issues have been raised there are several that i think i could address the first one is the question no discrimination in dismissing the alternate juror  violates faxon because it leaves the person with no black to yours now back and didn't say that i can't think of any other supreme court case that said that if now i address the second issue that that was that indeed the prosecutor's argument at the end of the trial was that the letters from the letter from the defendant showed that this was racially motivated a tally of the circumstances text but the fact that the prosecutor made very minimal reference to those letters in closing arguments certainly was not known to the trial court at the time the court had to consider the nothing surface to air in any part now in hand if it in fact that became the concern of trial counsel trial the defense counsel then there were other remedies available to him to console him to petition or that point they absolutely no supreme court any clearer federal laws are taken by the supreme court holding that that what happened in this case or that the state courts valuation of it was contrary to any supreme court rule or could really remotely be considered an objective only and reasonable application of the existing rules do you have a new case of johnson be california in which the supreme court has said that the test is articulate remember both those cases are post this case or they are both but that's just their interpreting so whether a california court should have been aware of the ramifications of that asinine clarified or whatever in california court acted contrary view to supreme court authority that did not exist when it acted but it subsequently corrected and and even in addition to that we do have the underlying case of people b johnson  which the california supreme court said both standards are one and the same so they think that the california supreme court had construed the we would test this is similar to bass and the supreme court has now come along and said you know that language won't cut it point regarding griffin here i'm not sure i follow the argument but the facts are that during closing argument defense counsel made mention of the fact  alluded to what the petitioner was thinking when he wrote the letters that were sought were ultimately introduced and in rebuttal the prosecutor got up and said counsel could not know what was going through the defendant's mind when he wrote those letters there's simply no way to recently look at that and say that that description here that somehow he commented on the defendant's failure to testify or urging now under and in light of that some of them miller ellen johnson yes or do you suppose that it doesn't make any difference to the alternate whether it it makes a difference whether or not the alternate even if the alternative was stricken for question but comment that you made was well the prejudice goes to both dismissed juror as well as the defendant that's true but that me true or else that we still have the has been discriminated against racially and stricken from the jury pool doesn't make any difference whether they ever sat in the would have sat in the decision making process the harm for miller all occurs because  but in any of that i don't think you can say it goes away because the jury never landed deliberate on the defendant's guilt the juror was struck and never got to participate in the process and wouldn't have the heart it would not have and as we now know in hindsight would not have participant i sat on a murder jury there were two blacks who really alternates and one of them actually did get called but the other did not so they sat through the whole trial for all they knew they were participating prove they would have