and we are here seeking relief under twenty eight u s c twenty two fifty four dean one and two and we are strongly contending here that the the court decision our clients confrontation rights were not violated by the admission of a non has to find co defendants confession that this was contrary to warn and reasonable application of clearly established federal law  the redacted transcript it does appear in the excerpt of the record page starting at page forty eight but obviously the statement must be considered closely as a as a whole and what happens in the statement is not testifying he starts talking to the officer and he talks about something he wants to tell him about something they did ok and this is how we are led into this whole statement and  so the officer starts talking about what he's talking about and he starts talking about the shooting in santa clara or something they did this is that page forty eight something they did what did they do shoot people yes they were shooting how do you know about it they told me what did they tell you and then it's a savage further on while you were there and who's doing the shooting page fifty and the officers referring to well incriminating as to someone actually two accomplices he goes through and the officer savages how many times you've been with these guys when they do things referring to the robbery murder and he said well that was it but it's not incriminating as to mr hayes is it can you can you really argue there yes i do believe it is facially incriminating as to because it sets up clearly that there were two accomplices at the murder this is the this is the core of the unreasonable application of authority by an unreasonable factual determination by the state court you look back at the state court decision at page fifteen they say the fact that there were three people involved in the robbery murder was not at all completely obvious from the redacted take but it certainly was because the officer ties it back in and says well these were the same two homeboys right that you did these things were right and then they start talking about what we knew mad at angel angel sierra is always identifying the identity of the second accomplice is never specifically mentions right so we've got this thing and then we couple that with the fact that there was a tape that was played to the jury along irrelevant matters well that's what the officer said that's what the jury heard that's what the jury heard but the question is you know they also received a limiting instruction that you're not to consider this against anybody but mr not anybody else and so the existence of anybody else other than the declarant and somebody else other than the defendant the codefendant sitting there was never divulged to the jury and as far as the jury knew there were only two people involved in this the confessing person and somebody else other than the codefendant so there was no mention of the existence whatsoever here in this case the existence of this second accompli is completely obvious it's clear when you put this together that the officer saying ok these guys when they do things these two homeboys and we know one of them is unhealthy era and yet  in that it was quite clear he was saying there are two accomplices she we were mad at it on how we were mad at on hell because nobody was supposed to get shot well that clearly implicates another accompli made a conclusion of law which you have to defer to do we not under the standard ordinary unless it's unreasonable you know if it's unreasonable then you are authorized indeed directed to issue the writ if there is an unreasonable application or an unreasonable determination of facts the key thing to the state court decision was this portion the fact that there were three people involved in the hernandez robbery murder was not at all can flee obvious from the redacted take that is an unreasonable what do you do if you call a factual determination as an unreasonable factual determination if you call the next conclusions are wrong back it's an unreasonable application you not arguing it's contrary to supreme court cases you're arguing that it's unreasonable application of this quite frankly your honor i have i have a difficult time parsing the exact contours of the bike thing in some respects it is directly contrary for this reason gray versus maryland says that redactions that we place a name with an obvious blank space or a word such as deleted or a symbol or other similarly obvious indications of alteration ok that's where i think they did not apply this because there are obvious signs of alteration and the state courts and unfortunately just record overlooked the fact that the prosecutor it made it to the trial judge that the it was obviously redacted the police officer testified to the jury that they have altered the statement so in each circumstances your remaining time if you if you wish it's up to you if i just make one last point we know from the jury's question during deliberations that they were trying to use that statement against  morning your arms please the court when prudent deputy attorney general on behalf of warden runnels a couple of points i'd like to make the outset first of all guys this is not a close case as judge pryor described it  although it does fall between richardson and great we would submit that it falls much closer on that spectrum toward the richardson case and also i think it's critical of point out that the jury was properly instructed in this in this matter  both during the trial itself prior to the testimony of two officers officer shot and sergeant moore and i would cite the court to the reporters transcript at pages fourteen twelve and interview but not for the second taped interview your honor if you go to those pages i submit that you will see the instruction that's given talks about the evidence that will be coming in through the witnesses it does not limit it simply to the first statement that was taken over juvenile hall from mr weeks furthermore if the court looks at the clerk's transcript at page two eight five seven will see that the jury was given instruction associate evidence has been admitted against one of the defendants and not admitted against the other at the time this evidence was admitted you were admonished that it could not be considered by you against the other defendant do not consider such evidence against the other defendant is that you have given the time motion by actions after after evidence affirmative that was given at the end when the judge was instructing the jury and again that's found at the i just want to have you respond because you haven't had a chance to reply brief your position is the living instruction was given at the first and not the second but there was an instruction at the very end of the case which covered both of them if you interpret it i'm afraid i didn't make myself clear out of the instruction was given the limiting instruction was given in reference to evidence that was going to be received from a witness and the witness talked about both statements that were given and then this was given it right up front and it wasn't limited the admonishment that was given to the jury prior to the witness testifying about the statements if you look at the text of  as court correctly stated that you should before this court this morning is whether or not the california court of appeals rejection of mr hayes this confrontation clause claim was neither contrary to nor an unreasonable application of clearly established federal law but i ask you one other question this or others for me about the case of graf you can clear it up as i read the district court's opinion he says it not obvious in the transcript as it was in gray that portions of the confessions were redacted there's nothing in his opinion that indicates he listened to the tape as i understand it the jury listened to the tape as well as read the breed active written version does the record demonstrate that the district judge listened to the take i believe the district judge farmers correct address that one there was a rule fifty nine motion significant evidence and of course what happens in the tape it was argued by counsel is different from what happened in the written record so it's a key point but nowhere in the brief does it indicate that he listened to the t ape or maybe a comment on the tape that issue you find in a district court in the district court that he is also listen to the tape of my recollection of his order denying the rule fifty nine motion is correct can you find the give or snowed on the record so we don't have to go through the whole record to find the answer as you understand that there's at least the opportunity that we might have to read man and for him to listen to that tape if we considered are and simply the length of the pauses the length of the pauses and then here it says inaudible was not in audible that's just a word used to cut things out of the tape and unless you listen to the tape you don't get an idea at all of whether there is something there that is more incriminating or not i would think on our cases the district judge would be required to review that with our counsel ask him to or not that's another issue and maybe it's not an issue if you can show us where in the record he listened to i take it the tape is not here we've been encouraged by your adversary to listen to the tape ourselves but i don't think it's ever been brought to us so we're going to needle hop from you on this if you could was also surprised as my understanding was that the tape exhibit fifty three came forth to this court and well it was a question if it is a judge listened to it that's the question yes or we would submit that the redaction great thing is they hear something there's somebody missing they look lo and behold there's somebody sitting there and they can put two and two together and come up with for your position is that simply isn't so absolutely and how do you respond to counsel's arguing with a talk about the two beach boys or whatever the homework you are if one reads the route back to the transcript from beginning to and certainly it's evident that there are at least two other accomplices but certainly also a reasonable inference from the transcript the self or there are more people involved and there is nothing that points directly to the fact that i saying that there isn't really three there could be five it could be magical loot your honor and that that i think comes through when you read the transcript from end to end and the way this differ differs from grey's that the reactions were very plain in that in terms of the type of alteration that was made to the non testifying codefendants statement where they used the act no your honor means that on the tape you just can't make out what was said so there's nothing in here that gives any sort of a signal that there's a deletion in this written record that's correct your honor and i would say that we probably wouldn't even be here if it wasn't for the fact that you know the tape was provided in the tape shows that you know there were obvious deletions but again the jury was given a very benign explanation for those and they were told that simply no matters that were not relevant to the proceeding that was it hand had been omitted that they were told that by a witness that's correct charger more so is it so we find out from the witness i we deleted yes reserve time thank you so much i think it's interesting to note that has admitted that the state court was wrong he said it's now here's interpretation now of the transcript is well yeah there was indications that there were three involved but maybe more and but i ask you again please read that there is never any indication that there are any other people other than three mr ruiz and his two boys there's no implication that there's anybody else involved one point in that and opposing counsel claim the contrary frankly surprises me but at least we did get the concession that it is obvious that there were at least three people as you w recall the state court decision said no it wasn't a happiness so right there he's basically conceding that the guts of the state court decision in this case were factually wrong was factually wrong number one number two i'd like to go back and try to answer