continuing the matter one day and also thinking mr glassman is office they've always been courteous to me in the past and they were against they are very much appreciated counsel and i agree on what the issue is in this case and that is whether the trial court's this charge of the juror violated the sixth amendment but there's a threshold issue on which we disagree that i think is critical for the court's evaluation of the issue and that is what is the standard of review the state's position of course is that the differential provisions of a the anti terrorism in effect of death penalty act apply particularly twenty two fifty four date the defense position petitioners decision is that twenty two fifty forty does not apply happily the facts that govern language twenty two fifty forty applies when state courts have adjudicated the merits of a federal plan and that of course is the basis of petitioners position the federal issue was not adjudicated in this case therefore twenty two fifty forty doesn't apply now the state makes two arguments and i like to take them both on you know head on here because it seems to me i have to persuade the courts those arguments need to be rejected and the first argument the state make is that the state supreme court when defendant was in the process of exhausting his state memories issued a postcard denial in connection with his petition for review the state's observation is entirely accurate indeed i defend it exactly the situation the petitioner faced and then dies in that case he wish to claim in state court on federal and state grounds and involved the playing of statements he had made to his own psychotherapist and in state court he argued that that violated it came to this court and the courts of that under these facts twenty two fifty four the does not apply with you is the nova i think the same rules should apply in this case which brings us to the second argument the state makes for application of possibility it's not what we meant to include in our decision i don't know but i'm happy to work within the any reasonable possibility i certainly didn't mean to make a substantive change by admitting the word and here are two aspects of this test one is sort of a process aspect and that is how far can this inquiry go and the second is the standard for when you can destroy the juror and symington in brown and thomas speak to both and the first question in this case is whether the court's inquiry went too far and the second question is putting that aside i mean if they did the case is over and putting that aside even if it didn't go too far was a good cause to discharge the juror under the any reasonable possibility test and here's what the court's increase shows were called the inquiries there was one that ended the first day and it was one that began the second day and at the end of the first thing the court spoke with forgers and you learned that the jury started deliberating at nine forty and only deliberated two hours and according to all the jurors that came in juror five was deliberating discussing the law and discussing the facts for those two hours actually that was it was a disagreement i wonder as to how long it went on but two jurors said that up to around eleven  forty five was discussing the law and discussing the facts and that around eleven forty one minutes before the court got the note at eleven fifty there was a problem jurors we found herself alone and she felt attacked and so she was unable to deliberate for that ten minute period between which eleven forty and eleven fifty when the jurors went to the judge so that's what the inquiry they called you were five minutes she pretty much said that's exactly what i felt like i was being attacked juror five may have felt like she was in a situation she may not have been in before in a room with eleven strangers twelve total where eleven of them have a position that's contrary to hers and she may have felt attacked she may have been attacked i don't know and the question is at that point did the sixth amendment permit the judge to simply discharge this holdout juror and it really isn't any any think the six men are committed him to do and indeed what the prosecutor urged him to do the judge gave the entire jury an instruction which said basically the people get upset during deliberations not everyone is henry fonda in twelve angry men they can reason reasonably react to a level of people taking a different position and explain his position eloquently and articulately over the course of the next two days and persuade everyone she obviously wasn't henry fonda and so he gave an instruction which basically told the jury take a step back everybody calm and home you know a lot of brass you know let everyone kind of regain their composure and come back but then you have that additional thing which is the sense essential and disputed that you know he has someone in your family that died and apparently you know that and she didn't mention it that that was something that was bothering her and you know i have to say i probably wouldn't you know i if i said the child judge i might not have excused her but on the other hand  additional factor as she said she didn't disclose that someone has died and that's why she might get stronger and all of that going on why wasn't the trial court you know committed to make that even though i might not have  that's even better news really the first answer to that to that is that that exchange occurred an inquiry that should not have happened because the sixth amendment permitted the judge to talk to the jurors as he did on the first night and three times and the jury kept coming back and saying she's doing the same things that without any additional problem being revealed from the jury the court on its own initiated this inquiry which then reveals a death in the family in the fact that she was crying for the strength to be able to be a jerk court begins to talk about the death of the family and they says what was that bothering you yesterday with your says no it wasn't there were things going on in the jury room but this really didn't have a part of it and what's really interesting and i found this and this is another benefit i guess of being left on calendar is that the first case e you were all distinguished lawyers before you were judges and i'm sure people do did to you what they do to me when they get a summons for jury duty they don't they always ask the same question how do i get out of jury duty and i think you know it's and they're humorous when they ask if they're not really seriously asking me and i don't give them advice on how to get out of jury duty but more often than not people perceive jury duty as as an obligation that they really don't want to do it takes up a lot of time you get five dollars a day it's not like you know unless you're you know on the peterson case you're not going to have to write a book about it and this jury came back and she said you know i heard what you said yesterday judge and i think i can do it i prayed i think i can do it judge give me a chance to do it i heard what you said and he said well you sure he gave her a you know a number of chances to herself say what we expect most people to say which is i want to get out of jury duty you know you sure it is the funeral coming up this is a lot of pressure on you your brother in law died and she said you know judge you empowered me as a juror and i can do it i mean this is so counter think you can get i told you what you have to do i've heard some terrific you can't do it then you know you tell me tell me why you think you can do it you're telling me what's going on in your life you've got to make a decision you know did they say if they sat down and s but i would submit that the disagreement is actually even more fundamental and that is that because of the context of this case because it doesn't arise and of the p a this is state court t v s corpus proceeding it is important to identify in the first instance predominantly overwhelmingly state citations are involved there are state laws cited by both sides to resolve the issue the question is this petitioner claims that because there were strings cited citations basically two out of the jurisdiction federal court authorities none of which was a supreme court decision that is a i think at the time a seven year old d c circuit case or a twenty year old second circuit case court none of them are now if you're talking at that then my plan is that this whole discussion of this controlling federal law i think is the is a misnomer here it's a red herring in fact do this day here now we can't we're still not describing any controlling supreme court authority or any any supreme court authority that arguably applies at all in this circumstance so i think it's it's very much a reach to claim that there was some controlling federal law that was overlooked year by every court that heard the claim by this the trial judge by the state court of appeal by the state supreme court instead the courts resolve the claim as it was presented to them which is the claim predominately under the state penal code regarding removal of a juror and as to that claim the claim that was preserved and i have to digress for a moment the m case is nothing the same sort of case counsel is counsel who happen to be i note counsel for mr menendez in this court it may be partial to that case but the fact of the matter is the fact case involved a concession by the state that the state courts failed to address a federal claim and no such concession was made in this case and in fact in this case the claim was the opposite that there was a failure to exhaust federal claims but my point is and this  observations about the case that this case comes down to a question of fact that is if it's cognizable and he views corpus at all and i'm not entirely convinced that it is it comes down to a question of fact resolved by a trial judge and that the case law from this court and from the state court is absolutely clear and consistent that as to that determination there is not merely deference to the state trial judge but extreme deference this court has said so  more than one case including in prison versus marshall which really is can be the beginning of the end of the analysis if we look at certain court authority to arrest was a case where there was a holdout juror removed there is no there is no affirmative indication in this case that this is a holdout juror there is no indication of really any of the factors that have been relied upon of merely a diligent juror trying to do her best i mean if we are to look at the case the novo we can conceive the case however we gold maybe not the key issue here well it certainly goes as far as this case your honor where the reasons for that judge's reaction to the juror are reasonable on their face to the extent that we can re evaluate the jurors credibility at all and i'm not sure that we can for example when the state drudge makes a finding in a fact that the juror has been evasive or disingenuous that has has essentially falsified a reason to the court the judge is troubled by the fact that on day one the juror offers a particular count on day two she has a different explanation for her conduct i don't know that we can revisit those but certainly then the question is well that evaluation was considered by the state trial court and the state trial court has a co equal ability in this context to evaluate on limited review that factual determination and this they trial court approved of the state i'm sorry state of public court approved of the of the trial judges resolution of the claim and if the e d p means anything that is also a factor in the analysis particularly given the void of any controlling federal authority that would be to the contrary so whether or not another judge looking at the record might have left you know question the juror differently or allow the matter proceed differently  amendment guarantees that are involved here but the challenge in this case has nothing to do with the facial challenge to section ten eighty nine it has to do with the judge's resolution of of  what marginally turned on credibility and factual elements that then i would submit are far separate and distinct from the validity not it's not disputed in this case whether ten eighty nine is and  adequate mechanism to guarantee six the members rights the only question is how did this judge judge trisha bigelow how did she resolve that and as to that portion of the alice it's a very it's a very limited claim you know that what is the given that the question before this court has nothing to do per se with the validity of the statuette no i understand that your so the point seems to me that the only the only remaining question and i do believe that it's such a broad and nebulous question that i'm not sure how it implicates any supreme court authority other than merely to say due process fair trial you know and other generalities what can we don't look to see a case like simon  circuit he's also cited which is that there can't be a reasonable possibility that the goods are dismissed for his or her position or against the prosecution's case well i want to get to this says my time is winding down your honor so i would say a couple things first of all of the i don't think the court needs to weigh in on it i i i am aware that in the muslim case argued last week in the supreme court i believe one issue that the court will  be resolved at this point if it still requires resolution is to what extent circuit precedent is relevant and he ph context but leaving that leaving that aside for the moment what i submit ultimately let me tell you where i  be bolstered by the fact that the given that in this case was resolved under a state penal code that has been deemed as a general matter to be one that reflects sufficiently this court's understanding of how a six minute flame is resolved that the that that the at the end of the day or at the end of the twenty seconds or so that i have left the question is whether or not on this purely factual claim that was and again i think a lot of you know this is not a henry fonda conscientious holdout juror scenario which by the way that was jervis conduct in that play i have to always remind people but at any  enlarged it what it comes down to one it's all said and done is a trial judge distrusting and you're just trusting the jurors representations that they've got a good reason to do so and for that reason removing the juror from the trial of the really partial to cases that i lose so i cite it despite the fact that i'm not really cordial to the cleveland case which your honor mentioned does express the state's standards but the problem with cleveland is that it page forty four the opinion it's pacifically rejects symington brown and thomas specifically says yes that's that's the rule under the sixth amendment a federal case but we're not doing that so under to no review the suggestion of ten eighty nine as interpreted by cleveland is the same is just wrong cleveland