colbert this is not a case in which we're waiting for the supreme court to clarify the law the part of the pertinent constitutional principles are clear and they were cruelly articulated by the california court of appeal the only question is whether judge be erroneous we conflated a conditional for a request with an equivocal one his ruling was directly contrary to the applicable real legal principles you know age by both the state court of appeal and in this court's precedent given that everyone agrees that the fact that a forever request is conditional doesn't itself prove that the request is equivocal the question he only question is what evidence was there in the record to support the st claim the state court of appeal cited for things to support his holding three of them consisted of occasions on which appellant said that his first preference was to be given a new lawyer and each state occasion he insisted that if he couldn't have a new lawyer he preferred to represent himself rather than be represented by mr berry so the so your your argument here is that if he is clear that he says i don't want this lawyer if i'm not going to get a different lawyer i want to represent myself and the judge should say are right you are now representing yourself i mean i do want to be better we are but if it's him i want to represent myself i think it is relevant that the lawyer that he had was a terrible lawyer you do you conclude that the supreme court hasn't clarified words but they're playing around in this area and they've never clarified it but if they haven't clarified it then it that this can't be contrary to the rulings of the supreme court now what specific case do you have you're speaking to is twenty two fifty four d one there's no question about contrary to or an unreasonable application of the constitutional principles everyone agrees what the constitutional principle wills are the question is whether the factual determination was an unreasonable was whether the decision was based on our unreasonable determination of the facts that is a question that arises under d two that does not require this the supreme court to have decided these reasonable you know for his the reasonable miss of his request his sincerity that's your right that is largely if it's relevant it is only marginally but there's something i think that is more relevant and that has to do with the fact that he requests as i understand the record in this case  it's clearly complained about mr berry and that we've five but we've all read the back and forth on that but then at some point along the way he actually asked mr barry to file some things for him to file some sort of request from can you speak could you speak to that  state makes a big deal of that there is first of all there is no evidence in the record that he asked mr berry to do that mr berry said in his letter i got a call from the defendant and he wants th had been granted propre status i don't want i don't quite get that i just want to make sure i said i have taken for granted that they record the only thing in the record shows what the lawyer says happened and there's nothing to the contrary therefore we can assume the the trial court in the person of judge a had implored the appellant to consider using mr barry as advisory council to deal with just such procedural issues he said he said you can look at  an insubstantial motion with out of keeping with the advice he had received from the court doing so certainly was not intended and it cannot fairly be interpreted as any sort of equivocation about whether need please the court peggy rue free from the attorney general's office for the respondent of the supreme court has never has held that a request for self representation must be unequivocal but it has never defined that word or articulate test for determining whether a request is unequivocal it literally just mentioned that word in passing in the for about a decision so if that's what counsel is relying on here's the sentence weeks before trial for read it clearly and unequivocally declared to the trial judge that he wanted to represent himself so that's all for and has ever said about the word unequivocal and the lower courts have discussed what exactly that means but the supreme court has not so what that means is that the state courts have broad leeway to apply this very general test of what an unequivocal request really is what we do with the ninth circuit's case and adam hundred eighty nine pre eighty p a case and i think that's critical here because there's there's two factors that flow from that one is that adams was not required to be based on clearly establish felker which i cited in my brief distinguished adams carol for this exact reason because it was pretty a t p a and therefore there was no deference required to the state court opinion so the supreme court has made clear that deference and relying on clearly established supreme court law that's what distinguishes it from these creative cases it takes adams out of the realm of controlling precedent as far as this case goes i don't we cited adams quite a bit though word that's used in a supreme court case well to the extent adams appeared to articulate some kind of rigid test that's the part that there is no supreme court as authority saying this is the test and so to the extent adams says that i don't think that is accurate and that can't control for a state court opinion however i think that the controlling hey b s case here is the stance in the lambert case rahner author and this is how the court harmonize these these issues in an eighty eight case instance and it said a clear preference for receiving new counsel over representing oneself does not conclusively render a request equivocal under forever citing adams it may however be an indication that the request in light of the record as a whole is equivocal and i think that's what we court mentioned a number of factors first of all at the ferretti hearing itself the defendant said twice that if representing himself turned out to be too difficult he would have his family hire a lawyer so that's not consistent with him saying if i can't get mr berry then the only thing i want to do is represent myself he was saying even at the time that he was discussing the possibility of representing himself maybe i'll just hire somebody else then just seven days later he called mr vary the attorney he had just fired and asked him to file this motion to advance his case so he sought out counsel's assistance even the one he said he didn't like and even for the simple task so again that's not consistent with wanting to represent himself well what do you make of mr hutchens point that that was because the court was saying welcome you help on procedural matters you know maybe this guy can help you out i don't think that exactly what happened at the threat of hearing the judge granted his request but was reluctant to do so given that this was a murder charge and a serious case that he granted the request but he said the next hearing date to kind of flesh out these issues he talked about the possibility that mr barry might be a voice appointed advisory council but that hadn't been done very much in this county and so at the next hearing that they were going to talk about whether that was even possible but the judge left  e encouraged the defendant strongly to go out and hire his own attorney if that was in fact what he was thinking about doing so i think it's not a fair character of characterization of the record to say that at that f he was saying i feel free to use mr barry as your advisory council they were just talking about that as a mere possibility they had not resolved it and the focus was really on getting him to hire an attorney well that you're one of the record question i have for you that defense counsel will be asking the same question so the only record we have of that letter is a reference in a transcript correct correct and the quote from that letter the judge at the time was apparently quoting from that letter where the defendant said your honor i know i need an attorney for this homicide case and i need all the good help i can get and remind you counsel mr hutchinson mentioned judge a judge be the judge you judge cla but that was another factor that the state court cited the statement that he made in that letter that he knew he needed and attorney this was a homicide case and he needs all the help of good health he can get so clearly that shows that he didn't want to represent himself that he knew he was facing these serious charges and then the final factor that the state court cited was that when judge c actually reappointed mr barry and the defendant was trying to say no i really do want to represent represent myself the court said based on this record i don't believe you so that is a factual determination based on the face to face confrontation that the judge was having with the defendant and when the defendant said no i do want to represent myself he said i don't believe you and it was based on all of the things that i just outlined he was aware of this statement that that he said he wanted all the good help i can get and everything else that i've just outlined so based on all of that this is not a case like adams where  the way out of stated it was adam so one position stuck to it if the court would not order substitute counsel he wished to represent himself that's not what happened here and so the state court was aware of adams that the sting wished it on these facts and that was not a reasonable one other point that i definitely want to emphasize about what the state court did is it discussed at length the presumption against the waiver of counsel now that's also clearly established by the supreme court every court indulges a presumption against the waiver of counsel given that overlay that we want to ensure that the attorneys are representing people because of all the rights that then and sure's we have this presumption we have all these facts and i just outlined and then the ultimate question for this court is was that an unreasonable determination of the facts given the every day dictionary meaning it it is irrelevant that the supreme court has not talked to what equivocal means in this situation in terms of the letter th snippet to which the opponent immediately said that is that's not on my sat i said if it's if it's mr geary i'd rather represent myself this is exactly like adams in adams the same request was made in between judge kozinski put it sandwiched between the two hearings this is quite different from stetson stenson in which the defendant did equivocating did keep vacillating this is a case in which the defendant did take one position and stick to it i believe that that sufficient for now thank you thank you very much counsel on the matter is