contradictory to the record specifically that the two issues the d n a the spelling issue into the d n a evidence and then the issue in terms of racial probability with the d n a evidence existed in the same murder case that was being tried that wasn't in different murder cases the two different murder cases that were being tried that was not the case they existed in the same murder case now this fact was the sole that and the sole basis for her counsel's alleged and strategic grounds for her decision to withdraw the motion to sever and to the state court finding of those strategic grounds from this we must draw one of two conclusions either eight counsel was testifying truthfully where there are any other grounds to compare and contrast that seemed to be one of the conclusions that that the missouri court came to which was that the strategy was to compare and contrast are we to read that as only the d n a or was there a bigger compare and contrast figure at the table here the trial counsel in this case was actually very specific that it was the d n a evidence that she sought to compare and contrast them so there was in terms of any asserted trial strategy there was no other comparison and contrast contrast thing done by a trial counsel in an effort to kind of undermine  the prosecution's case it was only with regard to this d n a evidence and there was no other basis and as asserted in our briefing during the cross examination of the various d n a experts there were three different experts there was no comparison and contrast to being done no no effort to draw distinctions similarities or anything like that here and i think for that reason it's pretty clear that the state courts conclusion was based on an unreasonable determination of the facts a determination of the facts that was contrary to the record in the case that was the only real factual finding the only eat the two other findings which were made by the state court was that this was her strategy and and secondly that that the argument there was the argument made based around that strategy and because the only argument the only thing that had to be done was that was the basis that strategy was that fact the those those other determinations of fact are completely determination that that path because that fact makes joiners already been ruled on the decision to withdraw is based on a highly implausible theory that perhaps the sewers pont day the court's going to now decide to sever these two trials and at the end of the day what evidence is there anything really changed in any way by this tactical decision that was made for any inappropriate or improper unresearch improper and that the judge abused his discretion and if you look at robinson in the cases following that in this circuit there's been deference given the judges who decide to join trials for judicial economy this trial judge did give seven reasons they seem not to be all d made up and pretend and then at the end you've got to show that somehow the outcome would likely have been different and while the district court said that i'm struggling mightily to see just exactly what the basis is for that and what they presented at trial in that murder it back when the when the crime was st made it back in two thousand and the state did not terms that case until two thousand and five suggest looking at that you can see the weakness of the  that that when all this evidence initially came in they didn't even charge the case because there wasn't enough evidence the only d n a evidence in that case had to do with the d n a that was found in the boxers and ronnie donaldson was consistent that he had left  clothes there and there was a very clear alternative suspect ronald dickens who was a known abusive boyfriend misguide had bruises and lacerations all over her body mr dickens now happens to be under indictment in tennessee for murdering another consistently said he left there when he was doing work for her so i think the strength of that keith is very very questionable with regard to the hampton murder the murder weapon itself  had d n a of another individual on it that was for which robbie donaldson was excluded so there were some rd individual in that apartment that had the d n a on it that that had touched the murder weapon and we don't know who that was and we know that it was not rotten donal's it so i think in either of these cases there is a substantial likelihood that had these cases been severed had this unduly prejudicial evidence not been commin of the other murders then we would there would have been a different outcome do we also have this was this is just myth was the evidence regarding the other individual you mentioned dickens who was then brought forth to trial yes in terms of the new indictment that didn't come out in the record but something more reset but but there was a lot of evidence that was brought in through the prosecution witnesses they thought they had brunell dickens testify himself that he had previously been he had previously had incidences of domestic battery on his criminal record with regard to her and actually  if they were prosecuted but certainly the police had come there was a downstairs neighbor ronnie donaldson's brother who had testified that they were constantly fighting there were bruises all over her body there were not any bruises in the body in the barber hampton case which the state own expert testified suggested that she had she had been severely beaten before she was killed so that evidence did come in and it did come out at trial and there was a whole matter of defen available in that that case and and to some extent that was pursued by truck counsels while you're making you're making some excellent points about the chosen strategy was perhaps not the best  me an idea of of whether or not this was pretextual you never hear anything in this case about comparing and contrasting the d n a evidence until the very st closing argument but even then it's not really compare and contrast and is that this purported trial strategy of arguing a way that the doctor's opinion that was an issue of allowing in some testimony that wasn't should have been allowed in and it wasn't a strategy that was actually employed by trial counsel and i think that's what we see in this case if you look at there was no real opening statement in this he specifically if you look at the cross examination of the d n a experts there is no effort whatsoever looping back a little bit to judge a person's question about procedurally where the lawyer was in withdrawing a motion that had already been denied so do we have to then look to see what sort of the  prejudice we have to conclude based on missouri law that that that would have been reversed as a result of the evidence that you've been describing and the way that the trial actually proceeded  conclude that there is a reasonable probability because this is a strickland prejudiced and so there's a reasonable probability that had trial counsel take it and taken a different action they would have been severed under mystery law and i actually it's almost presumed it's in if there improperly joined in order to determine the evidence of other crimes did not prejudiced the fact that they're reviewing or must find beyond doubt that the t it evidence did not affect the jury in its fact finding process so i think those cases establish that i see that i have two minutes and thirty seconds left i believe the plot was a fifteen minutes initially so i probably want to reserve the rest of my time for rebuttal of my right on the time yes i johnson had failed to satisfy the required showing under strickland that's not contrary to or nonviable application of clearly established supreme court precedent although the state courts opinion pay one factual er because the thing is did not rely on it was not based on bad mistake instead the state court decision was based on the fact that trial counsel strategy was to compare and contrast that d n a report or those d n a reports rather from the two murders and then argue that the d n a from the murder scenes did not belong to mr dunn and that's why isn't that why doesn't that conclusion depend nearly entirely on the factual statement that you've agreed is  supreme court will answer the question of whether there's been an unbelievable out of the facts the court needs to look at all of the evidence in the record and when you look at trial counsel closing argument she sets forth  explanation or an argument of the case that is can completely consistent with what she did try opposing counsel has in the brief of your argument contended that there should have been more vigorous cross examination errors that she found in the d n a report from mr ansari from mrs hamilton murder which was the misspelling of the name as long as well as the fact that hallo tie was more prevalent in the caucasian community not the african american community and then use that to argue that the one force in the case essentially rush to judgment and made a mistake and that because of that and because the state was arguing that the same a good investigation and that sort of sloppy across the board as opposed to compare and contrast are you still suggesting to compare and contrast yesterday on why that the compare and contrast is deferential standard towards a court opinion the state court identified for the five minutes before and applied to the facts of this case when finding this council strategy was reasonable i know some of the other members of the panel have asked questions about the withdrawing of the motion the morning of trial the record establishes that a witness been expected to defend against and that's a radical change from counsel's strategy all of which is imposed on fox counsel the morning of fifty one tells us that we have to review counsel's actions from the time at the time at which he made d the the district court the trial court changed its mind and said no no jointer here these have to be separate i would be surprised if there were not a motion to continue either from the state or or the defense given th so in addition to the point that there's not been under reasonable application the facts here is often not been under reasonable application of strickland or a decision that is contrary to clearly established supreme court precedent you want to be yeah i think supreme court doesn't require state courts to be aware or even cite to supreme court precedent it only requires that the analysis of the court establish an unbelievable application or contrary to application in this case because the supreme court or the rather the state court correctly identified the governing standard found may be required finding the  art so there's a couple pieces of the course question there what would have happened on appeal that question is not directly before the court because it is not a claim of ineffective assistance of direct appeal counsel and mr johnson did not raise the claim that ineffective for not preserving the question so for this court what it has to grapple with is the fact that the only missouri court to review this question which is the motion court which made its decision after hearing evidence was not a case where there was just argument on a motion the state produced the witness that testified to that in a layer between the cases and the motion court found there to be sufficient cause in the missouri law for jointer to be proper and for and this court can't look behind that decision aaronson jointer is a question of state law and this court is bound by decisions of the missouri d court on a state court question there is ample reasons in this case for joined or why do i enter was permissible which is why the motion court found found so the murders occurred within a mile of each other also women were found murdered in their apartment both women were found either physical evidence on the women in fact if you bottle of rubbing alcohol one of which in this is hamilton's murder had mr donaldson d n a on it were found near the women both women were acquainted with mr belton although for different reasons mr if i understand the court's question the court is asking if there is an act as an explanation in the record for why the state waited to file criminal charges against mr donaldson and no there is not an indication it's not the case d that the record shows at my own counsel and argued that the state believe the evidence was too weak to proceed to trial there's simply no information in the record for why the state missouri decided not to bring charges d early  in both cases and of course the five years between the two the passage of time is only one factor under missouri jointer of law and so even if that factor weighed against joining the cases that's not sufficient reason on either murder under missouri law that's affirmative evidence of his consciousness and so that also goes to show mr johnson's guilt in this case and all of that demonstrates why there would not have been prejudice in this case had  the adfa deference as far as a highly deferential standard is difficult and of to me it's meant to be difficult for me according to this court and to the i think supreme court and mispronounce and simply has not met that standard in this case ability to come up with strategic grounds which which counsel herself and the record itself did not support so there was nothing in counsel's testimony suggesting that she wasn't ready for the two cases or that anything like that would have happened and there's also your honor it's correct there's there's nothing suggesting that a motion to continue wouldn't have been granted or that it would have so so there's just too many things we don't know in order to accept those as reasonable strategic ground to know the grounds asserted we're not strategical the other thing i want to point out your honor there was almost no overlap of evidence in this case so that means one these cases could have been tried separately and the council should have been was not raised preserve the issue for appeal was not raised the issue that was raised with it was withdraw all of the motion to sever and what was discussed in that it partly what was discussed and that came out of the post conviction hearing was the fact that plausible is the same thing is reasonable it is not this was not a painstaking decision the court the state court in this case cited strickland and cited reasonable but it didn't go into any of the detailed analysis of what reasonableness is under stric sort of procedural that no one's raised but when my mind as i was reading the brief said that if in fact the claim is that the missouri court of appeals decision is not a reason don't pinion do we look back at the original  honor i think the law on that is that you look at the last recent decision of the court and i think that's particularly appropriate in this case because i don't think the original circuit court's decision can be fit be considered a final decision a suggestion in the record that it was under reconsideration it was not a decision it was not an issue that was raised in the new trial motion and under missouri law an affirmative waiver like that leaves even plain error review an appeal so i don't think so st of all i think the hideous law suggests that that we look at the the last reasoned decision of the state court and and and and but with regard to the underlying