the admission of the third sheep the thirty two caliber gun which was definitively concluded by all evidence presented to have absolutely no role in the shooting mysteries has raised a substantial but uncertified issue of ineffective was deficient in allowing the gun to come in the trial court initially ruled that the gun was not admissible because there wasn't sufficient nexus between ruiz and the gun and it wasn't a murder weapon and the prosecutor agreed not to bring it up without first alerting the court and having further discussion or argument but there was never any further discussion defense despite the court's initial ruling excluding the gun trial counsel mentioned the gun in his opening statement he failed to object when  was question in detail about the gun he also never argued to the court or to the jury that the thirty two caliber gun was a different color than the black gone or guns that rochelle shea saw and he also failed to object to the striking of on that day and also eliminated prez's possible connection to the gun while shifting the focus entirely on to ruiz as the second shooter and the prosecutor even stated quote my case is stronger against a reason without a match to pare reference to the second gun should never been allowed to come in as a right so we would categorize that as admission of either irrelevant or other prejudicial evidence is that right yes i'd like to know i mean what you can tell me then how how do we proceed if the supreme court has not made a real clear ruling on winded mission of irrelevant or overly prejudicial evidence constitutes a due process violation so i'm trying to figure out how can we say or fine that the california court of appeals misapplied clearly established federal law which is what we have to do in upholding the appellant's conviction well argument here would be that a step would be mcguire is that clearly established supreme court law and it established the general principle that that admission of evidence was not fundamentally unfair so you know the conclusion being i mean it's a general principle and the supreme court has also made clear that it doesn't require the federal courts to wait for an identical fact pattern before it's just get to that and get to the underlying you know argument that you're making here and it should have been admitted but are you saying it was irrelevant or overly prejudicial or or what exactly both actually because it was it was not the murder it was it was the only evidence was of a nine millimeter gun like all of you but if i understand this correctly and i want to make sure this is your opportunity to correct me on this because i know this is really important to your client but i believe the eye witness or one of the witnesses saw said she saw two guns coming out of the car still two like barrels of guts and then they were able to track down i guess mr reese's girlfriend and apparently she had told officers that had a gun i brought a gun there previously to her house and they found the gun at her house out in a locker outside her house and then there was also some additional evidence that the dog had found the scent of the gun and somehow correlated it to mr reese so if you have a witness even though it wasn't the gun used  she lived with her sister and tons of people came through and that was the reason that the trial court kept it out in the first place so come by such pool if i get in the truck the question why is it relevant if the person like ruiz is known to have a gun even if it's not the gun used in the particular murder well that irrelevant well i guess i consider that because i think it's it only serves to prejudice the prejudice alway's any sort of property value because the gun couldn't have had any role in this shooting so the fact that maybe he has another the problem i have is that it's not so obvious that it's irrelevant that i would think it's a fundamental fairness or due process so that's why i really want to know what specific supreme court case that is on point that would say you know evidence is so prejudicial that it violates fundamental fairness but i think that that general that principle is that forth in supreme court cases that have been held and supreme court has also said that you don't have to have an identical fact pattern or identical or even close but that you know before a general principle can be  clearly established supreme court precedent for which a petitioner can obtain federal habeas relief under that this is an advocates and therefore petitioner cannot obtain relief even under the standards only if there are no permissible inferences from the evidence would it be a due process violation and here that's simply not the case the reasonable inference is drawn from the admission of the gun where that petitioner used the gun during the commission of the c they knew i understand it was a second gun he may have had access to it but when you drill down in terms of what the witness actually said why wasn't this overly prejudicial it wasn't by judicial because while it's true that the forensics  collected at the scene didn't only matched one particular gun the eyewitness clearly said she saw two guns so this wasn't prejudicial as the prosecutor mentioned in closing argument because  and she identified petitioner as the back passenger with the second gun he said the gun could have jammed the casings could have been injected to the car who knows but we know that she saw a second gun and we know that this gun connects the petitioner and therefore we know he's connected to crime briefly with respect to the ineffective assistance of counsel it seems that was also certified with respect to the jury instruction just for quite correctly found that there was no deficient performance the all of the un charged acts were purely admitted to prove the gang special circumstance allegation and the gang enhancement and to go towards the motivation towards the crime all of the parties understood that that's why the evidence was admitted and that's precisely why counsel didn't request  this additional instruction that didn't pertain to just general uncharged acts as opposed to i'm charged getting x that i just heard that it was minimally prejudicial because there was significant evidence presented that the nine millimeter the other gun was the was the murder weapon so that there wasn't any real evidence submitted that the murder weapon was the thirty two caliber handgun can you speak to that because there was no evidence presented that the thirty two caliber gun was involved in the shooting at all all the evidence with your client prejudiced i mean if it didn't point well based on what i think it would be a combination of that the defense counsel not making clear that  different color which i think would have just would have caused the jury to disregard it completely and the fact that the council didn't didn't allow the striking of the testimony that that that that the dog also track to the other codefendant her as first with respect to the gun that the jury could have believed given the evidence that was presented to the jury could have thought ok the witness testified there was a second god you know she saw a second this was the only god that was talked about at the trial it was the only guy that was found and so the jury comes out oh well he was the only other defendant that was linked to the gun i mean there was so much more evidence against the third defended his alias the one who was convicted of first degree murder  and this one if the gun hadn't been admitted ruiz would have been on the same footing as the third the third defendant press who was acquitted of all charges because the witness the primary when you saw all three people in the car to