verdict after the jury was and in his case was instructed that they could convict on multiple alternative theories of guilt one of which was later determined to be constitutionally and valid by the united states supreme court in this court this is and this court's precedent determining how we review stromberg error on collateral review was established in parker versus secretary of the department of corrections in two thousand and three parker has never been abrogated yes your honor and garcia is nd time and it is directly contrary to parker and that is why under this court's prior president will this court is obligated to follow the st in time precedent and parker is directly on point established the mode of dealing with collateral review and harmless error on collateral review in that situation and the facts of parker were that it was a homicide case and the jury was given an oral instruction i'm sorry the the oral instructions omitted a felony murder instruction and only gave a premeditated st degree murder instruction the written instructions however were correct were correct and so the florida supreme court held that the conviction had to be overturned notwithstanding the fact that the jury had been given a correct written instruction on felony murder based on the omission of the oral instruction and i'm sorry the florida supreme court held that that error was harmless because of overwhelming and evidence of premeditated murder and what the this court held was that that was the wrong analysis this court did find that the  harmless by looking only at the felony murder instruction problem by itself because the jury had received a correct written instructions on felony murder the omission of the oral instruction was harmless but this court also made clear that the florida supreme court analysis was contrary to clearly established federal law stronger because you can't just look at overwhelming evidence on the correct prong and then say it's harmless to do so would he do this or eight stromberg entirely and the court found that this was consistent with its prior president and adams versus wainwright which held that you only look at the trial court's instructions in the jury verdict to determine whether or not the charge was inefficient you don't look at the strength of the evidence on the correct prong now the government i think is believing that this was completely advocated by hedge pes vs police which is a two thousand and eight case and that's simply not true the cases are actually start strikingly similar and in many respects said this is structural there are and so the supreme court took start to make clear that's stronger is not structural but the rationale of the supreme court and had to have st as police go was that a defendant should not be put in a better position just because the court instructed the jury on both an incorrect wrong and a correct mistry so i think there's a lot of beer to a lot of your art i think i can only but the thing that i keep coming back to is or isn't it are less clear and then let me tell you where i'm coming from it is it seems to me that a lot of the jury instructions were really directed toward the drug for media is during the commission of the drug trafficking no mention of the crime of violence and explained it tearing a firearm in relation to an offense means there must be a connection between the defendant's firearm and a drug trafficking offense also no mention of crime the city it instructed you know and then you look at the evidence here and and it's it seems to me the evidence is  overwhelming that this would have been based one predicates all but one of the predicates here would be would be valid predicates and it's hard to understand how you could have a finding of guilt on one without the other so you know if this isn't a case for harmless error what would be ok so now i have five answers to that i'm going to try and take them in turn under adams versus wainwright if this court is following the stromberg line of cases we don't look at the evidence and adams versus wainwright said you just look and see whether the jury was instructed on an improper theory and if we are if we take that in isolation then we have the jury being instructed that they're able to convict on a not a sense regardless of the evidence that is prejudicial error no question the jury instructions i i think i addressed this in a footnote somewhere in my briefs and they did at some point oh met references to the  the crimes of violence but if you read them as a whole which the court has to do the jury was very clearly instructed that it could convict on count six based only on one crime of violence or drug trafficking offen e the evidence in this case was extreme and this court held and mr brown his direct appeal was entirely circumstantial with respect to his knowledge of the drug trafficking it certainly was sufficient to convict but when looking at what the jury found he specifically intended that gun would be used for because remember he was acquitted of the one hundred and twenty four dollars c offense he was only convicted of the one hundred and twenty four hour there's no way to know if the jury thought that he was going to he intended a gun he's serving a longer sentence for other convictions your honor i think the davis case from one thousand nine hundred and seventy four from the supreme court establishes that an unconstitutional conviction is prejudicial for this  if he is entitled to relief on the claim that he was convicted of and on it and that is the prejudice necessary to show procedural default to overcome the procedural bar if it would change it would change how long  senate's going to be it might under the guideline calculation if he's no longer convicted of a gun crime certainly it's going to change his assessments it might change the guidelines but i mean the supreme court held in one thousand and seventy four  unconstitutional conviction by itself is is prejudiced that we that's united states versus the u s it's got two concurrent three hundred and twenty four months sentences for his drug yes i believe that's bar to relief because of the special susman that house to be imposed for i believe that the coroner should i believe i believe that's correct your honor i believe that it is being convicted of an unconstitutional in a medieval scholastics sense for me to say this is all she wrote this is what the jury lined up when it i just don't see how that could have happened here and maybe i'm missing it and maybe i'm looking at it in the wrong way so help me with my problem so if i may start from the end i i do believe especially your honor is looking at it from a wrong way on page thirty one dollars it thirty dollars thirty one cents of our brief there  to make two points about these cases many of them involve protected st amendment speech issues but not all of them williams versus north carolina was a bigamy prosecution where the constitutional defect in both the full faith and credit clause nobody was talking about protect conduct so that if they apply here the nd is that street vs new york was applied after chapman and the court hell we either vacate we the refers to all or vacate as to all and i think the reason is just for exactly what the court was talking about molasses case is that we cannot go behind and see what the jury is doing this is another reason why the men just can't apply here it's incredible if there this was a split verdict and powell the supreme court said we six to put jurors on and say hey what were you thinking ethics rules in most cases prohibit us from even talking to the jurors we can't send this back like the court doesn't deem and situation so we are here speculating on the facts of these case i think that i think the court could find at least one juror would have wanted to limit the defendant's participation in the gun only to the conspiracy as evidenced by the fact that they acquitted him of the substantive one hundred and twenty four c count whichever legal theory we proceed under here are the appropriate legal theories that we proceed under here and i'll try to address those in turn st talking about the parties parker has been undermined to the point of a that was that because of stronger structural error limitations but then because of the cases that came after talking about the appropriateness of harmlessness error harvard was coming up with its harmless error standard in an effort to reconcile those two things and so what parker says was that we have to look at each of these alternative theories independently and look at the harmlessness and assess the harmlessness as to each one of those now in her that was a crime where the situation pain conviction being what had to be found in the jury right your honor i do believe that garcia's application of beeman was correct in this scenario explain why what what we have here is we start with a long line of precedent saying that haiti's petitioners bear the burden of proof and all the men did it was clear if i want that burden is in the scenario where the residual clause of the definitional statute has been invalidated and what we have here in davis is the residual clause of the definitional statute has now been invalidated so all we're saying with the application of beam into this scenario is that the petitioner has to show a davi is it has defined what it means to have an error at that st step there has to be an actual date is here not just the possibility of a day that's here but an actual davis here such that the petitioner shows that his conviction relied on the residual clause which is davis prohibit demonism in a completely different procedural scenario is it not the beaming case itself yes but what demon relied upon is that burden of actually be in error all davis said was that a conviction that relies on the residual cost is a problem and so that's where the error is your honor so in this case it did its end the context of the jury part which is the same analysis that i'm suggesting we do which is we are able to apply that beam in death definition of what error means in this context but understanding that your honour's position is that it maybe doesn't apply here i don't believe that garcia was incorrectly decided but even assuming that it was even assuming that the man does not apply here then the next step that we go to is applying brecht hiten harmless error standard existence since well into the one thousand nine hundred and twenty but we do recognize that the courts have sometimes said that with johnson because the supreme court overturned it felt that there is cause there and while the supreme court didn't overturn hundred dollars special assessment and that is not a cognizable claim for twenty dollars to fifty five dollars the rd circuit has gone into great detail about this analysis in the he's context and so i do believe that the concurrent sentence doctrine would apply in this scenario as well as another barrier to leave now on top of that even if he could show actual outside of pozen prejudice your honor mr ronda cannot me honor and there is no prejudice here because all of his predicate offenses the conspiracy hobbs act robbery be tempted hobbs act or operate the drug trafficking offenses and the attempted carjacking are all inextricably intertwined that's the nature of this type of perverse sting robbery case they're all inextricably intertwined the jury found mr branded guilty beyond a reasonable doubt of all of those predicate offenses and there's no way he can show otherwise and in fact this core held similarly in i believe he was boredom the united states your honor which was in the skilling context in which this court said that he had procedurally defaulted his claims because he couldn't show that it was more likely than not that the jury just well i guess i use those words i don't know if it's the test necessarily but it's basically to show that he can't show any actual prejudice by this one predicate conviction that is no longer valid because of all these other issues for the predicate convictions that are in fact valid that are so intertwined with this that there's no weasel is so if that's right  what and the reason i ask you is we only have to figure out this case but if we go down the road that you've mapped out for us we've got to figure out a standard that's going to follow in all the other cases that come so what do we do with those scenarios and of course your honor and in this case it's obviously easier to see that but i think in other cases it would depend on looking at all the facts because what actual prejudice talks about is how you seemed error in fact to be entire trial with error of constitutional dimension and there mean the scenarios where it doesn't because in for example the b influence that you provided it may be that the evidence of the drug trafficking was so was still pervasive and that any reference to the longer valid predicate really was not didn't take over the entire trial such that that error just infected the entire trial and so i think we have to look at the facts of each particular case these cases where they're intertwined are much easier i mean i me ask you this too when it comes to the burden of proving prejudice because we want collateral review i take it your argument would be you know if we if this don't versus wayne why wainwright was adams versus wainwright was very clear that this court does not undertake a review of the record in the situation we look only at the jury instructions and the burdick they didn't say it but what they were doing was essentially applying a categorical approach and that that makes sense again for all the reasons i just explained being as how that you can't you can't guess what the jury is doing the supreme court told us that  we can't get behind a split verdict and that's exactly what the court is asking us to do here and is just an impossible standard the breadth standard i want to be very clear and the government has referred to it as a heightened harmless error standard  was remove the government's burden of proof beyond a reasonable doubt and hate yes it is the cutty it goes harmless error standard and it is still the government's burden to prove hairlessness on collateral in this case i don't think the court should look at the evidence i think that the courts should follow adams which parker reaffirmed and which has never been overturned it is entirely consistent with the analysis applied by the supreme court and had to have worse is pulling it out and if the court only looks at the jury instructions in the verdict in this case the court has to find that the jury was instructed that it could convict mr granda of a completely nonexistent offense and that is constitutional error it clearly influenced the jury's deliberations because the jury was specifically invited and instructed that they could convict mr mr grant of what we now know is a non offense i don't think the court should get into the facts of this case but if the court does under the  the court the court has to find that the jury extricated the counts from each other by acquitting mr granda of count six i'm sorry of count seven and this is another similarity and burden of showing that this was prejudicial but under the brett standard as the court the supreme court made clear and o'neal versus mckenna the tie goes to the government and so if the court is an at will close and looks at this verdict and says we can't really tell what the jury is doing we're not sure why the jury acquitted him of count seven but convicted him of count six and if that is the case this court must have grave doubt and must find that mr grant has shown entitle me to a piece ultimately however i do think that this this case is governed by adams and and and parker which say that you don't even get into the facts you just look at at the erroneous jury instruction and whether the jury was given the green light to convict on an unconstitutional offense which it was in this case and i would also submit that if the court is going to be focusing on the  court then has to follow street versus new york and williams versus north carolina and thomas i can't remember the other is thomas versus collins which are at pages thirty dollars thirty one cents mr br very clearly established that where there is stronger error and the court cannot tell which prong the jury convicted on and one of those problems is erroneous that the error the conviction must be vacated