dr james reby sheriff brown maintained that the death of tracy on grace was a tragic accident doctor but now the defense expert testified that her injuries could be consistent and were consistent with an accident tracey mother testified for the prosecution that mr brown did not have a history of violence did not hit the kids did not lose his temper and that her daughter had a history of banging her had and had injured it in the back just weeks before her death it was dr e b who testified that this was definitely an intentional act of murder had the jury heard powerful impeachment evidence that dr revie had previously testified to definite sure and certain conclusions only to later change those there is a reasonable probability that at least one juror would have harbored a reasonable doubt about an essential fact in this case but the jury didn't hear that evidence because trial counsel was constitutionally deficient and ineffective and never found it or used it well let's go into that how much how defective was he you know the standard is we talk about prejudiced how how difficult it is to establish prejudice in a situation like this and particularly in this context which is hey this corpus has to be grossly improper grossly deficient well i think the strickland test i'm sure the court is all of all of you are well familiar with it  you know it has to conduct tests to be below the standards of professionalism that is the the standard of of from strickland certainly when you add and peer review and whether it was a reasonable are contrary to whether it was a reasonable application of strickland gives another level of deference but certainly in here in this situation i think the trial court said that she doesn't want to get into a can of worms as if because there's all this that happened before and it seems that the trial level in that pretrial conference the the lawyer for the government actually said no there aren't any of these boxes which right which perhaps he should have done more to find the boxes and then afterwards cross examined him based upon the boxes to show that there were distinct differences when he changed his opinion ok but judge also limited to cross examination said well we don't want to get in a can of worms because she was concerned about what the salazar case had said which limited which limited the potential cross examination of rye based upon what had happened before the respectfully i think i would dispute several of those factors st the the judge taking that ruling by the judge is misleading and slightly  inaccurate because the judge didn't know what the materials were because trial counsel didn't know what they were and because the prosecutor falsely stated they didn't exist so you know we're dealing with grossly inadequate conduct by a by the defense attorney and so that's set the stage and i am i recognize at least from what i read in the transcript he wasn't aware of the salazar decision this was his st case or his  murder case and i know your position is that he should have become aware that those boxes were available in a public defender's office i think there's two things that i would respond st of all in the opinion it depends on the testimony and the evidence in this particular case and in that case it was not material and in that case you salazar was litigating over a single autopsy report the court in a footnote says it discover it looked at other materials but that case had different facts and involved a single reply and the nd thing your honor is that conference was that night was the day before trial started they were discussing bringing how many  not the moment he had this case for a long time in his own office in his computer system he could have typed in our i'd be and would have found these documents a fundamental and basic step he could have taken as everyone every defense attorney is supposed to go on google and check out the experts it's not google your honor it is own offices internet intra office system that is specifically designed to alert the defenders to miss ida i am aware that that was there that's that is undisputed but i'm not aware that not every attorney has the obligation in that office to review that particularly if the defense is or the prosecutor said hey we don't these records aren't relevant or we don't have the records i would agree i'm not it's not a bright line if you didn't do this your per se have deficient performance but when you look at the facts of this case which we must do he knows that reby is the star witness he is the witness who is going to send his client to prison for the rest of his life when his client tells him that this was an accident you do in that circumstance have an obligation to investigate your star witness as i read with that but prosecutors said definitively took to the judge and then the judge said i don't want to get in a can of worms here and that is problematic for many reasons but again that's the night before trial he spoke to  before that he did his google search and months before that he read salazar according to his own declaration he's on notice that these documents exist in some way he requested them from the prosecutor on the record so also in i ask a question about this so i think you actually have a very strong argument about deficient performance but i'm having trouble getting past the timeliness issue because it seems like all the things you just said about what counsel knew there's the google search there are salazar there's all this information that there is a problem with reby and then in two thousand and twelve i think they were in the boxes or at the prosecutor's office it seems like there are many stages at which this ineffective assistance of counsel argument could have been made based on all the stuff that was available but really that was not used in cross examination i don't really understand why it matters that it was the public defender that last piece that gets you the timeliness i'm having trouble understanding so to back up you're correct the triggering fact that we've alleged and that the discarded finding to be timely under this theory from the claim to be timely under this theory is the discovery that the boxes are in his office certainly prior to that there is an there are factors that would indicate he was deficient we would know that he did this search and found nothing he should have been on notice from salazar but at that point in time it's not clear that these boxes exist or it's clear because the havey is counsel coffee is them at the prosecutor's office that's correct and and this i think what gives you the actual deficient performance what takes it beyond just oh he should have done a little bit more and he was on notice is that they were in his own office he had to take a single step talked to his supervisor or put this in the internet and i think the case and we let it get like that if they weren't in his office i mean if his supervisor probably would have known even if they were only at the prosecutor's office because this is like a famous problem this is what's so boggling the mind boggling about this i mean a good seems i mean if that's what also makes a very bad performance by the lawyer i think but but it's because it's so available i mean i actually think it may be that an obligation to google the expert because the key expert and if he had it it may says he did but if he had really he would have seen all this stuff so then it's like well why does it matter that the boxes are in one location or the other it's like they're all over the world i mean they're all over the internet well they're all over there the information is available in a lot of places well the noticed certainly putting him on notice is available in a lot of places  of the boxes or the possession of the boxes on the issue of timing is correct so you have to take the position that the real issue is that the day the defense office had the existence of the boxes that's what you're looking for right and that was discovered later that's correct that's the day we use or triggering as it was the existence they knew in two thousand and twelve that that they were in that found and copied at the prosecutor's office the location of them at the public defender wasn't until two thousand and fourteen and and i think the case law again is clear that you can't yes we could complain about his performance up until d then and there were complaints about various aspects of trial counsel's performance and what he should have done but the actual claim is not right until you have the deficient performance and the prejudice and i was listening to this standard is discovered by due diligence until that's really the question the fact that there were the records or they were possessed by the prosecutor's office curd much earlier and you made a very good point i think we all agree that those records should have been used in maybe more in a substantial way by the defense attorney but the existence of those records in the public defender's office wasn't discovered until much later but they were the possession or the existence at least with respect to their having been around a long time he could have found out about them that was well known so why isn't that the date from which you establish whether or not it's timely we use the date in two thousand and fourteen because that's when it's our position that an actual successful and not frivolous claim for both deficient performance and prejudice was fully developed this is in the further excerpts of of record at two hundred and twenty six through twenty eight i'd also note that this is a clear air review on this disputed facts about when things were known or should have been known or how diligent people were as to the timeliness this was litigated in a motion for leave to amend it was litigated in the traverse it was litigated in the  r and r to m j repeated the part of me the magistrate judge repeatedly found it timely in the district court adopted that timely findings so for under a clear error review i don't believe there is any clear error this january two twelve it was found in the public defender in two thousand and fourteen i don't really think there disputed fact i think respondent has disputed many facts that we've asserted regarding when things were known and who knew them and if petitioner knew it back in two thousand and twelve or ten when his but even if could have been discovered right whether or not it was could have been discovered through due diligence yes in two thousand and twelve that's the issue well i am ok well due diligence i think is a slightly different issue and i think to fa diligence i think hey b s counsel asked trial counsel did you have them she spoke to the d a s office can i have these there was no one who alerted her to the fact that they were in the public defender's office and she'd repeatedly been asking for trial counsel had asked for them and she had now asked for them no one alerted her to this this is reasonable diligence she copied them she was there she spoke to people i don't think there's a question of that was incorrect and petitioner is not entitled to an alternate triggered a in this case because when he filed his original petition he actually alleged an ineffective assistance of counsel claim for failing to discover the rebate boxes and used them to cross his new ineffective assistance of counsel claim is untimely in addition the district court found if he wasn't entitle to an alternate trigger date that the new ineffective assistance of counsel claim would relate back that analysis was also incorrect the magistrate judge relied on an exhausted claims in a valuating relation back and under this court's precedent you cannot relate back to an on excessive claim was there even an earlier claim that focused on the location of the boxes because i think i could only find a claim that was more just about the existence of a review having contradicted yourself yes that's true and original ineffective assistance of counsel claim did not discuss where the boxes were located but the point is that from where put to trial counsel could have obtained the collateral impeachment information is not a predicate fact to assert he has in effect of the senses assistance of counsel claim and that's evidenced by the fact to go to the merits of the ineffective assistance of counsel claim and i think that it's clear here the california supreme court could have reasonably rejected this claim finding that petitioner failed to demonstrate prejudice  for most it would be the severity of tristan's injuries were just incompatible with petitioners defense that she fell off the counter and the other expert disagreed about that so if they didn't believe review that doesn't seem clear well  toddler stands up and that's where you got the foot doesn't seem crazy well there was nothing in the record that supported that she was standing in fact petitioner's well no one knew that was the problem because no one was there right right but petitioner said that he left her sitting on the counter when he went to go check on the other baby and so there was nothing there was nothing supporting that she was standing and of course doctor but i also rendered his original opinion based on a four foot counter at the counter in this case was three foot and also he said that the injuries could have only occurred by falling off the counter if she was standing and then fell a centrally swan dive and fell on the top of her head wasn't he also i don't remember exactly i think he didn't dispute the prosecution's theory of an intentionally inflicted injury he agreed that trey sounds injuries were consistent with her head being hit against a hard object he said normal head banging would not cause those injuries he cannot say a medical certainty whether her injuries were caused by the fall and the two studies that he relied on to support his accidental fall theory they didn't even support his opinion because when asked if trey sounds injuries match that  accidental trauma rather than the accidental trauma he said yes it more likely follows that theory over the studies that he relied on which evaluated children falling under four feet which is exactly what occurred here not one of the children in those studies needed surgical intervention tracie i needed surgical intervention in this case all of the injuries in the study were linear factor fractures traced on it suffered a depressed s fracture and not one of the children the studies such as he cross examined on these studies that you're saying he was so but it seems like even during even despite that it seems like his basic point was we can't really tell i mean you're right that he didn't say it's definitely an accident but he says we can't really tell so the only expert he said we definitely can tell is review right yes that's true but of course there was other evidence that supported that titian or  guilty of murder and it was understood that he was alone with tracy and when she suffered the injuries the condition of the apartment supported that they were intentionally inflicted there was an issue with his story about making a sandwich court seemed to indicate that this evidence wouldn't have been able to have been used in any event could you explain it to me what ruling the trial court made that would have made this not admissible  although trial counsel was allowed to ask dr reef about his changes of opinions in these other cases and the reasons therefore he was not to get into case specific facts and trial counsel didn't do so and that was based upon the trial judge's determination as to what she read in the salazar case correct and she didn't want to she didn't want to get into really problems with this i think that the decision was based more on i don't want to get off course on the facts of this trial which is what the jury should be focusing on i don't want to start going down into the details of the lance holmes murder which was at issue in the salazar case and you know create a little mini trial to be the case where there was some argument that the this type of evidence could be used for cross at least in a limited sense that it had to be really relevant to the particular case and that seems to me what the trail judge was getting reebok's material wasn't material in the brady sense and that is at the point at which the l a d a s office stopped having the rebate boxes in their office they took him out of the brady alert system are two decision that was based on the facts of the case and why the court thought they were strong enough that this would have made a difference so it's hard to see how that means it wouldn't make a difference in any case i agree that this the consumption of time or i'm going off into tangential information wouldn't be worth in this case and that's a california evidence code section and there was no full slow motion from the defense counsel to explain why this material would have been relevant and why this case really mattered that's true he did present that he didn't want to get in a case specific material and unfortunately he didn't explain why in his declaration i would s t that the reason and one of the underlying reasons is that there has been a case where the dr rippy was extensively cross examined on the material and it didn't make a difference i would also submit that as shown in declaration where he explained each and every one of his modifications of opinion from the box cases it just shows that he's a competent and thorough pathologist which would have bolstered his credibility in the eyes of the jury and in this particular case it would seems like that is debatable because at least some people in the prosecutor's office saw that differently the prosecutors some of the prosecutors themselves thought we can't even use this person anymore i mean  clearly a mix of opinions which means if you present the evidence the jury could have had a mix of opinions too right i don't i don't i don't believe so i think that the district attorney memos based primarily on the opinion i have one of the prosecutors and one of the cases in which dr read a basically his opinion took away a special circumstance and i think the prosecutor was upset by that i think that dr rebate is explanations of his modifications of opinion in those other cases shows that when he gets new information that he is willing to look at that end and if he thinks that it could show something other than what he originally concluded he's willing to look at that but when asked opposing counsel has done a good job in their reply showing or trying to show what a competent attorney an effective attorney could have done with all of that evidence had that attorney had that available that was at the public defender's office i the hypothetical cross examination contained in the reply brief st of all is purely argument and there's no way a prosecutor would jolly certainly it certainly is relevant to the su a pleasure is the idea that there could have been cross examination about the case specific materials yes it would be about and to prejudiced however  there was no profit of what dr reddy's answers would have been and i would submit that all of his answers would have been consistent with his declaration that is contained in our record i'm explaining each of his modifications and not only that but some of the  basis of those questions isn't supported by the record so for example in one of the cases in the hypothetical cross examination in the reply brief there was a suggestion that dr rhee bay didn't suggest consultation with a sexual assault expert in one of the cases and that's just simply untr going back to timeliness for one second i would like to just an additional point and this is directly from the further excerpts of record at two hundred and twenty six dollars in the district court litigation on timeliness but it also goes to a judge silver had said earlier that prior to learning that the boxes were at the public defender's office the state of the case at that point would have been that trial counsel learned from the district attorney's office that these boxes did not exist and relied on that as he said he did in his declaration and a claim for ineffective assistance of counsel would not lie where trial counsel relied on the prosecutor statement that something does not exist he didn't he failed to discover something that he was told did not exist whatever clues he had id that would not trigger a stronger ineffective assistance of counsel claim on the deficient on the deficient performance prong so that is why the discovery  boxes in the office is a significant fact that does give a predicate fact that does make that claim timely regarding larry things it seemed to me and went through those boxes and for applying and said what could have been done by the attorney certainly and i don't think that all of those questions are mere argument they're actually taken off from dr rhee b s transcripts and testimony and other cases ok but but counsel has just said that she now pronouncing it correctly dr reading i would have would have had a response to it and i think that's an argument that's made repeatedly throughout the breeze that dr levy could explain but it is not that the lacks an explanation it's the simple fact that he can testify to one thing and be sure of it and then testify to something else that's relevant information for a jury when they're weighing but it really is a really relates to prejudice right absolutely we're talking about  what about the other evidence that was offered in trial that supported the verdict such as the t v wasn't there there was a steamer that was brought in and he didn't call nine hundred and eleven he called his mom  isn't that relevant to the issue prejudiced i think the t v the prosecutor admitted that she just came up with this theory because she thought it was weird that the t v wasn't there no expert nobody said that the head had been hit on the t those were distractions there was no dispute that he was alone with her it was a question of whether this was an accident or it was intentional he explained why he didn't call nine hundred and eleven and that's because he can't read and he was afraid he couldn't direct them to the house so he waited until his mother could make the call perhaps no one likes that answer but it is an explanation and she did call nine hundred and eleven and i think we're going to prejudice and what would have actually occurred it's very important to look at what did occur in the trial court allowed the prosecutor to go into dismissed allegations against dr bo now and to extensively cross examine him about his credibility because that is what california state law allows there is broad leeway to discredit an expert witnesses opinion even based on facts not in evidence and i will just say the name of the case and be done it would be people view wilson which is thirty six dollars cow four thousand three hundred and nine that cited in our case expert cross examination of an expert witness is broad and it's allowed thank you both sides very helpful arguments thank you so much and the case is submitted and we are adjourned for the day