[00:00:01] Speaker 03: Good morning, Your Honor, and may it please the Court. [00:00:03] Speaker 03: My name is Cliff Gardner, and I am appearing for Mr. Kai. [00:00:07] Speaker 03: I'd like to reserve five minutes for rebuttal. [00:00:09] Speaker 03: I will try to heed the Court's earlier admonition to keep an eye on the clock. [00:00:17] Speaker 03: The prior case involved a discussion of EDPA, and I'm sure the court has great experience with 2254 cases coming from state courts, and EDPA is a frequent topic of discussion. [00:00:30] Speaker 03: And indeed, I thought I would focus my remarks this morning on two of the issues in the brief, the ineffective assistance of counsel claim and the exclusion of evidence claim. [00:00:39] Speaker 03: And in particular, I'd like to focus on the 2254D, the EDPA issues involved in each of those. [00:00:45] Speaker 03: So if I can start with the ineffective assistance of counsel claim. [00:00:49] Speaker 03: I think the 2254-D issue in connection with this claim arises at the intersection of three Supreme Court cases. [00:00:57] Speaker 03: Yields versus Nunnamaker, which discusses the look-through doctrine. [00:01:03] Speaker 03: Harrington versus Richter, which didn't apply the look-through doctrine. [00:01:08] Speaker 03: And Wilson versus Sellers, which said the look-through doctrine is presumption only, which can be rebutted. [00:01:12] Speaker 03: I'd like to make an additional comment about each of those. [00:01:15] Speaker 03: I'd like to start with the look-through doctrine itself, and I'm sure the court knows the doctrine well, but just to make sure we're on the same page of the playbook, it's a pretty simple doctrine. [00:01:26] Speaker 03: It basically holds that if, in a California case, for example, the superior court issues a rationale or a decision on the merits of an issue, and the subsequent courts issue what we call silent denials, the petition is denied without any reasoning, [00:01:39] Speaker 03: There's a presumption that, in fact, the subsequent courts adopted and embraced the lower court's decision. [00:01:46] Speaker 03: That's the look-through doctrine. [00:01:47] Speaker 03: We look through the silent denials to the lower court decision. [00:01:51] Speaker 03: As applied in this case, through the lens of this court's decision in Kennedy, what happened was the superior court judge in this case denied the habeas writ, noting accurately that prior habeas counsel had not attached [00:02:05] Speaker 03: uh... any information from the computer expert from any computer expert to support the claim [00:02:12] Speaker 03: I think the court was entirely correct in noting that absent any such evidence, there was no showing made that there was any prejudicial information that counsel didn't, that counsel's error couldn't prejudice because there was no way to analyze it. [00:02:25] Speaker 03: The Superior Court didn't know what that evidence would have been. [00:02:28] Speaker 03: Entirely correct ruling. [00:02:31] Speaker 03: Under the look-through doctrine, the subsequent silent denials are presumed to have embraced that rationale. [00:02:37] Speaker 03: And under Kennedy versus Adams, [00:02:40] Speaker 03: That embracement of the lower court rationale is unreasonable because in those subsequent petitions in state court, defense counsel cured the deficiency. [00:02:48] Speaker 03: He provided the information from the computer expert. [00:02:50] Speaker 04: Under Wilson, though, for the reason that you just said, the Superior Court's rationale would make no sense if that were the rationale of the subsequent denial. [00:03:10] Speaker 04: Doesn't Wilson stand for the proposition that in a situation like that we don't look through because we don't presume that [00:03:18] Speaker 04: Appellate decision was nonsensical, do we? [00:03:24] Speaker 03: It will come as no surprise to you that I don't believe Wilson stands for that proposition. [00:03:27] Speaker 03: So let me talk about Wilson. [00:03:29] Speaker 03: We'll skip Harrington v. Richter for a minute. [00:03:31] Speaker 03: Actually, let me just make a brief comment about Harrington v. Richter. [00:03:34] Speaker 03: Because in the lower court and in this court, the state has suggested that, accurately, that Harrington v. Richter didn't employ the look-through doctrine. [00:03:42] Speaker 03: And that's true. [00:03:43] Speaker 03: But as this court explained in Kennedy, [00:03:45] Speaker 03: The reason it didn't employ the look-through doctrine is there was nothing to look through to. [00:03:50] Speaker 03: Richter was one of the unusual cases where habeas counsel in that case filed directly in the California Supreme Court. [00:03:56] Speaker 03: So the silent denial there, there was no way to apply a look-through doctrine. [00:04:00] Speaker 03: So Harrington v. Richter certainly doesn't stand for the proposition that the look-through doctrine doesn't apply here. [00:04:05] Speaker 03: That brings us to Wilson and your Honor's question. [00:04:08] Speaker 03: Wilson was a case subsequent to Richter which applied the look-through doctrine but made clear it was a presumption only. [00:04:15] Speaker 03: and it could be rebutted. [00:04:17] Speaker 03: And I'll paraphrase Wilson. [00:04:20] Speaker 03: The way to rebut the presumption, according to Wilson, is for the record to show that, in fact, there is an alternative theory, alternative to the theory that the lower court relied on, that you can say with some confidence it was obvious the state reviewing court relied on, or most likely relied on. [00:04:38] Speaker 03: That's the Wilson presumption. [00:04:41] Speaker 02: and the district court sounds like you're reading wilson the only time the presumption is rebutted the way you're describing it is if there is some theory in the record an actual express there in the records of that was laid out it's inconsistent with what the lower court relied on and makes more sense to set us so you're saying it wouldn't apply here because there is no other theory this express in the record there's no there's no theory that the courts [00:05:09] Speaker 02: laid out or something. [00:05:10] Speaker 02: Where does that theory need to be? [00:05:12] Speaker 02: Where does this other theory need to be? [00:05:14] Speaker 02: Does it need to be in the higher court's decisions? [00:05:20] Speaker 02: In other words, if they don't issue a decision, you're just kind of stuck with the look through, which seems to have been kind of what Kennedy said. [00:05:31] Speaker 03: it also does that doesn't seem to be quite consistent wilson uh... or that kid can be in briefing or what we're we're with this theory p i think this is a couple of the united states and wilson gives a couple of examples of how this how this can happen it points out uh... one instance is where in the subsequent state habeas proceedings the state has pointed out in briefing an alternative theory that makes sense and is obvious and and the state courts could have relied on that's one way that didn't happen here because there was no [00:06:00] Speaker 03: subsequent briefing in state court. [00:06:02] Speaker 03: But the Wilson Court also says, in federal court, the state can point to an obvious... Could it be in... I mean, I assume there was briefing in front of the Superior Court. [00:06:14] Speaker 02: Right. [00:06:14] Speaker 02: I mean, it probably must have been. [00:06:15] Speaker 02: And then the Superior Court had its basis for decision, which was correct in the Superior Court. [00:06:21] Speaker 02: But I'm guessing that there were probably other arguments made to the Superior Court. [00:06:25] Speaker 02: Usually there are. [00:06:25] Speaker 02: You know, usually you say, we win because they haven't even done, you know, the petitioner hasn't even done X. But even if we didn't win on that, here's two other reasons that we win. [00:06:35] Speaker 02: Could you look to those reasons, or to only reasons that were provided to the higher court count? [00:06:40] Speaker 03: I think you could look to those reasons, Your Honor, and forgive me, I'm not sure there was briefing in Superior Court. [00:06:46] Speaker 03: It's often the case that the Superior Court resolves the petition without briefing from the state. [00:06:52] Speaker 02: So there may be no briefing at all at any level? [00:06:55] Speaker 03: That's possible, and indeed happens in many cases. [00:06:58] Speaker 01: counsel where does that get us so if we assume that you're correct we cannot apply the look-through because there was a different record presented before the Superior Court in the Supreme Court that issue [00:07:13] Speaker 01: addresses whether there is deficient performance by council. [00:07:17] Speaker 01: So if we disregard that and conclude that there was, you still have the prejudice issue, right? [00:07:24] Speaker 01: And we don't have to look through to follow any analysis on prejudice. [00:07:28] Speaker 01: Or if we did not decide, well, we won't address the first prong, we'll go to the second prong, couldn't we do a pinholster analysis and review it? [00:07:37] Speaker 01: In the first instance, right? [00:07:39] Speaker 01: We look for what a reasonable explanation would be from the state court, and then we could conclude if there was prejudice or not. [00:07:47] Speaker 03: OK, a couple of things in your honor's question. [00:07:49] Speaker 03: First, my position is that the look-through doctrine does apply, not that it doesn't apply. [00:07:53] Speaker 03: I may have misunderstood your honor's question. [00:07:55] Speaker 01: OK, I was misunderstanding your argument. [00:07:58] Speaker 01: I thought you were arguing that it does not apply. [00:07:59] Speaker 01: So you're arguing that it does apply. [00:08:01] Speaker 01: So we should look through and conclude that because the record changed, which happens in California, that rationale is no longer valid. [00:08:10] Speaker 03: And that's exactly what we can do. [00:08:11] Speaker 01: Granted, assume we do that. [00:08:12] Speaker 01: Yes. [00:08:13] Speaker 01: Where does that leave you? [00:08:14] Speaker 01: Don't we still have a prejudice analysis? [00:08:16] Speaker 03: Where that leaves us, Your Honor, is that 2254D doesn't bar relief. [00:08:20] Speaker 03: Now, I concede that's only the first step. [00:08:22] Speaker 03: 2254D, after all, is not a standard for granting relief. [00:08:26] Speaker 03: It's a standard for when you deny relief. [00:08:28] Speaker 03: So if 2254D doesn't apply, I still have the burden of proving with de novo review that there was a performance issue and there was a prejudice issue. [00:08:36] Speaker 03: So in that sense, if that was the thrust of Your Honor's question, it's entirely right. [00:08:41] Speaker 03: The analysis I've just proposed, application of the look-through document, simply gets to de novo review. [00:08:48] Speaker 03: And under de novo review, I believe we've shown both that there's a performance prong violation and a prejudice prong violation. [00:08:54] Speaker 01: I'm happy to... Was there a prejudice analysis in the superior court, separate from the deficient performance analysis? [00:09:05] Speaker 03: There was, but I don't believe it's separate. [00:09:07] Speaker 03: What the Superior Court said, Your Honor, was that there was no showing—actually, I have it here—there was no showing that an independent expert's testimony might reasonably have made a difference. [00:09:17] Speaker 01: Okay. [00:09:18] Speaker 01: But that doesn't change because the expert testimony was submitted at the Supreme Court. [00:09:24] Speaker 01: So the prejudice—we could still look through to the prejudice analysis. [00:09:29] Speaker 03: I think it does change, Your Honor. [00:09:30] Speaker 03: Of course, there was no showing that independent experts might reasonably have made a difference. [00:09:35] Speaker 03: He didn't present any testimony from a computer expert at all. [00:09:38] Speaker 03: I think the subsequent testimony directly undercuts this and directly makes this unreasonable within the meaning of Kennedy versus Adams. [00:09:47] Speaker 03: How could there be a showing that an independent expert's testimony might reasonably have made a difference when you didn't present any testimony from the expert? [00:09:55] Speaker 01: Well, you would assume even if the evidence were submitted, it's not going to make a difference. [00:10:00] Speaker 01: I mean, that's how I read that analysis. [00:10:02] Speaker 03: Okay, then let me respond to that. [00:10:03] Speaker 03: I think there's two reasons why that can't form the basis of an obvious alternative theory within the meaning of Wilson to get us out from under the look-through doctrine. [00:10:13] Speaker 03: And here's why. [00:10:14] Speaker 03: Actually, I think there's three points that are relevant to that. [00:10:18] Speaker 03: Two are factual, one is legal. [00:10:19] Speaker 03: Let me start with the factual. [00:10:21] Speaker 03: One, remember it was the state's theory that whoever cased the crime scene on June 30th was the shooter on July 1st. [00:10:29] Speaker 03: The second factual point, the computer expert that wasn't presented by defense counsel would have basically told jurors he was home on June 30th on his computer. [00:10:38] Speaker 03: And the legal point is this, and this is where I think the district court went awry, is that under state law, when a state court is assessing whether it can summarily deny a petition, it must assume the truth of the factual allegations. [00:10:53] Speaker 03: And remember, that's what happened here with the Court of Appeal and the Supreme Court. [00:10:56] Speaker 03: There were summary denials. [00:10:58] Speaker 03: Those courts assume the truth of petitioners factual allegations, assuming they followed state law, and there's nothing to suggest that they didn't do that. [00:11:05] Speaker 03: If they assume the truth of the factual allegations from the computer expert, defendant wasn't the person who cased the scene on June 30th. [00:11:12] Speaker 03: If he wasn't the person that cased the scene on June 30th, according to the state's own theory, he wasn't the person who shot on July 1st. [00:11:19] Speaker 01: Isn't—assuming the truth, doesn't that mean that that testimony would have been presented to the jury? [00:11:25] Speaker 01: The state had an alternative expert who said these were automated actions on the computer. [00:11:32] Speaker 01: This was not human activity. [00:11:33] Speaker 01: And it presents an issue for the jury to decide. [00:11:37] Speaker 01: then the issue is under Strickland, would that have made a difference? [00:11:41] Speaker 01: Would there have been a different verdict because there was countervailing testimony, conflicting testimony presented to the jury. [00:11:48] Speaker 03: But for the fact that this decision that the State Court of Appeal and State Supreme Court made was in the prima facie stage, that is, should we summarily deny this, I think Your Honor's point would be well taken. [00:11:59] Speaker 03: But remember, under California law, [00:12:01] Speaker 03: Courts deciding whether to summarily dismiss a habeas petition cannot make credibility assessments. [00:12:06] Speaker 03: They cannot say, well, there's one here, there's one here, we believe this one. [00:12:10] Speaker 03: They had to accept the truth of petitioners' allegations. [00:12:13] Speaker 03: Had they done that, they could not have resolved this summarily on prejudice grounds. [00:12:19] Speaker 02: go back to this question of how Wilson affects this look-through presumption. [00:12:27] Speaker 02: Would you agree that it does seem a little bit odd that if you have a rationale in a lower court, in a lower state court, and that rationale is clearly, everybody would agree, that it's just not applicable anymore. [00:12:39] Speaker 02: That somehow the look-through presumption would require that you continue applying that rationale. [00:12:45] Speaker 02: If I understand your position, [00:12:47] Speaker 02: It's not a crazy position, but your position is that you essentially have to have something express, I think, is sort of from either, and you're saying it could be an alternative rationale in the same court that issued the now inapplicable rationale, or it could be an alternative rationale, it could be a rationale given by the government. [00:13:09] Speaker 02: It's not an appeal, technically, in state habeas, but by the government and one of the later courts, or it could be your state. [00:13:16] Speaker 02: But if there's no express rationale, as I understand your position, it's basically you're just stuck with the original court's rationale. [00:13:26] Speaker 02: No matter how inapplicable, 100% of people would agree that it's just completely inapplicable anymore. [00:13:35] Speaker 02: That just seems, I mean, it seems like, you know, Wilson says it's a presumption, right? [00:13:39] Speaker 02: It seems weird that you're stuck with it in that circumstance. [00:13:43] Speaker 02: Why is it not weird, I should say? [00:13:45] Speaker 03: Well, first of all, I'm glad to hear that my position isn't a crazy position. [00:13:48] Speaker 03: It's gratified to hear that, Your Honor. [00:13:50] Speaker 03: And let me actually go back. [00:13:52] Speaker 03: I don't believe it has to be something written that the court has to look at to see this alternative theory. [00:13:57] Speaker 03: If it's an obvious theory, I think Wilson says that's enough. [00:14:01] Speaker 02: But the reason I don't think it's crazy is state courts are aware of the- Isn't that kind of built into, I mean, assuming that a court like us is not stuck with the look-through presumption, right? [00:14:11] Speaker 02: So we're not stuck with the rationale, the only rationale that was expressly given, say. [00:14:18] Speaker 02: Then it seems like what we would do then is we would decide, we would apply something like the [00:14:25] Speaker 02: is it the Richter or, you know, where we would apply something like that, where we would ask ourselves, is there a rationale that the higher courts could have relied on? [00:14:35] Speaker 02: It's not like we don't do anything at that point. [00:14:36] Speaker 02: We would say, is there a rationale? [00:14:38] Speaker 02: And we play a little bit of a put on your experimental cap, you know, your creative thinking cap. [00:14:44] Speaker 02: And we try to think of, is there any kind of rationale? [00:14:46] Speaker 02: And if there is, so [00:14:49] Speaker 02: So now I'm starting to think that where you're at may not be that different than what would make sense to me, which is as long as there's some rationale, reasonable rationale that the higher court may have relied on, then you're not stuck with that. [00:15:02] Speaker 04: I realize I see you on your little... We'll give you enough... You can answer the question and we'll give you time for a couple, too. [00:15:06] Speaker 03: Thank you. [00:15:07] Speaker 03: Thank you, Your Honor. [00:15:07] Speaker 03: I can see we're both looking at the clock a bit. [00:15:10] Speaker 03: Actually, I don't believe even if the Wilson [00:15:13] Speaker 03: even if the look-through presumption is rebutted under Wilson, I still don't believe that puts us in Richterland, and here's why. [00:15:20] Speaker 03: The premise of Wilson rebutting Wilson's thesis that you can rebut the presumption is that there is another alternative theory to the one that was presented in the lower court that was obvious that the state court would have relied on. [00:15:33] Speaker 03: If, in fact, the presumption is rebutted because the federal court finds that there's this alternative theory, that's what would be the focus of the 2254-D analysis. [00:15:44] Speaker 03: You would have an alternative rationale. [00:15:46] Speaker 03: You would focus on that rationale to see under the traditional 2254-D analysis where facts omitted, did facts get wrong. [00:15:53] Speaker 03: You would still then not be in Richterland where the federal court can hypothesize. [00:15:59] Speaker 02: This is actually kind of important. [00:16:02] Speaker 02: It's an important issue and it has to do with Wilson, which is a relatively newer case. [00:16:06] Speaker 02: So your position is that it has to be, you're basically focusing on, is there some alternative rationale that draws our attention? [00:16:17] Speaker 02: And instead, and what I'm saying is, why wouldn't it be enough to first ask, and why wouldn't it actually make sense to first ask, is the actual rationale, the only rationale, the express rationale that we have in the record, does that rationale make sense? [00:16:33] Speaker 02: It seems like it makes more sense to ask about that rationale, because that is the rationale given by the courts. [00:16:37] Speaker 02: It's kind of the whole reason there's a look-through presumption. [00:16:39] Speaker 02: It's kind of this idea that we're being deferential to the state courts by actually relying on their actual rationale that they were given, as opposed to just making one up for ourselves. [00:16:50] Speaker 02: So we do that in the first instance. [00:16:52] Speaker 02: So why wouldn't we first look at the rationale that was given and say, does this rationale make sense, and then move from there? [00:16:59] Speaker 02: You're saying we first look at, it sounds to me like you're saying, [00:17:02] Speaker 02: We first look at what other rationale might be a good one, including brainstorming about those rationales. [00:17:10] Speaker 02: It just seems weird to approach it that way instead of starting with what we have, which is, does this rationale that the courts provided actually make sense? [00:17:18] Speaker 02: And here, we all agree it doesn't. [00:17:21] Speaker 03: Well, I'll give you a policy answer to that, Your Honor. [00:17:24] Speaker 03: And that is this. [00:17:25] Speaker 03: If we embraced that approach, I think the look-through doctrine would end up being a nullity in every case, except cases where the lower court rationale was sufficient to withstand 2254D. [00:17:39] Speaker 03: in any case where it wasn't sufficient to withstand 2254 d we would say it doesn't make sense so there must be another theory all that does is read the look-through doctrine it could be accepted could also be that it doesn't you know here it doesn't make sense because [00:17:54] Speaker 02: events sort of eclipsed it, right? [00:17:57] Speaker 02: Like in other instances it might not make sense because it's just wrong, it's a legal matter, but here it's not, there's various reasons why it might not make sense, but here it doesn't make sense because things happened procedurally that kind of make it no longer make sense. [00:18:11] Speaker 02: It'd be like relying on somebody's inability to be able to show good time credits and now that issue's just gone because it's a different time now. [00:18:23] Speaker 03: So I'm not sure that that works, but... Okay, well, I realize my time is... Let me just respond with two points. [00:18:30] Speaker 03: I lost my train of thought, so I'm down to one point. [00:18:36] Speaker 03: And that is this. [00:18:37] Speaker 03: I know my time is out, and I did want to talk about another issue. [00:18:41] Speaker 03: I'm not going to do it now because I don't have time. [00:18:44] Speaker 03: I do have to add that I made a mistake in the reply brief, a misrepresentation that I want to clear up if Your Honor would give me just a moment. [00:18:51] Speaker 03: I made the representation in my reply brief that in connection with the exclusion of evidence issue, defense counsel's offer of proof included a statement that the husband, Ms. [00:19:02] Speaker 03: Al's husband, would say that in fact she said she was going to try to collect that debt. [00:19:07] Speaker 03: I was wrong. [00:19:08] Speaker 03: I misread the record. [00:19:09] Speaker 03: I discovered this last night, and I am embarrassed to say I apologize to the court. [00:19:13] Speaker 03: I apologize to opposing counsel. [00:19:14] Speaker 03: What the record actually says is that Mr. Wang, Michelle's client, came in, and he was the one who asked her to collect the debt, not that she said something to her husband. [00:19:24] Speaker 03: I just wanted to clear that up. [00:19:27] Speaker 03: No explanation for it other than I made a mistake, and you have my apologies. [00:19:31] Speaker 04: Thank you for the clarification, and we took you over your time, but we'll give you three minutes for rebuttal. [00:19:49] Speaker 04: Ms. [00:19:51] Speaker 00: Woodfork. [00:19:51] Speaker 00: Good morning, Your Honors. [00:19:53] Speaker 00: May it please the Court, Charlotte Woodfork for Respondent. [00:19:57] Speaker 00: I am prepared to respond to any of the Court's questions, even the issues not previously addressed, but for now just address the petitioner's second claim with respect to the look-through doctrine. [00:20:12] Speaker 00: So as I understand the Court's inquiry, the question is, [00:20:16] Speaker 00: how do we apply the look-through doctrine in this particular case? [00:20:20] Speaker 00: The way I read Wilson is that if you look at the beginning of the analysis in Wilson, it focuses on what the look-through doctrine, how it was previously applied, and it focused on the purpose, which was if there is a reasonable lower court opinion, then it's reasonable to conclude that that was the adopted opinion by the summary denial court. [00:20:45] Speaker 00: However, as we look at the facts of this unique case, if there is not a reason, if this court finds that the lower court's reasoning... So what about your friend on the other side's argument? [00:20:59] Speaker 02: Well, yeah, but that basically makes it so that, you know, the literary presumption never does... You know, is it, you know, heads you win, tails I lose, or whatever, in the sense that [00:21:13] Speaker 02: They'll always look through when his client loses. [00:21:16] Speaker 02: But as soon as we look at it and go, well, I guess that reasoning doesn't work, then we jump into Richterland or something like that. [00:21:24] Speaker 02: That's what he's saying would happen with that position. [00:21:27] Speaker 00: Well, not necessarily. [00:21:28] Speaker 00: So this is the analysis that how I interpret Wilson. [00:21:31] Speaker 00: You don't even get to the presumption if the lower court's decision is unreasonable. [00:21:38] Speaker 00: You don't even get to that presumption, so then Richter applies. [00:21:41] Speaker 00: But if it's a reasonable decision, then you look through, and then that can be rebutted. [00:21:49] Speaker 00: So that can be rebutted at that point. [00:21:51] Speaker 00: So that's just how I read Wilson. [00:21:54] Speaker 04: Does accepting your position require us to say that our decision in Kennedy has been abrogated by Wilson? [00:22:02] Speaker 00: I, if you read Wilson and Richter together, it appears that it has in that sense. [00:22:08] Speaker 00: So that's my position. [00:22:10] Speaker 04: Okay. [00:22:11] Speaker 04: And so for, obviously for us as a three-judge panel to do that, we would have to be able to say that Wilson is clearly irreconcilable with Kennedy, but do you think that standard is met here? [00:22:24] Speaker 00: On the facts of this case, yes. [00:22:26] Speaker 04: Okay, and what is, I mean, because I thought in Kennedy there was sort of a similar situation where you had, what was presented at the appellate court had changed from what the superior court had ruled on. [00:22:40] Speaker 04: And as I, I'll go back and look again, but I thought that Judge Kleinfeld in dissent made many of the same points that you're making here, I thought. [00:22:52] Speaker 00: Yes, and I actually have not read the dissent, so I cannot respond to that, but it sounds like it's along the lines of what I am saying. [00:23:01] Speaker 00: But I think this court just has to look at what Wilson says, and it focuses on why do we have Look Through in the first place, and it has to be because you cannot presume that a later court adopted an unreasonable decision. [00:23:16] Speaker 00: You just cannot presume that. [00:23:18] Speaker 00: So if you have a reasonable decision, you presume [00:23:22] Speaker 00: that the later court accepted it if it's a silent denial. [00:23:26] Speaker 00: But again, under Wilson, it can be rebutted. [00:23:30] Speaker 00: So that's how I read Wilson. [00:23:37] Speaker 04: Unless you want to say something more about, look through, can I ask you a question about the merits of this claim? [00:23:49] Speaker 04: There's a lot of evidence against the defendant. [00:23:52] Speaker 04: Counsel doesn't have very much to work with. [00:23:57] Speaker 04: But she does. [00:23:58] Speaker 04: You do have this expert, Frederickson, who is saying that he couldn't have been there, not for the shooting itself, but for the day before casing the scene. [00:24:14] Speaker 04: What strategic reason could there be for not presenting that testimony? [00:24:20] Speaker 00: the deficient performance prong of Strickland your honor the actually it was I believe it was Richter that said it's it can be a tactical decision simply to choose to cross examine the prosecution witness and [00:24:35] Speaker 00: and not to call one's own expert. [00:24:38] Speaker 04: But cross-examining the prosecution doesn't, I mean, you can cast doubt on the prosecution's analysis and leave the jury thinking like, well, we don't know what the computer forensics show. [00:24:51] Speaker 04: But that doesn't get you a person saying the computer forensics shows that he was not at the scene. [00:24:58] Speaker 04: That's not something you could establish by cross-examining the prosecutor, the prosecution witness, is it? [00:25:03] Speaker 00: No, that's true, Your Honor, unless the prosecution witness changes their opinion, of course. [00:25:09] Speaker 00: But there was the petitioner's own testimony where he testified that he was there at 10.09 a.m. [00:25:15] Speaker 00: So that is part of the reason, I think, why the state's decision said there's no showing that anything would be different, why that's not an unreasonable decision, even when you consider this new transcript that was provided to the California Supreme Court. [00:25:31] Speaker 04: So you're saying you could reasonably decide not to present the expert who would say that objective computer evidence proves he was not at the scene because you would just rely on his own testimony that he wasn't at the scene? [00:25:45] Speaker 00: That and cross-examining the witness, which is a decided tactical decision under Strickland as discussed in Richter. [00:25:55] Speaker 04: Right. [00:25:55] Speaker 04: But I think, as you just said, cross-examining the witness in these circumstances doesn't get you independent corroboration of his alibi. [00:26:06] Speaker 04: Not exactly alibi, but alibi for the day before, which the defense expert could have gotten. [00:26:13] Speaker 00: Yes, the Defense Council could have realized in looking at the first trial that resulted in 11 votes for guilty, could have realized that this type of evidence may not have been that significant for their defense and maybe they wanted to focus on other evidence. [00:26:31] Speaker 00: Maybe they wanted to have petitioner take the stand. [00:26:34] Speaker 00: Maybe the jury wanted to hear from him. [00:26:37] Speaker 00: That's why it's, so if we're moving on to the prejudice prong, that type of evidence, which would only explain away one video surveillance video of presumably petitioner casing the scene of the crime, it doesn't explain away all of the other evidence, right? [00:26:57] Speaker 00: The evidence of casing before that, the photos that he took at the scene, [00:27:02] Speaker 00: It doesn't explain the threats to Paul Gamina, the initial attorney, or to the victim, Ms. [00:27:09] Speaker 00: Zao. [00:27:10] Speaker 00: It doesn't explain why he took up target practice with firearms, why he sought to restore his gun rights six months before it would automatically be reinstated. [00:27:21] Speaker 00: So again, if we're looking at the prejudice, there simply could not have been any prejudice, assuming that there was deficient performance and not calling this expert. [00:27:29] Speaker 00: The amount of evidence was incredibly weighty. [00:27:35] Speaker 00: So, Your Honours, I'm prepared to submit unless the court has any further questions. [00:27:41] Speaker 04: It looks like we do not. [00:27:42] Speaker 04: Thank you. [00:27:51] Speaker 03: Your Honor, I regained my train of thought and remembered the point I wanted to make, and that is with respect to the look-through doctrine. [00:27:57] Speaker 03: State courts are very much aware of the look-through doctrine, and it's often the case that when things change, so too does the summary denial. [00:28:05] Speaker 03: It isn't a silent denial. [00:28:06] Speaker 03: It's a summary denial, but with an explanation. [00:28:09] Speaker 03: You say state courts are very aware of it, but Georgia [00:28:13] Speaker 02: seem to be trying, in the Wilson case itself, trying to be saying, stop applying this to us, because we don't, it doesn't actually fit what we're actually doing, and Supreme Court was like, yeah, we don't care. [00:28:21] Speaker 02: And there's, I mean, my review of what the California courts have done, I'm not sure it's a real good fit for that either, because especially since the California courts are not appealing these things, it's a brand new day, and this case illustrates it, right? [00:28:35] Speaker 02: Like, you can come in with completely different evidence. [00:28:38] Speaker 02: So I look through doctrine, it doesn't seem to be a real good fit, it just seems to be more like our [00:28:43] Speaker 02: uh... federal courts just want you know we don't want actually engage in the difficult brainstorming and we just we we want to grab whatever's possibly there in the record and and review that if we can if we can so i'm not sure it's actually true [00:28:57] Speaker 03: I can't speak to Georgia, Your Honor. [00:28:59] Speaker 03: I know nothing about Georgia law, but I do know California law from every practice here for 42 years, and I will tell you that precisely because it's a brand new proceeding is why the state courts are frequently willing to issue summary denials with new reasons, precisely because it's new. [00:29:14] Speaker 03: And they didn't do that in this case, and that's exactly what Kennedy says. [00:29:17] Speaker 03: They could have done it, and they didn't. [00:29:19] Speaker 03: Your Honor asked a question which referenced the law of the circuit doctrine, Judge Kleinfeld's dissent. [00:29:24] Speaker 03: Judge Kleinfeld's dissent does cover all these points. [00:29:26] Speaker 03: The majority rejected it. [00:29:28] Speaker 03: Rehearing was denied. [00:29:29] Speaker 03: I think Kennedy controls. [00:29:31] Speaker 03: Final point about the deficient performance. [00:29:35] Speaker 03: In Hinton v. Alabama, the U.S. [00:29:36] Speaker 03: Supreme Court said there are some cases [00:29:39] Speaker 03: which require presentation of an expert. [00:29:41] Speaker 03: So although, yes, the decision whether to call a witness is certainly at the core of counsel's tactical decision-making process, there are some cases that require an expert. [00:29:50] Speaker 03: Is this one of them? [00:29:51] Speaker 03: I think for four reasons it is. [00:29:53] Speaker 03: First, the state called an expert on this point. [00:29:55] Speaker 03: The state calls an expert in many cases. [00:29:59] Speaker 03: That alone doesn't mean defense counsel has to call an expert. [00:30:03] Speaker 03: Second, the area was critical. [00:30:05] Speaker 03: If, in fact, jurors found Fredrickson cross-credible, defendant was not there on June 30th and under the state's theory couldn't have been the shooter on July 1st. [00:30:14] Speaker 03: The cross-examination, can defense counsel decide not to call an expert because he had an effective cross-examination? [00:30:20] Speaker 04: Can I stop you on the last point? [00:30:22] Speaker 04: Because, I mean, even if you had ironclad proof that he wasn't there on June 30th, [00:30:30] Speaker 04: That would undermine the state's theory that he cased the place on June 30th. [00:30:34] Speaker 04: But they had multiple eyewitnesses who saw him at the actual shooting. [00:30:39] Speaker 04: So I guess I'm struggling to see how much it really would have helped, even if you had that. [00:30:46] Speaker 03: Well, I'm not sure that they had multiple eyewitnesses that identified him at the shooting, Your Honor. [00:30:50] Speaker 03: There was disagreement about his appearance. [00:30:52] Speaker 03: But I do know that the theory that the state did rely on was he was there on June 30th, he's the guy on July 1st. [00:31:00] Speaker 03: And all a habeas petition under California law, there's a California Supreme Court case from 1986, I think, called Inray Hall, [00:31:06] Speaker 03: All a habeas petitioner has to do is undercut the case that was presented. [00:31:11] Speaker 03: If the state wanted to present an alternative theory that said, look, it doesn't matter if he was there or not on June 30th, he's the guy on July 1st, they didn't present that theory. [00:31:20] Speaker 03: Their theory linked the two, Your Honor, and I don't think at this late date we can say, well, the linkage, we can break that linkage. [00:31:28] Speaker 03: the cross-examination, as Your Honor pointed out, it didn't reveal the information on which counsel could argue he wasn't there on June 30th. [00:31:36] Speaker 03: So in some situations, a defense lawyer can rely on cross-examination, not to call his own expert, but not this one. [00:31:42] Speaker 03: And the final reason is that... A little bit over time, but... No, no, no. [00:31:50] Speaker 02: This is a little bit odd in the sense that [00:31:54] Speaker 02: Is it the same counsel at his second trial that did his first trial? [00:31:57] Speaker 02: No. [00:31:58] Speaker 02: So I mean, he's aware, though, that an expert, I assume, is your thought that he just forgot or spaced to bring some? [00:32:07] Speaker 02: Because they know that they brought this expert the first time. [00:32:10] Speaker 02: So this is just a weird deal that when you have two trials back to back like this and you brought an expert the first time, the idea that you didn't [00:32:20] Speaker 02: It seems intuitive that the reason you wouldn't have brought an expert the second time is some sort of strategic or tactical reason. [00:32:27] Speaker 02: I mean, it doesn't have to be, I suppose, but it's, that's what's kind of odd to think that he, are you thinking he just forgot? [00:32:33] Speaker 02: And he's like, that data, like, oh no, we don't have the expert. [00:32:36] Speaker 03: It is an oddity of this record, Your Honor. [00:32:38] Speaker 03: I found it odd for many years. [00:32:40] Speaker 03: There's nothing in the record that explains the decision. [00:32:43] Speaker 03: So I can't answer it based on the record. [00:32:45] Speaker 03: And the final point, Your Honor, is this. [00:32:47] Speaker 03: Counsel has suggested it wasn't prejudicial, because after all, Mr. Kai testified that he was at home on the computer. [00:32:53] Speaker 03: And my final thought to leave you with is this. [00:32:56] Speaker 03: That isn't the solution to the problem. [00:32:57] Speaker 03: That is the problem. [00:32:59] Speaker 03: Because in closing argument, the prosecutor skewered the defense, told the jury Kai says he was on the computer. [00:33:06] Speaker 03: We have an expert, an unrebutted expert, who says he's lying. [00:33:11] Speaker 03: an unrebutted forensic expert that shows Kai is lying. [00:33:14] Speaker 03: And the jurors could well think if he's lying about June 30th, he's lying about July 1st. [00:33:19] Speaker 03: So the fact that Kai himself was forced to testify in the absence of a computer expert is not the solution my colleague thinks it is. [00:33:26] Speaker 03: It's the source of the problem. [00:33:29] Speaker 04: Thank you very much. [00:33:30] Speaker 04: Thank you, Your Honors. [00:33:30] Speaker 04: Thank both counsel for their arguments. [00:33:32] Speaker 04: And the case is submitted.