claiming that because his original opening brief on direct appeal said this violates the fourth evidence code twelve ninety one that must be the same claim he's raising in this federal plan and that's just wrong i mean when you're happy when you when the state responded and said look this is just a state claim he didn't say oh no no no no i'm making a constitutional when the magistrate you have said this is just the stapling he didn't say no no no now holmes that crawford cannot be applied retroactively i'm not sure what difference any of this makes because since i read your argument it is never been that the statements were unreliable and the old ohio horse roberts sounds but actually this will be the narrow type of case which will fill satisfy both frameworks in crawford of course the only testimony that i'm sorry the only statements that the confrontation clause reaches are those that are testimonial now of course you don't use the crawford test to determine whether those prostitution a violation it seems to me that you have a two part analysis now for determining whether someone can raise a precaution crawford confrontation clause claim number one they be testimonial if they're not testimonial then they're simply no constitutional issue second once they're determine to be testimony you then determine under the ohio versus roberts framework whether they were reliable or not and i pointed out in my opening reply that the reason that these were reliable was that when mr memory because he made the great decision to call these witnesses at the court america hearing he couldn't go after those witnesses as being the actual killers that was the obvious he did it to a fairly well you're saying that any reasonable person would say they were the killers may be still but that's not how he thought about it tactically he thought any reasonable person would show these guys are a couple of great big this guy called him on direct it was just like across the city he was using leading questions he was going after the witness the only difference it had all the trappings i believe was the word the supreme court used and that's what differs between mr many cases case direct examination loses a tremendous amount of what would be cross examination really well i that's true although you know it gets past the fundamental problem which is you know there is a line of defense which he could not pursue which was the only logical possible course he could pursue it he didn't choose to he said tactically it be much smarter for me to get these guys on my side that's what he said couldn't personhood well it's true that no one held him down and i mean i don't i cannot for the life of me understand why any competent defense attorney would call these folks because all you're doing is ensuring that their statements be admitted at trial that's all you were doing under the old law there's no way you're winning the primary hearing no one could say that case i don't believe we get to the merits we don't get to the issue of ohio v roberts specifically because in order to make the jump to the merits in this case we really really have to stretch the procedural background the the operative principle as justice fernando's points out is that it was petitioners burden to raise the claim it was petitioners burden to raise the claim it was petitioners burden to raise the claim he did not do that in the state court he did not do that in the federal court court he did not do that when he had the opportunity to file a traverse he did not clarify and as also was pointed out he didn't even do it in the c e o and he basically abandoned the claim  in order to do that the court would be advocating on the behalf of the petitioner the court would be saying here's a claim or here's here's grounds nonstate stated either way we're in federal courts the worst looming there has to be some sort of federal basis but without the explicit statement on the part of the petitioner the district court is put in the position where it's not only having to research and determine what the federal constitutional claim is but also frame it discusses and i believe this is an opinion where justice fernand is joined and it was authored by justice reinhardt in footnote one of the court points out that the petitioner was raising a right to the president claimed at his sentencing hearing and had not expressly raised a sixth amendment right to counsel claim however the court was able to say we're construing this petition literally and we're looking at it for the sixth amendment right to counsel claim we're able to associate and relate that back to the right to be present claim so i recall that i recall that footnote was almost a throw away it was didn't really deal with the issue it in and the footnote was there i believe because the government did object the court was was responding to the government's objection that there was no federal question raised with respect to the and wrote on it and rejected it and beyond that we don't even reach the claim in this case because it's closed the case is disclosed on other men on another ground so when we're talking about this notion of literally considering petitioners claims at least in those cases where federal question are presented we can say well or this court is able to say well this claim is related it's directly encompassed and tied in with the with the federal question that is raised by the petitioner in our case here men reeking failed absolutely failed at every stage of the game to present a federal question well i'm back and read twenty to fifty truth through to try to figure out how we got here and i guess if we want to employ a liberal a liberal reading of of papers that's one way to do it legal grounds for his claim in order to obtain he's relief and i'd like to point out that the district court although it did dispose of the claim on state law grounds it indicated that the claim was not cogni and district court because the federal claim had not been raised that was clear that was made very clear why the court went through the exercise of tracking the reasoning of the state court and going through the state law i don't know but the was the court in the position of acting as an advocate and that completely does violence to the in the entire system it doesn't make any sense it just takes it too far there's one other there's one other case that i'd like to point out before i before i conclude today and i think directly this has more to do with how to read the papers that have already been presented by the prisoner which seems to me analytically quite different you have to hear the claim directly above this as the question is how how to understand this piece of paper what should the district judge do and what should we do when we're faced with this piece of paper which is quite a bit of a different question i think that the parallel that i saw getting at figuring out what a person ought to do next which is what climate was about what are your options now what choices should you be making that's best advice at looking at this and figuring out what it means  it seems to me i think the problem with looking at a claim that does not state the federal constitutional definition of rights the court is put in the position of if it wasn't if i don't want to say that the claim here was self evident but for the purposes of argument let's say the claim is self evident this may be a simpler case however what about the case where it's not entirely self evident the  put in the position of where is the federal constitutional deprivation ok so then we turn to well do we need to research this claim then the court has to frame the claim for the petitioner i mean those acts sounds to me like acts of a lawyer acting on behalf of a petitioner rather than and the claiming being brought to the court in the first instance and then having the court evaluate the just a couple of quick points your honor said you know i may not be right about much in this case but i am right that spawn is taking a contradictory position in that when this when the judge got that he is and said well this is a state walkway and you know  am choosing not to state because it's meritless for i'm choosing to give you a chance to go to the state court has lost it but it just can't be the answer that here's a state law claim it's improperly resolved on state law grounds and that's the end of the day i mean