honor may please the court four times during jury selection at bryant carmichael's trial his attorney raised a batsman objection that the prosecution was striking african american church based upon their race and the numbers in a number of themselves in this case were quite stark and all four times the trial court told counsel but to make a kind of face a case he had to present more than numbers he needed to present other facts and circumstances showing that the prosecution's strikes were based on race and each of the four times counsel failed to present any further information in fact the th time stated basically exasperated and i don't know what else i can present besides numbers  and head counsel then a where all the controlling law counsel would have known that he had much more he could have presented in this case four of the six african american jurors that were struck by the prosecution had stated in their examination prototypical pro prosecution position that being that that they had close friends or family members who were members of law enforcement and in the state post conviction proceeding the trial counsel gave an unreadable under budget sworn statement that he did not realize that stage one of the ba if he had to make anything more than a statistical showing and of course had counsel not on the applicable law he would have seen that he had a substantial showing about the facts and circumstance was in its decision on performance the state trial court in the post conviction proceedings did rule at the performance that the council's performance was not in effect it but the state appellate division was not yeah one more minute thank you the state appellate division was not silent on the performance prong rather it specifically declined to rule on the performance prong saying regardless of whether counsel should have made a more in the special appendix page twenty it says in any event defendant has not shown that any batson violation resulted in an unfair jury that analysis of prejudice by the state division is a reasonable application of clearly established federal law the prejudiced prong on in effect of this is the counsel based on and prejudice the prejudice prong bason is one of the structural error any any yes on any discrimination in the racial discrimination in the composition of a trial jury is fundamental it goes to the structural integrity of the of the trial and cannot be tolerated and never has it been a portion of the prejudiced prong to have to show that the violation actually resulted in an unfair jury and of course would be an impossible showing to make because the you can't you know that the twelve people actually said that they wish they made it through examination that new york used a standard in batson that was contrary to supreme court law and this court found that it was not contrary to clearly established federal laws too much screen court and the ineffective assistance issue was not before the court in the st decision so the court in the st decision never had before it the impact on the on the back to proceeding on the failure of the trial attorney to present the additional facts and circumstances in fact this court in the original decision dealing only with the wrong numbers said that the court could not say that had it been that the trial court or the state appellate court it would not have found that there was a batson violation because the numbers were very strong in this case and but biggest court was not reviewing the fact that the trial counsel had more than numbers to present trial counsel had indications that the african american jurors being struck by the prosecutor had stated poker typical pro prosecution position in that they had close friends and of the statistics show here that this was a systematic exclusion of blacks isn't that what judge keller found the judge failing that the district understanding of it was is that she recognized that there was room and grounds for understanding that it was not an unreasonable application of pouts and because brown specifically says the number of ha numbers enough were enough brown says that they can be and that's and says that they can be out i just don't understand how this is in effect i went council adopted the very standard that you want in the way  the baby as saying it was mooted by her decision ok she apparently found a bass in violation she said that the understanding of whether there was or was not about the violation was unreasonable application claim because that's and doesn't require that doesn't doesn't require that you do numbers process characters a stick to the knowledge is that numbers can be enough would you agree with me on that yes that's a lawyer bridgeville confidence would have gone beyond the numbers not because batson required it but because the facts of this case you mentioned all the all the people have a favorable law enforcement background and that the facts of this case a lawyer competent would have gone ahead and fleshed out those who were prosecution friendly but ended up being stricken that the case you know what i'm what i'm saying is a reasonable one year would have presented the evidence that was available to him all the evidence that was available to him to show that the that there was a comma facia case in here the lawyer did present all the evidence that was available to him be not because of  strategy to withhold certain evidence because of a lack of knowledge of the applicable law all that at the st stage of the bateson inquiry he was supposed to present the evidence that he juror who could be called away on an instant's notice for a life threatening condition and if a long became available for her daughter you know the prosecution struck her because the prosecutor had the st strike record clear that she was struck because of the situation that she had a daughter at home who was waiting to get a loan transplant all right i my other question relates to the fact that this is a stric claim it's not there is no longer baths and playing right back can challenge was already made to the court of appeals that's correct your it was sent back to you that the district court could explore whether there was ineffective assistance of counsel ineffective assistance in other words in not making or poorly making about to challenge right yes but you seem to be saying that and ineffective assistance claim that relates to  poorly made or not made that's an challenge doesn't require the prejudice prong of strickland that seems to be what you're saying is that accurate ok it's somewhat accurate  saying is that the prejudice prong is not to show that a different jury would have resulted in certainly not to show that the bird at the outcome of the trial it's simply to show batson hearing would have looked like you agree that there needs to be a showing of prejudice here for this ineffective assistance claim correct by believe the showing the pledge of this is one of structural error if you if you can show that there was a pond official case would have been made in this case once you show baseless terminations in the selection of the jury it's structural error and it's not subject to prejudice analysis and it's  i think what i tease out of you is a concession that at the very least you would have to show that had effective counsel made the datsun challenge the way you believe they should have that that would have and everyone has acknowledged how strong the statistics were in this case it would be and the supreme court standard says that making the step one it's not an oner do i'll just begin by saying that everything that the judge when judges wintering wesley i think you address the issue of what the effect is of this court's prior decision on the baton i agree entirely  as i understand what the judges were saying that this court said for the purpose that at this stage of this process or for the purposes of the hades proceeding there is no that's and there was no batson violation and and so and the in the other i guess the point that flows from that is that at this point really the issue is purely ineffective assistance and it's definite i understand it's ineffective assistance based assistance based on councils suppose mishandling of a batson proceeding but still it's the claim is ineffective assistance and when it's when the claim is  ineffective assistance it's government whether it's based on mishandling of something that's been characterized as a structural error or not a structural error still the standard is strickland the claim the ineffective assistance standard  is strickland which of course is the court knows has two prongs one of which is prejudice so on the issue of whether prejudice is required or presumed there's no question that here prejudice was required i mean showing a prejudice was required in order to prevail now it could be the issue could have been resolved surely based on performance because if the performance was was sufficient then there would be no need for any court including this court to reach the issue of prejudice but i do think it's worthwhile to note that there is no authority whatsoever for the proposition that a showing of prejudice is are necessary with is a claim of ineffective supreme court made clear that even in the case of a structural error by their term terminology prejudice is still required now  non black juror because she had it was an issue in her family the sickness you know that that's that's one interpretation one inference but that's no more reasonable than the interpretation the then the inference that juror was excused because there was no focus on what the petitioner is saying certainly in our brief we've outlined various stages briefs to this court that the prosecution view is that these were not the dream jurors that the petitioner paints them as that there was not some way to lump them all together as pro prosecution jurors this these were not law enforcement people  know from the prosecution's point of view but in the end i mean this relates to the performance issue but it also relates to the ineffective assistance performance issue the the point ultimately is that both the state here in court in the district court ruled that the performance was not rendered deficient by the lack of additional batson arguments and this ruling should be apparelled because of the nature of the argument and both the state appellate division in the district court ruled that there was no prejudice and that the termination should be upheld as well although again this court not need not even reach the issue of prejudice d since there's no batson violation and if there is no deficiency in counsel's performance and there's no need to reach the issue of prejudice now in this case partition appoints the fact that the appellate division didn't reach the issue of performance but strickland itself says as the district court pointed out that if if the issue can be resist recall an issue can be resolved on prejudice alone if that's easier than it is you know go right ahead and do it on that and that's there's no reason to think that that's not what happened to you that the appellate division resolved it easily by pointing to the fact that there was no showing of prejudice in the prejudice here that they can that was considered and it's appropriate to consider is whether the at bats an application this is fairly would have succeeded if the additional argument had been made and also whether in fact as a result of the but for the so called omission you know of the additional arguments whether that resulted in an unfair jury or an unfair fundamentally unfair trial and neither one of those there's no other instance of a non black juror who had these so called prosecution tendencies being struck besides maggi i i didn't see one i'm  not saying that wasn't want to believe the magistrate's report refresh i don't have that in front of me i believe the magistrate's report referred in plural but i remember at the time looking in i'm not sure that i could see anything so it's possible that it's accurate violation but they set it back for a strict one you know for the court to to do a strickland analysis so what was the point of this hearing that to determine what what what what good counsel do wrong that would have enabled to grant that the petition based on the bathroom violation alone she never reached the issue of the ineffective assistance claim you know claim number two so since that was remaining it went back for consideration of that nd claim but as we pointed out it was you know in the sense of just not not the foundation out of that claim this court's decision you know not that out but you know to the extent that the were you know it remaining issues the judge the district judge addressed those remaining issues found consistently with the state court gave appropriate deference to the findings again the state court the u s supreme court and in weaver yes closure is a structural issue but there are exceptions as core said when courtroom closure is allowed there are never exceptions where racial discrimination in the selection of a jury is allowed so and that was the essence of the waiver decision because there are times when courtroom closure is constitutional the in effect the president on his bac reasons for the prosecutor exercising the strikes or not exercising the strikes that those need ever explored because the court didn't find the common facia case and the co you're saying that because structurally or when there's a bathroom violation so i ask you to find him in effect but you have to go beyond just the fact that he made a prime official case that you have to go to that indeed there was about some violation well just because you know you're trying to invoke structural error you're not that the owner is there or there would have been a reasonable probability of prevailing at the batson hearing had it gotten over that determination of prejudice was not an unreasonable application their televisions determination of prejudice on the ineffective assistance of counsel issue wasn't wasn't before this court on the original this is you know attorneys ineffectiveness with regard to failing to keep certain evidence and you do harmless error analysis and other things but you want the benefit of a structural error here and i'm i'm suggesting to you that without without a determination that th scenario which gets you to structural problems i think you're stuck with pressure your honor i believe the prejudice is reached ability and here's my question i mean you're saying that effective counsel would have proffer in these additional arguments that you're making now about the striking of pro prosecutors pro prosecution african american jurors right yes your honor but the trial judge was there for all of it right yes your honor but the trial court was never confronted with that being the reason for finding the bats in violation of that court was there and saw the statements made by each of the jurors and so in other words you're saying it was ineffective for counsel not to spell out to the judge what the judge himself had already seen ok what i know is the judge kept telling the attorney you need to give me more the numbers and the tourney kept failing to give more the numbers and and attorney had something that could have been presented i don't know if the judge was aware of it or unaware of it but the information evidence the attorney could have presented in did and in the state post conviction proceeding he swore that he failed to present it because he did not know that was part of his burden in creating a promise i should case but if he had known it and just leave it well the judge has seen everything i saw on this was the end of the story with that still be ineffective if there could be no tactical reason for not presenting evidence that exists but we don't have to look at that here because the attorney swore that it wasn't tactical the attorney swore he didn't know that he had to do it that's never been rebutted anywhere that the fact that these jurors had articulated pro prosecution positions and that the prosecutor nonetheless struck them because they were african american jurors or any other questions from the