the jury in sentencing rejected the life option for mr stewart they thought he'd be eligible for parole after serving not at ninety six years old after serving forty nine years but being eligible for parole mr stewart has proven precious because the seventy year sentence puts him in prison twenty one years longer than the jury intended the jury wanted him eligible for release at ninety six this is prejudice so there's a reasonable probability that the jury would have chosen forty nine years or so had they been correctly instructed on his parole in eligibility this is prejudicial under strickland the course the error of law here is that the district court misapplied strickland with its practical effect conclusion there is no practical effect exception to the strickland test this ultimately became a math assignment for the jury how much time to give and the realistically or practically speaking what are the chances that he would still be living at ninety six is that kind of what the district court concluded and that therefore that is relevant for prejudice the his age is relevant i'm sure your honor i'm not disputing that but his it is irrelevant to the jury right is what you're saying yes but it's obviously biologically possible to live to ninety six  and was or i had well it and you know the the presidential value of this case likely wouldn't be sweeping but while he is biologically possible to live to ninety six this case involved a twenty year old defendant that the presidents would you know is serving twenty one years longer than the jury intended that would be prejudiced on all four legs in my view was there any evidence presented that to the jury on life expectancy or any of that kind from a ship no your honor the only evidence submitted to the jury in this since a hearing which is a separate proceeding under arkansas law where his prior convictions including the problematic one that triggered his want to jury resentencing right the jury were sentencing it could become a question of what the parties select or agree to on remand but is there an option not to have a jury reasons the judge could if the parties agreed it's my understanding an arkansas law that the judge could i mean there could be some there could be an agreement those typical ation so far as far as we're concerned what you want the the relief requested is a jury resentencing at which obviously the most unless you simply admit the transcript from the first guilt phase both phases are going to have to be  i'm following up on your notion here this whole people is over fair sentencing that's correct and a reset and sing in front of a jury which did not have the full a full picture of the offens guilt phase he did well so so we got to have that again i disagree i thought but then that's got to played a huge role in the jury's deciding the sentence to have to mean has the testimony of the convicted defendant and the credit that credibility and demeanor and everything else that goes into the weighing that it for sentencing purposes has to be has to be reconstructed does not i is the incorrect instruction on his parole and eligibility he's in eligible for parole and in our view if the jury were fine with his potential release after serving forty nine years there's a reasonable probability that they would sentence him to forty nine years or so upon correct instruction about his ineligibility for brawl that you know you keep over stating what the jury the jury said would be aware that he would be eligible in forty nine years i don't even know if they were instructed by the discretionary aspect of parole but most jurors with any any sense of the system would know that the first day you're eligible is not when you're likely to be parole true your whole hypothetical is what they'd obviously do is give them forty years is to be very questionable while the standard is a reasonable probability of a different outcome so it is in our view it that it be one hundred it could be one hundred slimmer as i think about it your honor the jury was we know for we can glean from the record for a fact that the jury was ok with him being released after forty nine years potentially and this is this the general problem of argument is that when directly placing parole eligibility information in front of a jury it's theirs it creates the perfect conditions for prejudice when it's wrong it's yes traditionally  collateral matter but in arkansas which i believe is only one of two states that does this when the pro information is presented to the presented to the jury they're going to do mathematical calculations just like the parties did and their examples with his release after forty nine years there's a reasonable probability that they would have sentenced to that number or thereabouts had they known that he was absolutely not eligible for parole so you say that the jury could have sentenced him to life but they didn't but maybe they did i mean what this comes out tonight ninety six if if if he served seventy percent of the rejected the life option that was at least correct in the problematic instruction used they rejected life and chose a term of years which is a matter cited in the only in jury instruction used to help in their decision your contained a mathematical error in it you're guessing what the jury talked about back here are some of us who go talk to injuries after they're finished it's possible release after forty nine years and if they knew he were eligible for parole it's our position that they there's a reasonable probability they would have sent him to something around forty nine years or less than seventy satisfying strickland's second pro it may please the court and then think a stewart raped an intellectually disabled young woman had the mentality of the six year old he knew of her disability when he committed the crime at trial when he testified he showed no remorse about the crime even went so far as to blame the victim it took the jury twenty seven minutes to determine his sentence of seventy years and i start with these facts because they're important  in determining whether he was prejudiced strickland v washington i ask you know any court reviewed in effect this is the counsel matter to consider the totality of the evidence that was before the jury and it's that very evidence that resulted in the sentence that that mr stewart received and he he claims that a sense is unreliable because the instruction on probability was incorrect however he's failed to meet his burden and it is his burden of showing that there's a reasonable probability that what force councils there's the result of the proceeding would have been different if we do know that the jury rejected like that of all the speculation that we probably shouldn't make about the jury's doing that there one thing we parole wasn't guaranteed but even if they did consider parole is ability what we do know is that they wanted him to spend a long long time in prison and they wanted him to not even be eligible for parole till he was likely past the span of his natural life but what about the other benefits of parole it's seems like there are benefits that perhaps a jury consider that better for the institution and it's better for the person if they have hope as opposed to a life sentence so that there are that there might be other other circumstances or other reasons why a jury might say we want this guy not to be completely of ninety six but we don't i mean i don't know why the jury didn't give him life in prison versus an affective life in prison sentence home in the jury ultimately doesn't make decisions about parole they made sentencing decisions and here they into seventy years and the prosecutor in this case she hammered on the facts the bad facts of the case she and the sentencing closing since the argument went over and recounted you know the fact that he had right an intellectually disabled young woman there was a pregnancy that resulted from the you know rape in the child was awful awfully placed up for adoption and also they went over the prosecutor really went over mr stewart seven previous felony convictions and detailed detail the seven previous felony convictions and the fact that those sentences and all of those cases were light the fact that he was still out and able to commit this right even after having committed seven felonies and the state's argument based on those facts was to give him a prison since that would keep him in prison for the rest of his life and the state closing the parting words that the jury heard before they went back to deliberate mr stewart sentence the state argued an appropriate verdict or in the alternative anything that would keep him in prison for the rest of his life and we ask that you render that sentence and that's exactly what the jury went back and did said even if you don't give him life alternately give him the sense that will keep him in prison for the rest of his life back there to terminate his sentence for twenty seven minutes that's how long it took him to determine the sentence of seventy years so even if they did take into account that you know he would after that seventy years after seventy percent of it was sort of that he would be  parole it's not likely that they really thought that he would live to be ninety six years old and see the day that he was paroled especially when his counsel you know told him look don't pay any attention the probability it's not guaranteed and so all family even if the jury did consider the possibility that stewart might one day be paroled it didn't really matter to him what mattered to the jury was given stewart a sentence such that he would never be out in the community committing felonies again as judge marshall correctly reason in the district court if the jury had heard crypt proles abilities struction it's possible that they may have given stewart a shorter sentence but in light of the bad facts as to its age at the time of the trial in the linky sense the jury did impose it's just that it's a possibility and he has to show a reasonable probability he hasn't met his bargain about showing a possibility and for for all those reasons we would respectfully ask this court to affirm the district court's opinion