the morning or hours may it please the court counsel krista hart i represent gerry fuentes the appellant in this case there are two issues before this court the first would be the substantive in effect ineffective assistance of coun claim involving the mental health expert the second issue which this court asked us to brief was the procedural bar issue and the timeliness issue i'm going to address that first because that determines how this court no finding on the merits in the state court then this court or the district court reviews it to know how do we know that there was no finding on the city or that is what the district the magistrate court found in the filed and the district court or in the before the magistrate court was hearing this the state and this is included in the excerpts of record at page twenty five says the california supreme court tonight the petition as well the state argued one thing in district court or before the magistrate court then did not object to the magistrate court's findings recommendations and now in its answering brief in this court is arguing something slightly different so my argument that i raised in my opening brief is that this issue is waived that this should have been presented to in its answer or in a motion to dismiss it was not and therefore when the magistrate made the finding recommendations that this was based on timeliness and there was a procedural bar but the state did not assume a procedural bar so it's a bit confusing but so my point is that because of the waiver the review that we don't consider the fair minded jurist test we don't consider the unreasonable application of our contrary to establish the prima court precedent test we don't follow harrington directors doubly deferential test this is a straight evaluation of ineffective assistance of counsel on their strickland but so in other words what's confusing he arguing for a way to procedural the fall yes because even in their answer in the lower court they specifically said this was not a procedural default and still their position is that right yes it's their position because you on this issue there were two petitions filed before the california supreme court the first one in two thousand and seven which was a very big error bones claim and then after that was denied a couple months later mr fuentes received from trial counsel the trial file and in it he learned that there was  health evidence that could have been presented at trial then in two thousand and eleven mr fuentes filed a nother petition in the california supreme court where he had to hatch those  claim the first time it was certainly decided on the marriages are right yes but your argument is the second time it wasn't the second time was a different claim and it was not only because it had more in it was it only because it had more into it well  it's different because the first claim says that it's ineffective because counsel never explored mental health which is different then counsel had this mental health evidence and didn't presented at trial which is what the magistrate court found and w and you're arguing that that one was pursued truth or falsehood but that the government can't claim it because they they're they're not arguing here yes and so now they're arguing that it's not that it was timely that the second one was a second or successive petition i thought there i heard that it was essential is same saying was decided on the merits yes but the but that's what i mean by secular successive it's the same claim raised the second time but that's not what they did that's not what the magistrate court found that's not what the district court found they were  clear that there is a distinction between a diminished actuality defense and a diminished capacity defense in the state of california as it relates to the mental state necessary for a crime do you think that there are two w report anything to do with actual diminished capacity as opposed to the capacity to have well that's a that's a good thing that was struck dr who works his report was he got no history of the murder of the word that would have been trial counsel's responsibility to present that information but this is where it's not that mr fuentes did not because dr wicks would now be allowed under california law to testify to what actually happened on that night all dr wicks would be able to allowed to testify to is that mr fuentes has these this they do say that the expert cannot testify to whether he actually harbored the requisite mental intent or not on the at the time of the says that he i must say that i've never been convinced that this distinction exist i do not understand what exists and to hold that distinction i understand there's a bunch of words where people try to claim that it's different but i've never been able to get my head around was different  nonetheless cutting to the sense that an expert's opinion that a form of mental illness can lead to impulsive behavior is relevant to the existing phone on of the mental states or premeditation and deliberation regardless of whether the expert believed he actually harbor those middle stage at the time of the killing but but my understanding is that he still could testify as to whether those behaviors could have affected the mental state the relevant mental states and that's what he was doing but my argument is that i think it's a little more subtle than that so dr wicks would testify that mr fuentes had a long history of mental health issue and that he and his mental health issues lead him to act impulsively lead him to have an inability to process social situations and act appropriately those kinds of things which dot about the specific event but which a jury could infer if he has this general mental condition that makes him susceptible to impulsivity and makes him you know unable to process all the other that he could enter coddington other cases testify that because he's impulsive it would be difficult for him to form these mental states but not that he did or didn't do it as a test that's right but that's the second he wasn't doing he wasn't connecting the impulsivity to the relevant mental strains but i'm not sure that he was required to i'm not sure and i guess if the trial counsel didn't ask the expert to make that assessment the experts only going to get well that's true but that my understanding is the reason why it was the court said that it would have made a difference because it was essentially he might not put it on for whether in the lawyer not making a mistake about which was which could have nonetheless decided that his testimony just didn't get where you want to go well i have no idea why the attorney decided to not present this evidence in my view that we're supposed to say if there's a reasonable reason that is that some any lawyer in the world would have done it and that's ok i don't i don't think on the  wouldn't be surprised if that was the case that's typically what happens but i know that trial counsel argued in front of the jury to convict a manslaughter they trial counsel conceded but i make a difference to me if i'm trying to figure out the possible consequence of this evidence if the jury is given the choice of second degree murder because the jump between first to be a manslaughter is a big one and the jump from first to second is not is nowhere near as big and the evidence might have made more difference of that's what's if that's what's at issue  good morning justin reilly on behalf of the warden may please the court on the timeliness issue i pled the case in the district court below and i have only ever assumed that the state court denied this particular claim the ineffective assistance of counsel claim on the merits and that is because it was presented to the state court on the first round of collateral review and denied on the merits with no procedural bars you say presented as the career for the first petition of the california supreme court that is correct it was denied on the merits was there anything in the denial that it was citation or was it just a flat do not flat denial well that the second time the second time the court there were several there was more than one claim in the second petition and in the second petition there was a citation in re clarke which highlights that there has been a second presentation of a claim we know that because we looked down at the trial level on the second round of review and the trial court on the second round of your review found this exact claim to be a success in presentation so when it got up to the california supreme court on that second round of review the  that this is a second presentation of the same claim now just in case it wasn't the same claim because i know the district court found no this is a completely different claim even though it was the same claim with the addition of the works report that citation in the second argument of my brief was an alternative merits denial because what the state court says with a successive petition i'm sorry six successive presentation denial is that we've seen this claim before and to the extent you change anything at all with regard to the facts of the law it's a change that didn't make a difference that's an alternative merits denial that's why i have only ever treated this denial of the state courts resolution of the ineffective assistance of coun claim as a merits denial at all times waving nothing i'll move on to the merits but what do you do well let me ask you this the yes in the petition presented to the california supreme court the first time around yes it was presented prose yes and it had very little in it that's true that would have helped that court decide whether in fact there was an effective assistance of counsel that is to say if i had been the california supreme court with that in front of me california courts later absolutely though what do i do with that that this is a eventually we got a fair amount of evidence provided to the california to the california courts that were not presented to the california supreme court the first time around here and it was presented to him first time around usually presented to the california supreme court the first time around by him acting pro se do we say he's absolutely stuck with that pathetically an adequate proffer the first time around  first petition absolutely not and that's where the alternative nature of the successive presentation bar comes in it's we've seen the claim before and importantly if you change the claim at all with the addition of new facts for instance the w report it's not enough to change the outcome of the first proceeding it's the alternative nature of that bar that takes into account more pleading more evidence both petitions were pled pro se in the first petition he supported his claim with a report from a prior physician mental health expert and he noted that he was tested by dr wicks but did not attach a copy of the report he argued that dr wicks who tested him should have come to testify at his trial and bolster his mental health defense he argued all that in his first petition the second petition was a little more argument and not much just a little and the week's report the week's report was pretty much the only thing that he changed between the first and second going on with regard to that claim so all of the the actual report shows even if i agree with you and i do he has the evidence now it's a huge change in the california support whispering court looks at it and says even with this huge factual change you have all the support you alleged in the first petition it doesn't make a difference the alternative nature of the success of petition bar denying the claim on the merits doesn't speak to the minuscule amount of evidence that is presented it speaks to the quality of the evidence presented does it change the outcome no denied testified to was this person has impulsivity and lack of intelligence in someone and so on and that that something about this is why i say i don't problem and i believe that's what the district court was getting into it wasn't confusing the difference between diminished capacity and diminished actuality it's that the district court was recognizing the only thing we have on the record in front of us goes to diminished capacity there has to be some sort of connection as judge the i'm sorry go to the hand he's not allowed to testify and make that conclusion for the jury but there has to be evidence of that there can't just be impulsivity in the air there has to be substantial evidence connecting the impulsiv very impulsively consistent with his report but there was no other evidence tying that to the crime for example dr which report could prove or or could tend to prove to the jury that impulsiv resulted in him going and shopping and running up a credit card bill being impulsive with regard to shopping there had to be something that tied impulsivity reflected in the report to the crime and that wouldn't have happened necessarily through dr weeks is testimony but it wasn't reflected in the report we have to you can't view the report as necessarily what exactly would have come in a trial it was foundation for dr  testimony dr weeks his report was a signal to trial counsel that hey here's what i would have testified to and here's how the connections would have been made you have to put yourself in trial counsel shoes after trial counsel gets dr weeks report he's on the phone with wicks what is this one thousand pages of report mean what how can i use this trial how would you be cross examined on this how would an opposing expert handle your testimony how do i connect it just to be specific you're not arguing that this would have i'm sorry it could affect me but they seem to be saying that it's relevant to the existence of mental state supreme meditation deliberation and therefore i can comment so it could come in yes but the mental that goes back to my comment there can't just be impulsivity in the air the impulsiveness has to somehow have affected his decisions to commit the crime there has to be a connection between oh he's just impulsive he's mentally impaired in some way he can't learn he can't remember well how does that how does that affect his decision to kill then i think that i think what you're saying makes some sense but i don't think under california law that means of the port is inadmissible it just means that the utility for the offender is somewhat limited in california there is a relevant standard where you have to show substantial evidence that i just read the excerpt from cartoons and says it can come in and then the lawyer can say but it doesn't the prosecutor can say but it doesn't tell us much that's a general admissibility role which has to act in concert with it has to be connected to some issue in this case but of course it's connected to the issue in the case you've got this you know you have a defendant with these characteristics he's going have trouble with impulse control that's what the that's what the psychological report from the expert says and then the lawyer says well look at that look at the crimes of the lawyer can make the make the argument that's the connection and then the jury's after the german where there's a connection we're told we counted in the that the psychological expert cannot say and therefore i conclude he did not have the mental state required for the crime but he can tell us about the mental state as he describes his characteristics imagine if you will a doctor working along with my description of california law because there has to be a connection between the evidence and some issue at trial consider if you will dr wicks makes the conclusion that when petitioner is in a stressful situation he immediately falls asleep narcolepsy how is that connected to whether or not he killed the victim  it that's the problem the doctor which made an impulsivity conclusion but how is that impulsivity connected to whether or not he killed the victim are what his intent was at the time until the clicked on this case to be connection of course on this case there's a very strong argument that there is a connection you've got you've got a kid who's got mental problems you've got a fairly strong argument on the facts that this man is terribly irritating to him maybe or maybe not saying here and now in mexico mexicans are all like yes irritating him i mean at that point is child's play and for his lawyer to make an argument that his impulsivity comes into play and the jury can or cannot believe it i believe that is true yes and he did make that argument but he contends any expert saying that he had sorry petitioners father took the stand and testified vaguely that petitioner couldn't understand had a low i q seemed to be not very intelligent that allowed trial counsel to argue to the jury listen he kind of has this i q problem maybe a mental impairment and kind of threw out a taste of maybe the intent wasn't there if he had presented an expert if he had presented that report the prosecutor would have acted in kind called his own expert tested the petitioner and this is where you have to walk in trial counsel shoes trial counsel called dr wicks he said how would you report fare on cross examination how would it fare under peer review and we and his testimony relevant was that with something like on this occasion the defendant was faced with a situation which activated his little more bulletproof to peer review cross examination because imagine the questions prosecutors going to ask when if dr weeks stood up and testify consistent with his report he's impulsive the main shopping  isn't impulse control something that every intentional murder suffers from so he has to make some sort of connection to protect he said he couldn't testify and he couldn't have testified to it but then he would have showed trial counsel had i see we're disagreeing on that if i just don't understand i'm not even criticizing you know i don't understand the whole thing we the court's permission i'd like to make one very minor point it's a major point over you've got thirty seconds for me ok dr which report supported a manslaughter conviction dr wicks his report could not have been injected injected into a heat of passion defense because diminished actuality cannot yield a voluntary manslaughter verdict it cannot the california supreme court has been extremely clear that diminished actuality results in either acquittal or murder it couldn't have been injected into this defense there would have been increased  defenses they would have been bifurcated there would have been a trial court instruction i'm sorry tha then we saw spanish then i don't know the answer to that question your honor and you're right it might be critical if that's the case but this is the first time that the state has proffered that as a reason for why this is not admissible but as to the  argument the state stood here and argued that it has only ever said that this was a second or successive petition based on the first petition and in their answer in the district court based pacific indicated petitioner argues that the claims merit to know a book review do no one is court because the claim at issue was rejected by the california supreme court and in two thousand and eleven on timeliness grounds the court agrees so that was the magistrate's finding and then the very last page of the magistrate's finding says the parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order the state did not file any objections to the magistra that should have been done in district court ok thank you very much