petitioners petition under twenty two fifty four and the second is that the district court used the wrong analysis in deciding the ineffective assistance of counsel crime both of those errors prejudiced petition to require reversal of the order to give record problem in the severance issue it was argued extensively by the parties in the trial court level and even though the state court opinion gives lip service to the consideration of crossing this ability in the beginning of  code section nine fifty four point one actually prevents it from making a reversal based on lack of cross and disability and then fail to consider the lack of crossing this ability whatsoever it appears that there was never been a reliable argument that that chamber of the attempted murder i would think it's actually more correctly characterized as an assault with a deadly weapon evidence was admissible for any purpose and that doesn't murder  conceded that when it directed the jury not to consider the evidence at all what the supreme court case your client contends was misapplied run reasonably applied again don't we have to determine that the state court made an objective we have read from whole application of some supreme court that's correct your honor and i don't have a particular site in front of me but it's all of the cases regarding just general due process and when this court has decided twenty supreme court's never decided i severance case that's not based in the federal rules of criminal procedure we have lain through general due process like but it's really just general due process language that we're going back to so what's the general fundamentally unfair consideration of evidence that's only in the simple and only relevant in mountain and unduly prejudicial that's one of analysis that we really have to rely on here and when you look at all of th prostitutes and shooting and drug deals because otherwise there's no relationship between my client in that world to be on the fact that he's results brother and if you think about it that the prosecution took they had to have my client confession in one thousand nine hundred eight they had eyewitnesses conceivably long before that when the the actual shooting was reported to police who put my client there there's no reason why they couldn't have tried to can grow case earlier i indeed put the camera case into the d case knowing the risk that they were going to run the statute of limitations which the ultimately did in the middle of the trial and i think although there's obviously no one no district attorney saying on the record what we did this so that we could bring in this other evidence if proof provided the prosecution with a crucial link between petitioner and rozelle in this criminal behavior with drug dealing pimps and prostitutes in the world that mr desmond was associating in before he was murder the reason i point out this particular case noted that penal code section one fifty four point one might present a constitutional problem he says under different facts i say under these facts and although that's that's not a separate issue it's certainly  court's consideration of the severance issue it's also important to know that even though i did some discretion in my brief of the out the rule of cautionary instructions and how you can't on ring the bell this case really looks  an awful lot like jackson v dental in other words they were i can't deny there are some cautionary instructions don't miss it don't consider the commercial evidence and of course the state court opinion no that results jury came back during deliberations and said well can we consider the kimbrel evidence for stuff that's relevant now my jury doesn't have that now so i can't say that my drake did or did not do that but it's certainly persuasive evidence that this is extraordinarily difficult evidence for a jury to disregard and jackson be done as does he can't ask a jury to pretend the defendant didn't confess to a crime after they've heard it it is just you're asking them to do something that humanly not possible and that's what the trial court was doing here is asking the jury to pretend oh james tony never said being which obviously i'd like this court to think my case looks most like there was a huge huge huge discrepancy in the evidence between the two offenses and then the prosecutor argued the weaker offense in in argument and i you know i don't have the argument by the prosecutor and i don't have the same discrepancy i have a discrepancy and i have a discrepancy between up who done it which was that it doesn't murder and what is it which is the other attempted murder in all the other cases there was either  judge that the evidence wasn't cross admissible because he directed the during not to consider the evidence for any purpose whatsoever and we don't have any evidence of partner compartmentalisation in fact quite the opposite if you look at the jury note from on these particular issues so all we can say is if you look at these other cases about what happened and you talk about fundamental fairness and you talk about the fact that the links between dozen murder were much more tenuous than the links between result the result was in it for he had a long term relationship with this guy he was clearly planning a drug deal with this guy who was in the guy's house after he was dead and missing he had his property he tried to senses property and the evidence against james was confessions to people in arkansas that didn't even surface into more than five years after the offense happened and most of those statements that he made to them weren't accurate they didn't record actually reflects what happened during the day as the murder so i think when you look at the totality of the circumstances and try to figure out what the kimbrough evidence gave the prosecution that w chains enraged resulting other in violent crime in the world of pimps and prostitutes together which made it much easier for the jury then to accept that change was involved in the doesn't murder the other issue ineffective assistance of counsel claim and the failure essentially the biggest problem i think is the failure of the district courts to give them an evidentiary hearing on what are certainly credible allegations that there was a defense out there that his on the record that she knew about the injuries that might have led him to be incapable of participating in the crime she questioned it really two witnesses about it again use no argument and presented no further evidence and unfortunately what happened here then is that the district court attributed tactical decisions to trial counsel without ever finding out whether trial counsel even thought about this for more than a second or had for all we know the titian or was knocking or in court saying ask these witnesses these questions and she didn't actually investigate the defense fully or she actually investigated it fully and decided it was not a credible defense or not a reasonable defense to put on for all the reasons that the magistrate judge and the district judge cited in their rulings below but point of counsel to do his petition in the state courts and he wasn't appointed counsel even though they asked twice in this case to develop his record in the district court here so we have these allegations he's locked up in the arkansas supermax different medical visits and there's nothing that we have after that i have no idea if there's more that exists after that or not the allegation in the petition is that there's more they don't show what what what you think this i think frankly find them very difficult to read i've never had much luck reading nursing and physicians notes myself and something a little bit  incapacitated he couldn't work in a hotel any longer but it's again it's an absence of information that i don't think is attributable to petitioner but to the process that he was afforded that's problematic now getting back to that the problems of gang stuff when you're shocked by gang members does that mean you yourself are a gang member i mean i think for myself i suppose that believe there might not be there might be some motivation for not wanting to  there's competition motivation that way but there's also a lot of it was a pretty pretty good death that this my practical consideration could have been well i disagree with that particularly because they're pass there was no affidavit that he made out that i know was that was presented to the courts since i was only appointed to represent him in the ninth circuit it wasn't the point which we could expand the records for him but if that's the record and i think that the court needs to remain on the matter for further evidentiary hearing to allow him to develop the record to make the full decision on the strickland claim i think that that is really sort of the threshold that we have to get over but i also think that the allegations supported by the testimony that was actually presented and supported by the medical records that demonstrate certainly that there was there were these injuries that were suffered by petitioner are for failing to put this on that trial counsel had a duty to try to put on his net much medication or alibi and of course there wasn't a different alibi defense that was presented for petitioner at trial so it wasn't inconsistent with that at all so i think petition or is it unusual he goes to the district court to this court to the state court even in the cloud over seedings was what is going to be gained by having an evidentiary hearing than what is already presented in those medical reports wh for further treatment to we don't know where there was a primary care or the predict surgeon but what we do know is that he was not prescribe any orthopedic device remedy or treatment and the note that we have from the doctor was that it committing a murder as an aider and abettor and intel in california law even better doesn't necessarily mean pulling a trigger it could be of any sort to help facilitate encourage the commission of the murder now granted what we have is the evidence from the appellant statements to people in arkansas all when he was bragging about he and his brother was l offing the defendant mr desmond hughes and one of the  college brother told him to shut up you speak too much one of many several times in arkansas that the appellant made statements like that connecting him to the desmond murder where rose is that the cross the newest ability factor is not the exclusive reason or bases in which to find that i think the aisle of a motion for severance should be found to be improper well we have here is that did to interpret it which was that the desmond murder was more heinous more more brutal and in fact than the camera now we also have below this weekend the camera murderer or charges were dismissed in trial we have the trial court instructing the jury in this case now if you consider that and also read instructed not to consider those facts but that still doesn't mean that the the motion for severance was and probably had on what we do have again and something that the state court below handled when the motion for severance was that one the there was no spillover there was no the question raised by felony about what would be gained from an evidentiary hearing the types of information i believe that we could glean at that point it might be presented by either side is whether what trial counsel did or did not do to investigate this defense that she clearly knew that and why she decided not to put it on if for a reason if there was actually decision made or not we might get actual additional evidence about the nature and extent of petitioners injuries on december sixteenth in other words there's many things that could have happened to his injuries between those medical reports that he was able to obtain for the state and federal courts and the actual data on murder and i don't see how you were and i question if the job that you're doing your point of view right you know it's easy maybe he made an out you know if you look at a couple pleading standards you certainly need allegations that if true our position would warrant release he has never been given an opportunity to develop the factual record while he's incarcerated to problem is that the state court when you file these things in this healthy supreme court they fairly routinely give you the little post card denial and don't even ask that the other side to make a determination whether there's a dispute over the factual issues and so there's no development at the state level and legitimate claims brought into federal court that then aren't fully developed finally if we again delegation from the petition is if we had never injury theory we would not be able to get the treating physicians opinions about the titular civility or disability because that's not the the case just argued is