grammatically ambiguous know about what they had to find on two different defenses and trial trial court without involving defense counsel or mr bayle and simply replied yes now despite the constitutional concerns that this raises no state court has ever decided the merits of this claim instead imposing a dixon bar and a clarke bar in the california supreme court but this court should reach the merits anyway because these two bars conflict with each other so much that we cannot really tell what the basis of a default was well the magistrate judge and his report recommendation explain why they didn't  haven't found for brief an explanation of what's wrong with his explanation ok let me try so dixon default is designed to say this is a record based claim that should have been raised on appeal the clark bar in this particular cart bar is a success of this bar saying you should have brought this claim in a prior he is petition our position is that a claim is either record based or it's not you can either decide it from the four corners of the record or you need factual development and in this case this claim didn't require factual development the state can impose these two bars and say well one of them applies that's  not consistent with the whole idea of the procedural bar doctrine because the loss of federal habeas review is a very serious penalty we only apply it when the state courts procedural rules are clear and when their application to a i think we really need to take a look at what the california court of appeal said on direct review that court set itself neither the r t c nor the minute order reflects any discussion of the jury's question so we can't determine whether defense counsel objected but we presume that he did now that language coming out in the direct appeal opinion could only tell mr beilin well i guess this record wasn't sufficient i guess my  wasn't ineffective i guess i have to bring this claim in a separate those two instructions were right next to each other in the packet of instructions you can see that it either ninety five and ninety six they were discussed right back to back when the judge gave his oral instructions and so it's it's very likely that the jury was confused about whether these were separate defenses or not the overall context of the trial would be also confusing to the jury because here we have necessity that isn't a complicated six part affirmative defense where the defendant has a burden of proof a preponderance of the evidence and yet that is traction was requested by the prosecution and only mentioned by the prosecution defense counsel's closing argument is about two and a half pages long he mentions the word arrest warrants he never mentions necessity so it's easy to understand why the jury might be confused about what they have to find and whether these two defenses are separate they are similar defenses but the rest is actually a much much easier defense for the defendant to succeed on it has only two parts it doesn't have a standard of proof the defendant just has to  reasonable doubt that's just because it negates an element of the offense unlike necessity which requires a preponderance of the evidence of certain facts so all of those many will join his answer was legally correct yes your honor it was misleading suggesting that the jury had to find all of the six elements of necessity and the two elements addressed before they get five years before they could find either before they or the ceci is it necessary to meet the report yes they're referring to it defense singular they do that twice i think clearly this no required a little more explanation than the court gave to be clear that these are separate offenses they have separate elements and that you don't need to find all of them before bailey could be acquitted now and i'm running on time but i'd like to briefly address the other claims state court made on reasonable factual findings on what the note said and what it meant for the reasons we just discussed and unless the court has any further questions i'd like to re morning your other snow please the court deputy attorney general seth mccutcheon on behalf of responded this case appears more complicated than it is there's two certified issues before the score both were properly resolved below by the district court ground procedurally barred by dixon fisher makes several arguments as to why dixon doesn't apply but all of those arguments fail first petitioner contends that because the california supreme court imposed clark that the bars are inconsistent and therefore they cannot to the california supreme court was entirely based on the sea court record and the supreme court found that based because it's based on with a mistake or record as it's presented that it should have been raised on appeal so in order for the position to escape the procedural bar petition must show cause i'm prejudiced or that there was that the failure to consider the claim would be a fundamental miscarriage of justice in order to show cause and prejudice petitioner has a sort of the i c claim but the i california supreme court would procedurally bar their claim if they brought it it could consider this claim constructively exhausted my argument is that it's not clear the california supreme court very well could take up the  respond in their resolve it on the merits but in any event even if it is considered constructively and exhausted it's necessarily procedurally exhausted and petitioner cannot show cause and prejudice to even if we consider the claim exhausted and even if there is no procedural bar the i c claim fails on the merits petitioner cannot show deficient performance or prejudice and very simply petitioner cannot show deficient performance because a reasonably competent attorney would not have brought a denial of counsel clane based solely on an inconclusive record similarly petitioner cannot show prejudice because no court would have found  denial of carlson call counsel based soley on an inconclusive record so in and then in the unlikely event that the appellate counsel had brought the denial of counsel claim and in the even unlikely or event the a court would have follow a denial of counsel if it's the air would have been found to be harmless beyond a reasonable doubt and we know that based on how the court of appeal ruled in the related instructional claim yes i think he would need to point to something more than the absence in the record to support this presumption that he wants a court to make he asked this court to make the same presumption that he asked the california supreme court that on their minute order or that day sheet that's correct however it again it's still inconclusive and i think to presume otherwise flies in in the face of the proper presumption which is that the court  performed its obligated duty as the court recognized california penal code eleven thirty eight puts a duty on the court to contact counsel if a jury question comes in the court left the court did in fact get the phone number of defense counsel so i think to presume that defense counsel was in contact and simply because the record doesn't reflect the discussion would be improper voice well i disagree i think it did it was legally and what it was corrected was it was accurate i think a better explanation is to actually look at the jury go out and i think there's a simple explanation as to why the jury had this question when you look at the defenses of giraffes and the ceci as set forth in the instructions there's a difference in the preliminary language of each instruction and if you look at the instruction of necessity at such and such for seven elements that must be established but the preliminary language in the instruction puts puts the gerges i notice  so i think it's reasonable to read the jury note just as the court did in that the court the jury was looking for clarification as to whether that express requirement for necessity also applied to derive us in the answer was simply yes that is correct so the jury question was not confusing the answer was responsive it was legally accurate and there simply was no error in the court's instruction however if we're looking at the instructional coreen even if there was air fishing or can show that there was of a substantial injuries the fact of the verdict simply because no matter how the jury looked at the elements the defense that the petition asserted was implausible whether the jury would have needed to find the elements of duress separately with with the elements in the ceci or in total he wouldn't have been able to succeed because petitioner fails in one element out of both instructions petitioner could not show that he was in media danger when he rob the liquor stores so and that's negated by or that the show there was own testimony so he himself negated that defense so it could not have been successful on simply a direct us of and with the necessity there's also the requirement that he report immediately upon reaching a place of safety shooters your honour's i think this dates argument proves my point about how confusing the situation was for mr beilin the state on one hand asserts that this is a record based claim subject to addicts in bar and yet on the other hand says while the records inconclusive we don't know if defense counsel was there which again proves my point that this was an extra record claim and dixon should reply at all however if dixon does apply and if this court decides to reach causing prejudice on the d was ineffective for not raising this we know that she saw it in the record it was potentially a structural oir claim and there's really no strategic reason not to raise structure where especially when you risk defaulting it there were only two other claims in the brief this wasn't a huge trial where she was required to winnow down several claims to the best ones and her failure to raise this claim allowed the california court of appeal on direct appeal to assume the counsel was present and that infected the analysis on the other claim that she did raise and prejudice we're looking at strickland prejudice that's less than fifty percent it's a question this court can decide for itself we don't look to out that at every stage of appeal he used the court approved form for raising petition and question ten on all of those forms says if you're raising a claim that you or your attorney didn't raise  appeal why not and in every form he put ineffective assistance of counsel so he did put the state court on notice that he was alleging that his appellate counsel was ineffective and he did give the state court the first chance to pass on that