that a criminal defendants defense counsel fails to present to the jury and reasonably fails to present to the jury can transform the way jurors would reasonably view all of the  evidence especially because like this one where the evidence is about drug abuse and behavior and its effects on behavior so just to walk through suppose suppose we're jurors and we're looking at the actual case that was presented the prosecution puts on evidence that mr rogers excess to the point of impairment he drove his driving down the street you know over the posted thirty five mile per hour speed limit he sees mary webster crossing at an intersection ahead your best argument that this was not a tactical decision made by the attorney representing your client i think the best argument there the st thing i'd say is that he he already put my webster's behavior her conduct in issue by arguing that she had unreasonably created an emergency situation but then why wouldn't it be reasonable for him to think if he had already done that he didn't need to get into the cocaine in her system that the a reasonable tactic whether or not it's the ideal tactic wouldn't that be a reasonable tactic i don't think so because there's no downside and there's only an upside to introducing the evidence of a cocaine use because it changes the way jurors could interpret her conduct instead of the trial counsel was specifically arguing wasn't he or she the fact that  the defendant had really high being didn't matter because you can look at the video and he wasn't driving wildly or recklessly so couldn't he have also decided that portraying the victim as having a small amount of cocaine in her system and that matter would undercut his claim that his own client the fact that he had this enormous b a c it isn't that significant i mean could not have been a rational decision i don't think you know because you have we have the video and we have mary webster's conduct that is visible from the video and that all of the circumstances of this accident are relevant to the jurors and they would have to interpret her behavior and they'd have to interpret his there's no getting around the fact and i think trial counsel was realistic at least about the fact that his client had had drunk to excess but he didn't want to focus on that necessarily right he wanted to focus on other things like her behavior and the fact that there would be crosswalk was impeded by other people who were walking through it i think it would be rational for him to try to steer away from anybody impairment and focus on on something else why wasn't there where you said your honor his focus was on mary webster's conduct so he may have a very reasonable because there was no downside to just by raising the prospect that she that she was impaired would not have put any focus on the fact that more any more focused on the fact that his client was a parent than the prosecution had us the st thing the government would have come back with is let's compare impairment because the medical examiner could not say how impure the guest room was but there was clear evidence about how impaired your client was so i don't know if the defense counsel want get into the question of who was more impaired in this you're out of there was no avoiding the question there was no avoiding the question he focused on what he wanted to focus on but the prosecution came back with mr rogers impairment anyway the focus of the prosecution was on mr rogers impairment because it couldn't have been on his conduct because you can't there was no you didn't have any driving you know evidence like in the oto case where you have a you know  evidence in the record regarding his high degree of intoxication during the incident and we have the evidence before the jury about his prior criminal record and there's the understandable confusion on her part but if you if you once a juror considers that she may be under the influence of a strong controlled substance and that her reaction may have been the function of delusional or irrational or  the road but there is nothing like that out of it you know she doesn't weave back and forth she clearly stop so if you look at the video at twenty minutes and twenty hours twenty four minutes thirty one seconds that is where she stops and if you look at where her front juror looking at that video might might look at that jump back into the question is it under california law was whether that mary webster's jump back into the into the path of the car right that's a contested fact  think a rational juror could i think it's clear that she jumped back into the path of the car and russians or with the evidence that she had taken cocaine could conclude that she did that  prejudice is that a reasonable juror would conclude that she had jumped into the path of the car is that is that correct because of her cocaine use and that that would have been for that that that would not have been reasonably  saying that the advance is not relevant and miscible there for counsel could not have been deficient for failing to present it and implicit in that is also therefore if it's irrelevant it inadmissible the jury would not if it's irrelevant especially the jury would not have returned a verdict so you're saying there was an implicit ruling on the purchase price yesterday on a merits ruling whether even if it's silent  with and i had only on issues that are not addressed by the state court are reviewed ennobled do you agree with that not expressly addressed or if i may give an example i've seen cases where i have briefed where the the state court would be addressing a strickland issue like say in the court of appeal and issues an opinion and it and would address the  deficiency prong and and that there we find that the attorney is not deficient and that goes on and does not address prejudice at all in circumstances like that i think it would be clear that the state court has not addressed the prejudice problem and the prejudice from should be addressed those who know the california johnsons in that case the supreme court's silence on a claim will presume or implicitly dealt with it but that subject at all the other words there could be evidence that the state court did not actually resolve one of the many claims that the defen would be a different verdict on the one hand you have overwhelming evidence of guilt mr rogers been having a blood alcohol content three to four times the legal limit he during the test he had the officers observed objective signs of impairment unsteady gait slurred speech flushed in the face watery eyes he admits to having  yield and so instead of yielding he tries to swerve around the victim and on the other hand all you have here is a victim walking across the street at best and she is what just merely walking street and the fact that she has some cocaine in her system without more will not change the verdict because the coroner did not testify that the cocaine in her system had any impairment on her judgment or reaction so without any that that evidence all you have is that she had cocaine in her in her system and the video clearly showed the video was seen by this this evidence would have been admitted unless there's any other questions i would ask that the district court judgment  cases from three different jurisdictions unanimous decision saying that drug use without any mention of interpretation for experts or some of them even omitting any mention of amounts is relevant to interpret