retroactively in this case and it is undisputed that the jury instructions given in the farmer's criminal trial were erroneous as a matter of law accordingly the only remaining question is whether the government failed to prove that this error was quote are mostly under reasonable doubt but we don't right i understand the government concedes it but i didn't montana the way you do so i think the issue is discuss right discuss with from where they should use a gun in the end so they all agreed the handwriting expert determine that the person who wrote the note with the demeaned same handwriting is farmer car he said that that it showed no indication that it was written on a textured surface like a steering wheel finally regardless of who know who wrote the note there certainly reasonable doubt as to whether that person actually thought that there were guns or whether that person wanted  of the note to believe that there were guns and turn over money well the step the note says this is a robbery i have a gun and don't cause a scene no one will get hurt i do have a gun that's what the note said i understand i mean and certainly the  person who wrote the note wanted whoever got it to believe they had a gun and to give the money in the in the robbery but in terms of showing beyond a reasonable doubt that this farmer had actual advance knowledge that a gun would be used we think this just is not sufficient as to the testimony of the other participants in the robbery mr anderson testified definitively that this farmer did not know that he had a gun and he slices testimony it's is quite weak she claims that she believe farmer knew about the guns but she could provide virtually no basis for that belief rice testified that rice not farmer acquired the guns that she was the person who gave the gun to mr anderson and she didn't offer any testimony that farmer was there when she gave the gun to mr anderson jeff are no testimony that farmer ever saw she had a gun and that the testimony that she did offer was about general discussions that she supposedly had with farmer months before the robbery occurred one by her own account plans were still changing so the most specific conversation that she recounted was one that occurred several months before the robbery before a location had been chosen and she recounts a discussion in which that she supposedly had with this farmer and this farmer's husband rodney where they planned that mr and mrs farmer would carry weapons would go into some bank they hadn't chosen yet and then went right away on motorcycles as we now know mr farmer did not look as good in the crime that he anderson d farmer was not the person who went into the bank she didn't carry a gun and no one rode away on motorcycles but despite all that the government wants us to believe that that this one part of the plan that occurred months before that there would be some sort of weapons used is rock solid miss rice herself testified that when she and miss farmer began planning to do a robbery at the plant at the beginning were quote far fetched and quote it was just a lot of talk this is a conversation that occurred during that period and the only other discussions that she testified to were incredibly that if they if they weren't about a specific conversation that she had with miss farmer instead the moshi could say was quote we discussed it that's on ninety five supplemental appendix and quote i mean we all agreed and you no that's just not enough to sustain a conviction under any standard let alone the stringent standard significant that her fingerprints were not on the note because it it it creates some reasonable doubt that she wrote the note as mr anderson and miss rice testified to didn't she hand the note to the t  that's that that was her testimony well her position her position was that she didn't write the note hand of the handwriting experts thought she did write to those they had writing that expert testimony testified that there were similarities between farmer's handwriting and the handwriting on the no he didn't again ally's anyone else's handwriting to see if there were similarities between someone else's hand writing in the writing on the note and he testified on cross examination repeatedly that he couldn't exclude that the handwriting blood to anyone else  so it's his that certainly provides some evidence that it may have been permissible to believe but it's not evidence beyond reasonable doubt but when you put it all together with all the discussion of the guns and so on  point is they didn't reach the finding that rosemond now requires that miss farmer had actual events knowledge of a gun that was mentioned in the jury instructions and the government encouraged the jury to find it to find to the contrary that they should convict on count two the  gun charge because this farmer was quote in on the crime after rosen and that's simply not enough well when the right testified about this note she testified before the jury that she and farmer had talked about what was going to be written and she said the discussion was should we display a gun or should we show them the gun or let's not display the gun or let's put it here that you do have a gun cooperate you know nobody gets hurt so we just we just wanted leaving it kind of simple but to the point to let them know we have a gun and that's what was put on the no after discussing yes so it mean so there was actual discussion if the jury believed rice about the gun in the fact that a gun was present so again it would have been permissible for a jury to believe that but there certainly reasonable doubt there's conflicting evidence from the handwriting  harmless on this quite weak evidence i'm sorry we dispute the notion that a harmless error analysis applies to this case this is a this is a a pure fraidy wainwright review on collateral review for reviewed those pleadings and as is the practice and at least in our district selected the issues that it wanted me to respond to and the issues that it directed me to respond to was the an effect of assistance of counsel claims that we all believe she was raising with respect to about half of the claims that she had raised in her original petition i responded to that petition as as i agreed with the court either appear that she was raising ineffective assistance of coun out of out of an abundance of caution the court could have construed that is raising a substantial of rosemont claim and that's kind of how the court treated it didn't it didn't order me to respond to that but that's how it treated in its order it gave a big stri in analysis of the rosemont claim and then in the sentence that it said to the extent the counsel could also be construed as raising and a merit spaced rosemont claim we are i'm also going to deny yet for failure to do that you're going to have to show cause and prejudice and now they're saying i'd waive the argument and i have not waived the wainwright crazy because i'm prejudiced argument i respond to what i was told to respond to in the district court and the district court reached that the merits based argument and rejected it and i'm of course allowed to support whatever whatever role in the court made below in this court so it is our position that the wainwright cause versus prejudice standard applies to the rosemont claims here and what's the difference and that prejudice analysis well the the problem is is that if i understand what counsel said today is that th letting the chaplain comp harm is constitutional error analysis and that would require us to prove harmlessness beyond reasonable doubt so it's a matter of burden shifting yes than anything else an extraordinary amount of burden in rosemont it's retroactive but there wasn't really have much of a discussion that with the it was a sentence in a string cites do we need to develop that more in this case i have been directed to waive that issue and or to concede the issue all active i don't think it makes a difference against gays because retroactivity it gets to some aspects of the twenty to fifty five it gets to the statute of limitations but it doesn't affect because incredulous analysis  actual prejudice in the sense that a properly instructed jury would have acquitted i think the way it was phrased by this court and i don't want to sound like i'm quibbling but by this court that this court said that if a reasonable jury could have convicted a properly instructed jury could have convicted then that's it that's enough which gets us to the the facts of this case yeah and can we get into the facts exactly what it was fingerprint evidence connecting the farmer to the know the handwriting the handwriting evidence was was particularly compelling evidence though we put a handwriting expert on the stand as i think it was on the second day of of trial his name was lindela moore and what he testified to was that the the handwriting on the demand note was in the defendant's handwriting he could not exclude that anyone else on the planet also had that handwriting because there weren't enough particular characteristics but after having compared the bank robbery note to her exemplars and also some other documents that she had written not knowing th there would be exemplars that the handwriting on the note was the defendant's handwriting now there may be some other human being on the planet who also has that handwriting but the handwriting on the note was the defendant's handwriting and that becomes significant when you combine it with the rest of the evidence in the case first you have was there any handwriting by other defendants you know well the defense didn't request any time no there was not the defense didn't didn't request and the in the way this was presented at trial to it we i mean i presented the actual handwriting exemplar and the and the note to the jury and had the expert explain how they were similar and and layperson could tell they were similar even without an expert so you you have you have testimony that it is her handwriting on the note now there may be some other human being on the face of the earth who has that handwriting but when you combine that with the testimony of the co defendants that she was involved in in the robbery when you combine it with holly rice's testimony which this court has has already referred to this morning talking about how they they sat down and they wrote that note thirty it could be the the i mean that the defense certainly knew what our evidence was and and could have if they did they did not our guide to present then in writing ringleader got thirty five yes and they fixed up that time before the trial with a sentence after she was sentenced let before the trial because i believe the defense counsel made an issue about her complaining about her s have phone records hitting the cell towers and then we could put frenchy farmer cell phone follow following the route all the way to the bank and all the way back and not only that they were in separate that initially you also have him you have her making phone calls her cell phone to the occupants of the car so it's cooperating testimony that of rice and it's it's cooperation of rice's testimony that she was with us and that she wrote the note when you when you take all of that the it's not it's not just based on the testimony of holly rice and when you when you and i analyze from yes if you click with your honor the cell phone data that the government mentions has nothing to do with the gun crime whatsoever it may be evidence of the robbery which we're not contesting but if it provides no additional evidence that i'm a farmer had advance knowledge that i'm with the u s second  with regard to the it's miss farmer's framing of the roseman issue in her petition miss farmer attempted to frame the issue as a direct challenge under rosemond not a strickland issue and the supplemental  filed clarifying that was in september two thousand and fourteen three months before the government's response it put the court on notice as they discussed her claim on the merits in the alternative but the government chose despite the supplemental filing to ignore that for that purpose how many of them went into the bay or to someone who remained in the car miss farmer so how many are were there then besides her so there were that in order to in order to convict her of a separate offense not just the bank robbery which she was convicted on no i have just ten i'd find it hard to believe she would not have no leverage but the standard in this case is