two uniquely significant circumstances in this case but i want to go first and foremost the jury was not instructed to consider that separately in this case do we know that for sure i had trouble finding the jury instructions in the record are they in this record to complete jury instructions are not in the record the there is no instructions consider the counsel well how do we know that if we don't have the jury instructions i would be happy to provide supplemental excerpts of record or you have them i do have and i'm happy to provide them there's no case identified in the briefing no case that i'm aware of with this issue where that similar circumstance exists with the lack of that very general instruction even being b calderon that instruction was given although in being as in this case there was no instruction not to consider regard also as in being the prosecutor really seized on that lack of instruction and made it the theory of the case in arguing the similarity of the offenses for conviction so could you explain why the evidence of these counts wouldn't have been cross admissible if they'd been tried separately while i don't think it would have gone to show anything except propensity for criminal behavior if i could imagine what the other side's argument would be the only thing i could come up with with would be possible intent or maybe a pattern of her having people because the daughter was killed i don't think that would be a proper use of evidence and i don't think it's actually probative on intent either although that's the image argument i could imagine for the other side the intent being this idea that they had killed this someone and killed his daughter yes and that that would be the motivation to make us a specific threat but even then i don't think it really shows an intent so much as just a pattern of think potentially there is an argument that it would show modus operandi i don't think that it's very probative in that regard and even if it were admissible for that very limited point that would be a very defense so i do want to just address the difference between this case and being quickly being involved a weak case with a strong case which just one factor to look at there's no requirement for that my position no prejudice that counts involving brother rudy were inherently more prejudicial involving an alleged cutting and allegedly holding a snipe to throw with the drew that's true the jury found it that the offenses were nearly identical going again to the  the primary concern here being whether the jury could have compartmentalize the evidence and despite the acquittal on one count there's no reason to think that there wasn't that spillover of evidence where where the jury wasn't instructed to compartment alise the evidence and when the prosecutor argued for that very very fact to happen is it your position that there was no difference in the way the souks of charges were tried in the two trials other than argument is that in the st trial there was a hung jury the nd trial they convict on the same charge that shows that the jointer with the ruby charges causing prejudice i'm trying to figure out whether there was any other difference between the way that th charges were tried it's unknown it is unknown but i think does that mean we can't really use the earlier hung jury as part of the prejudice analysis no i think it is important it's important for  reasons i think that the procedural history suggests that the state didn't have any intention of retrying that cow until after the brother rudy offenses had occurred that was months later and that case had been dismissed and they refiled it joined them together  i think the evidence being weak the verdicts could have gone either way as it did each time that we see and i would if there are no further questions right now i will reserve my remaining thank you good morning tammy kearns and supervising deputy attorney general for the warden the problem with petitioners cases park versus california in part versus california says the best way that we know that a jury can compartmentalize the evidence is when there is acquittal on charges has that rule ever been applied as an absolute rule though as as far as i could tell it's always some evidence that there was not prejudice but not definitive like the court will go on and analyze other aspects of the trial so i can't tell if that rule just gets you all the way to the finish line well that the court said that is the best evidence and i'm not aware of any case where there has been an acquittal on charges and in part there was acqui on only some of the charges and one of the fence i'm not aware of any case that the th circuit decided and certainly the supreme court doesn't address jointer that says that if you have a jury that it's obvious they can tell they are considering the evidence for the separate charges that there could be a due process violation but do you have any case that uses this evidence of the jury considering things separately where there was a hung jury on the count that eventually gets a conviction i mean this this is maybe a fairly unique piece isn't it well i don't i don't know that it's unique i haven't seen this in the facts of this case but i guess is the quote is the question is if it seem like he has a better argument for prejudice than a lot of people in that there was actually a trial on one of the counts before it lead to a hung jury then they join the counts and he gets convicted on that same count that was the hung jury before that seems like a better story for prejudice than a lot of these other defendants had we can look to the case where the th circuit did find a due process violation and being let me know before i talk about the being case that being was distinguished park versus california distinguished being because it's a head that being the defendant was picked in on all all of the counts all of the charges so in park we have the situation where there was acquittal on some of the charges so again that is the best evidence  the jury is considering the charges separately but him being the concern was one of the concerns was the when the th circuit looks at at prejudice it's whether there's a stronger case being joined with the weaker case and whether they look at the cross the mill civility of evidence and being they determined or this court determined that the evidence would have been cross the miscible and there was one case that had overwhelming evidence that was joined with a weaker case and the concern was that the jury would consider the overwhelming evidence and crimes are of similar types and certainly under california law you can so the concern and if the concern is that the soaks of f case was a weaker case well then if if the argument is carbo hall was the stronger case it they didn't convict on the stronger case so there really isn't the issue here is trying to keep the jury from determining that a defendant just because the defendant has all these charges that we're going to convict him well they didn't do that here and so the protection we're trying to protect is that we've got one case that's really really strong and then they go ahead and just blink a week or a case and decide that this defendant has to be guilty because he's just a bad guy we know i think the argument would be they have two weeks cases if you take either one on its own they wouldn't convict but when they take it all together they do some sort of compromising from victim of one count that is the argument but again that is not the concern that is not the concern that the case we wouldn't have joined or if that was the issue we would never be able to join cases if we're always concerned that two cases that are similar could somehow the jury added to a conviction and the evidence was cross admissible and what is your best argument for that what is my that would likely be miscible to show motive and intent and that's under level no one be california evidence code and federal rules have a similar one i believe is what is the nd to argue against vast charge that was the and then they had enhanced ment's but it was criminal threats so in order to determine his intent in saying what he did you can consider you could consider the other offense that he had that he has done this before and had the same intent a character trait as a propensity to commit another crime that's true but they you can consider it federal rules allow for motive and intent and modus operandi just like the state court under california law and so in order to establish his intent because it is a specific intent crime criminal threats is a specific intent crime so you can use other acts to help whether it's inova goes to this other issue in this case about whether the state court reached this issue or not and i had trouble following your argument about how the state reached this issue on the merits it seemed like the citations to swain and deval have been interpreted as procedural basis for denial so i don't understand how we can read that as a merits determination well st of all the fact that there was a citation it's not clear whether that citation applied to all of the claims or or some of the claims and when it was the only reason given why not assume it's all of the claims i don't understand why we wouldn't assume that the reason given for denying the whole petition applied to all of the claims because we look to see what makes sense as well some versus seller side and we don't attribute something to the court of the state court that doesn't make sense and here we have a claim that's record based he presented documentary evidence it was a legal question there doesn't appear to be any more that we needed would be needed for a fair presentation of that claim however on the other hand he also did i ineffective assistance of counsel claims for trial counsel and appellate counsel and it's not clear at all from his allegations doesn't at all say what the deficient performance was and how it was prejudicial and so that would be e the what would be more likely or what would make sense that the california supreme court would be denying with the swing deval si even though the california supreme court knows that our court has said swain and deval is procedural so they would expect if this ever comes on he b s we're going to view that as procedural right well actually came st this filibuster say didn't take a swain harris villa boss that i guess that's kim so let's put that on the side but harris seebach in christe are all cases that say that this is a procedural denial a procedural deficiency doesn't mean it wasn't also a merits denial and what it's important to realize is that when you are bringing the claim what the court is determined this this court has determined it's like a dimmer and california courts have said as well as federal courts that when you don't state the facts and evidence to support your claim it's the claim is deficient itself and that's what kim said when you when you have alleged with as much particularly as you can a claim then that means that failure to state a claim then it is a nile of the merits of that claim it doesn't bar you from coming back and bringing a new claim with new facts and evidence but it certainly is a denial as to the merits of that claim because if you don't have facts and you don't have evidence you haven't established a prime official case and courts have ruled that is a merits ruling have courts ever rule that it's a merits ruling for purposes of figuring out whether the merits were determined for on that in our court has repeatedly said it's procedural and never said that it's merits for any purpose of output so i think you have an uphill climb here don't you again the courts have said it's as to the claim that is being attempted to be raise it has never said that you it was not a merits ruling of the claim that was actually raised and again the concern when you look at it and i cited the california supreme court's decision in that kate's kid that case and it said that the demur is it's a judgment on the merits to the extent it adjudicates the claim that of the facts alleged it is not a bar race judicata bar as to a claim that you can look to that but if we look straight at just how hey b s handles it if you don't allege facts and you don't support it with evidence that's america's denial of this court the federal courts deny that maybe as as a conclusory claim and that's a merits now you cannot come back and bring that claim again you can try to bring a new claim but then that's new facts new evidence is a new claim you can go back and do that but you cannot bring the same claim same claim again and if it was only procedural in that nature nature there you would be able to bring that same claim but again once you add new facts and new evidence it's a new claim so it has to be a denial on the merits of the claim you've actually raised ok couple of points as to the cross admissibility issue there was no determination that any evidence was cross admissible at best it could be say it simply wasn't addressed although the trial court had indicated at the start  evidence you know the verdict being the best evidence of ability to compartmentalise park is drastically different the jury was properly instructed there as we know by the comparison to being involved drastically dissimilar charges and so there was no prosecutorial argument on similarity and just one more thing quickly park also cited baker which is a case that spoke about the instructions being a critical factor in the assessment of president prejudice rem