court's robyn's decision it's important to actually read what the robins decision says about the dixon bar brought in a copy and i'm reading from this would be forth seven seventy eight fourteen in the pacific reporter it's page three forty first of all they say after they've discussed clarke at length they say briefs that when you go back to the findings and recommendations that were adopted by the district judge the magistrate judge actually held that if there was a dictum default it occurred in one thousand nine hundred seven when mr vaughan failed to raise this particular challenge with grace now and draft appeal that's a year before robinson came out so i think there's a problem with the robin's argument even if you do find it it's an adequate independent state ground and then of course there's the fashion question of whether the california supreme court is actually consistently applying this which is a question of fact that mr von w know it's a funny kind of question of fact suppose we look at all of the case with suppose we did i mean just because we do nothing better to do like we look at all the california cases that have come out since then and we find that absolutely they possible dixon bar back in ninety seven you know we have to pick an adequate random sample and someone would have to go there so it could happen at this court because you have the power to change judicial notice then i think this court could the district courts reasoning in this case is persuasive that the dixon bar really happens when a decision not to raise something on direct appeal is made and so that that would in fact what the district that i think the district court looked at california cases and found it was the date of default i could certainly submit supplemental briefings but i haven't found any ninth circuit cases deciding which state t your honor that's sort of what i thought is that i didn't find any california court of appeal or supreme court decisions post robbins and i didn't look for any pre robin's addressing that question so i didn't f file your opening brief on direct appeal i understand so again this is something that kind of occurred to me recently as i was doing my final review and i'd be happy to do supplemental briefing but i did look at this at the end of last week and i couldn't find any cases on point post robins if you want to reserve the balance of your time yes your hon of the magistrate judge or the district court judge before the final judgment w point five zero point zero one is correct it informs the jury that they may infer appellant committed the charge crime if they find by a preponderance that he committed our acts and misconduct this is a permissible inference based on the correct standard of proof for harm misconduct was clarified to make it clear that this instruction alone was not to be used by the jury and i think that in the case that the instruction might have been a little misleading to the jurors i'm sorry when instruction did hundred cry the burden to persuasion which is normally beyond a reasonable doubt yes that's the end of the i don't see any brecht balancing and i think you set out their allegations and proof in the manner called for by bennett in this case but if we look at the bennett decision in that case the petitioner in response to the law did not follow the steps that this court has now identified as the proper ones the petitioner below simply objected to the prime minister recommendations but didn't attempt to show that clark wasn't applied a question was raised about the consistency of application of dickson i think that would be the solution work to handle it at this level as you indicated in terms of my opponent talked about har s being his best case for the fact that by ninety three dixon was consistently applied but if you look at harris at that time as this court noted in park harris clearly included a federal constitutional law exception to dixon so you could say that harris says it's consistently going to be applied but it includes a federal law question at that point and then finally just briefly in terms of the merits i know i have president evidence can stir up as proof beyond a reasonable doubt of the charge crime and so in that sense that's why i cite winship i think one of my arguments thank you so much matter