my understanding and my belief is this i agree that it was not raised in a direct appeal but it was in fact raised in post conviction and during the course conviction there was no issue in the court never the court of appeals on the state court of appeals at the collateral appeal stage address this issue and i'm wondering whether the first paragraph of its analysis is insufficient to say that it addressed the issue it in its brief i agree but it says the state contends that the issues router previously decided on direct appeal or away by the failure pointed to action or special year to raise the issues on appeal and we agree it was the position of the state that can factor the issue that is the issue concerning the judge i think the facts act wait that's an argument they could have made and they haven't made it see that that would suggest that maybe both issues both parts of baggage you were in fact addressed as possible to read it that way let's assume that extra just for the sake of your argument  questions on procedural ball perhaps you could address the argument that was not a procedural the bald argument but was that was relied upon by the district court below because the fact that under blakely should have gone to the jury the jury would doubtless have found and so the error is not prejudicial that's the argument that i understood the federal district court to have made in coming to the ruling that the court did it and one of those facts had to do with abuse of authority one with sexual gratification one with victim vulnerability and one with whether they were on school property dose of the facts that didn't go to a jury that's leading to the plague plea by aleisha that you're talking about isn't that correct scriptural right why isn't it true and i believe the district court ruled the federal district court ruled that if it had gone to the jury they certainly would have found those facts and so therefore there is no likely prejudice i guess you would say that seems to bend the argument of the district court below what it was your own what's wrong with that argument is my a good harmless error standard we're talking about is the the harmless error standard for he is cases which is not the normal harmless error on direct review but rather whether the whether you have to stain your burden of showing that the error had a substantial and injurious effect on the outcome of the case no your argument was well it may have affected something that the jury decided but i don't think that that sustained your burden i mean not you have to convince us that it actually would have had a substantial and injurious effect and if i when you say that they agreed that it's that's all based on the one family that i was talking about earlier is that correct that's right your honor yes or no is no where else was so is so you're all procedural default argument stands or falls based on that issue that was waived that they refer to later in the opinion you normally having written a few opinions in my time when you have an introductory paragraph which lay things out it refers to the things that are about to follow so we would have to do some the application of blakely the response was well it's a little more expansive but when you look at the specific language about sort of what you're suggesting is that a great response in the court of appeals may have resulted that's really the standard that we applied before it's got to be clear and expressed here it's just a conclusion that it was waged in that there's no reference to the code provision which judge rogers again could could could you address the reasoning of the district court and particularly the part that your opposing counsel criticized and that was the idea that romer ability of the victim was not something that we can be sure the jury would have resolved the same way that the district court did yes ron to have to do with that said i'd like to take that from if a jury had had been able to consider these for the fact is that the jury did consider at least two of these and arriving at their at their judgment now to understand that a bit better if we go back and look exactly what mr holmes was charged with he was charged with five counts of rape trial counts of sexual battery by authority figure and seven counts of statutory rape and these were all based the rape count seven of them were treated by the statutory rape counts and all twelve were covered by the sexual battery count when this came to the court of criminal appeal the court of criminal appeals looked at these  at all these convictions from a double from a double jeopardy point of view and determined that the sexual or rather the statutory rape conviction should be merged into the seven corresponding convictions of sexual battery by an authority figure that three of the sexual battery conviction should be merged into rape convictions and they also found that the other two sexual battery convictions there was sufficient evidence to support those standing alone apart from the touching that took place as a consequence of the rape so we're talking about twelve events and all of those events the jury returned finding him guilty for sexual authority figure is first of all i'm awful sexual contact that's one of the elements of the offense and let me look again at the definition and bear out under tennessee code sexual contact and that includes and i'm  f that intentional touching can be reasonably construed as being for the purpose of sexual are out or gratification so that is a necessary element and they have to be found to support that conviction of sexual victim by virtue of the defendant's legal professional or occupational status and use the position of trust or power to a cop or to special contract or defend the had at the time of the advance parental or custodial authority over the back down and use the authority to accomplish the didn't try the state court rely on all four of these factors surely they could have relied on two but they answered the judge in fact relied on all four so if what if there's a likely error as to one or two of them months were were found supported by the evidence as opposed to for work do we i mean we don't we don't know that the the overall announcement would still be one year if only three or two were found tangent here because you said well he didn't have to find all four but they did and with one or two were kicked out we don't exactly know what the sentence would be my question is really is there a reasonable argument as to any of these factors and we've talked about gratification and we've talked about abuse of position of trust and your argument is that it's implicit in the jury's finding that they found most the minor ability of the victim because of age to be precluded by petitioners say you're just state a procedural rule only if there is a procedural rule to put to the petitioners claim the petitioner failed to comply with the consecutive sentences plural for his class b felony convictions i suggest you wait since it's polk for class b convictions there were convictions there was the convictions for statutory rape there was a counsel argues that but if there's a problem with a couple of these but not a likely problem with a couple of the others then there's no problem is that right what do you do when you only have a little time left what do you do with the questions that judge britain had about the wrong ability of the victim you seem to focus on the wrong or ability of the victim as the least  know law enforcement there was no evidence in the record that anything like that existed with the victim so that's that's one of the reasons that i'm saying judge but then you could have a vulnerable and we will now adjourn the court as it were and retreat into our conference into our virtual conference room so