has read the party's briefs and is familiar with the record so before the panel retires to deliberate on this case i really wanted to just offer in the argument this morning two clarification's about petitioners arguments the first is that i wanted to address the standard of review and petitioners argument against the standard of review because sometimes i feel like an a b s cases in particular that often gets lost in the briefing so let me start there here the parties agree that for a claim of prosecutorial misconduct the standard is whether within the context of the trial as a whole on the record as a whole the prosecutor and gauged in misconduct and here there is broad agreement among the courts that have reviewed this case thus far that the prosecutor in caged in improper conduct so that the question really then shifts to the harmless error question and the supreme court recently reminded us in on all of the davis that on direct appeal the harmlessness standard is the standard set forth in chapman ask a under applicable standard always erastus something that can be categorized as prosecutorial misconduct is that correct i agree with you on that your honor and  for whatever reason that whether it is there is often sort of bleeds into whether there is indeed harbor let's say or because you're looking at the impact on the overall trial is that you think rock i certainly cannot speak to that over the run of cases that you in the court see what i can say is i in my interpretation i believe that that's what this circuits flagrante test really gets into is to try to isolate the comments from the error and whether the error is harmless or not here what i would say on the record is vic the courts including the state court of appeals the magistrate judge in the district court all agreed that the comments we're talking about are improper in indeed i mean they spin and i guess is under the flagrant see test that this court  uses they were not isolated comments you can certainly take them either individually i don't buy item whether you look at the testimony of franklin or the questions to franklin the testimony  he was the first witness on the stand you can look at the rebuttal argument that the prosecutor left the jury with when it retired to deliberate but there's more on this record that's the district court's words of a piece with what the prosecutor did in each of those instances the prosecutor's comments an improper questioning an argument based on mr machines religion started in void year when he asked witnesses potential jurors about their memories of september eleventh and then it continued in opening statement there were seven fact witnesses who testified at this trial over the course of more than a week and out of those seven fact witnesses he asked each one of them about the islamic meaning of the tattoos and five of them there was extensive time span questioning them about the meaning of terms like harder i would disagree your honor and i think you need to look at two different aspects of that first with respect to the witness conduct an examination the defense lawyer did not do anything that can be said to open the door on those items these were prosecution witnesses and the prosecution elicited that testimony and made those arguments through the direct testimony without any prompting from defense counsel indeed the void your questioning was raised in the opening statement based on religion and jihad was raised by the prosecutor as the first person to speak at the trial your question really i think goes to the rebuttal argument and that's the the argument that the respondent has made is that the defense lawyer opened the door and i would respectfully disagree with that because when he really mean it in terms of the door that's not a theory that given the defeat it arguments you know and that's that's fair your honor and i agree in fact the next thing i was going to say is when you look at this under the prosecutorial misconduct standard which route looks at the the evidence in the record as a  whole in that context the defense lawyer in this case is responding to the record as a whole because by the time he stands up to do his closing argument the jury has heard for over a week i believe it was about seven or eight days a trial at that point context of the entirety of the record as well i think it's important to remember that the key issue in dispute at the trial there was no dispute was the identity of the shooter who killed your own thomas on that point mr has always maintained that he was not the shooter and there was disputed evidence at trial from which a finder of fact could conclude that he was in fact not the shooter but isn't that what the tattoos that mordor all of that are flying the shooter that's the argument your honor and i would respectfully suggest that the record does not support that in this case there's not one witness who testified at trial that the shooter had jihad tattoos or tattoos that had anything to do with islam not one there's one witness who testified at trial that the shooter who had his arm through the door of the bar had tattoos on his arm they were not tied to islamic they're not the jihad tattoo that's really been the focus honor the point and i'm i'm not being critical but the point i was trying to make in my to get to before we started getting into questions which i prefer is that when the state trial court performed a chapman analysis on direct appeal it did not actually look at the chapman standard with respect to any of these errors and it really consider the errors in isolation not under the prosecutorial misconduct standard of the record as a whole in that regard for him to the trial judge to judge givens is question really was to mislead the jury because the focus was on these tattoos as opposed to the disputed identification issue and that's why we know under the brecht standard that this  was not harmless because ultimately the jury told us that the air is not harmless the jury came back during deliberations and asked two questions both of which went to the identity of the shooter and instead of answering that information  and providing the statement for example of morris circles to the police which said that the person who knocked out the window was the shooter but the d n a conclusively establishes that that was not the defendant and instead of providing that least one witness identify him partly based on the to the witnesses ident when you read the testimony of the witnesses identifying him as having been at the scene that night based on  my review of what sets testimony both at the time that the briefing was done in a preparation for the argument was he never was that direct and expressed but if you have a page i decide i will look i don't want to prolong what i have a sixteen forty seven and whether i agree or disagree with counsel what prompts your office to continue we use the term in this case your honor you got a pretty good case with not going to over and over again you ran a jihad was a unique identifier and it was one of the way that two of the witnesses identified the shooter before i witnesses noticed the tattoos and then for two of them the term good i think that could very easily explain why wow a prosecutor might want to important part to remember what and why they remembered it and for as it again for at least two of these witnesses that the terms had meaning so if some french term you've never heard of it would not have been you wouldn't be able to identif appeals rejected every one of these claims there are only four claims here and those are the ones in the certificate of appeal ability although mr mcgee had once to expand the court's review to all these other instances of everything they are talking about in their brief and in or argument we really only hear on four claims and ohio court of appeals rejected the question is whether th on the merits was an unreasonable application of united states supreme court precedent or an unreasonable determination of the facts of record but it was neither and furthermore the factual findings of the ohio court of appeals here are binding absent clear and convincing evidence the other way and these are prosecutorial misconduct claims the standard is jargon that darden due process standard under the standard prosecutorial conduct reaches the level of a federal constitutional violation only if it is substantial an injury is infecting the entire trial with fairness so as to make the resulting conviction and denial of due process now as to the four claims the first claim was concerning ration whitsitt it was based on one question public prosecutor asked being in the military did jihad have any significance for you defense counsel objected question was never answered it was not he asked again and again in light of the entire record which is need second claim is a set of questions put to franklin the third and some are about his own practice and experience of islam and these questions were not objected to the only two questions objected to were when he was asked about jackie and jihad and in may he did answer those questions one objection was overruled the second about jihad was sustained franklin offered to balance the religious definition of each he talked about how each was sometimes misconstrued to mean war like and then asked whether them and asked whether the tattoos had any particular meaning for franklin franklin said yes they did they were islamic terms arabic terms and again the prosecutor went immediately into new ding with frankel and that the events of that evening were not about religion and several factors support the court's reversal of that claim again most of the questions not reached not objected to in the scope of the entire record of thirteen hundred pages and some twenty plus witnesses these were two questions or unique identif we've said and the judge at the start of the trial gave sure instructions general instructions about questions to which there is an objection and if that objection is sustained serious not to consider it  and the judge further told the jury at least twice to make decisions based on the evidence and not on passions sympathy or prejudice his final prosecutorial misconduct claim is about the arguments and the final argument and that was again where here under the darden standard there was no objection to the argument at trial and the prosecutor's immediate follow up comments after the argument complained of is and what's the point here this isn't about similar face identification this is about unique treat identification this is not religious prejudice this is about who did what who fired the shots again unique identif in the court several times gave the jury instructions that argument and with statements of counsel are not evidence and the jury has to decide based on evidence and again not to be influenced by sympathy prejudice or passion  and we do think that prosecutors argument is in the nature of an invited response united states v young and that it even balance the scales it kept going back and forth throughout the trial but  prosecutors and this show argument didn't go into jihad very much but then the defense went on and on about the guy with the jihad to use that's what this is about at that point the prosecutor arguments this is not in the record anywhere not in the trial record it's not wasn't raised before the court of appeals it's not poor the district court so i think it's improperly before this court  and the fourth claim is with the testimony of franklin the three third was so relevant and so president prejudicial that it denied him a fair trial and what we have argued there is that what we're arguing here generally state court evidence should be rule rulings do not rise to the level of due process violations and this one doesn't either in order to rise to that level some principle of justice rooted in the traditions and conscience of our people is to be ranked as fundamental if anything i mean the ohio record is strong the case is strong against mr meant gee this standard is clear this is not an unreasonable application of united states supreme court precedent this is not an the unfairness of the prosecutor's misconduct that rendered the whole trial fundamentally unfair so as to deny mr me his due process rights to a fair trial was the fact that based on the of the evidence before the jury dominating in the rebuttal argument the prosecutor invited the jury in his words to convict the defendant because he was a dangerous islamic warrior on the morning improper and it is fundamentally unfair renders the entire trial fundamentally unfair on the morning after the number one terrorist in the world was attacked the united states soil on multiple occasions his death was announced by the president of the united states a national t v but the prosecutor went further even than that and this has been i think lost a little bit on this record because the prosecutor also told the jury in his rebuttal argument that it's unfortunate he used the term unfortunate that the state does not have the power to waterboard witnesses the ties between terrorism which has nothing to do with this case the ties between radical islam which has nothing to do with this case were injected in the trial from opening statements even before that into a deer all the way through those statements in the jury has told us that that was prejudicial the jury came back and asked questions about identity you know that go to who the identity of the shooter was which respondent acknowledges is the key issue in the case and instead of focusing on the statement of morris sickles which was in evidence before the jury and they asked to review that the shooter was the person who broke the window and the evidence at trial is undisputed from the state crime lab that that d n a unquestionably clears the defendant they were focusing on those th the other point i just want to deal with briefly is the unique identifier point in judge gibbons this goes to your question in and i'm just going to look at one of these briefly on page id one six four  seven what you see is that it was not with said who testified that the jihad tattoo person was the shooter that was the that was the leading question from the prosecutor on direct now i agree they have it's not an evidentiary matter whether that's proper or improper and it's you know that's not my point my point is that this is emblematic of what you see throughout this trial to the extent there is any testimony and direct all this i mean i've heard in the affirmative the question was so the person that you saw passed by you without a shirt with jihad on his shoulder blades is doing what outside the window answer shooting rounds inside the bar so the tie between  and the shooting comes from the prosecutor well by the end the question is not evidence but the a it sure does indicate that he is affirming the truth of the question and i mean if you're the defense or you object to something like this stuff like that i mean i agree with you on that point in the defense lawyer did object the state trial court was not a force in that ruling at that point but my time is expired so i just want to point out though in closing that the air on that is not harmless again because the jury told us and rather than focusing on the dispute a fact whether that person was the shooter or as the other evidence suggested it was someone with braids or the person who put their arm through the door what the jury was left with was mr mcgee does a dangerous islamic warrior thank you thank you bas