we have cited in our series which stands for the proposition that due process requires under the constitution that mr rico be tried by a jury to be tried by the impartial unbiased jury that had been agreed on by both the defense and the prosecutor when one of the jury sent a note notification  when we indicated that mr rico had been involved in a case in which he had stabbed the victim that is an incorrect statement the correct statement should have been he was involved in a crime a robbery in which the victim was stabbed twice there was no well i simply guess that i'm proofreading proof turning to the more fundamental questions which is once again we find ourselves in a case in which the relationships between the federal courts not the state of the law because it certainly is but if he's a particular court removed you're in the hypothetical profit that would profit violating california the state because it certainly would never be to find a kind of narrow application in ultimately that comes full circle into yarbrough again and that is what our state courts permitted to do when we have very general rules the hypothetical that you off the particular juror of whom it's been alleged is refusing to deliberate which way that juror is is going and why is that well i think the hypothetical you offered probably describes it best because you don't want to that perhaps there was an instruction problem here the alternate juror was was given the same instructions as the no no the instructional problem was you you you he kicked they kicked off what your put another one on now the one that came on didn't have the benefit of all the discussion with all the deliberation that went on before that's true and the judges posters that's my understanding is supposed to if there were any additional instructions i agree with having the transfers this report that but there is no constitutional requirement for that either and that issue is not going to raise the issue for this court is whether that juror was properly dismissed or not or let me rephrase that the issue that is not the issue before this court before this court is whether the california court of appeals the terminator that that's sure was properly dismissed constitutes an object at least unreasonable application  the case but it's also a victory in that the issue in sanders was not the removal of a hold of your or the court of the majority opinion there addressed and just in your found that that was not the question the question there in the fact that the judge the jury in question said i have not discussed the evidence with the other jurors i don't care about the law and i don't care about your instructions what would be tricky to say i have not discussed this for the other you're so i didn't see and obviously did not take part in there was enough force how long how much if you were sitting there and york convinced that there was no force which the court of appeals said there was no force for five hours how much how many times you have to keep saying this to be held on the jury well let me correct one thing first your honor the court of the not say there was no force they said that the court that the jury should be instructions on whether it was force or not and to give the prosecution an option of retrying so that was not a legal finding it was just the conclusion there was a structural where and how much should he have engage in deliberations i don't know but that's not the point when  we're talking about an e d p a review of a state court finding the state court the trial court examined interviewed the the four person and argued i don't think based of the record but it's not the only possible reasonable construction of the record it's equally possible in reasonable that the trial court judge presumed to have followed the law to know and follow  obligations and if it's not an object the only unreasonable conclusion to come to then there's not an unreasonable determination of the facts when the state court and then the state courts ultimate holding that there was not a constitutional violation this that the oath ultimately the state court of review reversed the robbery conviction in oregon the prosecution either retrial or have stand convicted a grand theft person that was obviously with the state with the prosecution chose to do so there isn't there doesn't appear to be any prejudice that this recipe pointed out in his our in our the i i hear this case from someone another government office who did not argue movements and so we we felt that the best approach was to to address that matter in terms of  has held in brewer that this is exactly this type of scenario does not raise a constitutional thank you very much indirectly whether or not under what parameters can injure be dismissed or just charged and in the case the standard versus the mark in the court indicates that the belief of tithing if that is if it was just a comment or if that were his belief if that was a causal relationship to his holding out and it was very clear in the record made reference to the fact the replaced replace mr understood what his duties were her duties were and secondarily i think there was also comments in reference in the state of documents on behalf of the petitioner that the deliberations lasted a very short period of time which words neg eight maybe some deliberation or perhaps any significant deliberation parties with the exception of in the trial judge's language which indicates that he was unable to perform his duties he did say he is refusing to follow the law however mr ponchos made it clear