rape and the kidnapping charges the government doesn't argue that the turning me motion that you would not have been granted it appears that there is sufficient case law for support that you would have been granted therefore the government argues only that you have failed to show prejudice that it is where does that leave us in terms of our review of the state courts conclusion that there was no prejudice well it's a legal conclusion it's not a factual determination therefore this cour admissible in this case not only that had the cases been the charges been severed the jury would not have found out that appellant was also being prosecuted for admit that he had suffered a prior conviction so the jury would not have found out about his prior felony conviction in addition to but not have been process of missile and clearly the position of marijuana and the gun charge or stronger and just to show that the opponents with kidnapping simply because they found out of his felony prior felony conviction as well as the fact that he was being prosecuted for two other crimes in the same trial prejudice is you've got a double barreled problem here the state court resolution of federal constitution issues unless a decision is either contrary to or involves an unreasonable application of clearly established federal law so that's what judge orders asking you to address why did this involve  failing to sever the charges now but strickland says you can jump over that and go right to prejudice and i took the state court did hear that's correct and that's what we're dealing with we're asking the court to revisit that number of times by the supreme court last year because we did exactly what you're asking us to do which might make sense in another system but ed put in the supreme court have told us exactly as i read to you that it has to be exactly as i described  course the gun charge and the drug charges were pretty much i mean there was nothing to argue it went into petitioners house found the gun found a gross and he admitted they were his and the story however the sexual charges or the rape charges were equally as evidence you had two doctors here dr sheridan and dr mammal dr mammal found that she was a rape victim dr serafin who was a specialist in child abuse cases found i want to get the language right and the normal and usual of highly if highly suggested by her physical exam also dr sheraton the expert said that it was unusual for a victim the come forward immediately unless it was a stranger and also what's also important in this case is that the prosecutor did not argue unlike in being a prosecutor here did not argue all of these counts together the prosecutor argued them separately and did not say that one caused the other again that the evidence of these works were actually fairly simple in the stink you have the evidence of the rapes in the evidence of the gun in the drugs came after all of that evidence it was simply something that they found getting out right i could be wrong but i think that's the case the sequent made a finding here within the context of a margin hearing so petitioner himself had the ability to bring forth his complaints about the council how do we know what happened at the mars tha well i know in the briefing your honor and again this is the case i picked up but i know that in the briefing we do have the record of the court made the finding at the margin hearing that in fact counsel had investigated this particular complaint prior complaint by the victim and was not able to get this out of state witness you know that he was trying to find he is in our record i know i know that it's in the briefing you're on that's what i can represent where in the briefing you're i do read that but i was curious where all the facts came from such as unable to locate the witnesses and things like that for  write we certainly had to have a record of the mars and hearing your honor what was presented to the court in terms of that honestly i do not know there so that's something that disputes her testimony that he was forced and an argument if they was a consensual and that the victim also came to the defendant's party birthday party even after the allegation of rape and had a good time at the party now with respect to the second issue i agree with trot that examining the trial attorney you see but the question is whose responsibility is that i mean there was a mars than hearing and there are references to it in the state of public record so why haven't you provided us with the substance of the mars and here presented to the trial court in a marston hearing in the in the trial court made a ruling that suggests that the other side is right well you were appointed to represent he l that's correct so you're you have the record that would be for the district for the district court and that's it that's correct  not proceeding with these allegations of prior sexual abuse well it's tell us here say that if there wasn't something in the record the strictest to suggest that well i think the petitioner might have brought that fact up that if your honour's me would give us time we could try to locate the marcin here i say you know it's not necessarily you personally but it's your side if you're going to try to perfect something like this we've got to know what's in the