nine that is the challenge to the jury's consideration of special circumstance findings in this case and whether or not those special circumstance findings given the unique circumstances of this case require a harmless  analysis to be conducted by the california supreme court and whether or not the california supreme court properly conducted that now this court's decision is seen as first as with her struck new ground in dealing this type of issue and the application of standards versus w cases i think the state has argued that at this stage we ought to consider it under this second or success the petition standard which is much harder to me i took the state's argument with respect to the successor a petition posture previous decision and because mr beardsley has not had the opportunity to grieve the merits the claimed number claimed thirty nine we obviously are in a posture of asking for a certificate of appeal ability and the question of how sanders affects this case i georgia where the aggravating circumstances don't serve to determine the penalty but to determine eligibility for penalty the standard is different the presence of an invalid aggravating circumstance in a non playing state does not in involving invalid aggravating circumstances second so injuries applied clemens to the california supreme court's treatment of these claims and helped the state courts failed in two fundamental respects clemence requires the state court to first recognize the constitutional dimensions of the claim that it is by applying the federal constitutional harmless error standard and holding the state to the task of proving beyond a reasonable doubt that the invalid special circumstances did not have an effect on the jury's determination so recognition of the federal nature of the claim is critical under clemens the second thing that strangers did in showing why the california supreme court in that case was  contrary to clinton's was that the california supreme court must articulate and apply the climbing standards for determine the effect of an invalid circumstance and that is the second issue is why standards has never been the second that are important to determining whether or not it is harmful sufficiently harmful to require reversal under the standard to create factors that standard identified included whether or not the jury likely considered the appropriate  they were told they were supposed to consider the circumstances but the critical element in this case that's different from stands is that the special circumstance instructions that outline what constitutes the special circumstances in that case were provided to that jury you know if the guilt phase jury would having made the special search findings carries that with them as they go into into the penalty phase but at the very least given careful thought i mean they've had they have zero in on the on the special commit this crime and what the purpose of committing a witness killing that jury didn't have the ability to weigh that evidence appropriately because they were told to accept a special circumstance finding as true and the jury was told during the prosecution's argument and eight separate occasions that only there's a special circumstance true but the witness killing the reason why this crime is deserving of death is one because of because he  aggravating evidence hearing the aggravating nature of this crime decided that that was appropriate only for one of the killings and not the other the fact that this jury did not impose a death sentence for the stacey benjamin crime is important information in this court's consideration of whether or not the intent was special circumstances influenced the jury's decision doesn't it cut against you because if the theory is witness killing and the jury only impose death for killing of one of the witnesses doesn't that because we don't have findings from those jury the jury as to why the sentences somebody to death on one count and they didn't send somebody to death and the other kept my coin to making that particular factual argument is that the evidence was not overwhelming the other issue that sanders raises is whether or not the california supreme court adequately addressed this issue on appeal and intil strainers was decided we did not have a framework for understanding particularly how to look at the california supreme court's decisions in these matters under clemens a review by a state supreme court must offer a quote detailed explanation based on the record as to why an invalid aggravating explanation if you don't have details or principal reasons why the state supreme court concludes that the error is harmless there has not been a sufficient clemens determination on appeal and the california supreme is versus mississippi only six months after the decision in allen and the framework of the california supreme court used in both standards and in our case are nearly identical first the california supreme court did not acknowledge even mention clemens in a decision until nine hundred ninety three when the united states supreme court remained in the case of atsic a loop overseas california for reconsideration in light of the supreme court's decision in stringer versus black circumstance which requires which means that the claim that there is an invalid witness can in special circumstances not prejudicial that is precisely the kind of language that how the united states supreme court from the mississippi supreme court instruction errors would be harmless under this reasoning because none of them absolute or subtract from the evidence considered to try the jury but i think most importantly what is wrong with a calculus supreme court's opinion is applying the wrong stan violation if you have one valid aggravating circumstance there is no constitutional claim that you have that you can make because what happens in our winning state is that you are narrowing the focus of those people who are eligible for  case is not whether or not the presence of the invalid special circumstances would have changed the verdict it's not whether or not we would have thought and additional evidence presented or not presented with the presence of the invalid special  only further the extent to which the court could easy to see a way it would depend upon whether it found exceptional exceptional circumstances to continue the temporary state of the mandate we agree we understand that that constituted a decision and that is so exceptional and such a change that it would warrant granting the seat away in this case and to do that with respect to this particular issue that was raised in the in the district  i think what we have to look at initially in this case is the district court decision because what you're looking at an issue in the sea away is whether we will jurists to disagree with what the district court did and the small significant and it's and then went on to explore the evidence that have been presented by the prosecution in the case at the penalty phase much of which was the same as that which was presented in the guilt phase the judge also discussed the was on her all over the commission of another murder that occurred in this very so the jury already knew after the prosecution's aggravation case that he had a prior murder that he had committed in another state and that he was on parole for that but in addition at the guilt phase the jury which heard the the evidence that led them to convict him of the two murders with the special circumstances i heard all the evidence that related to how the crime occurred they knew that mr beardsley was on parole they knew all of that attempted to diminish in some respects his involvement by saying he was acting under duress that was his argument that he was afraid of these other people and therefore he had to do something to make him look like he was involved or they wouldn't and then kill him the jury which determine guilt and made the special circumstance findings new all that evidence the same basic theory that went into the penalty phase mitigation and then reject it and they found that in fact the witness telling special circumstances that apply based on  shot her in the head the vast in that case death was the appropriate sentence that after the murder of safety benjamin where he was participating actively with fred rutherford and choking her and then hitting her and then ultimately life without possibility of parole and this was an unusual case and when we talk about the amount of time that the jury may have been deliberating on this unlike most cases in california the vast majority where there are multiple murders whether it's two or three or four however many in circumstances and i think it's appropriate to keep in mind that the jury was instructed with respect to the way that they looked at the case they were instructed on aggravation on that occasion and they were told to take into account the they were told to take a look at all of that package and one factor the special circumstances unlike many of the other cases certainly like stringer and some of the others the u s supreme court has looked at the special circumstances were not the nominated out  series of additional aggravating factors they were a part and parcel of that single aggravating factor of the facts and circumstances of the crime and the special circumstances and and finally the district court concluded that all of the  that the prosecution presented evidence to support and properly argued that he had an interest in getting rid of the evidence of the witnesses against him the district court decision i clearly went through all the evidence precisely what this court did in sanders and remember the court said in sanders that even if the california supreme court review were inadequate which it found that it was in that case still before you can grant federal habeas corpus relief to the facts of this case so the question has to become would reasonable jurist looking at all this evidence come to a different conclusion that's what you have to decide to grant to see ole how do you compare what happened in this case in the record that we the only aggravation the prosecution presented apart from the circumstances of the crime was evidence of five prior robbery convictions here again the jury knew that mr beardsley was on parole for the commission of a murder they heard the testimony relating to that crime and his look at the record of the case and everything about it and in part i think you have to look carefully at what the district court did because if reasonable jurists did not disagree with the decision of the district court rejecting this claim on the merits then i think there beardsley ought to get relief on this particular question you can look at it any number of ways but if you look at it in the context of this record and you look at what this record of stablish particularly in light of what sanders found to be significant in granting and the fact that the jury was given a full opportunity to fully consider all of the litigating evidence as the litigation that was put on and i think it's important that the jury separately reviewed the two planes obviously they were prejudiced as to death sanders the law has changed in three fundamentalist past and nothing the statement of fact has changed that standards for the first time apply clemens because california is a wayne state mr beardsley did not have the opportunity to argue circumstances the special circumstances which is coming in particular wants them to reconsider how they were going to give way to teach the individual facts they were presented and throughout the proceeding they were told to accept those special circumstance finding certificate of appeal ability if he was appealing it directly and the answer i think on questionable hear hear now the question is is there any jurisdictional problem with this court correcting in this judgment correcting a denial of the critical need to appeal claim