made pleas to court john martin and began with mr gilbert your honor consistent with what i buy as the clerk previously me i have five minutes for rebuttal thank the case comes before this court today on both an appeal and a cross appeal and with respect to the appeal of mr gilbert faced trial for an aggravated robbery under ohio law felony murder and aggravated murder under ohio law ohio  under state versus johnson it said that when there are different conceptual groupings by which a crime can be committed a jury must be instructed upon request that they must be unanimous is to a particular conceptual grouping then it makes sense it makes sense that we don't want to jury to go back there and to use the example that i believe is quoted from one of justice scalia's opinions in richardson we don't want them back there saying well it was either this or this in the example he used was obviously a much more distinct conceptual grouping he said that either x was killed on a tuesday or y was killed on a wednesday this is different but there are still two there are still multiple distinct conceptual grouping this case from united states from u s versus state versus davis two thousand and eight is right state versus davis talks about the distinction between means and acts between alternative means and separate acts but we would submit to that answer was aggravated murder and the offenses could have been the kidnapping aggravated robbery or ag aerated burglary and that hell they were merely different ways of committing the same offense of aggravated murder rather than need for the specific unanimity and in this case the separate acts or that my client's charged with having clause the death of another either because he committed specifications include the act of brandishing the act of displaying the act of possessing on his person the act of using and so you have these different and those are separate things you can't do those all the same time to shoot somebody without using probably hard to do it without brandishing it and very likely with hard to do it without threatening teams and it is true rather that it is hard to do one without the other but yet they are still separate x along that continuum if you will and what you have is a situation where in it to go back to a case that i did not cite in the brief but in response to your honor's question it was justice scalia's concurring opinion i believe in corella versus california which talked about the fact that it's not  of appeals to go back and say this is what the jury must have found you know this would be you know might be theoretically more interesting if the proof in this case were not so overwhelming that a this is a great set of facts but at the same time they have the right to have their jury be unanimous as to what is it that he did not and that's a matter of specific acts that right is bigger than any set of facts and that right is the right is rooted in the constitution that was violated in this case now if i may be switching over to anticipate the cross appeal the cross appeal is a situation where my client encountered fear was charged in what was at that time a defective indictment it did not include and there were geisha mens rea with respect to the a probated robbery charge of inflicted or attempted to inflict serious physical harm it should have said recklessly inflicted or is a state law issue right yes right now at the time of trial there was an i mean what the trial judge did was perfectly far under ohio law it became not so bad virtue of a supreme court decision by a supreme court decision right or that decision was overturned so now there's nothing wrong with what the trial court violation first of all i do want to go back on one aspect of your premise i would suggest to the court that it was not fine at the time the reversed that conviction for reasons that had only to do with the intervening cold yes yes yes and so yeah and but and that's absolutely true but my only point was the cologne was not coming new cloth and it was not breaking new law on ohio's the first time you had a supreme court had recognized that issue now there having been said what you have though is this and i think just a couple things remember one the state did not appeal that decision from the eighth district court of appeals if the state had wanted to they could have gotten themselves to the ohio supreme court asked the ohio supreme court to consider the case they could have become warner or they could have and i'm not exactly sure the timing could have fallen into the line of cases that later i go to your client's due process rights violated well what it goes to is this due process necessarily has to look at the long that is the law of the case if you will and that in this particular case you have a structural error with respect to count for this jury is not being told it wasn't simply that the indictment was defective the jury was not told that they had to even consider a mens rea with respect to count fo and so therefore what you have is a situation where a jury is relying on a count bed without having to consider its mens rea or whether there was recklessness w around and reverses kolo and so it's no longer structural there one a did not remove the fact that you still have to have a mens rea of recklessness with respect to this infliction of physical harm and from that point of view when this jury is saying ok did the murder did this death occur as a result of the commission of an aggravated robbery if they sit there and say we're hearing that happen is result of code for convict him of count three which was aggravated robbery by the far right they did you know honestly convict i would that be enough predicate for a felony murder case and again would have been enough predicate yes but was that their predicate without any type of jury in a ragged tory to tell it reviewing court or the trial court for that matter that this is the this is the count upon which we premised our finding of felony murder that bring you to your claim that you are entitled to unanimity instruction it does it which there isn't any requirement of the unanimity instruction under ohio law or not there you go there is clearly two different conceptual grouping so you have one conceptual grouping is that by a firearm the other conceptual being is theft by the infliction or threatened infliction of physical harm so from beppe point of view under i under johnson this would clearly be a situation where you would have two conceptual groupings and would judge what the district judge did here was to say look they could have premised it on this they could have premised it on that this one was flawed therefore the felony murder is necessarily flawed because it relies on that your honor i see that my times over but if i may believe i believe there's a question could predicate either count three or count four i apologize i don't have that page of the instructions before me but my recollection is that it was an instruction to the effect of it would be based on a murder aggravated robbery and the elements of aggravated robbery he either said would be instructed or have already been struck but i do not believe that the judge at any time ever got that specific and said either count three or count four he did not draw dec to that i believe but again i apologize i should have the transcript page with me and i don't know how you could instruct on felony murder without goldberg did not demonstrate an unreasonable application of clearly established federal law he states richardson versus united states and in that case as the district court judge held richardson involved  statutory interpretation and it was a federal criminal case not a status case in addition in chad it was a plurality opinion and the district court noted that council is not deficient for failing to ask for case even in johnson it reviewed essentially felony murder and said that that was not distinct conceptual groupings that was a single conceptual grouping based on related facts and they said  in the end the jury decided that the defendant committed that caused the death or killed the victim in committing a robbery in their trade robbery   in addition the result would have been the same here there's no question about what he did he tried to steal money from the victim he shot the victim and he fled after shooting the victim and the victim died that meets the elements of crap count three or four of aggravated robbery there is definitely an infliction of serious physical harm and there's definitely a use of a firearm based on the case as to the six grown for relief related to the felony murder conviction gilbert cannot demonstrate the state court judgment was contrary to or an unreasonable application of clearly established federal law the state appellate court reviewed his claim that it was required to reverse this conviction on felony murder based on their determination in count four and they said no we are not required to reverse the conviction they said  that found him guilty as to counts two three and four that verdict is supported by his guilt the verdict in count two is supported by his guilt in counts three and four and the evidence supported the determination of three other than the sixteen months that cologne was the law in ohio revised code twenty nine eleven point zero one eight three does not require proof of a mental state so at the time of his conviction and at the time of his recent saying ohio law did not require a ment al state in count for he received the benefit of that or in his ruling and cause he got that conviction reversed it's gone he's not being punished as to that conviction and he never will be but he is guilty on count three and he's guilty on count two and he's guilty on count one and based on all of this the state court judgment reviewing his claim as to count two was not an unreasonable expectation clearly established federal law and based on this we ask you to reverse the district