same very important question and that question arose in deciding are in ruling on a federal constitutional claim arising under decisions of the united states supreme court are the state courts free to ignore the standards and  and federal to consider all of the relevant circumstances and ruling on a federal claim of racial discrimination in jury selection and they specifically included patterns of strikes against jurors oh other  cited in addition both the state and the district court agreed below that the ninth circuit has embraced comparative juror analysis in at least five nine circuit cases which are cited and discussed on page thirty three of my opening grief and the ninth decided most recently before the trial here all of which they use comparative juror analysis in ruling on federal constitutional batson claims the only case that the district court cited that suggested that that might not be the case was to be borg where judge kozinski indicated that he didn't know whether or not this would apply in state court but every you supreme court case and every ninth circuit case decided before and after that including board as i understand it california supreme court has explicitly rejected that method of methodology of proof that's correct and your human is that that california ruling is contrary to clearly established supreme court has been violated then i think federal law should apply i think that all courts state and federal should apply federal law the same way in ruling on federal constitutional questions because if you don't what you end up with is the defendant defendants have different levels of protection from their federal constitutional rights depending on what state and on what court they're being frightened mr boies counsel on direct appeal have a right under federal law to conduct  analysis in support of this federal constitutional claim under babson and both the state courts and the district court below should have allowed him to make that argument and show them his evidence rather than foreclosing it at the outset by preventing him from having access to the evidence you needed to make the argument now there's a second level to this question which is whether the companies even required to provide any specific showing of need to obtain a freeze transcript of this trial and  supreme court held that the equal protection and due process clause is required states to provide indigent prisoners with a free transcript of prior proceedings when needed for an effect of offense or appeal and they do consider a few factors are alternative ways of getting the same information is not an issue in this case they also ask whether there's any value for an appeal however however the supreme court has indicated  cannot be required to specify how the transcript is might be useful to him in any way specific to that particular case and that's because the supreme court has already determined in six different cases impossible without a complete transcript oh yes that's true here you are i need to understand your argument are you saying that a bath sun claim cannot be analyzed without a for appeal and that is whether the federal sentencing guidelines are on has traditional on their face under likely there could be cases like that but this isn't that case and the presumption that the supreme court has established  you please just presume that a complete trial transcript is necessary for an appeal but there is some discussion of the nature of the issues and also alternative means of obtaining the relevant information you have at least one person a witness to the jury process and that was your client and then the other persistent witness was the lawyer was does your client have any burden to come forward to show that neither is an adequate alternative source or at least that they could pinpoint where they think in the word here there's evidence of well jury discrimination my reading of the cases talking about alternatives was that they were discussing things like  opinion regarding part two rather then to justice o'connor's which is actually the majority opinion and he does this on several occasions and by doing so he's encouraging this court to extend federal law under the guise of saying that the supreme court says it's ok to do this under the way and i think that the that the supreme court is very clear about how this how federal courts are comparative juror analysis is mandated under batson it may be a very effective tool california does not reject comparative juror analysis as my opponent has indicated to this court they simply say that comparative juror analysis may not be done in the first instance on appellate review but the process of comparative juror analysis can certainly be done at the trial court level is is routinely done at the trial court level in both establishing or attempting to establish a bason claim as well as by the trial level if you have enough money to go transcript i'm sorry sir i said if you have record is adequate enough to do that can a complete comparative juror analysis necessarily they rely on the trial courts to do that and how does that work sequentially in a jury  annulment is in this case it came midpoint through the border was what on the third strike how would you do a comparative analysis in the midst of a jury selection you would compare what had happened up until that point and that's the whole problem i think with the reports cases his counsel if in fact there was any chance of showing a bason violation sort of jumped the gun he didn't have a had a case this was the first african american jury that had been struck early the first african american juror in this case was struck for a cause for failing to disclose a of the strike no your honor no what i'm saying is that based on the facts as we understand them from the record we forced to simply wasn't any reason for counsel at that point in time to make it that's unchallenging counsel certainly didn't support the backspin challenge the only reason she proffered for the trial court were first of all that surely brown was a black woman and that there were two other blacks remaining in the panel who  yet to be questioned and the only other potential black sure was properly dismissed for cause because he failed as well as far and as far as castle could see and when i say counsel i mean defense counsel he couldn't discern any tangible reasons from mr brown's why he got responses why she had been removed he made no effort to show that prosecutor had questioned other jurors of other races differently so whatever the dynamic that was going on the press council thought that there was a legitimate babson challenge or we were challenge so he makes makes it ok so it's this rule that he has not made as part of face u k so they go through the rest of the you could it could have argued and as the court asked my opponent what happened to the other other jurors we don't know however if you lose one look at the clerk's transcripts and this particular case there's only a showing  one wheel or motion that's motion being made throughout the entire trial and it falls on the same date that ms brown is so i think that it's more than safe to assume that the reference in the clerks transcript the minutes of the court is strictly to the challenge that was raised regarding ms brown counsel never revisited the issue and certainly you could have done so particularly if the prosecution was discriminatorily you know  in that case where they found that it was factually similar to this this case where the first juror challenged or once you're really challenged the way particular racial group did not that would have justified the prosecutor peremptorily challenging prosecutor felt that she was somehow reticent in answering that question and also that he felt that she was possibly holding back information in her true feelings about her personal experience with the criminal justice system and how she white response to one of the key prosecution witnesses and they came up in the form of questioning about how she might feel about a family member turning in another family member for a criminal violation and that's exactly the situation we have here where mr boyd's grandmother turned him in for the weapons violation with regard to the the transcript  the law established while it is that there must be a transcript provided to an end of the indigent defendant whenever there is a need for that transcript for an effective defense or appeal and again as recently as june of this year this court infinity the lockyer reaffirmed that or direct appeal and a retrial or re sentencing procedure may be treated issue is just as we've been discussing what was the nature of the war dear what happened that's a narrow issue so why wouldn't the transcript why do you have to cite the clerk's transcript in for that there was t the reason your honor is that again there was no record made no showing that there were any other challenges we don't know that we don't we do know that we only know that in little time that he exercised the challenge as to the one juror he didn't but beyond that how do we know that there wasn't any other i mean we know that we know that there was no other renewal of the wheel or motion from the minutes of the court and we have there is a race neutral reason or reasons behind the exercise of the peremptory challenges and then the court steps back and looks at all the relevant facts and circumstances before at the time that the motions be considered and says yes or no there you have been a showing a purposeful discrimination or no there has not been comparative analysis have taken place at the trial with that entitle you to the your in my opinion i think it would be your honor i'm not the state court naturally but it would depend on what kind of showing it is made but again there's nothing for separate occasions it was the initial motion trying to get the entire juror volunteer transcript and then it was renewed i believe two or three additional times and and every entire juror was here transcript is irrelevant contains extraneous material and therefore under the existing supreme court laws that it is today that he's not entitled to that transcript first of all that may be state law but it's not federal law and what we have here is a federal constitutional claim under babson where in your view what is the best case for your proposition that under the under federal and it says these these are not meant to be everything you can consider all relevant circumstances means all relevant circumstances but the first two that they mention are part of comparative juror analysis and then to follow up more in their again all i can say is that i even after i came into this case i think he'd be as federal habeas level the first thing i did was ask for the rest that transcript from the district court it seems obvious that this is what you