this court on this particular petition on the same question of whether an instruction that allowed the jury to infer that mr mckinney was likely to and did commit the charge to crimes if it found he committed counsel was properly exhausted in the state court at words the carpenter says that mckinney could exhaust that claim if he raised it in a manner that allowed the state court to entertain it so and if we look at letter a which is in the middle there's a nice description of what the petitioner needs to do to state the facts of his claims first of all it asks him to tell his story briefly without citing any cases or law it then says if you are claiming incompetence of counsel you must state facts specifically setting forth what your attorney did or failed to you know there's  state facts without citing cases where law you added that this is or maybe i'm missing something letter and a yes i'm there tell your story briefly without citing oh i'm sorry i jumped right past that the rest of i'm with you no that's ok you know ok i'm on there and the third thing that it says is it provides a rule of thumb to petitioners it says tell us who did exactly what to violate your rights when where mr mckinney satisfied this standard he identified as his direct appeal council he identified the what as the he also said that petitioner would not be able to raise it in federal court by way of habeas corpus until the issues of federal constitutional violations are heard by this court so i think that that does go to whether or not counsel preserved the underlying cl now it is rule of law if the case that the underlying claim is the winship claim it might be an inference that he's referring to that underlying claim but it's hard to know what else he could be referring to given the placement of this  paragraph he makes clear that counsel failed to raise constitutional infirmities he asks for relief for his ineffective assistance appellate appellate counsel claim which would be that the court hear his underlying claim he independent ground for relief is that when murray vs carrier says it uses that language your honor i my reading of that language is that is actually differentiating a cause theory for grounds for relief this is that what it's doing there is a differentiating and independent existence ineffective assistance of counsel claim from the from the merits claim which is more in your favor it seems to me if that's what they're saying they're not they don't care whether it's race is an independent claim or us as cause for another claim that it has to be an independent assistance of counsel claim not a merits claim that was you're saying what do they say you know what i think it's very clear and i think that because  we're not even sure what it is i also want to point the court going back to the are eighty six at the bottom small letter b it says supporting cases rules or other authority optional therefore according to the instructions in the form petition mr mckinney did everything that he was required to do in order for the california supreme court to entertain the claim that's i submit the claim is exhausted let me just assume from th involved prior a prior conviction that had already been proved by beyond a reasonable doubt and one thing this court said and dovi busby when it was considering the outlook there anything in lawyer emphasized that mention  make anything other it is not your honor i would say something about well limit the facts in front of us now i didn't specifically say because their work convictions instead of allegation but he did say something about this day in train only california supreme court usually do that no i can't i wasn't aware that it can i can't answer that question here obviously when it finds decisions that are wrong it does overrule them i don't know specifically otherwise i think i'm simply suggesting that because it limited itself to the facts before it it reached a very limited holding were or as i think it could have reached a broader holding that would have correction so it's it seems to me to be a somewhat different different situation from lockhart where the case being reliant upon was clearly overruled that w have been really should have been relied upon and during the trial or during the when sharon was was clearly overruled by the u s supreme court it clearly was no more but this one this principle isn't necessarily clearly no lawyer should have daryn belmarsh have done what we know when we're looking at cause of prejudice we're looking at a federal question we're looking to know i have struggled with what's the choice of law here because we don't have clear law on the california side we certainly matter here and one thing this court has said in regard to its own rule is that it's a very different rule when deal dealing with prior uncharged conduct versus a prior conviction this court has cases involving prior convictions this court has said this instruction is completely superfluous and unnecessary and in jovi buzby where this court reaffirmed its holding gibson it distinguished its own case involving a prior conviction and said that case doesn't apply here at all and it's really the same thing here in regard to lloyd's way doesn't apply here at all because it involve charged conduct here i'm sorry a prior conviction to two questions first off what's the standard of likelihood of success that we apply for determining prejudice here a review a reasonable probability of a different result your honor and second when we're talking about probably reasonable probability of a successful result are we confined to what the california courts would have done or do we also look as to what the federal courts would have done  i would take that from that that appellate counsel has an equal duty to preserve issues for federal hate yes this counsel did not do that and he was on notice t into the merits of the issue because i think that the court has identified some interesting questions about the predicate procedural issues but the court could also certainly dispose of this petition on the basis that the ultimate instructional claim is do think that one way the court could easily dispose of that petition would be to go to the merits that certainly permits and overrule gibson no but my point is that the claim being raised by petitioner here is actually quite and i'm paraphrasing a bit of the i don't want to read the entire thing but he said he said in my reading the preponderance standard applies to the prior acts and he finishes up by saying the guilt of the defendant must be proved beyond a reasonable but if you're wrong on matter say that he clarified i have trouble with saying he really did clarify because he didn't state it clearly when he got to the end when he got to the key point he masters words your honor i think  it to the extent that the problem with the instruction is that the jury might have taken away that the preponderance standard is what applied i just don't think there's a reasonable likelihood in this case that the jury could have come away with that  impression given the clear statement at the end the guilt of the van it must be proved beyond a reasonable doubt with respect to the judge stumbling over his words i think obviously the extemporaneous additional instruction was not you know as polished as the official revised instruction i also think it's interesting because my friend on the other side as it has has made something of this stumbling that it's well i my reading would be it need only be proved by parts of the evidence that i just defined preponderance of the evidence and then a break on the on the other hand the guilt or innocence of the defendant i think evidence is also clearly a typ in which case i think that the the the bungling argument loses some of its force if we rewrite the transcript well i think that's a reasonable way to read it to the extent that the other side is relying a reasonable way to read it maybe but you're telling me the transcript wrong based upon how it might have been reasonable for the judge to say it is pretty slender reed well your honor again i just think that that is a are making now going to the notion that there wasn't any problem with the instruction or that and most it was confused and therefore subject to harmless or my argument is first and foremost that well i think the standard is ultimately whether the jury would whether there's a reasonable likelihood the jury would have read the instruction and then permissible way and i don't understand petitioners claim to be any different than the due process claim that was the jurors wouldn't if they  make his add his ad libbed statement but that would have gone in he said the jury instructions into the jury room but that little comment that he had wouldn't have been included in the written instructions but you're out of it but the spoken instructions are certainly the instructions that are given to the jury i don't i don't think that the fact that they may not have been written down well you know that you're going to get back in that you're the first thing you do is look at the instructions well that you're out of the question is just a structure that well he answered when i was thinking about it most recently it seems to me that my current is different from the reason i was suggesting that is here we we exist al and we have a separate line authority which leads to and different result and the u s supreme court hasn't and either agreed with us or agreed with the california supreme court my recollections of whatever it is that the final word had been given and so i understand i think what the court's asking is that how do we deal with the fact that we've got sake out of the california supreme court going one way this court going council's decision was a reasonable one because this claim was different which made it a lot weaker so i think that however one approaches that question of prejudice our position alternately comes down to the claim would not have been meritorious under the state court decisions that existed at the time of the appeal they would it would not have been meritorious under lloyd and it is not meritorious under gibbs and that's ultimately i think where our position lands on that question i think there are some interesting ramifications to this this walk heart analysis one of which i think is is perhaps that in calculating the reasonable probability how do had this case gone to the california supreme court and sort of lawyer in this case the prior episodes are far from convictions it's four episodes to which the victim is really the only witness it happened this way several of them she was the only one there as to the episode in the car the nephew says it didn't happen i mean it pretty weak and i think any respectable prosecutor fifth significant as it might have been in a different case where perhaps very compelling evidence from a different source might have come in in this case defense counsel stood up and said the only question for the jury is whether you believe mr glasser beyond a reasonable doubt and he made that reasonable doubt the centerpiece of his argument he really read the reasonable doubt instruction so i actually think that the that that is a significant thing in this case that council could have looked at and from and that this was done in trying to figure out what the california understand you know i think that it's just not a fair reading of lloyd to say that that that decision depended on the prior conviction when we read boy it talks all about the arguments of counsel the repeated reasonable doubt instructions the only time it convictions is in relation to a separate argument that was made by the defendant in that case which was that the trial court had failed entirely to define the preponderance standard and so the court said that's not really an issue here because claim is procedurally defaulted and cause cannot be shown because you know effective assistance of counsel claim was not exhausted and that is because very versus carrier requires  under normal exhaustion principles a position to take and cause the area that is also an independent constitutional claim to the state court first so the question alternately is did the state court have it wasn't in a separate place it wasn't a separate claim no your are you saying it won because and didn't use the words ineffective assistance of counsel are you saying no one because it said my lawyer screwed up but ineffective assistance is the constitution claim this because it is ultimately attributed to the trial court isn't it that's one of the things murray says it says the lawyer screwing up is not itself a claim but if you're a point from a slightly different angle i think that a fair reading of that first petition is that what he was saying was that the claim didn't get federalized i'm now federalizing it so that i can take it to state court i think that's what the state court would have looked at that different and thought that could do of course the question is did he do that in this case but i think the contrast is illustrative ok and any further questions from the court ok thank you thank you now we took the opposing counsel the over time let's put two minutes on the clock and see what happens thank you your honor just goes on i believe you asked what the c d c have done the best that i can point to is people  fat and there the court said because the trial court failed to instruct that they couldn't that the jury could not convict based soley on the prior acts the trial court erred in instructing the jury it's not a perfect thing for me to offer you there was no constitutional claim made as to that failure in false but they did find it error the other thing that we can look to is the fact they changed the jury instruction and all the jury instruction was revised shortly after mr mckinney's trial i assume it was because they realized there was a problem with it evidence is not sufficient by itself to what is going towards the merits what are we talking about now but what the california supreme court would have done i'm just trying to construct that for you don't lawyer really right so it's the amendment says more than the revised instruction says that it's that the prior act evidence is not sufficient by itself to prove guilt beyond a reasonable doubt that's what i  that i mean it as if you really want to know what the california supreme court would have done you have to look at his reasoning in this reasoning was completely unconcerned with the fact that there had been a prior conviction and instead it was determined to stay that no reasonable jury would have looked at this instruction and thought there was a problem the instruction here was not less clear it was about anything more clear since it was a little of him to clarify it so if we're just looking at the instruction i understand they said this very general thing about under these circumstances but there 's no way to figure out what that meant but other than to look at its reasoning and the reasoning is not specific in any way that matters here is it i agree your honor the reasoning did very much expects the jury mean maybe spending energy on figuring out what the california supreme court would have done doesn't seem like useful time and energy big money it probably would have done the same thing the real thing as well but we are pretty sure that this court would have done otherwise so then the question is or maybe it probably would have been otherwise i mean maybe there's enough different or a room between the of some of the facts here and tell but probably not so why isn't that what we're worrying about why are we worried about w