have a lot of questions in this case and i'm going to preempt if you don't mind to try to channel the i will means a discussion a little bit on one of the things that's curious about this case is the sentencing the citation of the anderson well that's a long held your honor and we do dispute that but it's not really dispositive here because we think we prevail on the merits ome strike would say that this this a determination that there were two separate crimes that issue here correct correct and do you view that as a factual determination or a legal determination that the evidence was sufficient exhaustion and then before we get to merits we also you think about what what is our standard of review and we're if you think that the state court was presented with a right sure so again gone going to my hypothetical if we if we have a trudging instrument that and is identifying the same act as the basis for the lesser and greater includ hypothetical which is for the for as a matter of federal double jeopardy wrong is it your position that the sufficiency of the evidence of the trial the trial record of known would have no way to double jeopardy problem for that for the same act where the same offense being retried right wouldn't matter if there were talking about and two counts that are based on the same act were subsequent prosecutions k jury could have based that that prior verdict whatever was on the other other acts and if so then it doesn't give rise to a double jeopardy and the implication of double jeopardy just a reference to it in the context of an argument that i'm looking for really decided this is a lesser included offense of another offense  could have found to be a single act in view of allegedly deficient on jury instructions charging instrument it opens different double jeopardy clim trial record what what are the parts of the of the that record that one can prove permissibly rely on to determine if you have one or two x how were those questions fairly presented to the state court mr wilkerson's obligations to fairly present a double jeopardy claim to the state court that has two convictions as a separate punishment for the aggravated assault conviction violated double jeopardy sufficient to put the secret on notice of all the different claims to be praised for that provision dis is a lesser included aggravated assault as a lesser included offense attempted murder you can't convict someone of both for the same act and and state standards that there was one that and the answer that the that the state court gives its opinion is simply what we recommend is that would be a double jeopardy problem we were presented with it but we're not we don't have to address double jeopardy because this case involves and very interesting but different claim that's being raised about how is it that we go down defining whether something is one or two x which required under double jeopardy  ignore just cite general principles of law i think in order for you to carry the day or a violation of clearly established law you have to point us to a supreme court decision that says that the instructions and unconstitutional way that might be true for were cases a direct appeal but one of the things that was troubling about the district courts or else this at least to me was that it appeared as if the court was exercising to go over review there because i would have expected the court to instead of making its own determination it would hide a federal district judge review this record i think there is a substantial likelihood or a fair probability that the jury was misled  that strikes me generally as a typical legal determination determination with these were two separate crimes correct so indeed incumbent upon you wonder to show us why that was contrary to were the reasonable application of clearly established two separate crimes and enough facts yet in their incident to support those two separate crimes isn't the problem that as a legal matter those those crimes for sentencing there was  understood your position to be that you should look to the trial record that you're limited to the charging instrument and the jury instructions but in view with ashleigh is it now your position that you actually can look to the full trial record  just a miscarriage of justice are we to look at the record to see whether there was serious bodily injury