admitted prejudicial prior offense evidence and then instructed the jury with an instruction that wrongfully undermined the government's burden of proof under in re winship is that argument made anywhere before  in my supplemental excerpts of record i provided to the court mr drake's handwritten as well as the typewritten version of this claim and in that claim he specifically stated that he was  challenging the jury instruction and that it is in his words that the jury could not be assumed to have followed quote the correct conflicting instruction he then cited to two california cases solely on the court of appeals decision challenging the same instruction on a different grounds where there are different grounds raised by mr drake's counsel on appeal so the district judge ignored the issue but mr drake properly raised it in the context of his argument that the instruction that advised the jury to consider his prior offenses as evidence corroborat the real fundamental difference of the instruction here clearly ended by telling the jury to be very careful that they would not be a conviction based upon anything under proof beyond a reasonable that it seems that that's a fundamental difference between instruction here and there gives you honor in both gibson and in this case the jury was instructed by the court with pattern instructions not to convict the defendant unless the proof beyond a reasonable doubt the problem in both gibson and in this case is that that instruction was undermined in that the jury was told that they only needed to find proof of the prior offenses by a preponderance of the evidence and conviction on proof beyond reasonable doubt it seems that while there are some common aspects to it that this case is significantly different than gibson and the trial court really made an effort here to make that i understand your concern your honor but the attorney general made that same argument and gibson and the attorney general argued that well other instructions properly advised the jury right the level of steam was somewhat girls that he committed these two priors and do it on a preponderance of evidence from that you may then infer that he also committed the this crime the crim instant case but that's not the instruction that was given in this case what it says is you may not convict solely because you believe that he committed another offense the question is whether he was guilty of the crimes charge and this case and you may return a verdict of guilty only if you are convinced beyond a reasonable doubt that the defendant committed the offense in the charges against him in this case right now let me just i want to put it on the table and then it says the third thing you must do if you find a prior sexual offense to these two prayers have been proven by the preponderance of the evidence and the prior sexual offense tends to prove that the defendant has a character trait which predisposes the defendant to commit the types of sexual offender offenses charged in this case and then only then will you consider this evidence together with other evidence to decide whether he committed the charged sexual offenses and to assist you in assessing the credibility of these witnesses which seems to reimpose or inter posed as to the offenses in this case they have to be found beyond a reasonable doubt so the predicate is gibson preponderance of the evidence from that and that alone you could then jump to conclude that he committed these as well in this case i'm postulating in this case you may find this by a preponderance of the evidence and then you may factor the man but you still have to looking honor the language that i think allows an unconstitutional ground to conviction is the language in the instruction that states that if proved the jury must decide if mr drake has a character trait that presupposes him to commit the same doubt that that takes care of the first part now what but not that they can then use that alone to convict and they can use that as a data point but they must find from graduation of other evidence  from closely reading this repeatedly as because the instruction is somewhat difficult to parse out if hears that the instruction given in this case is somewhat worse i mean allowing the jury you're telling them to  there was not a contemporaneous objection but my client's attorney did object and any motion is limited to admission of the evidence and the court but that's a very different question  constitutional issue and one that no reasonable attorney under the circumstances would ignore mister mr drake has provided in his petition his account of his interrogation which clearly w highlight of the prosecutor's presentation at trial the prosecutor over and over again referred to things that he said to the questioning officer as proof of his criminal intent which was absolutely essential to the state's case on all three counts she also referred to his statements as being evidence of his sexual fascination with children which was an overwhelmingly powerful and prejudicial argument in this context so given that i would submit that no reasonable attorney under this circus answers fail to make a motion to suppress those statements and that the law on this is clearly established was clearly established at that time the trial occurred in  hundred seven miranda decision was clearly established the lawyer should have made a motion to suppress the statement the magistrate's decision for reasons that are unclear or fails to acknowledge petitioners miranda argument he that were charged with the victim whose initials are k c one officer scheffler testified about her her interview with that she never mentioned the second incident when she was questioned about what had happened with her and mr drake there was testimony indicating some ambiguity as to the sexual motivation on count one the grandmother who the magistrate judge pointed to as a source of corroboration and in the analysis of whether there was prejudice here she did not testify and i would submit your honour's that i would not on testifying witness cannot be held up as proof that the evidence against my client was there tight  the victim and her mother in the van they were pressed together closely and during the night she testified that she never saw her felt anything unusual didn't wake up so she was actually there and could not corroborate the testimony of the witness case that is similar to her testimony about what happened in the second incident where she showed up immediately afterwards picked up her daughter took her to another location says she saw nothing  on these counts and i would submit he didn't get it one can also look to the fact that in the first trial where the prior offense evidence was not admitted he was not convicted the jury was not able to reach a verdict after  even but was the court is familiar with the record and notices the differences between the instruction given in this case the judge of pressure and he saw that there are problems with that instruction any modified it to meet the constitutional requirements and once those constitution obvious ground that there was no advisement the district attorney blithely assume he was going to get this evidence into trial because he did not ask for a four to a hearing i question building so i think that the best inference is that there was advisements of rights it wasn't an issue slightly as we know and then turn around that with that information in mind to transfer that to the offensive issue and say oh now now we have to make a beyond a reasonable doubt are reasonable doubt now because of the nature of these the founts of the state legislature and the people have decided well we don't want to keep that evidence away from the jury if in fact the man has prior apps that are similar to what he's been a or that addressed the constitutionality of this preponderance of the evidence aspects of the california instructions and the gifts and the of course you know leavers based upon which if because  ninth circuit has addressed that as well i don't think there's any case where the ninth circuit has so there is a california state case that says it's kosher as we say in brooklyn but there's no federal law on that issue really is a matter of state law and where that the federal if you become thinner whether in fact winship has been violated and clearly it has not because the jury was not only instructed in this thing but then again with the pattern on the reasonable doubt instruction so you can go back to justice fisher question now that the jury i mean human nature as well this is some evidence and but the jury is always making that assumption in any cases you know whether you did it before you began but here they're instructed no you don't get to do that you get to use its evidence for this limited purpose to see whether he has don't well if we're going to get into that i don't know if that was ever addressed to the state court in this petition whether the constitutionality of a lot of weight so i think we have to go back and believe you know you know you would be just putting a roadblock as long as it's not overly prejudicial and we'd leave it to the trial judges and their discretion to make those that said we do it all the time but i whether prior when someone has a felony conviction and they testify or well the jury gets to hear that they have a felony conviction understand that we also do that and and believe me but it seems that this is something a little different than that well it's different but it's the same i mean they are prejudicial evidence all the time that's why they get convicted if that someone is par was not told of the conviction because they were just told of prior acts so you're saying that under california law if somebody had been accused of but not convicted of sexual molestation that could come in in this kind of  five by by a preponderance of the evidence and with the limited instruction to that they have to find very well they have to find the defendant guilty beyond a reasonable lot of touching these girls with a sexual intent but the fact that he committed something very somber and it's up to the trial court  a preponderance of the evidence and turned around and use that against him to convict him on the m v but they would still have to find that he threw a g and d by beyond him you know that they could have proved the the other one by preponderance the the defendant actually had his day in court on whether or not he committed the conduct before a jury or pled or something beyond a reasonable doubt and so then the question is whether that can be carried forward into the second well  cognizant of the fact that miranda applied to this interrogation and that there was a complaint by the defendant that his constitutional rights were violated his lawyer never made a motion to suppress his statements so there was no use here of the  excerpts of record it is eating nine and i just want to point out that even in that last section of the instruction discussing this issue of how the jury should weigh this prior offense evidence that the judge does again mix the issue or confuse the issue by stating you must really return a verdict of guilty only if you're convinced beyond a reasonable doubt but then in the next phrase states for the limited purpose for which you may consider this evidence the prior offenses you must wait as i've described in this instruction so it's referring back to that earlier preponderate standard quite arguably and providing an unconstitutional route to a conviction here was not clarified and that