know of itself had an affirmative duty to raise the issue be the primary issue here is the ineffective assistance of counsel claim and although there has been no batson challenge it's mr catlin's position that given the circumstances of the conditions in the county the racial demographics recent events and the facts of the offense that his counsel should have thought to question the jurors about their racial attitudes to make sure that there were no prejudices lurking among the jurors that would affect their assessment of the evidence and i want to emphasize in this regard and this point applies to both of the ineffective assistance of counsel claims that because these are i a c claims the that it was not undermines your confidence the court's confidence in the outcome of the proceeding that's a somewhat different formulation of prejudice than we have a direct claim that pretrial publicity violated due process or that the court constitutional issues at stake here therefore they go to reasonable must also we've argued in the briefs that because of the circumstances of this case the court would have been obliged under versus retained overseas ross to grant the unconstitutional rule which will apply in federal courts that whenever there's a reasonable possibility of race being an issue in the case it should be asked about now clearly that will didn't apply although had the then the offen ten years before this case gave a very good reasoned explanation of why it is important even if it's not constitutionally required to inquire in any case where there is a violent interracial crime the supreme court specifically said there was always a reasonable possibility of racial prejudice the crime is one of violence and the victim and the accused are different so we did have a reasonable possibility in this case at the very least and my view was that that reasonable possibility is enough to have given counsel the obligation in terms of reasonable performance to raise the issue and it also increases the likelihood that the request would have been granted even if you  first line of argument which is that the court would have been compelled under mr know to permit the questioning the same type of analysis i think applies on the change of venue motion we have not claim that you'll see that the vast majority of the jurors potential jurors knew various witnesses were familiar with the winship family it's a very close knit community and those matters were inquired into there were there was one that is the standard and a claim that due process was violated by the publicity but that's not the claim here it's ineffective assistance for failing to make a venue motion so it counsel was unreasonable in not making the venue motion for which there was absolutely no the californias martinez factors in the opening brief page twenty two i think that all those factors are satisfied and then is there a not a not a preponderance but a reasonable possibility a likelihood under strickland a different outcome if the case had been tried somewhere else and given the closeness of the community the number of people who knew and sympathize with the victim the extent of the publicity and if you'll indulge me i want to for the record make one more factual correction the release of both parties incorrectly stated that a total of three prospect of jurors volunteered that they not only read the appeal democrat regularly but also we called the articles there were five raised in terms of why during on race there is absolutely no evidence of prejudice on the record in this case you know what's your response to the square is very interesting argument since he earlier indicated that he was going to make a motion or venue change and then fail to do it that there's some indication of below par performance well the the attorney  be that at that point he had reconsidered whether or not it's beneficial to his client truly to have a different venue and that he moved for the removal only upon the request of his client we have no evidence in this record that mr kaplan ever requested that his attorney why do the jurors on the issue of race so the only evidence in the record that mr catlin was concerned about racial prejudice was his declaration and as well they have to show there was prejudice in the failure to ask for a change of venue and in this case we have absolutely no evidence that there was any prejudice we have no evidence  racially biased no indication that on the record that race was an issue at all in this case we have simply inferences that because the community was only twenty five percent nonwhite that somehow race should have been raised civically as a basis for changing venue and for why during the jurors but i submit to the court that that is not strong enough grounds to i'd like to take issue with opposing counsel's claim that a motion for a move all would not have been granted and the factors that california applies to a change of venue motion to remove or change you have it your pardon i meant change of venue but within need to really go ahead and try to move this case because the racial matters perhaps weren't as important as mr catlin believes they were but the transcripts that you have in the excerpts of this supposed removal motion indicates that it was made nonetheless as you all are well aware one cannot remove a criminal prosecution as one can a diversity action from state court to federal court counsel didn't know what he was doing and i think there's no other conclusion that can be drawn there we can infer and reasonable s from the very in aptness of his attempts here but as to the factors supporting a change of venue they are the extent and kind of publicity and here we had publicity that was regular throughout the year between the offense and the trial that repeatedly emphasized the gruesome nature of the assault the strength of the evidence against mr kaplan and the prominence of the victim in the community what about the fact that the less than ten percent of the oakland years older and heard anything about the that apparently someone who lived only a block from the crime scene knew nothing about it well that that one individual knew nothing about it and completely apart from the appeal democrat because the publicity again is only one of the factors that martinez articulate numerous other prospective jurors were aware if not from reading if you will democrat and from the television or from the talk about town as i mentioned a great number of people were familiar with the family and a number of the prospect of jurors indicated that they were aware of what had happened and were offended by it the nature and gravity of the crime is the second factor and certainly here  special circumstances murder case short of a capital charge there is no more serious and grave crime and the final factor is the standing relative standing of the victim and the accused in the community and here again we could not have a greater disparity mr patten was an indigent african american although twenty five percent of the county was white less than two percent were african american and ms winship was the elderly familiar with her so even those people who didn't have a close family ties such that it was a personal friend who had been killed and would be affected emotionally in that way could not have been unaware of the importance of the victim and that cannot have had