witness and try to contain four hundred thirty coarsens that were completely untrained slate a book and the remaining portions in the words of the washington state court of appeals were often unnaturally awkward and even though it nearly had a history of problems mr trail apparently had to go quite serious mental illness problems that prevented him from even attempting to transcribe his own notes later that mr trade he did not claim that they correlated with any theory of shorting and he had ever seen before but he claimed that somehow over a long period of time he was able to build up a database that would car relate these keystrokes with english words and phrases i cannot i have read through this his testimony i cannot figure out how he claimed to have done that because if you don't have a known to work from if you have no known  sample of testimony to work around how do you ever know what how to correlate the keystrokes to specific words and that brings us to the first of mr rather ferd's claims which is that the proceedings to settle the record were inadequate i think the heart of that claim is that they can't be adequate unless the defense is given its own standard graphic expert who can look over with mr fly gear is doing no layperson has any way of verifying whether this database that mr fleischer has prepared is makes any sense we would need a stenographer to actually look at it and say well wait a minute how did you what is this how did you determine that compared to what happened but the testimony was a trial and in particular i'm focused on on the trial attorney who was present at trial because only knew what the witnesses said would have had a basis from his notes or whatever else you use the term and whether or not the certainly he he probably wasn't taking notes while he was questioning witnesses but that's that's true your honor but i would encourage the court to look at those in the excerpt of record and carry them to the transcript i mean we're talking about thirteen pages of notes mostly with one word per line on them that are supposed to represent an entire gay's transcript and if you look at them there are both significant omissions r anywhere in the supposed to transcription but that's the one thing the judge quoted it's quite relevant to whether a deadly weapon was used in this case well you know what kind of alarming when you think you have nearly four hundred thirty five places or however many and i was concerned about that so i went back and looked at all of those and particularly in this region name that she was  where i came out of maybe can help me on this is that i love and i see i can and at least were places where i was quite clear where the transcript basically said you know that she was there on the head with was a key question here so where is the prejudice of them being able to have a peer review one of he'll as it relates to the charges where your honor as the state had to prove is an element that mr rather for first of all th one sentence in this transcript in which ms midget is quoted as saying he tackled me and then he hit me over the head then he hit me in the head well if there was i understand what you're saying right and again we have a problem one problem with time passing another problem with that lawyer coming into court and saying wait a minute i haven't been appointed for purposes of this  well and that that may be a problem more with that lawyer than anything else but i'd i'd know that a lot of it is simply not even there and that's i think with what both he lawyer were focusing on there's so much that just isn't there at all that we can't tell at all what she's saying particularly concerning the circumstances of any threats or any use of a deadly weapon to work over with mr flagg or didn't tell us does this make sense or is he is he guessing or is he perhaps just assuming that things that were said pretrial for example were later said it the i probably should save a bit of my time for argument during the argument is that they had a right to have an expert and the court should appoint an expert to review this issue and to give an opinion regarding the accuracy of the transcribed notes however the state  supreme court case law they rely on the actually case actually versus oklahoma but the supreme court has expressly reserved that right to the point of psychiatric experts for purposes of the criminal trial the court has not extended it as far as non psychiatric experts and even though the law written that the circuit courts have extended it to other types of experts the supreme court has not more of the court has not extended it to post trial proceedings such as reconstruction of transcript hearings very often because fortunately this is an unusual circumstance are you telling us that the only that the supreme court would have to speak directly to the problem of reconstruction of a transcript for there to be clearly established federal laws created as has been the supreme court decisions when i have to be that specific in terms of the supreme court's decision my opinion is yes your honor but even going that far the supreme court in actually in and subsequent cases in caldwell versus mississippi have stated that the rule and actually has been reserved to psychiatric issues they have not extended if court has not addressed the issue an important holding of the court it is not clearly established under the law the supreme court has not said in a an appellate type proceeding or a post conviction proceeding you have the right under or under due process to the appointment of an expert in state court they have not reached that issue at all so it's not merely of an issue that they haven't reached this particular type of fact pattern they have not reached the issue in the protestants either who has argued that one of the issues they could have raised but were unable to do so do the record was the use of a deadly weapon in fact they did raise that issue on direct appeal and the state court rejected that the state court at excerpts of record seven fifty nine held that the flashlight qualified as a deadly weapon for purposes of washington long there was sufficient evidence and there is also testimony or not testimony but  the record from the trial judge's notes excerpts a record six o seven where the trial judge has notes regarding the testimony of the victim regarding the fact that she was tackled that she was hit on the head by a flashlight the length of the flashlight and the injury that was caused to her so this is not a case where there was no record of mailable for the court to review the petitioners claim there was a record it was the reconstructed transcript along with the trial judge's notes and that was sufficient to satisfy due process the state court's decision in this case was a reasonable application of supreme court case law they found that the disputed  testimony or transcript was only from one day out of four days of testimony it was crab rated by the trial judge's notes it matched the prior testimony by the pretrial testimony of the police officers and while there may have been disputes to individual words of me have been said there's been no real dispute as the substance of the testimony presented a trial and therefore the record was adequate the state court decision was reasonable and we would ask that this court affirmed the district court's judgment i think perhaps i should just make clear that regardless of the claim regarding the adequacy of the reconstruction hearing we still have an independent claim that the record we have here is not adequate for their appeal frankly place the burden on the defendant to show prejudice and that resulted in the circular kind of reasoning we got about how well you have we don't see why we can't address the issues i thank you