the factual issue and the jury question case every single fact that's involved the jury question case they're all related want to others not several issues when i talk my several issues issues here we're talking about one legal issue so when we talk about the jury's questions what was bothering me and i have that only able to find a single case where when we have a hung jury we have a hung jury situation here and this we're talking about fifteen hours seven you know the same like fifteen problems are you write these things out for me and then i'm going to reply to this this is impressed and then this is this is highly different than simply commenting on the evidence this is this is going right in the jury box and saying i'm going to be a j was contrary to law the term federal law determined by the supreme court or not the reasonable application of the supreme court's authority so even if we had a there would be any factual similarities this but i think we're having problems with this would obviously be course in the jury so as you can't be completely bound by the factual examples of the past otherwise that allows that it basically becomes almost a dead letter because every that used some language that was kind of on the side of non coercive like when he told the jurors it's not up to me to decide it's up to you and and for the five questions the things that are most of the first three we're all concerned about one that's when vomit went in and there's no comment about that whatsoever and as truck cancel said at the time he says look you're effectively telling the occurred the judge in this case now want to ask questions but then he failed to actually you know respond to this questions and failed to tell the jury members that that's what in fact that he was not doing essential so there's no reason why the jury would know the when he's making these comments on the evidence that his comments on the evidence wasn't relating to other questions we know that because we're attorneys you know judges well you people don't state decisions since well that the court has the right to make comments on evidence ok but that's not what we're talking about here we're not talking about the court has a right to come on emma so we're complaining about this the court asking asking the jury the one questions from one to juries was kind of taken aback by this and says what why do you want to ask those questions i mean as i said this is highly unusual procedure here with the court being directly involved  well it's like we have some movement here again that was not the case well we have some movement here and just i think we should keep deliberating and that was deemed sufficient here we have a quarter this telling the jury th now turn to the next issue and the talk about things or a question question so even though you use those terms to tell the circumstances what made it very clear that it wasn't operating in this fashion in fact what it was doing was dealing with one issue saying well that's not per the pregnancies with his girlfriend are left before the final acts with the victim and it gives a new instruction on aiding and abetting which questions  not address he needed not he told the jury that he would give his factual opinion on their questions his factual opinions do not address forty five questions here right there on the jury instructions but he never informed and while the district court construed petitioners application to have the court reconsider its determination to adopt the findings and recommendations of the magistrate judge and deny  made no specific determination that there was a basis for extending the statutory time frame for filing a notice of appeal and simply determined to grant in effect a certificate of appeal ability and judgment constituted another the seal and or an application to extend the time for filing there's no basis for the district court to have granted that application because petitioner did not proffer any basis or justification for reply brief whether or not there was some essentially good cause to excuse the untimely filing the way i read the petitioner's motion to set aside the judgment he doesn't say well you know i forgot to read the federal rules of this question of the juror the jury being deadlocked in this case arose and i would reference the court to excerpts of record tab eight starting with the reporter's transcript of the proceedings in this in this case page sixteen fifty five which the court it winds eighteen to twenty four reads into the record the fact that it received a note from the jury for a person indicating that the jury had reached a verdict in terms of the thickly as the court resumes the the degree of the murder charge the court then proceeds to inquire of the jury for person and whether or not in his view further deliberations might be productive towards leading to an ultimate verdict depending upon whether the court were to either really read instructions give further instructions on the law that my clarify some issue for the jury or whether or not the court might perhaps comment on the evidence in a way that would assist the jurors in reaching a verdict the court then proceed to ask the four person whether or not he believed that the jury could reach a verdict verdict a verdict if you mean if they continued to great further at which point i believe it's on page sixteen fifty eight in which the four person response to the court's inquiry about how many times the jury had considered or tried to reach verdicts on this particular count for a person says i think we attempted about ten fifteen times from one degree to another with some to suggest in my view that the jury was concerned with whether or not this might be first or second degree murder depending upon how they determined appellants participation in the brutal assault and torture which ultimately resulted in the victim's  then says ok now i'm going to ask you for two numbers i only need to know the numerical split not how people are leaning but what the split was on the last vote the four person then tells the judge i don't remember that continues judge of that point then proceeds to ask the foreperson and the individual jurors whether or not there further instructions or comment on the evidence would assist in reaching them in a conclusion of a verdict and it's at that point  sixteen to twenty one what we see is this is the colloquy between the trial court and the jurors in which he's asking them individually whether or not they believe that if the court were to comment upon the evidence that might the jurors in reaching a verdict and when the juror in the judge propounds the questions you're a number two that your responses are used are we saying to help us personally change our views so the jurors asking the question to which the judge responds absolutely do you think that my comments on the evidence might be helpful in resolving the division among the jurors so there is a reasonable possibility that you might be able to  form trying to coerce the jury into reaching a verdict initially he simply inquiring whether or not there is something that judge might do under those circumstances that might propel this jury to reach a verdict after many days of deliberation on a very factually complex technically difficult case for them to resolve in which they've already invested a significant amount of psychic energy in coming up with verdicts on essentially a leaven out of twelve difficult charge recounted in the record as described in the briefs what happens there after which i think is most important is the jury the judge formulates his response and he forms the attorneys what he thinks he's going to do there is an objection by defense counsel frankly i don't think defense counsel offers very much by way of helpful advice as to how the court should respond to the questions he simply says i don't like the way you're going to do it i don't want you to do it my therefore a j the judge says essentially well i think this is the right way to proceed and i'm going to do so now it's important when we look next in the transcript when the court actually attempts to respond of the jurors questions and this begins with pages sixteen ninety eight sixteen ninety nine again an excerpt of record tab eight of the reporter's transcript of the proceedings the judge practices all of his comments in regard to the evidence by saying my comments are not intended to be exhaust i do not intend to discuss all the evidence i only intended discuss two items of evidence which from my review of the notes i believe are i'm contradicted facts in this case and he also proceeds to say my comments are intended to be advisory only telling the jurors look at this is how i view the evidence from my perspective as a judicial officer this is what i believe to be and contradict the facts and then the judge goes on from there and giving his comments on the other to essentially propound rhetorical questions back to the jury in the context of consider for your purposes for deliberating power what i believe as the judge and contradicted evidence to be and how that fits in clickable legal standards for you to arrive at a verdict on this particular charge and so what the judge does is he says look it if you find a way then you might believe this to be the state of facts if you find and then i think the other item had to do with whether or not at the point in time when the when the female who was present during this transaction went over to another person's house and says look at you know they're beating this guy something's got to be done or stop it or some such thing and so there's a question as to whether or not appellant was still present at the time that williams was being continually beaten at that point when the other person was gone from the premises is there any supreme court precedent that addresses the issue of a judge inquiring with the jury about what's bothering them well if there is i haven't found it and i've got to say that i was looking last night on the internet and trying to find if there was something out there that i've missed since the time i filed this report few months ago and i cannot find a single supreme court decision that addresses the question of whether or not it's appropriate judge wanted them to reach a verdict and therefore subtly directed them to return a verdict which we were not otherwise prepared or inclined to do so so i think when we look at  self representing a client doesn't even know what to say that that that somehow should make a difference and i think that's kind of and criticize facing the size which the stance of use of discretion which i i don't think that the councils even argue that it rises above so i don't think that's really an don't there's any question of the court to emphasize the most damaging evidence an entire case that my client where this woman who later took the victim and dropped him off on a street someplace came through other people to have water there either hurting or killing not going to look at things like that and say this is significant so i have to say that's to me a very disturbing film industry well it's a challenging question and the courts were constrained by the statute