will now hear argument in khalil versus garcia position advocated at length by alexander hamilton in the federalist papers that we need an independent federal judiciary to protect the constitution and we may have passing legislation such as it could be passed in an emotional time in the wake of the oklahoma city bombing where it is not faithful to the constitution it violates it limits the power of article three judges it requires article three judges to simply recognize yes there's a federal constitutional error in this case but i'm going to let it pass because it is not blatant or unreasonable federal constitutional are you raising a different issue than summarized involves a different issue regarding starr decisis that's not the issue that i'm raising you know if you would have told alexander hamilton or anybody in the constitutional convention that the federal judiciary the least dangerous branch would be sitting in judgment on the constitutionality using the bill of rights of state court criminal convictions this constitutional gotten zero votes zero well the whole bill of rights wasn't even i aimed at the state convictions it's a zero votes institution but i don't think that that doesn't change the point taken but the text of his writings in the federalist papers which seems fairly impassioned and his involvement in the constitutional convention from my understanding of history was fairly involved the fairly passionate defense of the independence of the federal judiciary and i don't think you can just for federal questions but i mean these states were s i don't believe that the court there actually was presented with a challenge directly to the constitutionality of the supreme court one could argue well that it's the supreme court has issued decisions construing in applying at but yet presented to the u s supreme court as a direct challenge to the constitutionality where you know we're being we're really going crazy or we got hamilton on the carpet everybody we might as well get everything on the carpet if you go back twenty seven years this court was heavily involved with all federal court judges should never hands like who's trying to supreme court us so we have to we have to assume the supreme court is going to do with it then the guidelines say no good we're going to reverse it all we have to go that route in the on this panel that's what i'm asking  what do we reach out hold on to you look to the well first of all there are there are decisions which i cited in my papers the dissenting decisions i have knowledge of federal judges which say appears to when i look at again i'm not trying to prejudge here but when i look i was involved for the last twenty two years dealing with this law that the supreme court systematically put in place a hades of twenty to fifty four federal because you need and we and we fought hard all these the constitutional question before the court the congress clearly passed the law on the supreme court in its decisions williams versus taylor and all of its other ed decisions so what does congress mean here in twenty five to fifty court is that in this case given the instructions that were given to the jury the jury was told you can find mr kendall guilty of the current charges even if you just find all you have to find is him guilty guilty evidence that the defendant committed the prior in this case they were charged prior offenses they're not charged in this case then that is not enough to find him guilty of the current offenses beyond a reasonable doubt but that leaves the jury well if we find beyond a reasonable doubt that he committed the prior offenses then is that enough to convict him and that was justice canards point in her opinion and rather for it and i see that my time i have one question you said that some federal judges have stated in dissent that it was unconstitutional i looked briefly get your brief and i didn't see any references who's done the best job what do you want us to read that represents your argument put in terms of federal judge would you repeat for the microphone we didn't hear any of their time conversation so in the reply brief you tell me if i'm afraid it may in the reply brief it's a very recent decision i believe it was out of the fifth circuit in the greater case  i think it would that would depend on how this court views the substantive issue if this court finds that there is a constitutional violation in one of the cases however it's to the jury instruction in gibson that occurred in this case and i quote however if you find by a preponderance of the evidence that the defendant committed prior sexual offenses that is not sufficient by itself the instruction issue there was the additional language that is not enough by itself to prove beyond a reasonable doubt now it made clear to the jury which wasn't clear before under gi that the jury still had to find the defendant guilty beyond a reasonable doubt  given the new language and the other instructions that were given in this case regarding the reasonable doubt there just wasn't any constitutional error and at the very least it's not reasonably likely that the jury interpreted this instruction in america hence the constitution but most importantly the state courts denial of this claim was not an unreasonable application of us don't versus mcguire in that regard if the court doesn't have any other questions on that issue we collide to switch to the anything on the  i don't i do believe that williams versus taylor is the best way to go in this particular case because congress gives the article three courts the power to grant a b s really it stands to reason that they can prescribe how that he gets relief is granted it's the heaviest courts aren't exactly called upon to say what the law is but whether the state courts that apply clearly establish