good morning and may it please the court and when we go on dike on behalf of petitioner chanting the district court in this case applied the wrong legal standard a legal standard substantially more burdensome than the one that should have applied in this case oh excuse me your honor unless the court has pacific questions regarding the investigation claim i plan to focus in this argument on mr de ineffective assistance of counsel claim regarding the failure to preserve his bass in objection regarding that claim the district court applied the wrong standard the district court applied the substantially more difficult standard of section twenty two fifty four d when in this case do novo review should properly applied that's because in this case mr gangs in effect assistance of counsel claim regarding his batson objection it is undisputed that i claim was denied on procedural grounds alone by the highest state court to decide this claim general rule in that case a lower state court denied mr amano as great a claim on the substantive ground of materiality and then a higher court denied on strictly procedural ground and that's exactly what happened in this case a lower state court denied on merits grounds and a higher state court denied strictly on the state procedural grounds so the fact that that was direct review and this case that situation a rose during post conviction doesn't have sent doesn't change the analysis that all the courts analysis in that case applies fully to this case the ninth circuit in that case stated that the higher courts and i had on different grounds that higher court did not consider the can the federal constitutional requirements of the merits of the claim this court said that the higher state court's rulings were based totally on state law and that the higher state court did not comment on the lower court's rulings all of those observations are equally applicable in this case where a lower court denied the claim on the merits but a higher court ruled strictly on the grounds of clark i'm just a little concerned here if a model applies here certainly doesn't follow that any california petitioner could avoid by filing an untimely petition reasserting you know the i don't know if that would be possible your honor but i don't think there's any evidence was it be possible well the court could for example make make rules regarding if it's apparent that petitioners are acting to sandbag the courts but there's no evidence that anything like that has happened in this case well no not in this case but if we see that happen in this case you know we send a precedent that people can just avoid well you know that's the general rule is exactly what was applied in the motto which is we look to the highest state court decision on a claim assess what that state court did only if it's not clear what the state court did do we ever got through a lower court's decision and so what i'm advocating here and what a lot of good is simply an application of the general rule which is we look to the highest state court that offered a reasoned decision on the issue so to the extent that a model creates that complication the entire look through doctrine creates the same problem but again your honor there's simply no evidence in this case with a pro se petitioner whose english language skills are extremely limited there's no evidence that he was acting in any way to subvert the requirements right in this case applying the rule of a motto than the district court should review this claim to know instead it applied to substantially more rigorous requirements of section twenty two fifty forty by reviewing the claim to the question should have been was mr dang entitled to an evidentiary hearing reviewing to know both petitioners entitle to a hearing if he's had no hearing in state court if he did not fail to develop the record in state court and if he alleges a colorable claim now in this case the district court overlooked the requirement that mr gang allege a colorable claim and instead held him accountable for his failure to provide adequate evidence of his first that the prosecutor struck all of the asian members potential jurors from the jury he further alleged that there were three asians in the jury pool and that all three of them had been alleged struck by the prosecutor he alleged that his trial coun point that's as much as it would have been possible for mr gang to allege because his trial counsel failed to her service issue there's no for the record of what the prosecutors explanation of those strikes would have been or whether the prosecutor would have made any explanation of those strikes so at this point the question for steps two and three of bats and is one that requires further record developments even to be able to assess and what's the authority i mean on the do you have any cases th make that ultimate prejudice showing at this stage given the state of the record it's simply not possible for him to prove his case he's required only to allege it not to prove it but he was supposed to hear the obligation to go the factual basis  in mind that mr gang was at most relevant points in time pro se and he does have a very limited ability to speak english so the things that he did first when the subpoena when the trial court made its order not to transcribe the jury selection there was no one in the room representing mr day his trial counsel had been allowed to withdraw and mr dan had not yet been granted the opportunity the right to represent himself in pro per but he was literally on represented looking at the record i mean he was the  why why should we say that you know he could have done this at that point well some additional things that he did that i think were expressing his his goal of preserving the record he did mention to disappear court that there was wheeler issue he attempted to file a motion on those grounds but the superior court rejected that motion on procedural bases so that alerted the court and should have alerted his appellate counsel that there was a potential issue that should've trigger the transcription that's both ways there were means also he should have asked for the hardier transcript yes your honor in a perfect world he would have also in a perfect world his appellate attorney would have done that and he did not tang has alleged that his appellate attorney was ineffective for failing to preserve all the grounds that mr dan has presented in his federal his petition it should also be noted that he stated to the superior court in his first state postcondition that he lacked a complete record he did he states that he filed a motion for transcripts and i know the warden questions whether that was filed but he swears that he did file that motion and while addresses a different day have a trial i acknowledge i think it makes clear that this pro se petitioner was making a real effort to get a complete transcript of what happened at his trial i couldn't find any any other cases should should get the benefit of going forward at this stage no your honor i was unable to find any cases that are actually a procedurally similar to this one but i can say that the general rule is that when a petitioner has an ineffective attorney we don't then punish punish that petitioner a criminal defendant for the ineffectiveness of his counsel so in this case you know the lack of record is the result of trial counsel's favorite failure to preserve mr dion's constitutional rights and so to punish mr dang then for the lack of record especially when he's further alleged that his appellate attorney was also an effective for preserving the record is you know unfair mr gang in that sense that we're punishing him for the ineffective assistance of his counsel which is the very issue he's trying to litigate now so i think it's true that there are there are a number of technical problems regarding the transcript but i think in general we can look at mr dang as an individual who was representing himself who had again limited ability to speak the english language and the record demonstrates that he was making efforts to preserve this issue for the record and he's argued that the the lack of record is the result of the ineffective assistance of both his trial counsel and his  it's also noteworthy in this case your honor that the district court also got the law on facts and substantively wrong so this court district court reason for example that mr bangs allegations that all of the potential jurors who were asian had been struck was inadequate because the district court said that some jurors of the fact that some jurors of color were seated ways against an inference of discrimination but i think it's a misapplication of discourse laws to say the fact that there are any members of the jury of any non white race counsels against the prosecutors discrimination against a particular racial group that's that's not what this court's law stands for and that's not as it should be thing makes factual allegations that have proven so just the his trial counsel would have succeeded here i think the laws that he needs to ultimately home need to prove a reasonable probability that prosecutor i agree with your honor that does not get all the way to step three of backing it simply can't but that's that just a fact of the record as it stands and given that mr vang's claim should have been reviewed to novo the holes in the record mean that he should have had the opportunity to further record development if there are no further questions i'll reserve the balance of my time for rebuttal then thank you good morning me and please the court deputy attorney general to monaco style of hearing on behalf of respondent petitioner has essentially conceded that he is neither entitled to relieve nor a hearing based on the record in this case he has not made sufficient allegations even under to know where we view to warrant a hearing he has only just that the prosecutor struck all three prospective jurors from the piano and the counsel did not object that that is whol insufficient not only to demonstrate deficient performance but especially to demonstrate prejudice even if all of his allegations are proven to be true this court's cases make it clear about the petitioner must at least allege specific facts  any potential reasons could even be inferred from the record and it's not enough to say that he was representing himself and that he didn't have to hoard to hear he represented himself during the new trial motion never requested a transcript of w yes and that would be true in any case presumably where the defendant petitioner makes an allegation of ineffective assistance of counsel for failing to make about some motion in that scenario because counsel has not objected the prosecutor has not had the opportunity or been called upon to give reasons but that is that that is by nature of the claim that he has asserted ineffective assistance of counsel for failing to make the box in motion and so he at least has to make some allegations more  to three prospective asian jurors to warrant a hearing in this case that is what just quotes cases require he's not entitle to hearing simply just search out the reasons for his case he needs to at least make specific allegations he was present at the trial and he's not made almost no no showing whatsoever of deficient performance overcoming the competence the presumption of competence that applies to counsel nor has he made any allegations whatsoever that could possibly be construed as reflecting prejudicial error by counsel and that is that those are the requirements that he has to meet otherwise the petitioner will always be able to come in and say well i didn't develop my record and i simply couldn't do it therefore i get a hearing that appeal is reviewing on the merits the trial court's judgment it is in a position to overrule the trial court or supersede its reasoning or supersede the ultimate outcome it's very different in the heaviest context each california he views court has the original jurisdiction just because if the situation or a later de lay's in presenting a petition to the california supreme court or makes an inadequate showing in fact court for his delay so that the court then finds him to be untimely that in no way changes alternative supersedes or negates the merits ruling of the superior court and this court did not say that in the heaviest context that would be true as a motto and there is no a pretrial ruling on an instructional issue the california courts on haziest review did deny the claim on procedural grounds and yet the on backcourt went back to the previous trial court ruling on the merits in give deference to that although it doesn't appear that the whether or not deference applied to that was a disputed issue in this case just looking to the courts and the court was actually called upon in that case to decide  ordinary peel where you ordinarily present the marriage directly to the trial court and it goes to the court of appeals and sometimes to the supreme court in those where you can present your marriage to a human and you direct appeal it is different because the higher courts are not actually reviewing the propriety of the rulings of the lower courts they're simply looking to the procedure the defendant or the petitioner is not even required to allege from one petition to the next the same claims he also has to make his own showing in each petition substantiating or excusing his delay and that in terms of go up the ladder of the petitioner in this case substantially not completely but somewhat almost that but that is a very that only takes us so far what matters under the statute yes he's the provisions of t t five forty apply as long as there's an merits ruling by the superior court here we have a mere it's ruling by the superior court that the california supreme court did not change that's what makes this  merits ruling surprise it isn't title to docklands under two to five fourteen and here we have a merits ruling by the superior court that survives there was nothing about the petitioners delay and failure to sufficiently justify his delay later in the california supreme court that changes the california supreme court was not giving an opinion about the timeliness of the superior court petition nor was it taking a position on the the superior court's ruling on the merits of the in the effective assistance of counsel claim so it's simply a separate ruling on a separate petition based on different allegations or sometimes as in this case similar allegation this showing for justifying the delay in that court it's not a review process like we do see an appeal and that is what makes it different so our argument is that d c does apply a model does not change that because a mo was only issued in the context of a direct appeal and in that situation basic rules of a public review dictate that the higher court is actually reviewing the propriety of the lower courts decision but that is not what we have here and even so as i argued to be canning there are not sufficient allegations in this case to not only not enough to demonstrate deficient performance or overcome the presumption of competence by counsel because the prosecutor may well have had obvious race neutral reasons for removing these three jurors but there are absolutely no factual allegations that could possibly be relied upon to show that such a motion would reasonably likely have been granted and so the district girlfriend at the time and he also we have begun an entire family threatened to kill the parents and all the children and not support occasions so criminal threats and some other charges as well very briefly the warden's effort to distinguish a model in this case relies entirely on the suppose a difference between the direct appeal and state haiti is proceedings the wooden repeatedly cited california's original jurisdiction system but general rule which is simply that we look to the highest reasoned decision of the state court it simply provides no basis for distinction thank you thank you