by the way just so we have the everybody talking on the same rules work as just what i want to do with the cross appeal let's just cover everything all together because they do kind of cross populate to some degree so let's in your presentation and when you reserve time keep involuntary and that the california supreme court acted contrary to clearly established federal law in concluding otherwise it just report aired however and limiting the grant he has really to a special circumstance retrial and that's because the confessions infected every part of the trial the prosecution relied on them extensively to prove every to prove every crime first degree murder sodomy and rape and in fact the confessions were the only evidence weighing this case under the standards of et al are we not perfect or so i guess i'm i'm i'm concerned about this the in every instance the facts and circumstances that were we cited by judge hatter we're also resized ed by the california supreme court cases the facts wing it back and forth they came to the conclusion that at least in connection with voluntary nest it all four of the states were voluntary because you didn't have a situation where there was torture or you know people with lights in their eyes staying up for thirty six hours and so on and of course number four occurred after twenty four hours and i know he tied it together as part of a team but we would dress please the issue of how do we how do we treat this in light of the fact class i was  specifically the california supreme court said continued interrogation after invocation of rights is not coercion that in edwards violation is not coercion one factor miranda in as words were designed compulsion and we know this from medic vs mississippi where the edwards rule explains that the edwards rule was designed to ensure that the resulting statement was not the result of course of pressures can i ask you this question a little bit differently taint the previous words yes your honor they could have lifted the chain in two ways one they could have provided mr bradford with counsel and when he said can i have counsel before we go to the arraignment they could have said yes they also could have advise that what they told him earlier was not true when they told him that by invoking his right to counsel that means everything he says is off the record they could have advised him that was not in fact true they tricked him that it's not true information putting aside for a moment the giving of counsel yes your honor the question really at that point becomes has the taint been lifted so we cannot simply look at that and said mr bradford waived his rights we have to see whether that waiver of the rights lifted the of what happened earlier and the taint is really the cold war so of pressures that were put upon him that that's a different argument than i think was made to the california court is in there what's this is an argument that says there was a miranda violation with with respect to the force interrogation because notwithstanding it's facial sufficiency there were probably more should have been done because of what happened before that that was the argument made to the state court was that the confession was involuntary i said it's the same argument really it's kind of a domino effect we have here the fact that the course of pressures weren't considered in the first and third interrogations to determine that they were involuntary meant that when the california supreme court considered the second and the fourth interrogations they didn't apply the taint analysis so they didn't carry over the presumption that these were now involuntary statements unless that taint was lifted the same or you tell me what supreme court case tells us there's a presumption that carries over to subsequent interrogations that were properly mirandized and the most clear case your honor is brown versus illinois but even cases predating miranda and edwards including lions and clueless talk about the fact that when you have an involuntary confession that can't carries over and the prosecution bears the burden of showing that the taint has been dissipated or that the stream of events has been broken  it were not persuaded by your argument that there was a presumption of involuntary miss that that gave rise to a taint to you i can't even remember now do you argue that just under the regular due process clause standard that the that we do on the miranda side which is that a mere violation of that prophylactic protection doesn't disable the prosecution from using the statements for impeachment on cross examination you would then go through the regular due process voluntary analysis right and i still agree that you go through the regular due process analysis but i do want to point out a difference between failure to advise with miranda leads to a presumption of course of activity not if none of those cases say that what they say is that the mere the mere decision of the suspect to speak upon re interrogation the presumption is that the waiver of counsel at that is invalid that's the only presumption that arises that has nothing to do with the inherent voluntariness of the statement and that's why i just want to correct what i'm saying here i really want to focus on the actual course in which leads to the pres no you keep saying that but there is not one supreme court case that says that the statements themselves are presumed to be involuntary all they say is that the suspects waiver of the right to counsel by continuing to speak is deemed to be let's say that the police advise the person of their rights that the suspect invokes the right to counsel and has here the police continue to question clear edwards violation the statement can't be used in the prosecution's  chief it can be used for impeachment as long as the statement is a is it is voluntary into the process clause right yes so that's why i'm saying we know from that alone that the mere fact that we have an edwards violation does not give still have to go through the regular due process and oh yes your honor and the voluntary when you're looking at whether a confession is involuntary you're really looking at two aspects one is their course of police activity and two has the characteristics of the suspect such that their will has been over born and we know that you can't simply rely on the characteristics of the suspect there must be that predicate course of police activity and that's what i'm saying that the badgering is the predicate course of police activity and the california supreme court failed to even start with that assumption well but the california supreme court did go through the ordinary voluntariness analysis and it seems to me under and put deference that we're not in a position to overturn that but that's why i was asking if you can just put saying having concluded there was no coercion they can't rely on loan on the mental and physical condition of the suspect they're saying there is no correlation and again badgering into waiving rights is pressure i what i mean there's no question the supreme court is dead set against you know physical violence extreme situation none of that occurred here in any of these right correct ok so what we're really talking about you call it badgering some which is it's questioning by definition that's what the police do i would it be your position that anytime the police question a suspect about a serious crime that that constitutes batter i would say that what happened in this case constitutes badgering the repeated everything was designed to pressure to get him to change his mind and the california supreme court's failure to even consider that gets us past twenty to fifty four d where does the pressure to get him second interrogation ok which is which are which is what the first half of the second statements which are statements on booking put those aside for a second when they question him again the second time how do they badger and th conduct with different dimensions and the first one i'll point to is that he was told that he'd be penalized for exercising his rights converse lee that he would reap a benefit from leaving as well now you're characterizing tell me what they said they say if there is mitigation in if there is stuff in your defense like if you were to drunk that is stuff we have to know otherwise you're just stuck he's also explained that when you invoke your right to counsel that means we cannot get your side of the story this is your chance to get it this knows maybe false statements how are they bad jury i mean i'm i mean look i'm been looking through supreme court cases to try to find that kind of stuff that the supreme court says makes a confession involuntary as opposed to violating and i don't you know cops are allowed unfortunately i think it's bad law cops are allowed to lie and interrogation you may go to judge watchwords point about the voluntariness a waiver of counsel but how does it make the that the knowing there's a waiver of counsel but how does it make the statement involuntary as this court has explained in both collapse so and martinez when you give this implied threat that you will be worse off from exercising your rights that is course of this court has also how old that when you state that hosted badgery the bat everything together is the badgering so that means give us a i think you're hearing from all of us we're all wondering where the supreme court case is that allows you to say that what you call badgering is enough to make it a non voluntary statement but i would ask you this as you know under harrington the court indicated that pay vs relief is precluded long as i'm quoting a fair minded  disagree on the correctness of the state court's decision so in this case if if if this panel believes that the california supreme court carefully weighed the facts and the law that that you also referred to and concluded that it did not undercut his ball and terry ness if even one of us finds that that's not it doesn't change their analysis or they're wrong then we meet the harrington standard occurred here i'm not saying that continued questioning on its own is what gets us to involuntary ness but it's what gets us out of twenty to fifty four d and then under this court case law we know that this implicit threat is course if we also know that stating that what i'm saying it once we satisfy twenty two fifty four now there's another case i would like to point to it's a pretty edwards premier and a case voluntariness analysis mincey versus arizona and their continued questioning after an expressed desire not to be question without a lawyer was found to be coercive now granted meant he was in a hospital and he was hooked up to tubes but that was just the characteristics of the suspect to see if his well was over borne we still need course of activity and the co e activity there was simply continued questioning after c he said he wanted counsel of the year is it sounds like your primary argument i think you've agreed that the fourth interrogation standing alone is to and on interrogation so we got at least two parts that are ok so it sounds like your case really and this part of it rises and falls on the issue of tate was there whether what happened in the fourth interrogation and the third so taints everything else yes but even twenty four hours after the third one and and mr bradford asked to make a statement that that makes everything bad is that correct yes you're ok can i ask you to switch switch gears for a moment let's assume put aside whether california had clearly established procedural bar at the time and at whatever time you think is relevant until let's assume you have to demonstrate cause and prejudice the state seems to concede that you have caused because of abandonment if they don't concede it they should should we take up the prejudice issue or is that one for the district court i really think it's one for the district where your honor so if we were to find cause if we were just if we were to walk down that road and say yes there was a procedural bar but there is cause then we ought to remain to the district the under procedure bar issue your position seems to be that we need to look at what the state of the long was in effect ninety days after his reply brief was filed under ect appeal yes consensus in the california supreme court did our rule is ninety days presumptively timely otherwise we look at the facts of the case to see whether you reasonably filed reasonably timely correct so by two thousand you're not really arguing that it was found reasonably timely are you know your honor so you have to be arguing that that rule wasn't in effect we that we have to look backwards on the rule yes your honor and that's so that's why i get back to my first question and there's no time limit a for federal purposes at least subject to a procedural vote or it would likely be subject to another procedural bar but not necessarily the time you know not the time when it's one yes i think understand your position i did just really want to go back to the main issue the confession issue here and just again to be absolutely clear the only argument about continuing interrogation is that gets us past twenty to fifty four g it does not get us all the way there and after that we look to this court cases most notably  and rodriguez to find that courson existed because he was told the statements couldn't be used against him because he was given this implied threat and because his rights were not honored and i really want to focus on the for statement because i do think that is the most crucial one that even though mr bradford called back the detective that does not dissipate the taint and in fact is evidence of the continuing course in that existed in again  this court explains that when that is a response to an invitation during that third interrogation mr bradford is given a card from the detective and said think about it if you want to make a statement before we go to court on thursday and it's your last opportunity to do so and the court's going to consider everything and me the detective is the one who's going to tell the court this information you need to call us back and he did and what your what your post put supreme court case that says that your honor my point is that under the no review once we get past at but because the court the california supreme court didn't consider that any coercion happened in this case and that simply wrong what with respect  mean we rather different case but i i thought that the california supreme court considered almost a there was a word for word that they considered and reach cited virtually everything that was said everything that was done the time period everything the judge had or talked about what did i read that wrong case your honor the the main point again is that you are want to wait they say they cannot find an involuntary statement and they cannot carry over anything that was their conclusion having having read the same thing and judge chattered in other words these these jurists on the california supreme court reached a different conclusion than judge hatter did their all honorable people but they're there indeed they're fair minded tourists and the question is what do you do about that under ed you've got the highest state court in california went through this reviewed all the facts reviewed all the law they may have not cited one of the cases that you impeachment but they were voluntary and i'm struggling with the fact that under i don't see how we get around the problem that you know these this was up to the high court they considered all those things yes our fine district judge came to a different conclusion but that's underfed that's not the control instead of does it no your honor and again the point is they came to the conclusion that it was voluntary because there was the arrow court saying i'm not saying that they found portion that didn't amount to overcome his well they found garo portion and that's simply not correct that is contrary to mincey michigan miranda arizona versus roberson and edwards use in the use that terminology they found zero that that's not even courtin is contrary to clearly established federal law so the failure to recognize cases as that is is michigan versus harvey arizona versus roberson minnick versus mississippi and mincey versus arizona statement and the court reasonably found that that statement was admitted properly the edwards presumption does not apply to that statement because as he expressly conceded in state court bradford was the one who initiated that statement and i stand i think your argument is better made that there's no supreme court case that says that i'm not sure in this case if i were you had to know i wouldn't have a real problem with what occurred here there was massive file ations statement and as all the coast state courts that looked at the things you found they were x they should have been excluded and they were excluded so based on the edwards violations that the first statement was executed the third statement was executed and both the trial court and the california supreme court condemned the conduct of the officers in proceeding to question bradford after he had invoked his right to well i guess what i'm saying is that a california supreme court decision that excluded the force would not in my view have been unreasonable is that the force the miranda waiver in the force one can't be viewed in isolation that the miranda waiver in the fourth one is suspect because of all that occurred before you respond to that your honor that just simply incorrect because the petitioner under else dad the petitioner keeps referring to a taint that carries over from a prior statement to the for statement but in all status stuff the supreme court considered that very same argument the fruit of the poisonous tree doctrine from the fourth amendment context and it's pacifically rejected that it says that only voluntary statements taken in violation of miranda must be excluded so we know that just because there's a technical violation it's not necessarily involuntary meaning actually coerced and then in considering the teams argument the court says no further purpose is served by imputing to subsequent statements obtained pursuant to a voluntary and knowing waiver and so at the set the court sa mean i want to come i don't want to cut you off on the confession stuff but i'm interested in the certified question yes or in terms of the procedure of our issues yeah so first let's assume there is a procedural bar i we'd like you to stay and a day and a district judge does nothing for how many years and i believe a motion on exhaustion was pending for and for a year and then at that point they go up the state court even it within a reasonable time but they are written by mr bradford at the time is represented by appointed counsel in state court because yes yes i did nine hundred ninety six and this is the question i really wanted to ask you this is the most straight to strangest part of this case to me nine hundred ninety six is counsel moves for an extension of time to file the state a b s petition yes correct and the supreme court says you don't need an extension because there is no time limit the not subject to a due date so tell me tell me one does do data rows if there wasn't one in one thousand nine hundred six ok so there is no except for the ninety day presumptive timely window and one thing i want to clarify is there is a timely presumption of a timely filing within that ninety day window from the due date of the reply and that's that's that's been true for a long long time in california correct the rules of expanded that now but at the time that was the longstanding rule after that ninety day window however we don't have a presumption of untimely filing both clark and robbins lay out that the time frame is the reasonable time it's the absence of substantial so i get your point to my colleague but what point was the counsel who didn't do anything that was appointed by the california supreme court relieved from redbridge representation and the federal public defender anything didn't seem to bother them at that time you got a man who's representing mr bradford you have other people in this in the federal court who are doing something but i just don't see how they have the right to say let's get rid of this other council right now because you know what supreme court said was ok how does that work that's not for fifteen more months in fact they didn't go to state court and ask the court to remove mr moberg from the case and that's something they could have and should have done smaller how long one once they did that and he was removed how long between the time that he was removed and the filing how long that was that period i believe that was on the same month of january two hundred eight those records also show that he was only investigating a single claim of ineffective assistance of counsel and so once the federal public defender's office is obtaining records in the state court proceeding itself as early as february hundred ninety eight and they can read what the status is and what he's been doing they know as of that time from the time that they obtain those records they know there's no actions and nothing being filed in state court and yet they've now waited until january of two it's not that we're not considering factors we don't find that's enough to demonstrate absence of diligence the we don't have course yes ok if we have cause what should we do if the court finds cause then i believe that the court has enough information to decide that the petitioner still cannot make a setting of prejudice in this case one of the judges on this panel once said that prejudice is a case specific analysis best initially done by the district court was he wrong your honor that i think that's ordinarily too but in this case i think there is enough information before this court especially given the parties briefing of the facts of the case in the most there and also is for the guilt phase that the court can decide there is no prejudice stone because the petitioners claim is predicated on the notion that mr bradford had consumed in nearly fatal amount of alcohol with a now haha level of point four nine seven in this case in actions that he took towards the victim in this case strangling her stabbing her repeatedly in the chest slashing her throat two times taking care of his last response to take judicial notice of the fact that somebody was highly intoxicated couldn't do that stuff no wonder they have a toxicology as to says based on honor i think it's simply inconceivable that a reasonable jury would have believed that somebody under a near fatal dose of alcohol could take the actions and make the decisions that mr bradford took a reasonable jury believe that it impaired his  colleague's question he really with the mens rea the issue here and there are two jurors who indicated that they didn't they didn't think that he was very intoxicated and that played into their decision to find him guilty of first degree murder and in this case the the report if there was one the blood test would have shown thirteen hours i think it was after the incident occurred they could have worked backwards and seen exactly what the consumed a fair amount of alcohol that evening including beer and hard alcohol and so there was evidence that he had consumed a substantial amount of alcohol that evening but that he wasn't so imperative that he couldn't commit these acts have conversations make if there is cause that the president prejudice issue should be sent back to the district court because pretty broad based on your determination for your claims it sounds like an evidentiary hearing might be required to determine whether there's prejudice something wrong enough to to free us from the constraints of add your opponents argument is that the california supreme court basically said there was no coercion here whatsoever and that that is inconsistent with what the supreme court has said the effect of the kind of tactics the police used here including ignoring the person's indication that the supreme court has clearly said that that does give  it might not by itself render the statement involuntary but it certainly is coercion that has to be factored into the analysis in your part argues that the california supreme court just completely missed that and therefore whatever conclusions that ultimately reached we don't have to defer to because it draws a distinction between the absence of actual coercion and involuntary miss those two are the exact same thing once the court reasonably decided that edwards did not apply to the fourth statement it was only required to end a reasonably considered all of the prior statements everything that the detective said the three main theories that the petitioner presented to the state court for psychological coersion the court's opinion goes through each one of those and decides why the court is finding those were not inherently coercive in this case in the strait traditional voluntariness type analysis and in this case we have no testimony from bradford that he was in fact coerced by anything that the officers ever told him and in fact the statements themselves dispel any notion that he was actually chorused he was the fourth statement by saying when he's asked if he'd be willing to talk to one more officer i'll be more than glad to talk he starts that statement by saying i have some questions for you i'll probably talk i don't know and so as the california supreme court reasonably found that indicates he didn't feel compelled to give that one put aside the second and fourth because i think the heart of their argument goes to the attack on the california supreme court's ruling with respect to the first and the third right track because their california supreme court said with respect to both of those statements that there was no coercion and the statements themselves were voluntary correct ok i think they're just fighting over that because if they if that is wrong then they can take advantage of our decision clause which i think if we were able to apply it here would probably mean you would lose so go back just to the first and third statements why is the california supreme court right to say that basically nothing the police did was coercive in the co statements that it didn't give rise to actual cars in your honor the court did condemn the tactics of the officers but there's no u s supreme court case that that considers any of the techniques that the officers used in either of the first or third statements again not saying that they were proper the court condemned those is unethical and we agree with that but the question is was it actually coercive and there is no supreme court case that looks at statements of that nature and deems or holds those to be actually c just i'm not this is i think this helps you say don't stop i think what the california supreme court is saying is there is course of activity but at the end it didn't amount to such coersion as to render the statements involuntary part of the problem is our use of terms here the california supreme court does look at coercive activity and say there was course of activity i don't believe the court used that phrase in referring to the conduct of the o california supreme court did was there was some coercion here you can't doubt it there were some but it didn't and the end rendered the statements involuntary i respectfully disagree your honor i don't i think that analysis is consistent with supreme court law if you agree they said that tell me where they said there was no course of course what the court i'm not saying that the court expressly says we've looked at statements one in three although it does say we find no coersion i'm so that even if say because we find and maybe i'm missing it see i think what i thought what the court said not was to your characterization is that red meant some bad activity it may have been coercive but it didn't make this statement involuntary i mean here is that here's a quote from the opinion your honor having concluded coercion fact that there may have been some coersion doesn't render a statement involuntary does it i'm sorry could the court pick that fact that there may have been some coercive activity not in the nature of a threat or promise putting the guy cell if you tell him that this is your last chance does that by itself render a statement involuntary you know i agree your honor that in order to find a statement involuntary there's two elements one of course a police activity and the second is actually breaking down the suspect correct and they don't think they rise to the level of unconstitutional threats or promises but i think it's fair to say they regarded coercion here and just at the end of the day didn't think their these statements were involuntary you don't think that's what they did i don't believe that is what the court did your honor because me switch it then a little bit from what my colleague here talking about the california supreme court let's talk about the u s supreme court what's your best authority your authorities from the u s supreme court that defines what it least that court means by coersion to the extent that it renders a statement involuntary your honor the types of cases where the supreme court has found actual cores and in lines for example the court considered actual police brutality and we talk about that case in one of the pretty sweet have nothing of that nature here there are other cases that talk about threats in the court has specifically said if threats of his ickle harm would constitute coercion there is another case and i don't recall the name offhand but if there's a threat made towards a family member of a suspect that could be the record used coercion from your perspective either there's a physical harm a physical threat or you physical threat to a family leniency then perhaps that would be a problem but here we don't have any of that and the reason that the california supreme court is referring to coercive threats or promises in its opinion is because that was the petitioners claim what he claimed in state court was statements were voluntary and repeatedly referred to the trial courts finding that mr bradford was eager to talk and his statements bear that out and the tapes of the interviews bear that out so they're not only finding that whatever the police did in this case that the court itself it doesn't rise to the level of actual cora's and and in this case we know from bradford's own statements that he was that his will was not broken down and we know that from the tapes and from the things that he said during the interviews so i believe the court is finding both things that the officers conduct doesn't rise to the level of actual corrigan and also that mr bradford was not in fact actually coerced in the sense that his well being broken down and so one when he just different the court concluded the conduct ultimate conclusion especially when it says having concluded no chorus of threats or promises and again the reason they're referring specifically to threats or promises is that was the petitioners claim and state court that i was psychologically coerced by promises of leniency threats that i i think that one of the arguments was something along the lines of in order to avoid the death penalty i need to confess but looking at those statements there's nothing of the sort that happened here and so the court reasonably found based on these facts that whatever the officers did didn't actually rise to the level of actual coersion and in this case particularly considering the tapes bradford's eagerness to talk things that he said at the open and close of that four statement clearly indicate that he was not actually chorused in he didn't believe that he was being compelled to make any of the statements and again he never testified at the pretrial hearing so there is no evidence in the record nothing from bradford that says this particular statement  what compelled me to talk to the police or this particular tactic made me scared there's nothing and i think i understand your point on that let me ask you a question about it effective assistance so we get past all the procedur bars and and the question is are prime aphasia case your ineffective assistance of counsel at trial and and during the during the post trial process what your position on the merits of the and so it was isn't under those circumstances where there's no other defense isn't the failure to pursue that defense ineffective assistance of counsel not not if not of the facts pretty much for clothes irrational bull conclusion that mr bradford could possibly have been so intoxicated given what he did and if we look at his statements in particular so if the court would have finds that it was reasonable for the california supreme court to fight to uphold those statements as voluntary well if we look at breakfast statements he's thinking very clearly about what he's doing that night he says specifically when i went home the first time that's that's a prejudice argument yes that's my question is under first prong of strickland doesn't the defense is the defense attorney is competent absolutely compelled to present an intoxication defense in this case may argue that confessions that are being admitted it's no doubt that he did it the only possible defense is intoxication effect here petitioner it is in fact very difficult in light of the overwhelming evidence that was presented here and his confession is to present a viable defense because there is no question about bradford scouts and so the facts were weighing heavily against him the confession weighed heavily against  and that's and so that's a difficult situation for himself and yet counsel as i mentioned little while ago to the jurors mentioned that they had no sense that he had been really intoxicated and the difference between first and second degree murder is very much influenced by his ability to form a premeditation and planning in that crucial so whether or not this is first or second degree murder if there was evidence that could have shown that but again i think that looking at the facts of this case and mr bradford himself saying i went back to her apartment in order to make sure she was dead so that she wouldn't be able to identify me and testify and i know she when he went back to be sure to to kill or basic yeah so that she would read out on him if he said exactly and so in light of that testimony i don't think that our jury would reasonably believe that he was so intoxicated that he couldn't premeditate when he himself has said  premeditated it i went back to my apartment i was worried she could rat me out and i decided to go back and make sure she was dead that is clear evidence of premeditation and i don't believe that an intoxication defense would have been reasonably accepted by any rational honor because i can't the allegations themselves don't show that the actually the test was actually performed so there are allegations that say they took the blood and we never received any results but i'm not sure what  what they had i can reach conclusion so there there must be something that they had there must be some sort of test that he can look at to make his conclusion from correct no yana because the expert is actually extrapolating from the testimony at the trial he's not relying i don't by about ten other supreme court cases that if there's not a presumption of involuntary nice right it's a presumption that the waiver of the right to counsel is invalid that's the limit of the presumption that arises yes your honor and i'm not trying to carry over the presumption of involuntary as simply the course of activity and judge her words to your point it does seem that both the state and myself read the california supreme court's opinion in the same way and i know you're drawing this right so let me in to let me know without regard to your your your friends i willingness to accept my characterization and therefore they said his mental state doesn't make a difference here and i so so tell me why tell me why that's wrong because the california supreme court doesn't call this they don't call it course and i don't know you can call it course of activity or use the right word but they even say that the trial court and they put this in quotes the trial court said they found quote improper tactics but the only improper talk but when they don't even characterize them as improper tactics they call them unethical but they don't even go so far as to call them improper tactics because that it's more in line with coercion at this point so no i don't think the california supreme court regardless of the end result they reach ultimately is this involuntary they never consider course of activity and infinity versus quarterman which cites too early versus packer we know that if the reasoning of the california supreme court or the result is contrary to clearly established federal law then twenty two fifty four d is satisfied would you agree the california supreme court recognized that coercive activity was part of the analysis they were they said that course of activity should be part of the houses but that there was no chorus of activity here so that said what you're saying is that there's an unreasonable finding of fact as opposed to an unreasonable application  no your honor it would be it would still be an unreasonable when it's a mix question of law in fact the failure to consider something as part of the analysis is still an unreasonable i fear that's what that's why i'm having some difficulty and maybe it's just  they looked at even looked at all the facts and said we don't think you meet the test so i'm trying to figure out where that departs from from settled supreme court law as opposed to be just and then just getting the facts wrong yes your honor in williams versus taylor the supreme court said the failure to appropriately consider the full body of evidence is an unreasonable determination of clearly established that if you consider the full body here your argument is they didn't appropriately consider it to say that they considered it when they said coercive activity is a part of this analysis and there is no course of activity so the failure to consider that continuing interrogation is course of activity that needs to really factor into to to tell you the circumstances analysis that's an unreasonable application you are ignoring a major point of what you want to be let me switch over to one final thing on the brady claim with respect to the toxicology report as you know your client makes to the case that our claims that because the blood was not turned over that his expert was unable to estimate with exactitude that would have otherwise been possible just how drunk it was on the other hand we have some case law that suggests that if you if counsel defense counsel was aware of the test and in this case didn't ask ford that your brady claim is lost what's your comment on that you know that's why we've also argued as an ineffective assistance of counsel claim as well that his failure to ask for that test result and just to quickly follow up on a question that i believe judge what's asked earlier the evidence we have of course the blood was drawn and then we have the prosecutor in court asking for another blood draws he needs to write another test which has all the blood has been tested already it's been used up so we know tests were run we just don't know what the results