clearly established federal law or it that it was based on an unreasonable determination of the facts nd deposition or show that the constitutional error at his trial was not harmless here mr allen has met both of these requirements the trial court's denial of his motion to sever his trial from that of his two co defendants and subsequent admission of those co defendants incriminating statements at trial violated mr allen th amendment rights and the reference at all to another individual so what do you think i mean for purposes of a if there are if there is no there's no case directly on point right it's kind of in between richardson and greg does that does that for a cause us from finding a violation because of requires a quarter of an established supreme court precedent no your honor and i have two points to respond to that st the rule in gray is broader than simply a statement is inadmissible where it replaces the defendant's name with the word blank or the word delete it so the rule is that whenever the statement is directly his other defendant as the driver and the man who went into the store with jimmy and the rd circuit held using the as the standard that this was a violation of gray because the words of the driver and the man who went into the store with jimmy could have only referred to the defendant the jury would have nown exactly who the declarant was referring to when he made the statement and the court in the rd circuit found that those replacements for the name standard that this court needs to keep in mind when evaluating whether an error was harmless it's not about plucking the bad evidence out and looking at what remains to see if that was sufficient this is from versus mac an inch which we cited in the twenty eight  the question that your honor should ask is do i have the judge think that the error substantially influenced the jury's verdict and here that answer should be yes because when you look at the delaware versus van arsdale factors that the supreme court has laid out for determining when a confrontation plaza violation is harmless or not those factors weigh in mr allen favor particularly with respect to the st statement about the green suburban as a general matter juries give great weight to confessions so they were much more inclined to pay attention to the statements because they were there were the confessions of smith and jernigan that were made to law enforcement the the green suburban statement  was the only evidence that the jury heard about how mr smith attained the murder weapon so there was it was not commutative there was no corroborating evidence that was it the prosecution relied on that evidence to prove that the premeditation of the crime took place in hamilton county which was where the trial took place the actual homicide took place in another county so daniel was an issue and the prosecution relied on the green suburban statement to prove both venue and premeditation the final van ourself factor is is the overall strength of the prosecution's case and here the evidence against mr allen was extremely weak there was absolutely no physical evidence that the government recovered the guy and after mr garnet entered the map pointing to its location there was no fingerprints there was no d n a no physical evidence linking him to the guy no documentary evidence or paper trail connecting him witness who testified incriminating the defendant whereas here there was a used for the other witnesses who testify about the defendant's involvement in trying to set up the car and turn to  e you know the car and the crime after the fact so doesn't that of these distinguish the washington case because we have not just one theoretical witness as in washington we have at least four  the transcripts there were four but we have yes four witnesses who did implicate mr allen although well i can anticipate that their response to the argument i'm about to make is going to be the jury heard this evidence of bias will point out that each of these witnesses had either extend it made too extensive drug use at the time of the events in question smoking crack multiple times per day they each receive extremely favorable plea deals in exchange for their testimony including daniel apps whose testimony was probably the most damaging was originally charged with st degree murder in exchange for her testimony eight years probation yes the jury heard this evidence but mr allen's joint trial the admission of the codefendant statements and the fact that he was tried alongside the confessed shooter not only did mr smith make statements incriminating mr allen but mr smith did not dispute the fact that he fired the weapon that killed the victim intent so all of this together prejudice the jury is such that they were not able to give the witnesses fair consideration because when you look at this impartially and examine these four witnesses each of whom i would s were very much motivated to provide favorable testimony for the government there is simply not enough there to establish st degree murder which was what mr allen was convicted of that requires a very high burden of proof and while o'neill doesn't strike that it's not just about looking at the evidence that remains that's the strength of the prosecution's case is but one of the five van arsdale factors their case why is in fact very weak for the the the other thing that occurs to me is that a lot of what you're saying would have more impact if we were dealing with a direct appeal but this is  the question isn't so much at this juncture whether there was inadmissible evidence but whether the state's handling of that issue was unreasonable you know and that language is very strong it could be erroneous or incorrect but it also must be reasonable isn't that kind of hard to say here that last court in the state that dealt with this their resolution was on reasonable it's not hard to say that it was unreasonable and in fact when you look at the tennessee court of criminal appeals decision in some ways it's very thorough it goes through all of the evidence that was presented against each defendant but with regard to the particular confrontation cla claim the court devotes a couple of paragraphs to the claim does not identify any of the statements specifically does not address any of the redactions specifically does not even give any particular indication aside from saying that it has carefully reviewed the statements as to whether such careful review actually took place or whether it merely read them didn't see mr allen's name and assumes that they were that they were acceptable and in fact part of the reason this court granted a certificate of appeal ability was because the district  or wonder whether is there any right procedural default issues with raising that for the st time since don't you don't doesn't the defendant generally have a duty to object and say i want this instruction and i couldn't see anything in the record in the state s challenging the lack of instruction in the st term i really saw that was here now there was to my knowledge there was not a specific objection made to the jury instruction however i don't think that that's a procedural default issue because the have incriminating statements from co defendants they have to be accompanied by a proper limited contract st of all the statements can't be admitted if they directly incriminate regardless of whether there's a living instruction and even if they are admissible either they still have to have a limiting instruction and so that's where it falls within the general confrontation clause purview and i see my time is up but i will finally note that procedural to follow is not interesting bar at any rate this court's consideration of the  have please the court marathon for the respondent if i could start to cry in response to your question to counsel it is impossible to say in this case that with the jury having heard the evidence it was admitted that the state court record evidence that there was an instruction a vague and generalize instruction given to both the beginning in the end instructions and a fact that we say your should only consider evidence that has been limited against that particular defendant but isn't it a crawford calling because there is absolutely no case law that requires that there be a specific instruction given and had in that specific instruction given opposing counsel would be arguing on a specific instruction was given your honor and therefore it drew attention to that instruct them doesn't think the entire burden line of cases as the reason this isn't a confrontation cause concern at least in some respects is because the evidence isn't being used against the particular defendant within the meaning of the th amendment commenting instruction it clearly is being used against the defendant and in fact the prosecutor at the end causing argument affirmatively used it against the defendant by saying we know who was driving the green suburban it was i w to address that next the requirement for limiting instruction is that a living instruction as was given in this case is given there is no requirement under britain that a more specify an instruction be given so the generalized instruction given to both the beginning in the end of this trial that all evidence that pertains to one defendant only be utilized against that one defendant suffices that was sufficient the trial court made no error in terms of the living instructions that the instruction or you would agree with that instruction not requiring to be there again if it were there then we would have opposing counsel arguing that that level of specificity in some way in your attention to those statements and made them wait a year than the rest of the evidence which isn't the case that generalized instruction completely sorry if i could hold that issue for one second i just want to point out as an initial matter and it wasn't mentioned in the opening argument but i just want to make sure that it is a response clear position that three elements have been argued about  could have been smith's statement could have been darn akins and then this transcript of this recording and the claims dealing with the transcript are not properly before this court there is no br claim as to this transcript in any of the previous state decision and therefore it was not exhausted its procedurally defaulted and barred from review under two thousand two hundred and fifty four being one's exhaustion requirement if there aren't any questions about that issue i will go on in terms of the two co defendants statements i do agree it falls somewhere in between gray and richardson there is no obvious deletion there is no omission they were read al to the jury and the jury would not have had any idea that they had been in any way altered prior to trial but i do feel that they that this case although it follows cases that came out of this court it leans to the side of richardson neutrality of the replacements in smith's statement in terms of the driver is supported by the fact that and again i will get to prosecutors closing argument in one second not only was the evidence in this case overwhelming there were multiple witnesses who testified that petitioner was asking everyone and anyone to please kill the victim so that he was unable to testify against him there were people who were present on the day of the murder there were people who witnessed the body there were people who delivered the drugs in the money to co defendants in payment for having murdered them the over the evidence was overwhelming there was in fact no necessity that these two statements be utilize again statement any mention of petitioner has been completely erased it wasn't replaced with a new from now on or with the driver it was just a it was described that the victim was a snitch well he was about to testify in forty cases so i think it goes without saying that he was in fact as testimony showed a peed in for he was a snitch that doesn't even implicate the petitioner much less incriminate him in terms of the statement that there was a green suburban and a driver and then the unfortunate comment made by the state in closing argument that we know petitioner drove the green suburban the evidence submitted prior to at closing arguments in fact contradicts the prosecutor's semen and so we are left with a credibility credibility issue there was testimony at trial from phyllis west who was an acquaintance of petitioner that she saw petitioner driving quote his blue cadillac she then testified that days later after receiving a large sum of money from a drug sale he went on to buy what she witnessed was a quote white mercedes so we have one witness putting petitioner and two other vehicles and then we have the testimony of michael billington who himself was driving a suburban who himself testified that he had gotten into a physical altercation with the victim was a snitch against him that they had had an ongoing dispute and so we have the petitioner driving to other vehicles we have michael billington who could himself or been potential perpetrator saying that not only did he have motive but that he drives a suburban we do have the prosecutor statement in closing argument but that would lend itself to a harmlessness determination and response position is that we don't even get there because there is no no britain violation joining in statement has no mention of petitioner smith's statement has a single mention of the driver of the green suburban and that evidence only incriminates the petitioner is this mi statement the only time that the green suburban comes into evidence no michael billington testified regarding the i'm sorry john again said to police and there was testimony at trial about bulling who testified at trial having been a driver of a suburban of a suburban but now it seems correct that's the only mention of the green suburban is in that state in terms of specific color yes but though you get to the closing with  prosecutors as the greens yes and so if we were to if this court were to find that despite the case a lot of this on this circuit that just because it's incriminating based on koofi and al din out of the circuit whether or not certainly the driver is not incriminating and so then the question becomes is it incriminating because you are implicated based on all of the other evidence that submitted was there overwhelming evidence without the statement without white is certainly a redaction but is more specific than the person you know which of those cases were he i have them here am unsure enough to say that i can't tell you at this moment thank you they're all there all six circuit violation claims or the district court made a reasonable this determination once again or makes a difference whether a setting or a director it absolutely does because there's even more deference if we're here today in this may be a setting under and that this isn't a question of whether reasonable minds can come to different decisions this is whether or not the state courts decision was reasonable and whether the district court's decision finding that that decision was reasonable was a clear error or deference under harmless  their we are always under the umbrella of bad and therefore we're always under the deferential standard of add in that there wasn't even a harmless determination made in the district court or in the state court that's because they found that there was no violation those we found find there maybe was a violation and we have to look at our laws and so then why did why would deference play into that because there was never any determination of whether or not it was harmless or i'm not disagreeing that the review at this level is her into harmlessness analysis that would be for the st time i'm simply saying that then harmlessness determination is still influenced by the review here is not whether or not this court would have come to a different decision the review is always whether or not the district court made a reason to terminations as to the state court's decision that can in any way be overturned if this court were to choose to move into a harmless sex determination  now we needed neither of these codefendant statements to convict petitioner but that begs the question of why the prosecutor mention it does and we're left with it was simply the closing argument it was not the presentation of evidence and there were multiple witnesses and again any just terminations as to credibility we're not in a position to make that determination that was in state court they were in the best position to do that and we're certainly not this court is not counsel and i are not in a position to say well we would have decided differently because of all of these negative things about the window since they were presented the jury heard from them and they made a credibility germination about the green suburban the suburban blue cadillac the white mercedes the closing argument and then they rendered their conviction if there aren't any further questions petition six amount of rights in this case were not violated by the trial court's decision not to sever his trial in violation has occurred and this  to correct a couple of things that came up during the government's argument st there is in fact a requirement that there be a proper limiting instruction and that's from the richardson versus marsh case that he says the confrontation clause is not violated by the admission of a non testifying co defendants convict confession without proper limiting instruction where as here the confession contains no reference to the codefendant obviously the green suburban statement and the other statements discussed in our brief did contain a clear reference to mr allen and they were not accompanied by a proper living instruction i also wanted to respond to your honor's question about the green suburban testimony so there was  prosecutor's closing argument but the prosecutor linked the green suburban with mr allen based on the testimony of danielle epps who was asked what cars as mr allen he owned she testified that he owned three cars one of which was a green suburban the prosecutor then used that evidence in his closing argument when he was relying specifically on the statement about the gun from the male driver of the green suburban to tell the jury that the premeditation of the crime occurred in hamilton county county a trial finally i would say that with respect to the harmless error analysis this court is very much in a position and should put itself in the position to consider whether it would have decided differently because the question is whether you as the judges believe that the error had a substantial and injurious effect on the jury verdict that's the proper inquiry here it's it is about putting yourself in the position of a juror and asking do i think or do i have grave doubts as to whether this error substantially influence a jury verdict because even if you have perhaps you're not certain but if you have grave doubts the petition must be issued that is the rule of the  the jury would have known that the male driver of the green suburban who allegedly gave mr smith a murder weapon along with detailed instructions to use it if you read the remainder of the statement the male driver tells mr smith exactly what to do with the gun and how to dispose of the gun that statement could have only refer to one person the government's theory was that mr allen was responsible for planning the crime there were no other defendants who were alleged to have plan crime and in fact it would have been damaging to the prosecution's case had the jury thought that the male driver was not mr allen because otherwise why was mr allen the one on trial for planning the crime which makes the prosecution's green suburban we know that mr allen drove a green suburban comment all the more damaging because the prosecution wanted to ensure that the jury knew exactly who that driver was and if your honour's don't have any further questions i believe i