workers may please the court i'm krista hart i represent christopher rogers and given that the government will be here the state's trying won't be here arguing i'm going to basically submit of the brief i do have a couple of comments i'd like to make to supplement what was argued in the brief there are two issues within the brief that were raised one with sufficiency of the evidence whether the murder was premeditated and deliberate the nd being prosecutorial misconduct during final argument premeditation and deliberation were under as a review right or the sufficient yes so we're actually looking to the california court of appeal which i believe was the last reasoned decision that's correct made in unreasonable applications jackson and so can you address that i'm sure so the state appellate court's decision of knowledge there was no motive described factors that it thought supported planning and i distinguish those in my brief but finally as to the manner of killing final type of evidence that to consider that's where i believe the court made its most egregious error it described on the last  page in the last paragraph of it's section it's the court says this means that at some point after having sex defendant reached for his loaded gun pointed at johnson said and pulled the trigger that and described that as being sufficiently particular to support the premeditation and deliberation factor and i would say that that essentially describes almost any homicide with a gun point is well taken i'm only interrupting forgive me but because your time is ticking ok i think your point in that is well taken jackson of course is an incredibly deferential standard we've got a review and the list of factors that you've identified the three is not exhaustive correct so why isn't planning enough it will be distinguished those within the brief planning i would say what is the evidence of planting and indeed individual in gauged an act of prostitution that alone does not indicate any planning at all unless there's some other fact that's wrong and at the and again i don't want to pick up trucks i really hope we're going to talk about darden error here today but it strikes me as exceptionally thin maybe the best thing i could ask is what do you think is the strongest argument the strongest support and why is it it's insufficient because i would say it's as to the rd factor the manner of killing and when the court says that it believes that the mere fact that the defendant held a gun pointed at the head of the of their individual mission style right prosecutorial misconduct during closing argument in that instance i would say that the the prosecutor's argument that without help jurors reaching an agreement a crime like this a murder will go unpunished is error which requires reversal when i will there's no objection even though there's no objection because that so in fact of the trial with unfairness that it rendered the verdict a violation of due process how many think very often it's very hard to read the motives of an attorney representing a person who's accused of murder sometimes objection is the wrong thing to do because just highlights decision for not objecting is that what you're saying could be it could be as much as the assumption that you're the that you have asked us to make that occurred how do we really know what was in a person's mind how do we really know  hung ended up in a hung jury it was a restaurant that has nothing to do with this trial well i don't know you say it's very weak i don't know if it does or not because the prosecutor in the st trial did not make this offending statement they relied on something much less offensive unless there is a verdict there is no resolution counsel that the prosecutor also flip the burden of proof quite blatantly so what did they prove what the redskins prove in this case d to count how many times the prosecutor made that statements like that in the closing i did not but i know that it was several i recounted a number of them in my brief but i didn't count of i think i counted sixteen ok that and when we talk about darden error of course it's really hard to show garden sure and we've got double strickland deference here right because the case so what case law is there that talks about just how much weight we assume of course that jurors will follow the directions given by the that's a presumption how much weight does it beer to have case law that really defines that i did not find any case law that there's not a lot of case law on this issue unfortunately is that was i guess that's really my i couldn't find any in the record but i but i think i counted sixteen of them so i'm trying to figure out what case law we have that talks about this type of error and at what point we decide that it's just too much i don't think that there is a quantitative assessment i mean flipping the bird is flipping the bird and if it happens once or it happened sixteen times it's still offensive it still flips the burden it's still a violation of the constitution it still waters down the government's burden of proof in a criminal trial it's one other angle that the california court of appeal stated that the claim of recently probable that there would have a different outcome well that's a bit of a chicken and egg argument because if it's prejudicial and if the prosecutorial misconduct affected the in fact of the trial so much that it denied the defendant due process then that is prejudicial and the failure to object is ineffective assistance of counsel because it denied the defendant an advocate objecting on his behalf you well again the cause and prejudice analysis would overcome a procedural bar and if the misconduct by the prosecutor is serious enough that it infected the trial then he the defendant's been given night constitutional right to due process and for that we've had no hearing on that correct i understand that in the state appellate court or the state appellate attorney could have applied for additional to expand the scope so to speak and file a hideous petition they did not do that or  did you i was appointed after the stiffening of appeal ability was issued in this court mr rogers was pro se and district court and he as an incarcerated inmate was not able to get the district court to conduct an evidentiary hearing to suss out this information for the record and i guess that and that's what this court should do if that's your concern is remanded to district court to have a hearing thank you thank you