standard of proof that the jury would have to reach its decision by and also found for certain witnesses and this simultaneous trial related to how was the v unusual situation but two different attorneys on the second cases one attorney representing him on the shooting case the other attorney representing him on the robbery case so i guess the question is is procedurally barred my argument would be that it is not based substantial discount if mr market is infecting the trial with fair constitution demand event dimensions under us leave freely and also that it would result based on court of appeal the state court of appeal there issued this decision did not address the federal constitutional claims they merely address the solely on state grounds their conclusions as so there was no federal or california fact no one but no federal references to any federal constitutional issues also the review of the state court was based on the state of the record at the time the motions were made which is the prophecies nine months prior to commencement of the actual trial in this case and was not on the sets meant at the unfairness of the what occurred at the in determining the whether there was a fundamental fairness in the trial and whether mr martinez is due process rights were there for violence so i understand that but i mean your point goes to a different issue which is whether or not the state court issue decision and then they've got no wrong by just relying on the evidence that was in the record at the time the motions made the wise not american decision regardless they did not my i don't you are going is they didn't consider what happened to  to whether mr martinez had trial was fundamentally unfair based on the simultaneous trial of these two unrelated cases whatsoever and the prosecutorial misconduct  that they can you can exercise a day noble review under the bell based upon evaluating because there was not a decision on the merits relative a review of the whether there was a fair trial and and mr market his due process claim because he significantly there was obviously it's the defenses that were going to be presented weren't fostered at the hearing on the motions to consolidate the defenses that were presented at the trial were completely in a positive they weren't they were completely different to wit that in the case the defense was totally that mr martinez wasn't even present at the time and therefore the consolidation of those two cases these simultaneously trying this case t cases impacted on that and rendered the trial fundamentally unfair coupled with which obviously wasn't part of the court's from page six of my reply brief trial court ruled the jury should not consider that against certain gain evidence relative to the robbery case and that it would there would be an admonition relating to that that would be provide there were never was an admonition provided to the jury relative to that issue and the jury instructions that were provided to the jury although they talked about admonitions did  not specifically ever indicate what particular evidence was that could not be considered by the jury for purposes of the robbery case i think most importantly the that there was a spillover effect based on the not only the inherent prejudicial nature of gang evidence but there were predicate crime fences introduced with each of the shooting there was evidence that introduced of other crimes evidence of mr martinez engaging in a quote beat down of another individual and there was never any limiting instruction related to that and that that clearly spilled over into the evaluation of the robbery case based on upon the fact not only that typically gain evidence as we know is so prevalent nowadays that juries  are going to feel that well if this individual was  of severance to process claim that does not mean however that the state court ignored it or failed to resolve the issue and we know from johnson bush williams and victor the state court silence which is not enough and secondly that the state court did not follow united states which is lane ends if you're the supreme court cases on jointer and severance but we know from collins what evidence would be presented at this cases and because all the evidence was cross admissible there almost is no way to meaningfully distinguish between the strengths of the cases but the state court did recognize that they had a single eye witness reliance on state court authority statutory case law they didn't address expressing anything about on the federal due process claim but if we get to the federal good process claim under to no review if we see if the evidence is cro indicated that he didn't know the suspect number two never met him although we know mr brown he is description it gave of suspect number two to law enforcement initially was inconsistent with mr martinez the photo lineup that he proportionally identif