a regularly kept now i'd like to go to the whole question of bias and motive because any great here we have a finding of a state court that there was no evidence of bias here and i think this is totally contrary to the record that was before the state court we have a person here who within contemporaneous with these diary entries was committing acts such as criminally vandalizing mr pyles automobile going out slashing all four tires on his car beating his car with a hammer this is a person who roughly contemporaneous with this took an overdose of drugs and w voluntarily hospitalized as again sure to herself or others due to her mental state these are indications of a biased emotive untrustworthiness that come out from this record versus right as you must have circumstances indicating trustworthiness that are so strong that it rebuts the presumption of unreliability and basically you have to show that cross vs right that's not that's not the test that's not the proper analysis you must look at the circumstances of the making of a statement and i don't vs right cautioned about looking at the contents of the statement and then comparing it to other evidence in the trial for cooperation i say that is improper that's not correct analysis under this under the confrontation clause where ther what we have these assertions here for example that she blames him for the fact that she's been in three auto accidents in the last year or you know where that coming from exactly she's blaming him say that she that she was put in a loon den on account of him and all the evidence indicates that there her state in the loony dinner was prompted by her own overdose and the opinions of psychiatric people that she was mentally disordered to the point  she was a danger to herself or others  that and told her friend what her opinions were or some things that happened it's frank you say and there's nothing about the circumstances it's preparation that indicate this degree of trustworthiness that the idaho versus right decision demands where are the circumstances indicating trustworthiness so strongly that it matches up with a firmly rooted hearsay exception they're not there now so you may want to appeal held yes that was prohibited no it shouldn't have been excluded but then declined to analyze this under federal constitutional principles applied the more lenient state test of prejudice and nonetheless affirm the effect of potential effect his manic disorder which had he had been diagnosed with was under treatment for at the time of the homicide and yet the trial judge would not let this evidence be introduced and on defend it's state of mind at the time the homicide successfully injected all of it stricken and basically informed the jury there was no evidence to support that so we have yet these other important pieces of defen relationships that are gone on between this married couple for many years and it certainly was it involved violence on the part of both parties threats on the part of both parties and  crucial question that had to be addressed by the defense was well after all of this that had gone on before why now did you honestly if perhaps and reasonably believe that your life was in danger from from his wife and a crucial point on this one the fact that she had escalated her threats and he portion of this was a phone call that she had made to mr parr it was monday i believe the  this evidence was perfectly in a civil under california law our once again the prosecutor persuaded the trial court to make yet another erroneous ruling in his favor and got the trial court to repeatedly sustain totally iranian's hearsay objections during defense testimony this was a crucial question of this testimony something like nine times the prosecutor objected and the court  it had a very serious impact on the testimony he said at one point says out loud how can i answer the question without giving hearsay he's visibly struggling to try to answer the question arbitrary infringement on his right to testify in violation of rockers as arkansas rockers of arkansas any time that you know a defendant obviously has a very crucial constitutional right to take the stand in his own defense if the state imposes arbitrary restrictions on this testimony that there has been a federal constitutional violation that's exactly what occurred in this case and  great importance and yet when you step back and you look at the entire defense this was an extremely crucial point to show how the nature of the threats had escalated dramatically procedurally so let me see if i can clear up perhaps some of the court's thinking on the cumulative error the district court granted the writ not only because it found the confrontation clause violation prejudicial but then on the second ground a cumulative error ground it granted the writ the district court found that the confrontation clause violation combined with two other errors mandated granting the writ because what in this case air part but the question is and maybe you agree with counsel the question is was the cumulative error challenge preserved in the c e o was or c e o way on that issue the government doesn't that there was no confrontation clause violation then what do we do with the cumulative error ruling by judge also because he concluded the confrontation clause there in it right in other words the question is do we simply reverse on your assumption or do we reverse and then remember for further proceedings with respect if you made it very sure that's what i suggested should happen because my reading of the law is a harmless error of humor to their analyses is a mixed question and i felt like well judge also should have the first go at determining whether there's a cumulative error here taking out one of the problems he found cumulative error on in petitioners brief he may say no they don't want that it's all right here your honour's can make a ruling on the cumulative error issue apart from the the the confrontation clause and i suppose that's correct because the court of appeal in this case made a then i moved right but i don't think that that's the case because i think as judge allsup in the court of appeal noted there was all sorts of other evidence that matched what petitioner wanted to say in the  hearsay including in the statements he made to the police which was shown and he was making the exact same statements mary was threatening me in a drive by in a drive by shooting but again if your honour's were to fin or even judge also when you factor in all the other evidence going to her threats and her actual violence now let me go back very quickly to the confrontation clause and mr presser position is well  there was bias here and he points to factors that happened after the making of the statement her behavior that had nothing to do with the making of the statement when you look at the statement itself is evidence in there that would show reliability or put another way that would make it objectively reasonable for the state court to think so and for all the reasons we articulated we think so we don't think you can look to evidence that mary vandalized the car two months after she makes a diary entry to say the diary entry was was unreliable and not even judge also pointed to those factors he looked only at the out of it oh well this is just cumulative the other evidence once again i want to point out the crucial nature of this evidence in light of the case as a whole where you've got this background of mutual violence of a non lethal variety of prior threats why did it end up that week ending up the way it did why did he start fearing her in a way when our in the past the both the violence and threats of violence were not only fought because they changed in character in that week that was extremely important that kenyan in no other way whatsoever there was no other evidence that is that substitute for that which was wrongfully excluded by the state court and therefore you cannot it's not reasonable to say that they have no see you again we saw you earlier this week as well to get thank you your honor pleasure to be back i'm paul turner with the federal public defender office in the district of nevada i'm representing the stor day this this morning i'd like to reserve two minutes to a little bit later in my argument i i filled out these forms can remember them to the clerk oh yes you may thank you justice system and in particular confessions and i will i would like to address that a little bit later in the context of this case that it's not directly on point but i believe that it is an excellent background case for for representing a juvenile coworker of what was happening he indicated that the defendant was pleading guilty to count one of the information count one of the information is deliberate wolf all intentional first degree murder and my client mr davis never admitted  ever to anyone that he intentionally killed the victim in fact it's generally agreed by everyone in this case that it was an accident that he did not intentionally kill anyone you know but here we're dealing with the appeal for a guilty plea premised on the admissions that were made with respect to the robbery and  murder but you have to understand the context here he is not charged with felony murder so you obviously couldn't get noticed in felony murder from that document there's nothing about felony murder in the information the judge never mentions felony murder there's no there's nothing and i mention the felony ground one of the petition that's the plea that petitioners plea of guilty to first degree felony murder was knowing involuntary and not in violation of the cheshires right to due process of law under the fifth and fourteenth amendment here's the critical words a charge against him or proof that he is in fact that he in fact understood the charge the plea cannot be voluntary in this latter sense and that court cites to smith the o'grady and earlier supreme court case so the principle of  relationship of boykin in henderson and this is what the courts that i'm on burger it's said that unless the qs has received real notice real noticed of the true nature of the charge against him the first and most universally recognize notice of the true nature of the charge it also goes on to say that under henderson you are presumed to have been informed either by your lawyer or at one of the pre sentencing proceedings of the charges on which he were indicted charges on which mr davis was indicted is intentional first degree murder not felony murder i would submit to the court that that a long series of supreme court cases including ones i've mentioned document that if you don't have notice the charges you can't plead guilty under the united states constitution and the fact that you admit facts it's not enough think about this for a moment with this would mean it would almost be like a kangaroo court situation where you could get a defendant to stand up in the fennis would you please start talking about what happened the day in question when you get to a point that you've admitted a crime we'll call that a plea and that'll be the end of the day that can't be right right because his his attorneys within a period of two of them one month convinced him that let's do a way down on this case and take a plea and not the lawyers that's basically what happened here within one month and two hours of talking with this defendant this defendant is convinced that he's going to die he's a sixteen year old black male he's killed a twenty nine year old white woman and they're telling him that you will not get a fair trial in las vegas nevada you take a plea he's sixteen about it being in action and that's true on average but if you read i'm sure you have read the reports of the two witnesses are for collins and mr harvey they are not consistent they may be positive toward an accident which is excellent but there's more to these witnesses and just that you have to look at their statements and you will see that the second gentleman mr harvey indicates that he and mr collins were looking out the window when the gun went off and he never saw the gun pointed at anybody mr collins of course a davis was pointing at somebody of course that's critical to the robbery theory here mr davis gave the statement and if you read that as you read mr davis statement i'm sure you're struck by the fact that it's a series of leading questions the only word mr davis  under wigan's recently is going to have to investigate to see if the correct decision is one don't file the motion to suppress because it will be a failure or and to take a plea at all kind of enter crimes if you don't do any investigation i think the real message of wigan's and this this court's douglas me with for years that sure the final result made makes sense but that's not the answer to the constitutional issue did the lawyer investigate there's no reasonable decision if it's just me i guess you have to investigate your case sure you also have to establish that the result of the investigation would have made a difference crack and i think if i got the only issue is accident there was plenty of looking out a window if there's something wrong with this picture it needs to be checked out it may not be for instance there's another witness up there that could have been found or would have say so what is that something different i think i think you are the only four people in the room and one witnesses the question is that you should have done more to ask more questions of these witnesses well that would be a first step and that could lead to something else i think if i think you have to do the job to see what it leads to   you have to again you have to know the circumstances and you have to investigate them through front constitutional perspective and that's what alvarado reaffirms and it's it's an excellent case for juvenile law because it goes into a lot of the history is that the court's probably familiar with including references in regard to goes back to galt and quotes that as this court is emphasized supreme court that admissions and confessions of juveniles are quite special caution this is an reed found as a fact certain things and those certain things are represented in the certificate certificate of appeal ability i submit to the court first of all that has not been found as a fact there have been a variety of representations of fact made by counsel that have not been bring that to the court's attention because for this reason if an application of for a certificate of appeal ability is granted by a court and for whatever reason that somehow becomes a basis for  fact when no facts such facts are set either in the court's order which is reflected in the court record eighty four in this particular case then respond it's have to know that that in fact can be the case i am not aware of any procedure or law in this court or any other court for that matter that would allow for an application of a certificate of real ability all of a sudden become these are the facts to approach the pardons board after twenty years ok if he'd had me deadly weapon enhancement he would have opened not been able to approach the pardons board for forty years that is whereas in the other circumstance he'd have to wait forty years that circumstance was acknowledged in the petitioners traverse to to respond to chance or i note however that the petition was travers over this last night is not part of the excerpts of the record in this court the other parts know it is not your honor on responding to the judge's question with hairs or give these citations to opposing counsel i will three copies of the court i will do that harris versus right appearing at ninety third ninety three f thirty five eighty one because what he did regardless of who his victim was is in the course and conduct of the perpetration of a robbery the individual he got the gun he took it from that person and what counsel staff it's generally agreed that this was an accident i don't agree with that i don't concede that i don't think the state has ever conceded necessarily that this was an accident and in fact this individual sa during the course of the guilty plea she didn't wore the prize to seventy five and as i put the down gun down as i closed the trigger the gun shot now this is after this individual and it seems relevant to me and i need to sort this out but what you're telling us is that it was not a bad recommendation to take life without parole because it preserve the option for a pardon in twenty years yes as a matter of fact it is if you look at district judge bonzi of danny's order janani one of the petitions he doesn't fact make reference to the fact that this had the full force of law been down to life with the possibility of parole again what kind of a showing is this one need for you and i honestly i would imagine some sort of rehabilitation good conduct i have never participated in such a hearing your honor is it in the statute someplace or that is your honor and we might the other point that i would like to make is that counsel all this has to do with plea is not a noticed issue is not an issue was the information fission was i not informed of what the nature of the charge what's that's a separate issue from what the certificate of appeal ability is and what is in fact before this court this is not something where i wasn't able to present a defense because the information was so poorly crafted that i didn't know whether i was be is knowing intelligently and voluntarily entered as you pointed out your honor you notice that the whole issue here the whole complaint is well what was the intent that was express there's no question that this individual was committing a robbery that he intended to commit a robbery i think this return his argument is that there was no specific reference to felony murder none is required your honor even without being told they were that seems to be i think where the confusion in this case is because it's very clearly number one the nature of the charges of murder now maybe  regard first of all the canvas sharpless contrary to what petitioner speculates that he did in fact do this with malice of forethought premeditation and deliberation we are not conceding i beg your pardon right there an overlap in terms of the showing between felony murder and first degree murder in this particular case i think one satisfies the other felony murder under nevada law or harass two hundred point counsel advised him that you know he was going to get down you know he will certainly get eligible based on the facts and circumstances of this case but and if they did tell him that for gap and this is a stipulated sentence which is permissible under nevada law so that ok i know you know there's this possibility here's what i'm agreeing to as part of the negotiations that's kind of how we get into these presumptions and that's how i think the federal district court got into henderson you know the presumption of what was taught now that's the other thing about this case it's strongly strongly presume that counsel perform his duties strongly presumed and that's part of where henderson is a strongly presumed that he informed him of the elements of the off chance including intent and strongly presume the defense counsel did all of these things and that's why you have the henderson case which says that you know if you can't find it in the record somewhere what would be otherwise necessary for a voice in and once you presume that counsel satisfied aspect of  that being the case and no evidence have been presented to the contrary the nevada supreme court's decision is not contrary to an unreasonable application of clearly established federal law not going in reverse order your honor henderson presumption doesn't really apply here at all because the presumption is based on a presumption the lawyer advises their client about the office that's been charged against them and as i mention this obviously it was first degree intentional murder not felony murder they are two totally different crimes in nevada they come they're different subsections of the murder statute which is two hundred point zero three zero eight is the intentional murder the wilful murder and b is the is the felony murder so that and they are not lesser included they are alternative crimes completely it's not like first degree versus second degree murder it's these are alternative crimes that are nevada law they could both be charged but that never appeared before pardons for me this is what i understand i have some clients applying now it's closely you can well it has not it's way beyond a parole opportunity it's the it's the only thing left when you when you have no rights in the legal system you've exhausted everything you guys if your last prayer and it basically you have to fall you have to fall before the court in essence and try to convince the judges and the governor that somehow or other you deserve to be commuted to life with i think would be what they could do but of course there's absolutely no no belief that that's going to happen unless you have a what does that mean yeah i mean that's that's just like shooting in the dark it's like having lightning strike you i mean a good thing can happen to you but believe for for the basic murder conviction it would have been eligible to go to the parole board after ten years life without parole there's no hope that's what really what life without parole if you have no hope in your life when you're sixteen years old and you have no hope stand on my statement so that there are just a few things to click off very quickly sixteen years old my grade education no prior i don't criminal history one month from arraignment to play turn himself i think they have an option to retry mr davis if they like to do so obviously i hope they would not but he's been in prison as you know it's like he's been in prison basically under custody for about fifteen years and he's