usually has been in a case of this nature but its effect on our client burn kills on top was especially prejudicial because following the master kills on tops of murder trial is when  in which she gave testimony in both cases against lester and byrne and that they both ended up with s sentences while she got a very lenient sentence and in fact has been since been release in other trouble since then there was a significant amount of brady information which turned up and post conviction proceedings which was never given to either of lester or her and therefore not used at trial so i think these are the that's the context that we need to have before we look at the issues here the first issue is the  motion for mistrial which he made a motion for mistrial following you know his his receiving this information and he said that he was told that they've been wearing it throughout the state's case which was fairly short i mean time and that's the jury was obviously exposed to it because the bailiff not only took them back and forth to the jury room but i mean th error in failing to grant the motion for mistrial even though it's really more of a extra record claim right he has claimed which you know would involve further fact factual development but that's when it was first raised to the montana  i grant you that but our position is that it's not really a claim that should have been brought on direct appeal in terms of the the factual development that should have occurred to show whether or not  appeal and was ruled out of but that's that's what i'm saying it should not have been brought up on what sort of so little we're going to do about that but i think the the problem was the what was before the montana application of the line of cases starting with turner and going through a stealthy william and so there's a difference the first amendment doesn't come into play here it's a state action and it's a bat which commands that they do something it's not a position like the women against rape or the photo of the exactly and then it was raised on those conviction and then the montana supreme court made a decision that was wrong in deciding that it had already been raised and rejected the race judicata rule in the direct appeal which was it was raised as a violation of all these this line of supreme court cases as as interpreted by this this court in norris and at that point back counsel had moved for a  the record any further than i had up before your time around i've got a prior question on that is how can we reach that issue that is has it been exhausted is there a procedural bar  bar that was raised by this faith and accepted by the monsoon supreme court in the appeal from the first post conviction had the magistrate judge determined that that was an adequate and independent procedural bar and but also federal otherwise known as i understand montana may get a kind of law in this setting they don't have a use it or lose it it's actually was litigation and for them to hold the second time around race to the kind of on the federal crime they necessarily have to mean that the federal they deal with the rule that you spoke of which is precluding claims they could have been raised on direct appeal but were not they barred other claims under that rule that specifically did not bar the badge a claim under that rule they barred it anything at this point well at this point i don't think the court needs to be concerned with that and i don't have the tealeaves to you know what the supreme court is going to do with it but i have reviewed the briefing in  concerned with the the badge and what the badge really meant that was part of it to the factual problem of whether a picture was the same as a s r again that's not a problem that we have here the other problem they had was whether they interpreted the panel in the movies living in caves as elevating ninth circuit authority to have is that little bit that we know from the trial itself so you know what you want basically wants a hearing and then which you will we go from there i mean that's that's what this court did in in norris it was i'm reminded of the state court for a hearing and certainly will develop and would be welcome in this case the problem of course is that near two decades have passed so the difficulty in recreating it is something that we would have to deal with i think doesn't sound as though under federal law as we see it now i think court may see it differently but under federal law as we see it i do this is presumed that while the supreme court me see it differently i mean their line of wasn't i think i'm probably in agreement with who that the montana supreme court under rect appeal was not alerted to the federal nature of the claim collateral attack in the montana harsh the federal nature of the claim was made that the montana rule that you just described may be thought to have been applied inconsistently necessary for a very proper procedural bar we hold that the state court must consistently apply the rule all the virus and the second possible answer as well whether or not they have a rule that would bar because they didn't bring it up first time around the second possible answer is the montana court the second time around the montana he that means they had to have decided that the first time around underactive you know they decided the federal claim and you can say well they made a mistake that really is the million misapplied montana law or you can say they properly attired in montana law which means that the first matter judge to apply the law that we're quite confident the will be announced this is safe not apply the laws we tell them not now leo's but apply whatever the law turns out to me when we combine respect to what kind of showing needs to be made and to think of a strong argument could be made that at least were to target with respect to the wearing of various here was likely to be more said on direct appeal this was not a claim vic could be raised except on the record and the record was very obvious light on this issue it was more properly but what about the argument that i think i also heard not  agree but the problem i think is that you know it's possible that counsel could have tried to develop the record more of a key he made his objection he made the record that he could and it was  denied but maybe your argument is that under the circumstances a little been very odd thing for him to have tried to ask the trial judge in the middle of a capital murder trial and we have a little side trial about how many people what about and who saw them and so on i believe that i mean the i think the court looked at it even though the the trial court was not even worried about them removing them the prosecutor conceded that it was a problem and that they should remove them at that point  some hedging but again getting back to the development of facts on post conviction that petitioner tried he requested a hearing on the claim it was not granted that i mean that the supreme court just that the trial counsel had just learned that they had been wearing them but there is the implication that it had been over at least a few that they were period of days i believe that was the implication transcript and the appose conviction the decision but i believe that there was some language to the effect that it was not just this very moment they they put them on it was over a period of time