master judge tolls or recommends a holding that because the california court of appeal applied the wrong standard as to how much times the federal judgment as to harmless just under backed is just an ordinary if we get to that point back to the standard correct talking i thank you but the court did expressly decide the issue of whether there was constitutional error in the exclusion of and increment of additional decisions in washington versus texas and chambers versus mississippi that will however has never been explicated by the united states supreme court in what could be called a clear or wind drawing fashioned the rule is at best general the case and then finally the decision by the state court that there was no constitutional violation was reasonable under the facts of this case that is the california court of appeal  know i don't and here's why it wasn't central crucial or critical propensity evidence might make a difference in a case where a a defendant who shoots in the exercise of he said that he shot him only because after mr cortez it returned to his bedroom no entered and first picked up a weapon mr know picked up the twenty two caliber rifle and began to point out that cort was that he took that weapon from mr know and that he turned the weapon on no and then shot him and shot him only as you know continued to advance so propensity but didn't matter also if you look at reasonable they indicated that propensity was not the matter on which this case was it wasn't an issue in this case by any means there was no question that mr knoll was a violent man and  people on methamphetamine are quicker more violent stronger i mean that it could very well be a different kind of an attack and if mr cortez was right allowed to put in a scientific testimony i don't agree with that i think and here's why i will say that i think there are besides mr cortez's testimony in which he never really said that i believe know was irrational or especially dangerous or out of control in fact always said was i walked into the room trying to separate to get some separation between us i walk into my room and when i as i was trying to put my pants on i turned around and mr noir was in the room with my twenty two rifle my twenty two percent grip rifle in his hand and he was beginning to point it at me so he was responding if anything if that happened to an actual to an actual attack in the problem with that defense was that his own witnesses who are called as defense witnesses could see into the bedroom both of them said one of them said that he thought mr is on the record had entered the bedroom and begin to to what he thought was low the weapon that so that cortez had weapons then but but i would add that i think what further demonstrates that this was not central to the defense is the way it is the way to rove it appears that it wasn't part of the opening statement anyway that it because it was the prosecutor who first talk about an expert who would say that the defense might increase might provide approach and increase propensity towards violence excuse me but so it was both it was both informal and incomplete when it was first ma that is if no followed him into the bedroom knoll was first to arm himself he disarmed all and then fired at him only as knoll continued to advance this case is over and you should acquit but that's not what the defense wants and are that's not what the evidence showed in this case the court has argued national and and attacked i defend second stent actual attack not against some imminent attack but an actual attack and he said that he shot a couple of times and only has only asked you know continued to advance but his own witnesses said no no armed himself there was no evidence from anyone other than cortez other than those of the struggle to remove the weapon that there was no evidence of that that there was one shot that occurred shortly or mediately with the terms that you that were used to describe it shortly or immediately after knoll entered the bedroom and a lot of back and there's the first shot that puts mr mr knoll to his knees and then there are some shots of our court has apparently maybe up on the bed at that point there are a series of four shots that follow one of those four is the one most likely to have been  was that death would have occurred within minutes from any of the three fatal shots and the reason i suggest that's in part is important because the district court erected a new defense in this case that is that he may have been dead after the first shot someone is not yet dead in the sense of no longer breathing man has been mortally wounded and will inevitably die within a minute the law and that would be whether the whether the defendant honestly and reasonably to have a full self think i don't think history with that with that with the statement that was unique i take issue with the inference from by the by the district court that unique meanings important but we kind of looked through what the district court did and if we look at what this was relevant because propensity evidence is relevant when there's a self defense case and it is and it was not wholly cumulative because it was it was the only objective evidence on this issue but then they spend the next five pages to forty years and in the light to life which at his age and given california procedure right now with regard to life sentences you know never come out of this and based on a decision by a court to exclude evidence that was critical what you look at is the impact of the exclusion of that didn't sit there was a constitutional error on the jury's deliberations on the jury's jury's verdict and what i asked the court to consider is the fact that rarely if ever certainly not in my experience this evidence to come in and made by mr skilling the defense attorney is informal i think it's really very contrary to the facts of this case and to the to the representations made by mr skeel easy as to what maureen blackwood testif with him most of that day and presumably would have known since she was interested in the the issue of whether he was using drugs would have been very interested had he there was polly richardson's testimony that she was with them when out all day she was  came and drove up to the cabin and then the medical examiner's testimony so there was evidence elicited by the prosecution in this case that you know well was not under the testimony or quite argued but it is my blood was up i was terrified i didn't know what to do we know when somebody has blood we have rules about i mean many police departments have rules about if they just completed a high speed defense that would reduce this from second degree murder i think is how here's here's why number one we don't know it is we don't really know which was the fatal shot and we don't know that the first shot that bring completely and this is probably not a legal term but i will use it was guarded by the fact that the cause for him being in that sphere the cost in terms of noelle's conner was not allowed to if court brought up in terms of the number of shots and i think with the with the district court was saying it is and let me answer your question directly i think if someone is mortally wounded and additional shots are fired i think i don't think you can say well the person is mortally wounded and so now from anything i do from now on is manslaughter it's not murder i don't think you can say that and i don't think that that's the situation that we have here and i don't think we know that that's the situation that we have here the only thing that we there is no evidence in this record that i can say but that knoll was alive when the shots were fired there's no evidence that he was dead you kno no no no there was evidence that he was alive until the shots were fired and when all the shots have been is being fired there was evidence he was dead but there was no evidence that he was dead and any shot was fired correct i don't think that that was i think that that's something that you would that was possible for him to determine precisely i think that  state of heloc court adequately considered the question of the jurors after two and a half hours of deliberations and i know that this is a point that i have repeatedly raised both during argument and in my papers but i think that's because could have could have yes let me just briefly summarize i think what are the salient points here that the erroneous exclusion of the blood evidence and of marine black's testimony concerning the impact of methamphetamine on violence crime has a substantial and injurious effect on the verdict and i think it's completely under the direct analysis reverse of all richard cortez a state of mind was the critical issue at trial and you know there is something that i want to just point out and and that is the dynamics of the trial and when a court decides to exclude evidence evidence which i think mr  impact for all of us to have done trial work on the dynamics of the rest of the trial and decision that issues of course that there's some interruption in the flow of the trial and the jury knows what's going on but unless this was a surprise presented to the trial judge when there's a ruling right there oftentimes as you know a recess there a sidebar a previous ruling doesn't know yeah i don't i don't argue that the jury you the importance of this evidence was again crystal clear when one looks at the question by the jury and we asked the crowd the decision of the district court was there any other questions i noticed i have a minute and thirty six seconds left thank your honor if i may just a few quick choice so the court you said that you believe it was prosecution evidence that mr knoll had not used or had not used methamphetamine that there was not under the influence  about about well first about the fact that blood had been withdrawn from mr knoll oh no mark my statement was the testimony from both polly ritchson and from stacy mccollum my recollection was that they say not often but it does say at least once that he was afraid of no well that he was afraid of no well regarded us of methamphetamine in this case nor was i text man who used violence to defense the defense presented essentially three witnesses on what happened at the cabin mr and mr cortez doesn't say i was afraid because he was irrational in fact he doesn't say i was afraid because he was irrational know a lot of back and freely  both of whom have used methamphetamine with this truck with mr cortez one or two days before the shooting occurred neither suggested that no all was either excited or irrational or are methamphetamine in fact the evidence was that no entered the home with mccombs and richardson he brought beer he was smiling in calm according to freely i believe that after that there there was the discussion outside within a few minutes after they arrive of the defense witnesses and i think it's really he says that he's not chasing after it there's no attack under way at that point and then the key to the defense is that cortez response to an actual attack imminent not an imminent threat something like it by the time if this happens by the time if this had happened by the time no picks up the gun the propensity evidence doesn't matter much what just to follow cause if i may and i think the course for patience with me excuse me here over so quickly where our own lives the district court applied the wrong legal standard misinterpreted and said quite clearly at several occasions that the constitution requires the admission of all relevant material before any relevant material defense happens they simply got that standard wrong the issue in this case was whether the california court