a case concerning regulation by a city police department of private impound without any rules it is a regulation based upon the letter that was sent don't hear that the contract if i can find the record have either party could terminate the contract for give me thirty days notice that's right washington state law was that it caused our client total truck to be out on the scene while the police ran its records came out to the scene and then when it came out to the scene on this private impound had the definition of the time and feature one fifty six of the materials very is the rule is articulated only in a letter addressed to our client and that's what we do at the impound that we don't call out before a truck go out because there is a oftentimes an urgent need to have the advantage in vehicle removed from blocking traffic or access to property and we don't call up after it's been hooked onto the truck and before it's been hauled away because there may be some security issues involved we do it at the time the impediment in the encounter in the branch your honor such person when you say when am i speaking loudly enough for you sir i noticed you spoke to the other councilor i want to make sure that you can hear me or you're projecting your voice is very well thank you i'd like to begin my comments if i may with where counsel left off in the record page three twenty four our former chief chief vanders today we will argue that just by being an approved toy company doesn't mean you automatically get a contract with the city to be on the rotational list and it's i think it's a little ironic that just because  an approved towing company that they're not also on the rotational list one of the requirements city for contract in the torn country the first requirement would be of course that they have to be an approved towing company there after they there it'll set all of the various terms not only do they have to follow the state law but it talks about how we how we will logistically do the rotation  why you're trying to run this whole food out of business we're not trying to run him out of business he's still operating in our city as we speak and he's not notifying us of stolen vehicles until after it's in the toyota v the thing that we're asking of them is that they notify us before they actually take off with the stolen vehicle and i would submit to the court that that is inconsistent that is consistent with the state law we have in the record in a number of locations but most easily i director and i presuming that that's a director overlook overseeing the the industry has reason to believe the licensee has committed or is that the time committing a violation of this chapter subsection six  that car but as soon as the tow truck driver drives away with that car hooked up to the vehicle that there's no question that truck that truck is in and that driver is in possession of that stolen vehicle the law says it must be immediate notice and the law says that they can be fined they can even lose their license if they have in their possession a stolen vehicle and they should have known that it was still in the instant case we have a situation took them up on it they discovered we don't really like doing this and so they stopped that notwithstanding we honored the contract through to the end and the lower court found it even extended beyond the  actual terminations date of the written document and went into november and december of two thousand and three that notwithstanding we gave thirty eight days notice we just provide which is permitted under the terms of the contract purpose for the reasons identified in the contract there are certain reasons and we don't have those we have others and so we're giving you thirty eight days notice to have torn talk me all the way  hurry up and call the director and say hey you've got washed my clothes i understand i don't i don't think the statute makes it a crime for a whole company to possess the stolen vehicle and not notif and skyway at least was at the time they claimed to be a subscriber of the ideal system and they can get that information within minutes to further answer your question we cannot not all of the not all of the cars that are being impounded by skywave are impounded within britain's boundaries sometimes they are being impounded in the county unincorporated king county and they would have to notify the king county sheriff's office of for the vehicle would make it would make a decision about where the vehicle should be stored it could be stored skywave it could be stored at an evidence yard more likely it'll be in evidence yard for chain of custody issues it would it would depend on a i'm not sure i understand they take it to the yard because it would depend again on for example that it's a homicide and the car was somehow linked to a homicide we would need guidance from the king county prosecutor's office as to where they want to that vehicle to go if it goes to a total yard or to an evidence yard and as i say in candor i think it's more likely going to an evidence yard because the chain of custody issues depending on what we need from what the prosecutor needs from the from the vehicle officer i know it can happen that another entity is called it can also happen the skyway completes the tell i can't i can't get one of these when do you bring in another towing c that we will go off the rotational list to the degree that it it is a we don't care about skyway message i can certainly see that that is what could be communicated i can't  so i can't i can't speak to why on those occasions things went awry but by and large by a great march things went properly and so while while i agree it should needs to be above reproach so what do you have left in federal court attention if i can find by statute who are only fifty five two hundred which allows us to remove a car if we have the written authorization from the owner so the question of whether there the vehicle was stolen doesn't enter into our rights as a stoker told trucking compan gesture by the city of rights are you saying that if you did a private impound and there was a report of the stolen vehicle that we would let you continue with the impound it would be a nice resolution to this case it would help cement your working relationship with the ch cheery of deliberate homicide and aggravated assault he received a life sentence on the jewelry homicide count and he received a consecutive twenty year sentence on the aggravated assault conviction in this petition for constitute deficient performance and that deficient performance caused his prejudices i think it's significant that regarding three of those issues each a separate one of each of those the reputation of jim anger who was involved in the aggravated assault charge for his propensity for violence the failure to impeach reese cobain who was the only sober witness to this whole event with the fact that he had given inconsistent statements about his where he was during this event and the failure of the state  arming aggravated assault conviction in the state court they determined to run the aggregate to solve conviction concurrently with the deliberate homicide conviction the federal district court reversed that it reversed the conviction on the aggravated assault finding that if there was enough prejudice to require a remedy then that by definition undermine if there is a reasonable probability that it affected the outcome and i think it's important that that reasonable probability standard is less than a preponderance of the evidence the other that that's my problem yet and i would respectfully disagree that if you can say that there is enough prejudice to require a remedy that once you decide that there is enough prejudice to require a remedy there as the federal district court did to make an independent determination that there was in fact sufficient deficient performance and sufficient prejudice to undermine confidence in the church's verdict  going beyond what the state courts that and to looking at the record in this case to say wait a second when you put this together and you look at these errors one that goes to each of the state's  witnesses in this case then a finding then you have to find that there was sufficient problems to go to the jury's verdict and hope that he and his dancers because of course the district court is making the both inconsistent and unreasonable under the circumstances and that is because the self defense dispensed went to both the aggravated assault conviction and the deliberate homicide conviction hagan's perception of the situation was that reasonable and i think that that's especially important in light of his testimony which was when i heard somebody coming up the stairs and i saw this other set of legs i thought it was a  this person who was attacking me and who i've been in this struggle with so that i get into so in order to split up the aggravated assault and the negligent homicide conviction the magistrate judge had to and did invade the province of the jury by finding facts and you can see that page twenty eight of the pitch forty of his decision i think it was making the determination that it was unreasonable of petitioner to then turn around and twenty eight and page and the other thing that i think critical here is both the state and the federal court made the error of determining that alice had to be an aggressor in the bottom line here is there's a reasonable there's of hagan's belief on the need for the use of force the crux of his self defense claim goes to both counts here we have one continuous event one trial one jury deliberation and the evidence here went to both charges the critical critical element of in the jury's determination is who they believe to they believe they can do they believe hagan and his wife gavin whose testimony in can believe he was being attacked by an unknown intruder i think it's you can speculate that they would have acquitted on both counts or they could have acquitted on the aggravated assault countenance that but it was then of there were fires occurring around restatements property at this time and he had been warned that there were some of the people on the fire crews were dangerous and there were some other problems and so to be very careful and cautious he woke up granted from a drunken stupor and two people who had been pounding and kicking on his door he did he walk from the back bedroom to the to speculate here and again this would be a charity issue that what happened is jim anger did fall in the door he start bruce tegan with a gun grab the gun bruce didn't know who it was and then the struggling determine who the next person coming once again that's a jury question and regarding that issue of whether and negligent homicide instruction should've been given one of the things that i think  jury question becomes is what is his motivation for doing this and so he could just regarding the aggravated assault conviction that's there's never there was never any argument that he should have requested a negligen unreasonable and we as a federal court tell the mind has to court that it was it was wrong with a state law determination when it when it becomes a matter of was it witnessed improperly impeached which becomes a counsel and it's if based upon primarily the testimony of harvey himself if the facts showed that he was thinking it was if you will pardon the sports metaphor there's no basis to really believe that he was acting under any of the elements of the purview of self defense in montana that's why the state meetings that under any of the issues of ineffective assistance of counsel would not make a different result even if the state  you thank you very much that trial counsel didn't raise the self defense defense as to both as to both counts but i would i would refer her to court to the entire trial and to particularly some of the things that he said in closing at page charles transcript for at page one thirty seven his that but mr hagen it's just been involved with what he thought to be a struggle for his life he just shot a man he was trying to determine what was going on and then through the door he says comes a figure a figure that he doesn't recognize what you arms i don't know what you bigger than him didn't take time to notice but the fact is when he shot her she was five to seven feet away from five to seven feet according to the forensic evidence for the muzzle of that gun he didn't pick take a lot of time to calculate with the  here that bruce aiken is innocent by virtue of self defense of the crimes for which he has been charged i'm saying that when the events of that evening happened he was frantic he was afraid for his life he may have been mistaken but any one of us may have  mistaken under the circumstances the mistake was a reasonable one although it's odd to apply the word reasonable to a serious that danced like this and the prosecutor in his closing also recognized that people leave was a jury question  your going on to the to the failure to present evidence regarding anger there's the only evidence in this record is that that evidence didn't come in because  counsel didn't understand the law and tactical choices can not be made on a misunderstanding of the law that have alleged the trial pouncer counsel did not understand that reputation for violence could come in and reputation for violence could come in in either of two circumstances if you don't know who the aggressor is to prove who the aggressor was and if you do know who the aggressor is to prove your state of mind that was the law of montana at the time of this case regarding the petition i would argue that i have not been at all inconsistent the petition only very quickly but regardless we just have to give the states reasonable notice we did that we argue the exact same facts and the exact same law i'm being inconsistent determination issue morning once again we've had an opportunity to caucus i've spoken with my fire chief and we believe we have some agreements in concept there are many particulars we still have to work out we would propose to notify the court in about a month if we're able to reach a resolution you know we have very skilled arbitrators here you know that we have one and seattle to