legally incorrect theory first it was procedurally defaulted and second it's the california supreme court's published decision was entitle to deference under the e p a i don't understand how  an invalid legal theory it seemed to me that there was never more than one theory and the theory was that the defendant possessed the drugs that were found in the vehicle that was the theory so how did how did we get over into the territory of invalid legal theory your honor as i i'm not entirely sure other than i suppose that petitioner was trying to avoid procedural bar in exhausted which means he did present it to the california supreme court but it was really defaulted because the california supreme court found that his claim that the prosecutor proceeded on a legally incorrect theory merely amounted to one of misconduct and by stealing to object to that prosecutor's argument during closing at trial he had waived that argument and that procedural bar encompassed his claim that the prosecutor proceeded on a legally incorrect theory because the california supreme court stated in its published decision that the appeal was it also said that the field was foreclosed on that basis and then it perceive it to decide the case on the correct governing governing legal principle in that is of prosecutorial misconduct as instructed by the u s supreme court and void for says california and the question then is whether the prosecutor's conduct infected the intoxication alone could be that to convict him for the possession it's very much to me like the prosecutor did just that if you look at the transcript of the prosecutor's saying you don't need to look beyond the fact that he was i think viewed in the context of this case it's new it was a one day trial and what the prosecutor need to prove is this was circumstantial evidence who who had possession of the vial and so he needed to prove and he certainly wasn't title two in california to show that petitioners process intoxication was relevant to his possession it indicated  that it could be relevant under california law as to his where no sir familiarity of the presence of the illegally intoxicating drugs and those statements of the prosecutor during the closing argument as the california supreme court has said at page forty seven of people versus morale is that the prosecutor was arguing that the jurors could deduce that petitioner voluntarily in justin whether or not he drew it  part of it is true there are several parts and like the california supreme court had noted a few parts where it appeared that the prosecutor was urging that that that the intoxication could a defendant in possession of a controlled substance ok as you look at this evidence certainly the most compelling evidence is that the defendant was under the influence of p c p and you think to yourself well gosh is there any way on this planet you could physically become under the this was the prosecutor was arguing that the jurors could deduce that petitioner voluntarily ingested the p c p whether or not he drew it from that particular vial and that was really trying to he need to show that petition was intoxicated i have under the p c p to show that there was some relevance that it was his p c p in the vial and looking at specific statements of the prosecutor here given the entire context of this case it was a one day trial in which the evidence was there petition his wife sought help from the police and when the police went to the van they found petitioner who was  sitting near the vial of p c p he was intoxicated with the p c p and he refused to take the urine test he this was all right for the prosecutor to focus on the most compelling evidence exceptions to the procedural default which he cannot hear the district court analyzed the case not under prosecutorial misconduct but said that the california supreme court made and i'm reasonable application of britain versus united of the prosecutor in this case that i think clearly show that the argument in this case was because he was under the influence of p c p which they are his no is saying beyond just using it as circumstantial evidence by this evidence is enough to convict but that's a sufficiency of the evidence question it isn't enough evidence to convict all by itself if that's all there is in the case but why isn't his overreaching just garden variety prosecutorial misconduct trying to get the jury to find somebody not quite enough evidence that wh i don't understand where there's a different theory as opposed to the prosecutor just trying to push the jury beyond what is a proper inference from the evidence on the one sole theory of the case i see i will i thought the proper theory in influence and you should draw from that the inference that was kind possession well i don't think so i think the jury instructions on the possession issue left that up in the p from this vial in the van so so so i don't think they are i don't think the case was ever presented to the oh well i see what you're saying i don't think tracks that argument just fine well yes well i would agree and and if that's what the court believes and then i think it is inescapable that the defense counsel in this like simply because you don't want to hassle of yury with it or whatever reason and he says doing well i'm not so sure that's misconduct and the california supreme court agrees that's not respond that's what it said and this attorney looked at the situations as you know i'm not going to object to that because it looks to me as if is that the prosecutor is not really committing misconduct so i'm not going to object to it i'm just going to get up and tell the jury look you listen to what the court told you about the instructions etc etc and that's what he tells that's what he tells the jury he doesn't say i object because there's prosecutorial misconduct he doesn't say that true but the california supreme court said that was correct it wasn't prosecutor misconduct we might think approach the supreme court's wrong that's not my question my question is how do we find he has violated strickland as being the kind of attorney required by the united states constitution when his choices validated by the california supreme court well i think that what the calif supreme court did was hand  reasonable interpretation of the facts here and that and that it's so unfair it's the height of injustice to allow a da to turn a one year misdemeanor into a life sentence for a felony when the hall only evidence in the case was the what was the guy was under the influence and the da said that's enough and the fact that there i don't know exactly but it shows that defense counsel in this case was ineffective you know now you know he had the green take casey  to just object to the prosecutor's argument was entirely reasonable seven out of ten state judges found that the prosecutor's argument was proper and not only that the california supreme court found the prosecutor's argument did not run afoul with the principles under district court lost sight of the posture of this case which was on collateral review it did not have supervisory power over the california supreme court it could only grant he described his release if there is a constitutional right violated and after