claim there is no really no question there is a door in violation here and we get to that pretty quickly because even in the state courts the state conceded that women were a distinctive group and that they were significantly under represented for ten years eleven years court as it was raised was whether there was a systematic exclusion of women under the circumstances now the state court found that there was no systematic exclusion and as we have argued in our brief that finding is both contrary to dern and also  unreasonable under twenty to fifty four d what was the evidence relied upon and durned fines to manic exclusion but again the systematic exclusion there first of all there was a statistical showing that indicated that women were over fift different prong and systematic exclusion correct yes the systematic yes what evidence was i just don't remember there was an exemption that was allowed for women in missouri it was an objective it was a statutory criteria that's correct that's correct and so i guess you know just to tell you my question here is on hey vs what supreme court case clearly establishes that this more ad hoc exclusion evidence g to many women to many women that establish systematic exclusion so that no reasonable state your should should think otherwise well i think approach approaches to that as you're looking at i think from a twenty to fifty four d one perspective i also look at it from a twenty two fifty four d two perspective i mean if you talk in contrary to you have to i mean map on very very closely on the facts which see the same conclusion based upon what happened in practice so even though women were excluded as a statutory matter and during what was happening here was the exact same thing and i think so to the extent that you have a slight factual difference i don't think that that mean that means that we still haven't proven our case not really slight to have an actual statutory theory and you can point to on the one hand and on the other hand have this sort of you know more anecdotal evidence well on some level judge i would i would argue actually when you have somebody saying we're excluding women based upon the fact that they're women and we're using stereotypes well well we had to talk about that she was one of the one of the one of the clerks who explained that she specifically excluded women because they had children and they did say at home she also testified that women were schoolteachers and they were excluded for that reason and so as a result of that i mean i don't see i don't see any real ultimate difference in the fact that you have a complete exclusion under the statute whereas under these circumstances essentially you had somebody saying we're ex women because they're women i think that's really the point of during i thought like for example school teachers there was there was gender neutral schoolteachers will mess out what the law said she said she was excluding women because they were schoolteachers i thought there was testimony that that and i mean i consider doc testify because she was in a nursing home moulton testified as to how the process worked but sometimes they excluded men because they were tobacco farmers i understood understand that but i think the fundamental problem is that under the circumstances here where they were excluding certain people for particular reasons they were excluding women in a systematic way that under represented them in a way that  not didn't provide for a cross section of the community and this is an ineffective assistance that's correct its way but wasn't there some indication that temple thought that this would consume too consequences of that we're the prejudice oh well the prejudice is one mr hines was tried before a jury that did not represent a fair cross section of the community what isn't that big no not his conviction his nine eighty six conviction wasn't he ok it's just the ok right so you're focusing on one hundred eighty nine so nine hundred eighty nine is separate from one thousand nine hundred six so his nine hundred eighty six conviction remained intact based upon the violation of the fair cross section same looked at we never looked at that is that is an issue he testified to that we have in our brief so he was ignorant of what the law was by the time nine hundred eighty nine rolled around he understood what the law was and he could have challenge that as to the recent thing but you're complaining about the nineteen eighty state court held it to be held to be strategic under the circumstances but at the for nineteen eighty six you're complaining about the conviction not the sentence a rape yes that's correct yes i did just to make that clear can you remind me what did the state of the state court would have said anything in eighty six on this point about the systematic that's correct the old the only ruling on the issue was the court of criminal appeals in the post conviction procedure so i mean i guess this it's our position that which would mean that the failure to make the argument unless something a change the failure to make your argument in eighty six was not prejudicial if you accept their finding because it would have been a merit less argument because there was no systematic exclusion if the state court were correct on the merits of the during claim that's correct you need to show the state court you know even in the context of were being excluded in a systematic way because of their the fact that they were women but we also see that from dr o'reilly's affidavit in which was exhibit forty three in the post conviction proceedings in which he was showing that you had women under represented by seven eight standard deviations all the time you know throughout an eleven year period so when you can you can look at the mere fact that for eleven years women are being under represented  by their ten to twenty two percent of the veneers when they should be over fifty percent and then when it goes on for eleven years that in and of itself demonstrates that there's a systematic exclusion that it's not something random and that's a dr o'reilly essentially testif  the remedy if i may judge the remedy would be to be tried but i have a near that is fairly representative of the community but this was the particular even the year yes i'm sorry or maybe seven women on the pitcher but as i said legally that doesn't that doesn't make a difference which is why the state court's ruling citing strout saying hey no harm no foul there are three women on the jury is it's contrary to an juries using peremptory strikes the supreme court has been pretty clear that once you strike a particular group from the jury pools you you've lost something very serious in terms of something fundamental in terms of what the what the constitution requires and what our criminal justice system requires which is why in taylor for instance the supreme court talks about the fair cross section being fundamental to our criminal justice system in which is why then later on exclusion of women or people of particular race renders the proceedings fundamentally unfair so the harm is not simply that you that the individual mr heins didn't get a trial before  veneer that representative for a cross section of the community it's also clear that the supreme court has said under these particular circumstances when you don't have the fair cross section of the community the entire community is harmed the criminal justice system is harm which is why there has to be a remedy for that under the circumstances is this a back requiring the systematic exclusion wrong i think it's probably a little bit of it's a little bit of both but i think we have argued that it is a fair it is a factual finding under twenty two fifty forty two we've also argued that there are twenty two fifty forty one that have a finding sixty systematic exclusion can be a legal question as well but i think we're fundamentally it's it's probably a factual question but our point as to twenty two fifty forty t looking at it as a factual matter is that you can't say as the state court did that there's not a systematic exclusion of women when women based on the testimony of small and lloyd here says well and based upon the the length of time that this went on for eleven years there is no other explanation as dr o'reilly explains other than a systematic exclusion it's not by chance it's not by i don't think a rational jurors could could take any other view of the evidence the record in this case and that under under these circumstances no i really don't judge and the reason i said is because you've got eleven years if you any case that would make clear to the state court that a certain precedent that would make clear to the state court that it has to rule certain way right but it doesn't have to be on all force right now it doesn't but the farther away it is the more latitude the court has right i mean the only case that you seem to have for systematic exclusion involved is statutory criteria not any of the things we're talking about but it was also not conflicting testimony i think there is i think this testimony could be read a couple different ways  wasn't the only person who testified not the case we don't have a case involving this sort of longstanding thing what we ought to infer i mean must we infer systematic exclusion because of that well i think when you talk about that it's a longstanding nature i think i don't know that you you specifically have to infer but that's just the reality of it how can something go on the near after veneer year after year you know for eleven years women are  there they're one out of ten people in the veneers when they should be constituting five or six out of every ten people in the veneers how can you explain it other than a systematic exclusion it's not it's it's when you talk about systematic exclusion i think we also have to  be careful not to read the word systematic too narrowly that systematic has to be some sort of a statutory exemption or something like that it's is there a method or means that is being used that is creating under representation it could be any type of and new ideas at this stage i mean i agree with that but systematic means systematic it's part of the system i think the i mean the the ultimate response to that is well that if you can come up with a creative way to exclude people from the jury which is like a day of verses and for instance you you deliberately exclude people from the jury so you can come up with a creative way to do that that nobody's ever done before will then you get away with it i mean so i guess our position billy is you have to look at what is there a system number one is it excluding people and when you have people saying we are excluding people because they are women based on stereotypes stereotypes of women and when the ultimate result of that is that women are being under represented it seems to me that it's pretty clear that that is a system that is depriving women of the right to serve on the juries that being said i only purse i merely wanted to say that i wanted to make a couple remarks about mr heinz's entitle me to a martinez hearing on the d n a evidence that was what i wanted to speak about but i'd be happy answer your questions to your honor well i'm would like to hear about the in the distance with respect to the witness who is there anything you want to say about well i think what's important about about ten jones is that we know that he lied to the jury here's somebody who was at the at the motel at the time of the offense who claimed generally the offense seems to have occurred probably around eleven o'clock twelve o'clock he claims he only got to the hotel afterwards that he was looking for a key he went across the street he then came back to the hotel to the motel to use the restroom in room twenty one and lo and behold he encounters the victim  there it's pretty clear he has false he this is he is an individual who every sunday would go there for a tryst with his with his with his paramour and he was there earlier in the day so he lied about the fact that he wasn't there at the time that the offense occur and what i think is most important about jones and that issue is that when he goes across the street to report that somebody has been injured he explains that the woman has been sta and the fundamental problem with that is that the body was wrapped in a bedspread in room twenty one so why is it you just thinking that your brief is adequate and doesn't need explanation or well to the point is simply that if you have somebody who is at the crime scene who has the opportunity to commit an offense who lies about his whereabouts during the time that the offense was committed and as we've also  he knew the victim as well so there's some potential for motive there is well what exactly is that potential i mean i i'll be candid with you that's where this claim just totally craters with me  this guy was not even cope with tory witness as i understand he wasn't fingering your client as the killer so i guess the idea is that he would be the real killer well there's certainly some some evidence that he could have been we know that he was there in the room with the victim before the victim was found we know that he lied about you match that up against some hope tory witness against your client i mean is just just not remotely a strong pull on your client had dried blood on h sure according to one witness he always carried this hunting knife according to another witness he had the victim's wallet he had but i want to count thirty five hundred thirty five thousand dollars which is probably the money in the bloody bank bag he told the volunteer to the arresting officer that he stole the woman's car but didn't kill or before the officer said and and i mean the idea that this guy is going there to have an affair is somehow the killer despite all that i'm just being candid with you i don't it's very hard for me to see the prejudice in this strickland can claim well i think the point really about that is that under tennessee law the requirement is that and as the jury was instructed the prosecution had to exclude all reasonable hypotheses except the guilt of the accused and so to the extent that there is a reasonable hypothesis that is out there in a reasonable hypothesis is exactly as mr hines said that he did in fact steal the woman's car but he didn't kill her when you also have ken jones who is at the hotel and lying about his what he's doing and he has information about how the victim supposedly was killed i mean there's no doubt that there is conflicting evidence and there is evidence that can be considered inculpatory to mr heins there's no question about that but the question alternately in terms of the reasonable doubt here is is there a reasonable hypothesis other than mr heins his guilt and when you add mr jones in and mr jones is saying things that one we know aren't true about his were and they probably knew it wasn't true honestly first time i read that about grabbing this key randomly the bathroom i mean for a new hines and the victim we have intimate contact there's no question about that and the fundamental problem that we have with the district court opinion is that the district court says that its debts irrelevant because the district court believe that there was no sort of sexual contact that occurred well that the fundamental problem with the district court's opinion is that the d n a proves that the premise of the district court's opinion that there was no sexual contact is completely false and that's the same sort of problem  in what happened here as we as we've argued in in these other claims is that there was semen evidence that could have been tested that dr harlan identified as wanting to test for semen and that got destroyed because it we also don't know how the source of that the and they had been there write it in her underwear writer's correct yes we don't know how long she was wearing it we don't know we know nothing about it just it just shows that at some point she had it was another source that doesn't tell us work in house we had evidence on the victim's clothing and when you have the evidence on the victim's clothing you're right we don't know that necessarily know when when that happened or what not but if it gives you the identity of the person that was intimate with the person's clothing and we've also said this case mills versus bernard from the six circuit here again you test the clothing the underwear of the victim and what you see is that it a and so just as a practical matter i think what we see is that jurors would understand standard for with the d n a what does the defendant have to show well we're arguing that we're entitled to martinez hearing based upon the new d n a evidence and so what we have to establish is that are ineffective assistance of counsel claim their counsel was ineffective for having failed to investigate the physical evidence we have to show that there was that the claim is substantial in light of the d n a evidence and we have to make a prima facia showing that post conviction embarrassing mr jones given the circumstances that took him to the motel yes and so it does seem to be at least a good argument could be made that it's deficient performers who think that you would investigate a person who found deficiency deficiency was found by the state court and respondents position is that the state courts determination that prejudice wasn't a savage is completely reasonable judge has it completely cracked which is although and it wasn't necessarily a failure to investigate as much as defense counsel knew exactly why he was truly there that morning and simply didn't elicit that testimony in the course of the trial had he elicited that testimony we then have the p hearing at which he testified his girlfriend testified his wife testified and we have before us a record of all that a jury would have heard in terms of why he was really there that day the history as to the fact that he had been there over one hundred times known to the manager and owner known to the victim herself that this was their routine and then to take those facts and that testimony to then present a theory in which he was the murder or in some way because of the way there is this allegation even though he testified he wasn't sure or couldn't remember whether he said it was a woman lying in the bad that suddenly we have reasonable doubt is completely farfetched but he also said he was stale when there was no way he could have known that his testimony at the p c hearing was that he didn't remember saying those three piece when his testimony was presented in the post convey even if you were to take those facts and consider them to be true what then defense counsel would have been saying if he had further even in light of the evidence that i was there to meet my girlfriend for the hundredth time oh no your the murderer in terms of his credibility before the jury he would have completely risked his then soon to be mitigation sentencing etc to say this fifty one year old man this morning on the hundredth time brought his girlfriend to the motel to murder the maid have his girlfriend drive back but it's different you run it differently it's it's that he's hiding something he obviously interacted with her already because somehow he got the key and she had a twenty dollar bill and maybe she's black mailing him because she is the one who knows all about it and somehow or other he knew it was a woman and he knew she was stale and the first thing that defendant said yeah he is not mr in this in but he says i have the car but i didn't kill or absolutely and what respondents position would be that even if you were to have furthered a theory that there was some sort of blackmail and there was motive which certainly wasn't presented in either the post conviction or during the here at the original trial you still have to overcome the overwhelming amount of evidence that petitioner is the murderer and that was the prejudice analysis done that come from there's no d in fact if they had some of the d n a it could it could you know they could do even more with it it's basically that he carries a knife but it wasn't that night right and he was telling cockamamie stories which i mean he's got the stolen car or in you know there's obviously something behind it so i don't i don't know that it's so when possible respondants position that is in support of the state courts determination that annie furtherance of the theory that ken jones was the real murderer and that that theory would have overcome the evidence the petitioner was in fact the killer is incredibly far fetched in addition to all that you morning hours that he was then seen by the manager and asked if he was ready to check out and he said no not yet the manager left he left the maid in charge the petitioner was obsessed with knives although he wasn't found with the murder weapon he was found with other knives on his person at the time when shown pictures of his motel room with stabs into the wall and questioned as to what the markings were he said those are knife marks not only did he steal her car and drive away with it with blood on his shirt he was then picked up driven to his sister's in bowling green by these young people told these cockamamie story is absolutely and still had her key on him they found her wallet and then unprovoked volunteered when they the police come to arrest him i stole her car i didn't kill him only moments later to say if you could promise me the death penalty i will tell you all about her murder the evidence in this case was overwhelming the d n a in no way supports petitioner's contention that there is actual innocence that there is anything that exonerates him there is no way that a jury in light of all of this that they would have overcome these facts with a theory that can jones on the hungary's morning suddenly was being potentially blackmailed by the maid it's far fetched the state court said it would have ruined defense counsel's credibility it would have taken the jury from something that was far fetched speculation into a realm of fantasy prejudice cannot be established the district court of what about in the in the penalty phase what about the residual doubt the argument on behalf of respond it would be the same so was the argument on behalf of respondent would be the same that in light of the overwhelming aggravating circumstances that in terms of residual doubt at sentencing that it wouldn't have made any difference was the residual doubt a penalty phase thing or guilt it was  evidentiary hearing i think the bottom line is the district court granted after the state court denied both the d n a testing and the fingerprint testing with no exonerating results what would petitioner have presented  hearing other than these reports his own expert says no sperm d n a could of as you said your honor come from anywhere saliva earwax she was married she lived with her husband yes but there were other there were two other people right she had sons we're talking about underwear that had been slashed and thrown across a motel room onto the floor and then in one nine hundred eighty six collected for the sake of of trial we don't know where the d n a came from d n a is not sperm d n a in no way exonerates petitioner and in terms of this claim that he was denied an evidentiary hearing the standard is good cause and petitioner cannot establish good cause that he was entitled to an evidentiary hearing the district court granted the request for this evidence to be tested to be discovered and even based on their own experts reports the district court would then have to of based on the entirety of the evidence all of that presented at the jury trial with the new contemplated whether or not this would have changed the outcome whether or not actual and innocence can be established and the district court properly found that it could not and denied the hearing and that decision was not an abuse of discretion and i will now move on to the question of the jury i'd like to take a step back and clarify that this claim has three distinct parts three to think parts the first is an allegation that trial counsel was ineffective for failing to raise the four person the allegation of discrimination as for the foreperson position are completely seems to dismiss strauss and move on and say that a tennessee court case that says that three women on a jury which is what he had is probably a proper prosecution and therefore regardless of whether trial counsel said at the post conviction hearing that he didn't think of the claim there was no basis for a claim through i'm not familiar with a case that would based on looking at the veneer and not at the jury over rule the fact that then in your jury you have three women which is a fair cross supreme court of tennessee but this was a federal constitutional one would have been right it was and they dismiss this claim by saying that it's overruled in some way by holland which as i s than in respondents brief misconstrues the difference between in holland there was a batson underlying batson claim that's in no way relevant to the claim before the court here  not only did he have no reason trial counsel to think that there was some sort of discrimination but with the three women on the jury had he raised it based on although it's a federal claim this supreme court of tennessee claim at the time it most likely respondent would argue would have been overruled and so you're saying it's not deficient performance of the one thousand six perfect moreover you establish prejudice because the three prongs of during can't be established and so as to the one nine hundred eighty nine and the three prongs of darren and the third prong of systematic exclusion you asked what's the supreme court case to back up your position and answer is there is not one at the time in one thousand nine hundred nine there would have been two supreme court cases taylor versus louisiana in one nine hundred seventy five and during which was nine hundred seventy nine which would have led the court based on these facts whether you're looking at the one thousand nine hundred six jury or the one thousand nine hundred nine re sentencing to find that there is no basis for a factual determination that there was systematic exclusion i feel that petitioner has misconstrued the testimony from those at the post conviction hearing who testified regarding the selection there were statements as you mentioned about farmers all of the statements she made in her testimony regarding school teachers was gender neutral respondent isn't going to opine that there were equally men and women school teachers in the one nine hundred eighty s but the statements about the exclusion of school teachers was gender neutral she even went so far as to say that in terms of the woman who didn't testify that she would often complain at times that she believed that women had to your moves because there were too many women in the box  i guess when one reads that i guess you can read it two different ways and maybe i don't have enough perspective on this record to know which way i mean you could read it to mean there's this surfeit of women on jury you know ten women or something and we need to make sure we have adequate representation of males that's kind of hard to believe that would be based on some of the statistical evidence or you could read it to mean that even with relatively modest numbers of women she wanted that number to be even lower so i mean you're suggesting that it's more benign explanation that there are plenty of women on the  er and she's saying we need to reduce them so i do you read it in why i think that a reading of her testimony is that it was benign and neutral and even if you were to read it i mean why do you think that was my question well what i was about to say is even if you were to assume otherwise it wouldn't matter because you can't establish systematic exclusion based on her testimony plus to to sticks so to six alone are meaningless there are plenty of cases that say that's not a basis for systematic exclusion in terms of systematic exclusion and as i said during and taylor says louisiana would have been the law at the time you have to find an illegality you have to find something literally on the books a statute a law the one  case what if so what if you get it has to be a statute it can't be that the people who do it exclude all blacks and women but in this case even if you were to base it purely on the testimony they did not exclude all blacks and women well but you just said it has to be a statute it has to be a law in terms of systematic exclusion and the case law that supports the third prong of duren you have to find something more than mere testimonial evidence an occasional you know pregnant women women who had just given birth schoolteachers during the school year that is insufficient even if this court were to find that perhaps and i think there there wouldn't be a huge disagreement that that that's not necessarily how you would have selected the jury that doesn't rise to the level of what the case law determines to be the third prong of duren not only as her testimony what if the case there a policy was there an explicit or implicit instruction to do so would that rise to the level of the third prong i don't know this case this testimony this evidence presented doesn't you can establish prejudice for failing to raise this claim again it's ineffective assistance of trial counsel claim you can't determine prejudice when you can't establish any level of systematic exclusion per the cases that were around at the time and certainly the ones that have followed i don't know the answer to your specific question but those aren't the facts of this case the facts of this case illustrate that prejudice cannot be proven trial counsel could not have been found to have been ineffective for failing to raise this claim more over we're also talking in one thousand nine hundred nine about the prospect that time is limited and he as he testified made a strategic decision not to pursue the issue of females being excluded from the re because he had mitigation capital sentencing he made a tactical decision strickland under is doubly deferential and the district court and this court should as well affirm the state courts reasonable determination that based on that standard trial counsel is not ineffective i am prepared to talk about as many more of the claims as this court would like move on at the moment and speak briefly about mitigation the district court properly denied petitioners claim that counsel was ineffective for failing to present additional mitigation evidence this claim is based on the fact that during the recent unsing there were two doctors that testified who did interviews with family members presented personal background drug and alcohol abuse to some extent and then at the post conviction hearing testified in addition to that and numerous others much more in depth about the personal history of petitioner and his time in his childhood and his drug and alcohol abuse the trial court's determination that counsel was not ineffective was completely reasonable because trial counsel testified that he didn't have as post conviction counsel did three years to prepare in the testimony of both experts at the post conviction hearing they said oh we agree with our original testimony we would testify to the same we would certainly have liked more time we would have alleged to have had a few more months to have gained a report with petitioner you are not going to find a defense counsel and experts at mitigation in a capital sentencing who don't wish they had more time that is not the basis for ineffectiveness the state court determined that the additional mitigation evidence presented was certainly more in depth but merely cumulative and in most ways nearly identical but simply again more detailed and in that way there was no ineffectiveness for failing to present it hearing on the evidence presented the documents about the swabs the swabs and the handwritten note that two of them were molded is not material it's not material because there were swabs with an s taken banjul and rectal and they were submitted to the tennessee bureau of investigation for testing the handwritten note that was not presented to defense counsel says that two were molded we don't know how many there were all of the others at the time tested negative for sperm and semen the allegation that these two molded swabs would then have in isolation tested positive and exonerated him is purely speculative and in no way does this material this evidence right is to the level of being material and the district court properly determined that nobody violation had occurred moreover in terms of the giggly overlay ssion the claim it's procedurally defaulted and was rejected by the district court petitioner claims that the prosecution resented the false evidence of the medical examiner and the dr harlan who testified about his visual observations of the body was false and known to be false and there's just no merit to this claim dr harlan testified that his visual observations of the victim indicated that there was no sperm and yet as protocol would dictate took swabs to have them tested as he testified quote in an abundance of caution his visual observations coupled with the protocol of these swabs petitioner can't establish that these statements were were false or were known to have been false or were presented in order to present false evidence he was merely testifying and the transcript it's in my brief is incredibly clear that he was testifying only to the visual observations he made and that then certainly swabs were taken and they those results came back negative minus the two molded swabs here's where there until we don't know there is no number in the record but we know that there were more than the two cracked yes the report the final report says that the ones that were tested again with an ass swabs tested negative at the time of them being taken before trial and so these two i mean again if we're talking ten or one hundred the two some speculation that the two would have come back with results contrary to the rest of them is purely speculative the district work correctly determined that the prosecution did not present false evidence and this claim should be affirmed i certainly have time remaining but if the court has no more questions i have addressed all  back negative if you look at document one seventy five deaths for those of the notes of the day indicate that there was no while they indicate that there was no sperm they were never alternately tested for semen as it says the like too many women on the jury that they were getting too many women people would be struck because they were women when it when we talk about deficient performance all mr stack had to do was look around in the courtroom at the time of the trial there were five women and they were fifty m it was it was pretty obvious but he didn't know the law the tennessee association of criminal defense lawyers manual from one thousand eight hundred five which was part of the post conviction record which he could have a lot in which he did not rely on explain how you could make a during challenge numerous different challenges were being made in tennessee by by lawyers which indicate quite clearly in light of the tactile manual that this was deficient performance is specially in capital cases the state versus gregory thompson seven sixty eight southwest second to thirty nine nelson which was cited it was a judge daughtry case actually where she actually granted the motion so some lost someone but people were making the challenge the only reason why mr stack did make the challenge is he wasn't aware of the challenge so that is that is deficient performance in terms assistance where do we find the prejudice from failing to raise these well that is she was addressed in two thousand and four by the court of criminal appeals but the prejudice is that had it been raised he would  jury veneer would have been quashed he would have gotten a proper jury venire would have been able to raise the court would have had to make a determination and then it would have gone up to the court of appeals i mean don't we have to assume that the relief would have been granted i'm not quite sure what your question is just because it's an ineffective assistance claim so part of it would be to show that of counsel had raised the claim relief would have been granted right either relief would have been granted at the trial court level or relief would have been granted at the appellate court level so had had counsel raised it you would have gotten to the jury veneer would have been quashed you would have brought a whole bunch of other people with a proper jury for near he would have been tried before a jury that that had a fair cross section of the community would have been granted but what do you read what are you basing the the conclusion that relief would have been granted that's what i'm missing i'm sorry based upon the fact that  he had established the violation of his rights under the fair cross section under durant had to have the law been properly applied and the law been properly applied where you have eleven years of women being under represented question is would well i can't i can't say exactly what the court would to do but the law would have required the court to have done that the law is that the court could have made the mistake and denied it eroni asli and violated this in terms of prejudice and i think judge white you kind of got to this in your questioning there are two aspects of prejudice the first aspect is is there a reasonable probability that mr hyde would have been acquitted at the guilt phase of the trial the second question is is there a reasonable probability that mr hinds would receive a life sentence at the sensing phase the trial where only one individual had one individual voted for life he would have gotten life and where under tennessee law residual doubt is a mitigating factor and so obviously he has a stronger argument as to the sentencing phase claim but all of those claims are raised in the slightest bit relevant to the sentencing phase that's tennessee law as you said it in our brief but i mean like his actual testimony i mean connect the dots there for all not i don't know that we're talking specifically talking about jones's testimony we're talking about jones as someone who was involved in the offense that's what i'm referring to and i'm referring to he said his false testimony inferring to the fact that there's evidence  of federal law is they said well you can't win and you can't show prejudice because you haven't shown a motive but motive is not required to the question is whether or not under tennessee law at the time a reasonable doubt could have been established as to ken jones knows something more whether he has a motive or not but i think it's judge white you recognized there is there is motive he knows this woman has there's a twenty dollar bill on her wrist was there some sort of a dispute that happened we don't know that but that certainly potential and we also know from mexico trails testimony which we've cited in our brief and this is document one seventy six dash three page forty six he said there had been a woman stabbed over at the motel how did he know that we do we know or does the record reflect the condition of the sheets when the first responders finally came to the crime scene i believe it does bloody in terms of if there is a clear indication to post conviction hearing that the body was wrapped in terms of it being by blood after i don't i don't recall that specific i mean i guess one would expect that these sheets probably have a fair amount of blood on them if she had been stabbed four times in which case it's probably you know not too far fetched to think that somebody who comes upon it is going to think the person was stabbed i would people i would probably think oil had been shot so i don't know that that says anything one way or the other stabbed well i think but that's really ultimately the question for the jury and that's what our our claim is that the jury should have heard this information the jury didn't hear the information so we you and i can dispute whether it's a stabbing or it's a shooting or whatnot but that's for the jury to determine and if the jury ultimately believes that they're not sure that anthony hines committed a first degree murder and deserves to be sentenced to death that's their determination to make and they never had the opportunity to do that and that's the problem alternately with jobs ok