burden then shifts to the government to explain the pretrial delays which is the second factor that causes the delay and this is where the district courts finding went wrong according to the district court it found that because the continuances were sought by mr tolbert through his attorney he thought there the burden of proving prejudice and then the court also found that mr tolbert did not demonstrate prejudice because he didn't prove that there were any there was prosecution each factor is used to attribute the lady to either to either party and to determine how much weight should be given to each side here however the district court failed to assign any such weight and instead shifted however our case is not controlled by lamb it's controlled by mcneely because in our case as in nick neely defense counsel continued the case several times and at least four times over m his right so therefore because the presumption given the length of the delay in this case was already presumed it was incorrect for the district court to then wrong then shift the burden of proving prejudice to m a secular psychological evaluation and that was the the one reason he mostly or relied upon throughout the case i think you rely on the fact that he had just been assigned to the case as early as only the first time on december twelfth there after i mean he that he was familiar with the case and had he opposed joinder as that that's my second point are the second point claim he would have had to continue the case so much so many times however as i stated he primarily relied on the need to have mr tolbert evaluated by a technologist and he purported that reason as early as early as december evaluation in fact the first three times that he agreed to waive time was because he wanted to submit to the psychological evaluation and yet his attorney never called him never explained to him what the delays were why he was waiting so long and he never visited mr tolbert so while there's no reason yet it's true that there's no reason showing either way but at the same time there's nothing showing that mr  continuously continued the case over and well the case was continued several times and there were times where it appeared that the defendant had waived speedy trial time the mcnealy court said that to the extent that the teachers couns about whether it should be it's a continuum it's not about blaming it either actually being the cause of the delay the center of the prosecution for how much weight should be given and because he did attract so these continuances because to i think you well after the hearing the judge and it was at that point that the judge refused to grant the defense attorney's request for a continuance over mr topers objections prior trial rights and as well as the prejudice that mr tolbert suffered that factor should not outweigh the other three with regards to the prejudice that mr tolbert suffered that this trick or also i also to according to the case law showing citing concern is is one factor to look at in determining whether the defendant was prejudiced and here he said that he was he did suffer from that as as early as three seconds in there or seven was the third time that the trial was set for now had he gone to trial on that day mr tobar would have been defending against not only the plot what burglary but this time the attempted escape as well as the no burglary to show consciousness of guilt i would like to point out that the escape charge which was filed on november fifth had nothing to do with the no burglary because a no burglary was not charge and so thirty or a twenty seven thousand nine hundred ninety seven that was more fact in joining these charges was great having heard evidence of the escape side by side with evidence of the burglaries the jury was then predisposed in finding mr tolbert guilty of one charge simply because by having found him guilty of the other charges that the burglar burglaries mr knoll and mr testified these were the owners of the homes they both testified and they never identified the jewelry that mr told her was attempting to dispose of and yet at closing the prosecutor argued that mr tobar had stolen the jewelry and had attempted to destroy the evidence to prejudice was even more egregious when the think print expert also made a reference to the criminal database that was used to identify is very clear that the district court's decision did in upholding the court of appeals decision did not was not an unreasonable application of supreme court authority based on the length of the  was approximately ten to eleven months and the reasons for the delay are what's important here is that the attorney was trying to pursue the only defense he had to attack the ability to form intent in a case where the evidence was clear and or each of the charges there were fingerprints found there were eyewitness identifications it was an uphill battle for this attorney and there were there were there was overwhelming evidence as well as the fact that this particular petitioner was facing a three strikes sentence for these crimes and when you look at also the queues assertion of the rights and by my review of the record there are only two times that petitioner art can be supported by the record in the initial time was december eleventh when king his counsel was first assigned and counsel wanted to postpone the trial because of his vacation but the court denied that request and went ahead and confirms the trial for december sixteenth that wasn't until the next day when the attorney decided no further investigation needed to be done for the intent consolidated and and the time was actually shortened by these cases consolidated instead of mr colbert was facing three stuff or eight cases in this matter and so given the fact that counsel came in not from the beginning the fact that the cases were consolidated and he was trying to what i would consider fight an uphill battle in a case where there was overwhelming evidence attacking intent and when the psychological report came fifth and at that time the court did grant a continuance because the court felt that a neurological evaluation was a reasonable request and counsel specifically stated that petitioner would be prejudiced if disorders and the fact of the matter is there were fingerprints found there were eyewitness identification and that sort of a two edged sword is not this is the reason i asked the question the fact that when the case actually came to trial the clear as to there's some of the continuance in between but i think in a in a case where you're dealing with the petitioner facing a three strikes sentence that this attorney based on the record and in the record the trial defense attorney asked to explain what was done with the it doesn't appear so it appears because each time petitioner waves waive the time so whatever may have gone on between petitioner and his counsel wasn't brought up until june twenty fifth and that's when petitioner said i felt like my rights have been violated so as far as the court's concerned i and his counsel saying he has to do further investigation there's no reason for the court not to question those delays and believe that they were in the benefit of the petitioner of the trial court when the defense r court found and properly that there was it was a brief reference there was no indication of his prior criminal history and that there was a permissible inference because the jury need to understand how these prints were obtained and they were  without fear of error the people more presumed to be guilty well i think they they just explained briefly and again it was a brief reference to the fact that they are fingerprints they're known criminal so yes there was a reference that would that a jury could draw an inference he had a past but it was brief and in light of the evidence against him i certainly would submit that it was not prejudicial that they the when you look at a different standard terry i think in looking at the in effect of assistance of counsel you have to look at what he was dealing with with california law but as far as the which isn't in the brief but as far as the the constitutional claim to whether they could have been severed sandoval talks about that which again is not in the brief because that wasn't relevant to that claim but you look at the crossed admissibility and the underlying strength of each case which is the same thing that we discussed in our brief about the fact that why there's no prejudice here is that the evidence clearly would have been crossed and miscible these burglars occurred within a short period of time they were very similar and  committed the second whichever burglary you were in court for but i think it would have come it's very likely and they didn't have to get to that in this because there was no the court didn't have to go that far to analyze that but there he was scheme or plan i think they were both residential burglaries they were in one situation he put a blanket on the floor it looked like to gather the goods and in another one he put a pillow case together things think it's very likely that that may may have come in and the time frame was a very short time frame between was less than a month between the two so that wouldn't have because the court found that while there was no motion to the motion to consolidate the court found they were different offenses of the same class of crime so squarely felt in the statute and then as far as the escape charge charge was consolidated with the second burglary which after he was arrested he was transported for a court proceeding and that was i would you relate charge which was unrelated to the circu court and he was trying to escape and the court found that it would be what about the other murders well once you can solid majority i don't think you'd have to necessarily have the  charge be connected with the first one because it was connected with the burglary and then the burglar was able to be connected with the first crime because of their being of the same class of crimes but even so you know the escape happened after he committed both of these these crimes but i don't think as as the petitioner has said that the escape charge didn't necessarily have to relate to the first offense that related to the second one and then the second burglary related to the first  has come down people versus valdez where it said murder charges could be consolidated with the state charges in a similar situation where someone was going to court and try to escape shows consciousness of guilt and certainly those would have been admissible if there were separate trials and then the first burglary as the second burglary sorry was connected was the same class of crimes as the first one and the underlying and another important point is the underlying evidence in each case was very strong it wasn't a case where one was weak and then your joining these two and he was going to be prejudiced and in that way so the county council was think saw the losing battle there with the statute it's not going to go anywhere counsel it's not reasonable or couldn't be considered deficient performance on his part not to do that and for strickland with with   there was no reason to do that and certainly under strickland the analogy with the d p a the analysis is not whether this court would come to a different conclusion but whether the the lower courts was an unreasonable application of strickland and i certainly in no terms can you say that the his performance was deficient maybe he could have done something or tried to do something but if it would have been successful you can't call that deficient performance that would prejudice factor and us versus lam made it clear that when the delays can be attributed for the benefit of the defense that the burden is on that defendant to show prejudice and and  mcnealy doesn't change that decision because in that case the record was devoid of any reasons for the delay so it couldn't be attributed to the benefit of the defense even though his counsel made some of those requests so it's not at all inconsistent to say that the with those two cases that the burden fell on the defendant in this case and certainly he didn't show prejudice he even said he did not need a psychological reports that's pretty hard i think for him to argue  he refused he didn't want the continuance for further psychological evaluation and certainly the psychological evaluation didn't show that he was having any problems and and then as far as the most important factor is the impairment of human first i would like to answer your previous question under the d p a this court can look at ninth circuit's the ninth circuit interpretation a clearly established supreme court law  practicing in california and a california state court faced with a statute that allows cases of the same class to be joined would be ineffective assistance of counsel not to  completely unrelated to the tube or to the burglaries the evidence there was a very prejudicial to the defendant and it was it was only reasonable for the defense attorney to please raise an objection but