to the admission of gang evidence and his trial presents a threshold question as to whether at pedestrian supplies which i'll address first before turning to the merits so as for the standard to review the question is whether federal court what they should do when faced with a lower state court decision that gives the reasons a brief reasons here that is followed by summary denials of habeas by higher state courts and in this case the lower state court decision happens to be both procedural in nature and undisputedly erroneous so the fact that it is undisputedly romeo's that it was an incorrect applied procedural bore wouldn't that be strong evidence that the california supreme court considers the merits your honor i would say at most that that would be some evidence and well wasn't this a situation in which you never mention your as i recall in which there were a whole bunch of claims to me most of which actually should have been done in the appeal so the it wasn't erroneous as to this particular claim but not as to the petition as a whole yes your honor it was a procedure petition and as this court can see there is a welter of claims there are attachments there are supreme court would know that it's not correct and we have case law that suggests that that would give strong evidence that they considered the merits now why do i just ignore that  again i would say that wilson v sellers on which the state reply relies here at most is that the unreasonable list if any of the lower state court decision is some evidence and that it may go some direction toward meeting ilse strong evidence presumption which that case wilson v sellers does leave in place and i think the reason we do that is to put unreasonable procedural rulings on the merits on the same footing as unreasonable  you're suggesting years that it was so wrong procedurally that there's obvious to everyone and yet you're saying we're california's supreme court none the less relied on it that's your argument yes honor because the supreme court had offense than obvious why is it that i would just naturally presume the california supreme court relied on it because that's what the supreme court has that's the creat created the presumption in ilse just for this reason and i think what you'll stroh's and that the line of cases following it is that presumptions matter and that while the on reasonable notice of that lower state court decision again is some evidence going towards that there has to be something else and in the case that the district court relies on which was a central district of california case it was the same procedural bar that was a wrongly asli applied by the state superior court however in that case the california supreme court did order an informal response on the merits so when they want to signal that they're interested in the merits they know how to use it was there was their full briefing on the issue before the california supreme court by both sides no your honor in each at each level at this period court of the california court of appeal and of the california supreme court it was only the petition filed there was no order to show cause there was no responsive briefing by the state at all in any court but the petitioner put forth his best arguments yes your honor and he attached the as procedure has said the decisions of the lower courts and although california has this originals k b s petition system the supreme court has said that that is akin to appellate review in other systems was i could turn to the merits of like to focus on prejudice since the state has not argued against our deficient performant claim so as to prejudice the gang evidence that came in  object to was evidence regarding predicate offenses by other north hollywood boys gang members there were two of those the first was an attempted murder of the second which i'd like to focus on is a murder  mean the ultimate question here is whether this witness who had gone to the police and now the jury was instructed they could use evidence of gang activity to determine witness credibility and i think that there was lots of other evidence of gang activity and although some of it seems you know awfully question to challenge any of it so there's all kinds of stuff about your clients with the gang what's the what what difference does it make whether some other people had some other crime which was being put in for a fairly technical reason which is that they had to demonstrate that the gang members were committing violent crimes but it doesn't have to do with directly with your client and there's plenty of evidence of your clients surviving with the gang so what's the problem here your honor the facts of the second case the murder case which involved the brother of the front a friend of mr take in his prior conviction and also the alleged perpetrator of the second threats incident in this case it was also a witness intimidation case murder of murder and of murder a murder so if if there are to admit to two convictions of these two other gang members yes if it was the description only that you yes ok and under gardley that is the case in california if it had come in that anthony iraq committed an attempted murder he was a member of this gang and luis vega had committed a murder and he was a member of this gang there would be no claim here that would have been proper but the jury had already heard of witness intimidation threats and the jury had already heard of the defendant's prior manslaughter conviction and that was all properly admitted yes but the the witness  the the prior manslaughter was properly admitted but that there was no evidence that was a witness intimidation incident no but the charge crime again sorry rodriguez was and i think it's the relation the way that the improperly admitted there were two instructions the first that you are to thirteen just related to gang activity regarding the defendant on trial which i don't believe would have covered this it came up in the context of the prior manslaughter the second at the end of the at three ninety one it said it could be used to prove motive to prove the gang enhanced men and to go to credibility which i think is precisely the problem here that it should not have come in and it should not have gone to the credibility this case turned on whether the gang was so fierce some that two witnesses would come in and perjure themselves up and down and aside from detective for new expert opinion because in the abstract that other conviction provided potent evidence of the day if you're over time because point heading for ground one says ineffective assistance of trial counsel failure to investigate failure to call alibi witnesses etc the secondary then there's a second claim which was not for an effective assistance of counsel the third claim states in the point having ineffective assistance of counsel the fourth claim was not ineffective assistance of counsel and in the fifth claim or so i just think that this wasn't just it wasn't my impression that it that this would have got lost in the shuffle here i just think every individual claim at that point with no nothing having been filed it in response i mean at least at least it matters because it was never mentioned that this was that this was wish i would have submitted a supplemental excerpts of record the ineffective assistance of counsel claims would not have gotten lost in the shuffle by any stretch in the california supreme court hey vs a petition that mr take a file and the california supreme court t v s petition was lodged in the district court so it is part of the underlying record but when i was reviewing the wilson case and preparing for a large event one of the things the wilson case says is well  the presumption can be rebutted by if an alternative reason is obvious in the record and that that made it dawned on me not until i was preparing for argument well how obvious were these ineffective assistance of counsel claims in petition every single claim there is five claims every single claim you know this is part of a bigger problem which is as you keep referring to these documents they were quote lauch and often returned i don't even court to where to find at least the where this was launched the california supreme court has petitioned was part of the supplemental notice of launching filed on november twelfth two thousand and thirteen and it was docket saddest correctly and that makes it a little silly generous yet they weren't they weren't his if they weren't his offenses there was never any suggestion that mr ortega had any involvement in those two offenses and the jury as you that the jury should not have heard those details but it certainly would not have made a difference in this case and i think that even under a dyno standard of your review which i don't think we get to hear the district court also found that the   what happened in that case as horrible as it was was that a mr or take his gang was extorting money from a family and they were beating up a boy in an alley and a fifteen year old came to the boy rescue and was killed by a gang member so as horrible as that is that wasn't a witness intimate intimidation case and there were and there were and there were numerous bases to understand why some railroad regas would be afraid to be forthcoming in her testimony before the court aside from these extraneous details sree rodrigo's grew up in the north hollywood boys area she knew about this gang she she knew that mr ortega previously committed homicide in fact she testified in that case or or at least gave some information in that case was which is what led to the retaliation here after mr or mr or take that was released on parole and found farai rodriguez walking in gang territory  that either the california supreme court was unaware of or disregarded its own clearly established precedent and just to clarify we don't we don't just have the unreasonable miss of the lower court's decision we have the california supreme court telling us of counsel claims or say so yes the district court that trustees with the trial court clearly got it wrong we cannot presume that the california supreme court according it the proper respect and deference it deserves would have made the same mistake and ignored its own court's question about the california supreme court and california court of appeal petitions the worse they are there is now a practice in the ninth circuit whereby they are scanned in and put on the court seal docket so those are available dash twenty six for the court of appeal and twenty eight for the california supreme court however there is no material difference between the the petition filed in superior court and those petitions and that are forty eight throughout but they're not the other ones were in the