and then time permitting i'll look at the answer to questions about the brady claim however if there are other issues you'd like me to address or if you'd like me to address those in a different order i'd be happy to do so start with the one you'd like to start with if i were you objected to had they not run out of print three strikes and then after that trial counsel said judge in addition to that miss merchant who was panelist number ninety five and today number twenty six is a black female who was struck by the state judge in reviewing the state strikes we would like to call to the court's attention that i believe i can represent to the court and the state can correct me if i'm wrong that every black panelist was stricken from this group then trial counsel named off the names of the other four black panel members that had been struck by the state those being guidry rogers taylor and clark council then continued so judge if they had fourteen strikes they used five of them over one third against the black panelist also in addition every black panelist was struck trial counsel then moved on and specifically elaborated about his strike with regard to miss latrice merchant prob counsel you mean prosecute no actually trial counsel defense counsel before even this before the state gave their race neutral explanation trial counsel elaborated on on their reason for striking this merchant it appears to be almost an attempt to rebut the state's raised neutral reason before it was even given but after trial counsel gives this explanation further explanation additional with respect to miss merchant trial counsel said and we invoked the rules of bats and and the state of texas to tap challenge the state strikes on a racially determined statute counsel made it clear you know that they were challenging all five of the strikes at that point the cork asked the prosecutor for a race neutral reason the prosecutor said that this merchant struck her as someone who already had her mind made up the court agreed with that and then in addition offered its own explanation and said well she's a banker and i found that that's consistent with with how bankers are in my experience as we point on a pplication we believe that that that was incorrect in the judge should not supply an additional reason in the court below judge atlas held that the district court had required the state to give a race neutral reason with respect to the other four jurors because trial counsel did not elaborate on those strikes and in doing so the district court held mr price down to a higher burden than what is required on your back since first stop believe that was made clear in the case johnson versus california the supreme court made clear there that the first step of that's and and then the next step really is for the court to determine whether or not the court is going to require the other side to give a race neutral reason for the strike isn't it what happens yes that's going to court could not even require that the other side respond to your ch right if the court believes that you have not made a prime official case and that is exactly what the court would do and i think it's clear from the record that that's what the court did here they held that the strike with respect to the other four black payroll numbers that did not constitute upon th a case i think i mean there are some troubling things about the statistics you point out on the strikes in some evidence you have that the same reasons least some of the reasons they used to strike this black juror were also true of white jurors but judge was first found a procedural contained in the petition one which we believe was otherwise before the court other two that were in the petition we believe that for the very same reasons that the supreme court has held that claims that ineffective assistance of trial counsel not being discussed on which which arguably is before the supreme court in the v a now correct but she goes on to drop a footnote saying even if martinez could stretch to encompass ineffectiveness as appellate counsel here you so texas in responding says one you didn't brief low or even here in effect leading to failing to obtain the questionnaires that wasn't presented to judge atlas or even to us in the notice with respect to the questionnaires i think it's clear from how things played out with the questionnaires in the court below that any attempt to get the questionnaire is most likely would have been futile because of the way the state so let's pushed against those you asked for them in front of judge and i agree the state wasn't just handing them over but in front of judge atlas and federal hey b s you follow them up you or whoever is representing the defendant the time felt emotion and judge was granted and then the questionnaires were turned over now i know they lost the card you never got the cards but the why when the questionnaires that have been turned over in the state appellate proceedings if there were a motion to requesting them well by the time joe price has got to stay these proceedings the  judge hill would have responded to your request for the questionnaires on page two hundred three of the record on a hill there is a document that is written by a staff attorney of the office of district court for harris county  nothing in front of judge out was that raise this issue about the inability to get the questionnaires and state a b s you know there's not an entity and sort of how do we mean word a certificate of appeal ability stage even a normal appeal you're stuck with the the summons cards if they had not been destroyed to attempt to get the seating charts if they had not been destroyed and those are all things that director kill counsel would have had to have done to effectively raised the batson claim in direct now i don't think there's any question that the strike that was made should be sufficient to have found if there was a problem a fish a case we list the price versus came case in our brief johnson versus california and i simply just don't think that there's any way to have found that that was not sufficient at that point the burden was on the trial court to require the state to give a race neutral you have to consider all of the structural together to see if there is any kind of i just spirity between the way that they were questioning the others and to make other analysis and so i think that even with respect to this merchant it's a mistake to consider that in isolation without a comparison from the other four jurors and again we cannot make that completely here because their broker does not preserve because the state for proceeding argument turned back on to the deficiency of the extremely unfortunate these records are lost but it's your burden on federal a b s to show some type of constitutional violation and how are you going to prove that if you don't have the records to prove i believe that the constitutional violation i believe we are able to show enough with it to show that the state court proceeding was ineffective it is not entitled to any deference i believe that what we have shown is enough i believe that there should be another procedure mr price tag should have an opportunity to  and the questionnaires laying those aside i do think his ability to to satisfy batson start problem has been hindered by that the a reality that would at least be a step in the right direction i would be what this court ordered price vs came which is for the district court to have an evidentiary hearing and allow the state to give race neutral explanations that were not contained in the record that would at least sure that part of the problem and allow us to make a comparative analysis that we're required to make and about some third step then there might not be a remedy for the summons cards and the and the seating charts i would hope that there would be though i would hope that the harris county district courts office can't destroy mr price taxes rights under battened simply by throwing things away one month after the trial is over about with respect to the questionnaires with respect to the  state reasons i think that could be cured in the same way that this court cure the error in price versus came in the back to the district court for an evidentiary hearing there aren't any more questions about that that's an issue i'd like to move on to the  texas code of criminal procedure article thirty seven zero seven one section two be to tell us the trial court that in cases in which the jury charge at the guilt or innocence stage permitted the jury  to find it permitted the jury to find the killer defendant guilty as a party the court has to submit to the jury the issue of whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken the special issue was added by the texas legislature in one nine hundred ninety one in response to the supreme court cases in maine versus florida tyson versus arizona the texas legislature felt this instruction was required to make the findings required by and in tyson at the time of mr prize tasha's nine hundred ninety six trial before trial price taxes counsel filed a motion asking that this particular special issue be found unconstitutional because it fails to provide sufficient guidance to the jury in their assessment of the defendant's sentence for the statute requires the jury to find nothing more than they were required to find to convict the defendant of capital murder in other words trial counsel's objection to the special issue was that it did not do enough and because they felt that it did not do enough that it was unconstitutional they objected and it was not included in the verdict form that was presented to prise tasha's jurors in other words they did not have to answer that special issue how do you get around to genocide nichols versus scott and said that our court is said that there is no constitutional problem with failing to give that parities case both nichols and jake ups dealt with cases that were tried before nine hundred ninety one and so there were different special issues at play there the first special issue under that regime asked whether or not th in an act deliberately and with reasonable expectation that death would occur the second special issue under that regime is similar to the future dangerousness one that's present in today's scheme what this court held in nichols is that a failure to give the anti parties instruction in the guilt phase charge was not air under in them tyson because the jury under these two special issues that were present in that regime i had to make those determinations that allow the drift to consider those items we're talking about a different issue here you see in nichols and in jake ups the special issue that would have required the jury to make the findings that are required  in tyson was present in mr price tasha's case it was not mr price tasha's drawers did not have to when deciding whether or not he should be sentenced to death they did not have to the findings required by inman entice them and bring in a pretty in four months that those are findings that must be made by the jury during the guilt phase beyond a reasonable doubt and that special issue the court over ruled power pal again was the nine hundred ninety four case that was the law at the time of mr price cash trial in one nine hundred ninety nine in mr price cash was direct appeal proceedings a directly over ruled power because that was something that was announced for the first time it cannot be considered an adequate state ground to deny federal review of mr prized tasha's claim law a state procedural reason for dismissing a claim can not be adequate is not firmly established and regula followed and cannot be so the first time is announced and so while it might be a different answer for cases today because the c c a beginning with mr price has his case and and several others have said that the invited error doctrine is a reason for finding that these are way way and there is a state procedural ground for not looking at the merits of these claims while it might be a different answer on cases today it's not the answer  what she does not address in her opinion of court below is whether this would have been strong impeachment evidence for prize tasha's attorneys to use his trial and that is important when we know that impeachment evidence is evidence that is to be considered in the brady analysis and was that argued below yes yes does cost a bit when she says the overwhelming prove key aspects of evidence  confession in fact it was detective roberts who is judge gilmore who decided to get his case and in the district court found to be the most problematic he had testified at one hearing that they did not know that mr guidry had an attorney and then later that he  have to find roberts and billingsley credible i mean after all billingsley whole story was that price tash confessed orally to them in a red lobster parking lot and then later in right after their arrest them his credibility is very important and i think that need to be considered in the br feels to point to circumstances external to himself needed to show cause he didn't necessarily had the questionnaires during voir dire and he does not detail what happened to the questionnaires after trial was over indeed he offers or he does not explain why counsel didn't have them on direct appeal or state abs and even if why trial accounts maybe didn't turn them over but even assuming argue window that neither direct appeal council nor state he was counsel had them they could have pursuant to texas law gone father motion with the district court asking for a copy of the questionnaires from the district clerk's office is clear that martinez applies only to claims regarding ineffectiveness of trial counsel that's a question just like spring your honor that's correct however if whatever the supreme court decides individual would not affect this case because before that court is the question of whether or not state he was counsel's ineffectiveness can serve as cause for not bringing a claim of ineffective  to be very conclusory allegation of ineffective assistance of public counsel hour before this court there is no issue of ineffectiveness of appeal of counsel merely they've couched it as in terms of martinez to somehow save the one juror even the margin isn't an arguable because her answer is the number she gave on giving the death penalty in the situation of someone who's not the triggerman or similar to a number of white jurors in fact were more supportive in some instances than white jurors who were kept on the jury that certainly that certainly is true she did give a number i believe it was seven another white jury member gave five however the particular issue they had that the state profit least with her one of the issues was that she was wishy washy in terms of whether or not she could give the death penalty with regard to that it didn't seem credible because then they also said they struck her because she makes up her mind she's so decisive that she makes is that she seemed to have her mind made up already on certain issues however when it came to the questions regarding this particular issue about whether or not she could give the death penalty to the middleman in a murder for hire scheme that the  and if you look at the questions she does seem to kind of never be able to commit when the state really tries to push it to commit one way or the other further discords this court's  believe that it was the second your honor in mind that the trial court once they've lost their bets and challenge to ms merchant the trial court then expressly asks trial counsel so your bets and challenge is to ms merchant and their quote back to the court is it is her we are pointed to the state or the court trial court then asked the state for its race neutral reasoning which is all with respect to ms merchant the trial court then overrules the objection against pacific to his merchant in the this court's precedent also makes clear that the state's reasoning does not need to be persuasive especially in the far removed proceedings of federal he views review it merely means to be really needs to be honest and it needs to be  needs to be race neutral turning down to the jury charge question the doctrine of invited to air the bar that was applied here is a long established concept in this country's jurisprudence this court has repeatedly upheld texas's application of that doctrine as an adequate state procedural bar and both state and federal courts have routinely applied this bar to jury charges and criminal trials that the c c a applied the bar here overruling the fatally flawed case in does not render that bar an adequate and didn't claim in the supreme court stressed that the adequacy question is grounded in concerns of comedy and federalism there the court said that the state has a dignitary interest in seeing that their state law decisions are not ignored by federal habeas courts to disregard the application here what undermined the c c s interest in course correcting and overruling what it called the fatally flawed case the but at the expense of the finality of their own judgment or preserving the finality at the expense of allowing bad precedent to stand the court also noted in killer that it would seem particularly strange to disregard state rules that are substantially similar to those to which we get full of force in effect in our own courts even stranger do so with respect to rules in place in nearly every state and all at one fell swoop you have any cases where the state court like it did he recently reiterated the only question before us is whether it's debatable by reasonable juror so why isn't that procedural question at least debatable even if you ultimately win on it because rather i think that the important question of the first important question is what was the bar and the bar was divided air doctrine that bar is unquestionably adequate unto itself then the second question becomes does the fact that was applied here deprive it of that adequacy the way that was a pl d justice thomas in his dissent said today's decision has directive ramifications if any book beyond the highly unusual facts presented here the majority simply disagrees with the courts below the application of the governing standard the majority does not announce any new standards or suggest that the district court or the fifth circuit applied the wrong stared altogether so it's clear from the decision that the standard remains in place the independent are invited your doctrine to the jury charge to their aspect of the jury charge when price tags came along it was the perfect set of facts for them to overrule again what they called fatally flawed case since price stash the auditing price stash is the law the invited error doctrine self is more than adequate to bar consideration this claim nothing about the c c s application of it in price texas case the price of that or about the merits scott still applies here because the special issue that this tree was given in particular the mitigation special issue was whether taking into consideration all of the evidence including the circumstances of the offense that's where it starts and indeed that was trial counsel's theory here on during punishment phase and it's the theme that they pressed over and over during their closing arguments that the circumstances of the of this case or the price tax was the middle man he was not the evil ex husband who wanted his wife killed and he was not the evil gunman who actually pulled the trigger and shot the woman he was simply the middle man and for that jury you should spare his life ramming those consideration of the of the the events of the oftens ramming them into the jury over and over and over so that they could give full effect in consideration to it and it did they were given the question they were given a question to which they co significant reason because the state here relied on a tripod of independent evidence apart from get his confession that was priced ashes own written confession his all state was discharging billingsley and importantly the extensive get indeed degree's confession played a small role in this case the statements were in fact first introduced by trial counsel when they introduced into evidence the pocket warrants used to arrest price stash the state later a little bit difficult some of my difficulty following the wreath is you don't cite to them are always cites it's separate documents so it's not as easy to check your assertions they claim that the guidry evidence came in yes your honor and if you not as i apologize and i also apologize here because i am going to have to give the reporters record cites what your memory of the trial did what did so i thought there they claim sergeant billingsley brought it up affirmatively in the government and in that would be correct your honor during the cross examination of and i will at least put this together i believe that depression that the truck was absolute the first ones to introduce the statements into evidence but they did not ask about the statements to be fair so when the detective to them in a yes your honor their argument isn't really just limited to brady gig leo their argument is that at least in closing and during trial the evidence came in and was the then characterize because her testimony spanned about fifty one pages of the record and through her testimony they were more than able to prove all the elements necessary for murder for hire including the remuneration aspect and it's important to note your honour's that when case was was extreme such that number that she wrote down for the gun was that offered into evidence in this case your honor i do not recall it that the fact that she wrote the serial number down was was involved i do not recall if the actual number itself of barefoot by limiting dr calas testimony however nothing in those cases say that they don't stand for the proposition that the test that any testimony may be may come before a jury absent rules of evidence indeed here the tr that he had no personal knowledge regarding the prison classification system and on findings that any statements he made about that would be inadmissible hearsay the trial court probably limited his testimony in that regard this was simply state court making a decision based on state  barred as a c c a held he failed to preserve the error by not objecting during trial nor questing living instruction now the bar is still in play and is still probably before this court but the lower court simply found that this court's precedent clearly forecloses that issue in a deed this court has even said that to determine such would be a new rule of law barred by t priced i simply failed to show that reasonable jurists would debate the lower court's disposition regarding his supported are bats and claim and whether there is cause to excuse the default counsel mentioned that we don't know what happened to the questionnaires after the trial in fact i think the record provides us with an explanation of what would have happened to the questionnaires after trial again i would refer to the court to page two hundred three of the record on a kill others is the statement from judge hill and there she says that immediately after trial all these questionnaires are gathered together so i think we do know what happened to the questionnaires after trial with respect to the bats and claim and therefore drawers that the state did not have to give a race neutral explanation to the state's argument here seems to be that by using the language we are pointed to miss merchant and answering no to the court's question anything else that mr price tasha waived his bass and claim with respect to the other four jurors there's simply no case that holes that you can waive that's an at that stage i believe i only found one case in which this court has addressed a similar situation and that was affirmative step to prevent the state from doing what was required there's simply no case that holds absent taking some affirmative step mr price has quite a way of his pal interrupted what otherwise has been a consistent jurisprudence that the invited error doctrine can serve to dispose of claims such as mr price taxes that is not the case in livingston versus state livingston to is separate from my stashes livingston had to do with whether or not it was air defense requested an additional special issue one that had not been called for by the evidence in the trial  could cause an error under inman versus tyson that is not what happened here here we're talking about in a limited issue and punishment you see in nichols in the jacobs case they still had to make that consideration at punishment and they