maximum must be proven to the trier of fact the jury beyond a reasonable doubt and that didn't happen here his sentence was increased by two separate aggravating factors they both included the fact that there were multiple friendly i think that's what the likely majority said when they said that they were merely applying a printing i think that's what the blakely censored all four of them when they said when they called the majority those who were living in a when they said that the majority was bringing a pretty to its logical conclusion and when justice o'connor in the sense predicted that although they held that day that likely wouldn't apply retroactively it was certainly clear that there was an open question about whether everything ring was procedural because it allocated the decision to the judge rather than the jury we went on in terms of the beyond a reasonable doubt standard of proof i do want to sentencing reform act was one hundred two months and my client received twice that the statutory maximum under the the other statutory masterman washington was not exceeded but i don't know off the top of my head exactly what that  let me try to explain she why i think the answer is yes apparently held that outside of prior convictions any fact that increases the penalty for a crime above the statutory maximum has to of his conviction certainly it didn't mean only that you couldn't get a hate crime enhanced into new jersey it has to mean something more than that well gold in kansas was the only state supreme court to say that it applies  oppression problem it's the problem that the washington supreme court is struggling with they have arguments scheduled for nine arguments scheduled on november ninth and tenth addressing precisely that in the legislature is considering option for the crime being a life the standard range maximum was one hundred two months and his actual sentence exceeded that essentially double that standard range in this case relief is available only if the state court decision was an unreasonable application of supreme court precedent that existed at the time of the state court adjudication of the merits of the claim and at that time the only case that was available was the supreme court's decision in  printing the supreme court's likely case did not come out until long after the state court had adjudicated this issue therefore the likely case does not apply even if it could apply as a substantive rule or even if it could apply under the statutory maximum must be presented to the jury and they and what they did in blakely was actually changed the wording of that and i apologize i don't have the actual quote but any fact that makes the sentence more than what the judge imposed without an additional finding a fast so they they've they've gone from the what everyone considered to be a traditional statutory maximum as  our most a different term as that term is now used in blakely to mean not just the statutory max that we learn about in law school when we learn about criminal law but any maximum imposed by a statute and possibly by the federal guidelines this crime court has not reached that it should have the distinction presented by titian there is a distinction between the two cases in my reading of the or reach this issue has sat is this is a new rule it was not dictated by a predicate and it does not apply retroactively well i'm sympathetic to that argument on the other hand i was just rereading the even if blakely were to apply retro active winter tig relief is still not available under a twenty two fifty four d because a state court decision was a reason why application in may even if it was a wrong application there is your honor and actually there is a certificate of appeal building issue of whether the issue we've been discussing and the petitioner discussed is even probably before this court the or the issue that was certified by the referencing that case in the manner that they did in the issue presented in the argument is not sufficient to raise a federal claim a few process under the federal constitution in a criminal sen it what it was based on federal due process as applied in a civil case regarding termination medical license what the supreme court said involved in vs release was that in order to fairly present a claim the a federal client in other words if the court has to look at the petition and then go look at a separate document as another court opinion to try and determine whether it's a federal claim or not that is not fair presentation and that's what the supreme stage pro court would have to do they requiring exactly your honor and that would be the fallback the court could have firm on any basis apparently there is no supreme court decision even close to what that claim raises it and unless the court has for the question prefer mentioned that the certificate of appeal military said two issues were certified the person being the second claim in the petition and the reason being is that it referred to a due process claim it referred to a heightened standard and whether that claim was adequate adequately presented in those words only referring to the second claim which the district court denied on the basis of procedural bar and failure to properly  and pre established rule and applying it to a new factual context a different sort of jury instruction in that context but still the burden of proof holding was considered to be compelled by the older cases and not done for the first time in the new the other thing that i want to take issue with is that castle says that every circuit since blakeley was decided has now called it a new rule and that's actually not correct we submitted a statement of supplemental authorities perhaps three weeks