chief judge told me please the court patrick clarke for general mitchell clearly established supreme court case law says that when a trial court evaluates it datsun claim it must conduct a three step test this is clearly establish them struggling with is what he clearly established is that the trial court after provide the tail reasoning or reasoning in the rd step versus accepting the prosecution show its math it did show it told the parties and it made a record about what it was doing and its detailed reasoning was irrelevant so i'm sorry to interrupt you again but then the court of appeal found differently  improper factual findings into the trial course and we have to accept their factual findings unless they're clearly erroneous correct in a court of appellate court and so i guess you have to live with that exception and to the st question you asked to par christopher whitfield who is the structure and this case was asked one or two questions during board here the only questions he was asked were about the single witness rule the question of would you be able to convict somebody if there's only one witness who could testify and he answered in a very prosecution friendly way he said yes of course i would be able to he was struck on the court did is it it looked back and created a rational basis for why in a prosecutor might wish to strike somebody who had relatives with criminal justice involvement and he gave all the potential reasons that that might be done and that is a facially race neutral reason underprepared versus a limb certainly but it didn't establish the fundamental question about whether the trial court evaluated the credibility of the prosecution's belief that christopher whitfield lived when he said he had no relatives with criminal justice involvement and what that's what the state appellate court did is it took the trial judge's explanation for why he was allowing the strike and he's allowing the strike because there's still other black people on the veneer that is not irrelevant inquiry about some rd step and instead of taking the the saying by the way there's two on the jury and there's others in the back of the court room is that how were they were doing it were they doing it where they put the juries in the box and then they had others and if they struck someone they put one in yes ok so isn't isn't one way to read his as an acknowledgment meaning the trop word as an acknowledgement that it's another reason he thought this wasn't a race based strike is because there's there's other minorities in the pool there's other minorities in the jury and so i'm not one additional reason is i'm not worried about it because it's not this isn't a race  on what he's saying you're absolutely right if what he's saying is i'm going to allow this strike because there's other minorities that's the problem if instead he's just acknowledging at the court of appeals that that there's other minorities in the pool so the motives here don't seem improper to him instead they seem proper then it's totally fine and that's where i'm trying to figure that out christopher whitfield was the rd strike by the state in this case the st of the st two strikes one of the stricken jurors was a that if they sat only jury together they would be it they would be able to be impartial because they would rely on each other and the records also clear well it's not clear which of the two previous the structures was a member of a cognizable class what is clear is that one of the two prospective juror mistral her was the victim of a violent crime and based on some extensive why dear about that the prosecution could understandably wish to strike that juror and then wish to strike anybody who is friends enough with her that they would be partial in a jury room if the belief is that she experienced something in this system that would make her an improper juror for this case then by extension any of her friends who talked about that with her might also be bad for this case so what about some challenge to those strikes would not have been a strategic decision by the trial judge but the next strike the very next strike is christopher whitfield and the only questions asked of christopher whitfield dear related to whether he could convict somebody based on the word of one person he said yes there was no exploration of any of the concerns that animated that the trial prosecutors purported race neutral reason rather than evaluating the credibility of that reason as bateson requires the trial court simply allow the exclusion because there were still black jurors on the veneer in the jury before the primary process was even done and i think that the reason that the rd step is so important here is because of what the court the supreme court cited per cat on the trial court to evaluate the of course the burden of persuasion always rests on the defendant but it puts a burden on the trial court to actually evaluate the credibility of the proffered reason and there's plenty of habeas law cited by the warden and wondering if this would have been a sufficient completion of the duty by the truck work for the simply said all right well the court does find that then he said i'm going to allow the excuse of him and stop right there and had not said in the court does that knowledge of your other just stop right there would that have been a sufficient rejection of the of the challenge you think that's a hypothetical question sentence or two where he talks about there are other blacks sitting in waiting in the back that are available yes and those are the ones who have been pointed out as i recall this can't unless the the prosecutors that there are three or four blacks in the jury pool yes and then he says so we will overrule that and that is the ruling and i recognize that creates a in the context of a direct appeal there is an incentive to create a create an appropriate record to allow for factual review in the context of quite understand batson it's clear from the record the defense counsel challenges the prosecutor's understanding about sin when the prosecutor says this isn't really about it's an issue because the the victim and the defendant are of the same race which is of course completely relevant to batson so this is this is a colloquy where everyone is struggling a little bit and then the court puts its rationale on the record that rationale has nothing to do with what the supreme you morning may please the court the warden asked that you affirm the denial of the writ because the state courts determination of mitchell's batson plain was neither clearly contrary to or an unreasonable application of supreme court precedent your honour's both the judge the judge cole have hit on the issues that are crucial in this case it is the rd step of the bateson analysis and  all i'm going to allow the right because there are other blacks sitting in waiting in the back that are of would you agree that the problem i would agree that it is not perhaps the best statement that a trial court could possibly rely upon fortunately that's not what occurred here i don't understand what you can feed that would be a problem if the trial court were to say that the sole reason that they were just missing the black juror was because there are other minorities that are available on the panel i would say that that speaks to whether or not the proper the defense made a prima fascia case i would say that it does not go to the trial court's evaluation of the prosecutor's demeanor earlier the judge made it's complex actually it was judge kohl that made the noticed that the court made its complete determination in the one sentence while the court does find i'm going and we can't figure out which one so we're sending him back how do we deal your honor it is not the same analysis here because as you noted previously it was the defense that raised the actual verbiage that's that's being at issue here whether at that the fact that there were other minorities that remained in the back of the courtroom that was being stated by the defense presumably when they were making their statement of prima fascia case of discrimination so the fact that they were if the court was referring back to that the fact that the defense had raised the prima fascia case of discrimination doesn't reflect on the court's ultimate determination the court listen to what was said and the rd step what what mr mitchell completely ignores in this case is that it's his burden of persuasion and he came forward with no facts he came forward the record that your honor at this time this is the nd minority excused by the state of ohio i will stipulate there are two remaining minority jurors in this case however i'm the belief given the fact the composition of the jury at best from the way i've read  the coming panel would be that the only two minority jerk jurors would remain if they were not removed i would ask that this court not permit this challenge under the rules of supreme court and bats and unless the court is convinced that a race neutral reason exists so the only reason that the court was even talking about the the makeup of the jury was because the defense raised it in their prima fascia statement and they even said unless the court is convinced that a race neutral reason for exists for the challenge petitioner mitchell gave the court nothing to go on no factual determination to rebut the state's race neutral explanation of why they were going to excuse this particular juror which was a very reasonable explanation given the fact that they noted at an individual by the name of reginald whitfield had just been convicted in another court and that there had been a long series of individuals with a last name with filled off from that same area of town and obviously it would not be a strategic bonus for the state to have a potential juror hiding out in in undisclosed bias against the state because of the state prosecuting its families petitioner whitfield excuse me petitioner mitchell could have gone further and insisted that he's the one that needs to be making the burden of persuasion here he could have gone out and asked the questions of of the jurors had that been his desire but he didn't do that there are many reasons for strategy reasons including possibly preserving an issue on appeal who knows the fact remains that petitioner mitchell didn't make his burden of persuasion in the trial court and the trial judge was left with nothing but his own determination of the credibility and the reasonableness in the demeanor of the prosecutor's trial strategic reason to not have a hidden juror who might have some bias against him and again the supreme court doesn't require that there be any reason whatsoever for the court to set forth its rationale the says as judge cole noted we end with a decision that was being made and it is simply an acknowledgment i acknowledge he may have even been looking at defense counsel again on the cold record we just don't know i acknowledge that there are other jurors knowledge of the fact that you were attempting to make a  discrimination but you've given me nothing here to substantiate it and to this day mr mitchell has not provided with clear and convincing evidence to any court that would enable this hideous court to to usurp the state courts determination of this factual issue i would like to point the court's attention to its own decision and carville because contrary to my counsel i do believe that that case is  a very vital precedent and on the pitch for sixty the trial court to repeat would have done well to say more and explaining why the prosecutor strikes were not discriminatory but the supreme court has never clearly established a more rigorous procedure at this stage of the bateson incurring therefore as in this cut out case the heigho court of appeals did not unreasonably apply what the supreme court has required in concluding the trial court complied with batson the district court correctly rejected this claim unless there are further questions i would rest of my briefs i guess it's really maybe some more of a comment so the defense counsel is the st to bring up that prosecutor or maybe the assistant prosecutor then says your honor and there's more than two left in the back of the court room as well there's at least three or four in the back of the court so then you combine that with th constitutional reason that does not violate that's a constitutional requirements of the court the truck court was certainly within its within its right to reject the bats and challenge especially in this case where the name yes on the ground that the fear in the concern that you know he's probably related to someone we just prosecuted last week down on the other court before judge darkened and that is certainly a reasonable likely even probable reason based on trial strategy for the trial court to rest reason at all for it doesn't talk about the would feel issue writing similarity or any of that and as far as the one is case it's not required that he did that he does constitutionally and i guess i would just reiterating conclusion that the fact that the court we read the court acknowledging not necessarily as this is why i'm ruling on my rd step but just merely a reiteration of what the defense had already mentioned when they were again the facts unless they're clearly erroneous from the ohio court of appeals and so the ohio court of appeals found as judge called on it that the st sentence was accepting the prosecutor's race neutral reason go they can go to two things right you can go to an acknowledgment as they found it could also say look the rd step is to look into the intent of the prosecutor and i find the prosecutor's explanation to be race neutral and acceptable and i'm acknowledging that there's others so the prosecutor doesn't have discriminatory intent to quote the language of the supreme court because so we will overrule that is doing the work and the ruling here but to the extent that the to the extent that the court's ruling the true state trial court's ruling can be read that way if there is a alternative reason given that's not directed to the there's no engagement with whitfield from the south side of youngstown and i think we might have prosecuted somebody who he might be related to reginald whitfield but i'm not going to ask him if he knows who reginald whitfield is i'm not going to ask him you have the asked for time they just said the process i thought i'm doing it up memory i thought they just said the prosecutor could do it that they say or i'd like to have the prosecutors know that is not in the record that they did but given given miller failure an absolute failure to engage that reason by the trial court and had to shift pivot and offer an alternative explanation that has nothing to do with the state's purportedly race neutral reason think your stance that the trial court needed to say yep that's good that that familial potential familial relationship that's a good reason you you think the trial court that the other sufficiently taints the the reference to the other potential jurors in the back taints the race neutral reason particularly because the court didn't explicitly address yes if i can explain briefly i realize i'm out of time you me so mcdaniels versus kirkland in the th district the th circuit this court cottle say that terse and unambiguous rejections are appropriate there is ambiguity there is significant ambiguity about what reasons are being credited in this transcript and because of that ambiguity we can't figure out what the truck was crediting so this doesn't fall into the hey vs line of cases that talk about left conic rejection your doubt but we also can't say it was in crediting the race neutral i mean can you can you agree with that the record as i read it makes it very hard to reach the conclusion that the trial court was credit in the reasons about christopher whitfield being related to other what fields and  stead the trial the record as i read it points to the trial court's fixation on the fact that there was more than one block whether the state court could read it the way i just saying i will excuse that that that is not a sufficient reason constitutionally because the court did not make the necessary credibility determination of the prosecutor is that  constitutionally unreasonable for the state court to read it that way i don't know our standard you know it's not how we think about it or how you think about it right i understand i understand the difference yes  the reason the application of clearly established federal law and under the base upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding because as i read your brief sort of  seems that the sort of incorporate the two as well but maybe that's not the end this is a this is an argument based on the one this do one ok thank you ok great thank you both for your argument this morning we really do appreciate them the case will