the is that there are a number of factors that weren't considered by the district court the second time around in its resolution that the that the state court i was not objectively reasonable the case eighteen months prior so that is a i think a significant i submit a significant factor and the consideration of the process that the state provided in arnaud some point said that he had delusions and then his notion that he thought that he would shoot the guy and he would fall down was consistent with those delusions was that in the record before the state court yes ok so this is an accurate what's said here that there was no connection i mean obviously no psychiatrist is going to be there the day of the crime so he can't specifically say what was going on the day the crime indeed and if you asked the expert that the expert really be doing the jurors job because there would be speculation albeit based upon a testing and social history that what they point to did was consistent with with one who was operating and had to lose most states but no expert probably really would even be permitted to testify about what that was is your understanding what is your understanding of surprise or ninth circuit short memorandum disposition as it affects this case i mean did it say that there can't be any reliance on the evidence for a hearing or to say that there can't be any or reliance on the evidence for a hearing for the purpose of deciding the end reasonable but if you then independently decided it was unreasonable in japan elster you could use you know the gentry hearing or it didn't say that but it just didn't propose that or which one which one wasn't what did it say in defense of the ninth circuit and in my own defense jurist he also read the united states supreme court decisions and so he knew that he couldn't rely on new evidence that come in and he had moved and they made this decision based upon what the state court and exactly what i'm saying is that we don't need to do that we've done that we we know that we know that petitioners claims can be satisfied because they have been satisfied already in the federal district court so i think the place we go is this court writes an order i'd be happy to draft it that that the state has ninety days to retry this guy was a faulty fact finding proceeding in the state court yes that wasn't certified question a certified question was whether there was precious on on the state court record has resolved both of those for us and the second time around the second district court also which is the same conclusion on the on the acts of counsel and were so were or are at good morning your honour's deputy attorney general jennifer job of it for responding in this matter as the court has initially pointed out it would be the state's position that counsel has waived the certified issue in this appeal and to that extent the court wanted to dismiss the case on that ground it certainly could rightfully do so alternatively it's with respect to the certified issue we think the record is very clear in this case that the district court correctly determined that there was no prejudice in this case because in the court's words scuse me in the court's words the evidence fell far short of establishing prejudice because i ask you two questions first of all is that  that question yes it's a trial was a decided that way in this industry course yes absolutely the the trial current state had this very why don't why we apply it to deference to the pressures question because as the district court noted in its reporting among recommendation and denying that strickland claim for failure to state a prima fascia case while we don't know on which prong they decided  know because we know what they said well we know that yes we know that they rejected potentially both prongs but the district court in this case said that therefore when just saying prima fascia case that we have to look is wrong and write another as a fact it was hanged that it was hearsay was totally irrelevant because the question wasn't whether it was true the question was whether the the attorney should have discovered it i wouldn't say that it's wrong but i certainly wouldn't say that it speaks to the final holding of the court was that mr mcshane failed to state a prima fascia case to support his claim therefore they were direct rejecting the claim on the merits so the district court in this case was correct in determining with respect to the prejudice prong which is the certified issue before this court that the record in this case there is no evidence to show that mr mcshane could not form the requisite intent in the scuse me on the night of the murder and we would ask the court in this case to follow its logic and reasoning when it decided a similar issue recently and be more where this case as in that case the record falls short of showing that the defendant in that case could not in this no there was some connection made in dr arnot report wasn't there i don't have unfortunately report in front of you but i would disagree with the that without finding i think as a district court found out that in shortly thereafter so what was his post to do i think he needed more than that he needed to say present more definitive evidence showing that he couldn't form the requisite intent to kill that night and based on the evidence before the court always true so connector happen is that what you're saying you know what he would need to have somebody say or himself say is that on the night of the shooting i was delusional i didn't know what i was doing said the second about himself but that can persuade anybody we would disagree with that interpretation of the facts your honor and in this particular case since i was a lucia nobody said i thought i'd shoot and they got that off again and here's the problem with that is the fact that just as this court decided in be more is that even if perhaps as the court interprets dr arden's declaration could have been introduced at trial that would not have been enough to overcome the overwhelming evidence of mr mcshane's express and implied malice in going after these kids he armed himself with a shotgun and you know and would have made a big difference to a jury another this guy had been an institution several different times had had had delusions whether he had them then or not had a psychiatrist saying that the delusions he had were consistent with what he was testifying to and that he can't remember now whether he'd been diagnosis of schizophrenia before or after trial but at least shortly made the connection to show that he wasn't able to form the requisite intent to kill on the night of the shooting he chased these three teenagers down for over an hour he armed himself with a shotgun he exacted purpose he had three chances to abandon going after these kids based on that overwhelming evidence of premeditation and calculated decisions even if he could have gotten any of this evidence introduced at trial that he's presented in support of his hate these petitions it would not have overcome his court what was it that was the the smoking gun in the evidentiary hearing that changed anything nothing as far as the people or cannot there and it should have been a situation where the first time around no prejudice should have been found for the same  questions we would submit on the briefing and no questions here thank you your honor thank you