firstly it's our position and i believe it's the position has been well supported by district courts and other circuit courts all over that that this prejudiced finding here irrespective of whether sta merits of that claim by the fourth amendment claim and and found to be without merit or without merit or frivolous the state courts found it to be without merit status review doesn't found that there were no just issue issues and therefore affirm the judgment let me back up i'm on do you think that the fourth amendment question as to the propriety of the search of the lunch box or the been it was if it was if it was ultimately without merit then i think that saving judicial resources now i'm that's my question the question i ask is when you brief inappropriately where there is an arguable national that's a different question ok assuming that the fourth amendment question concerning the search of the will is an arguable question what's the obligation of the california court of appeal there is any basis for finding for finding that relief is available and further and further if there is a non frivolous issued order a briefing right would you did not do what you did not do so that me to the conclusion that you know someone's going on in a court of appeal and that you know they were looking at this very closely because you don't have to look very closely to realize that it's an arguable issue that maybe they were not looking very closely because they had a one degree or perhaps further briefing on any issue if that if the standard were non frivolous then it would basically place the burden on the california court being as being meritorious but rather as being from a list that says the reason that this procedure can be sustained is you've got both counsel and court looking to make sure that the only issues out there are issues which are not arguable and then they go on to  use by contrast requires both counsel the court to find the appeal to be lacking an arguable issues which is to say frivolous because as we understand the california procedure and the supreme court appeared to understand the california procedure if the court of appeals discovers an issue that made it look real good but it's better than frivolous than the procedure is supposed to be a point counsel haven't argued but they didn't do that no they did not in this case so we haven't an issue which you can see it appears to be at least arguable that wasn't found as such by either appellate counsel or the california court of appeal doesn't that give some basis for concern not in this case right there is there is a line between every known thrill is the issue and expressly makes clear that it's not the obligation of appointed counsel to raise every non frivolous issue in fact a good represent is that normal people for a counsel not to raise any issues to say there is no non frivolous issue when in fact there is something if if counsel is persuaded that although the issue is perhaps maybe non frivolous it's nonetheless almost certainly or certainly going to be a loser  the the alternative obligation of conserving judicial resources would counsel against it wasting time in addressing an issue that's certainly going to lose and the california court issue but you're flying in the face of the problem that we're kind of focusing on which is to say i have trouble deciding simultaneously that the california court focused clearly hon frivolous issue understood the nonfederal issues non frivolous issue but nonetheless consciously decided not to follow the statutory obligation i don't think that's a very likely or very flattering description of the california court of a didn't understand that it was an arguable issue they deliberately violated the california law and i just i'm unwilling to believe that a california court would do that that's just my understanding was well   courts of appeals position is with respect to reviewing all arguable non frivolous issues in windy briefs it does appear here however that the court did did review this record thoroughly by mr brewster himself that the california courts did review the merits of those claims and that claim and found it to be without merit therefore even if counsel had great ad specifically raised this claim on direct appeal there it would not have succeeded and at the very least there is there is it's not reasonably likely it would have succeeded given the fact that the claim was repeatedly  addressed and rejected on state hideous review where the standard is is virtually identical in fact in some ways the standard for obtaining state media's relief is more lenient than on direct appeal  be has the burden of overcoming that presumption however now that can't be right straight forward unless there's some disagreement as to fact which it does not appear there was a straightforward question of law right well that's and if there is some factual is to address the prejudice question and to say well what would the california court of appeal have done had the issue been properly argued before it actually but i guess we have to look at what the underlying fourth amendment law is trying to figure out well  regard looking to the underlying fourth amendment law is necessary but the but the ultimate issue is not the fourth amendment claim in and of itself that this is in this in fact is a nice transition point to bring my both prongs the the the remedy would be to send it out for a new appeal then the undertaking that the district court to hear in addressing the the ultimate finding of a fourth amendment claim here is in the basis for to hear an appeal that's out of time i don't know if we get to do that they may be they may not if it and if anything they don't then commensurate remedy would be would be order they made that the point is that that that th that means translation this california court of appeals would likely have found that the motion to suppress should have been granted right if  that case why isn't the appropriate remedy simply the normal one that we enter which is to grant the writ conditionally upon the state's decision as to whether to pursue further proceedings was a practical matter it may not the but our point is what we are trying to guard against the infringement of what we believe is the province of the of the california courts to address well i understand that did you are and i speaking clearly and may not be i don't understand why the correct remedy if there is prejudice is not to say lot he's out unless within ninety days the state desires to pursue further proceedings in the state trial court i don't understand what those proceedings would be in this case well i certainly can figure out several that i would do if i were the state but never mind to me why in the world this brewster want to pursue an appeal he's out he doesn't want to take the chance of losing in the california court of appeal right right that's that's up to him and how can this court even regardless assuming he had a twenty five year sentence and he would have an incentive why in the world what how can this court act on him we can act on state but how can you go on him we can't order him to file a new appeal we can't order the california court of appeal to entertain a new appeal we're not sitting in direct review of the california court of appeal it's none of our business whether it violated california law or not we can instruct it to do diddly squat i can wait the remedy would be to put him in the  courts an opportunity to review the merits of that and leave off deciding that question on the substantive level and that's just plain wrong the state had an opportunity to do it was through the ineffective assistance of appellate counsel and an opportunity for well actually even without the well you know let's just forget wendy it doesn't really matter wendy is a real red herring let's suppose that tribal council just plain didn't do anything didn't file an appeal we would be in exactly the same position as if he had not and what the question that we would have on hay vs is whether counsel was sufficient answer yes the only question second question is do that cause prejudice and on that question the question is is there a reasonable likelihood that the california court of appeal would have reversed the denial of the motion to suppress right correct all right on is that question and in addressing that now why is it that there's any prejudice because what the california trial court found was that the officer without picking up the glue that he stood by silently and that agnew said sure go ahead all right so the trial court found that the officer could reasonably believe that agnew ha his belief was reasonable now what chance is there that the california court of appeal or any court of appeal on that scenario would say that's  very high probability because well illinois versus rodriguez says is that when you have a warrantless lack of probable cause depression the burden is on the state to prove that the officer acted in objective we reasonable manner in believing that he had actual thora to your parent authority over the close container i just told you what the california well were found and what you have made it in well you've you've you've you've highlighted it in the sense that the trial court found that it was equally likely the officers when he opens the driver's side passenger door look where loggers this is our stuff we've got our equipment it's not i've got my quitman in here it's we have our equipment our stuff in here office tinkered knew that he goes around deliberately because of his concerns about officer safety not to that side where the driver says you know the presumption in the states argument is the things closer to the driver's seat is the driver's we're not on an argument here we're talking about a trial court that held a hearing and made findings would not be subject to a clear like we would do under a few in federal court would be substantial air so it's not as clear that under direct review that those factual findings would be found supported by the court of appeals but even if we do it under error we except what the superior court found it is still immediately clear that the trial court ignored the obligation of putting the burden on the state to show that the officer acted objective be reasonable under those facts because when i'm going to have cokes and or beer or whatever and the other one going to have sandwiches i mean there's nothing like welsh where a man says sure go search the purs testimony whether the men were ordered to the back whether they were handcuffed ahead of time and it focused on that i think you have to review in the state court of appeals under actually if you would have looked at the entire testimony of the suppression hearing and i think under those circumstances a reasonable officer findings and that's the end of it as to what happened so we take the narrative that the two men drive up in the truck agnus the driver he gets out mr is the passenger he gets out they are both asked to step to the rear of the vehicle and was asked do we have for mission to look inside he says yes they open they open up the rear of the i think it's a seven year then with both men still standing at the rear if we decide that it was a violation of the fourth amendment and i say yes then we have to side with the california court of appeal has seen it that way there is to say the california court of appeal even if we decide that  a fourth amendment violation the california court of appeal could make a mistake and if we think it's more likely than not the california court of appeal would have made that mistake calling it for the moment a mistake i think we have to leave it alone i don't agree with that meritorious fourth amendment claim issue so i think in deciding that question that is purely a question of federal constitutional law so you as a federal courts i think independently sided of the facts of claim so we have that and then the so remaining question is was he prejudiced and i think the points that you have made regarding the when the process and the fact that the way the briefing did now go the way it should have shows that mr brewster confronted directly with this argument but i don't think that that the california supreme court of appeals decision is going to be if anything it's going to be now more deferential because it has some more play in what it's going to d otherwise the california supreme court in the court of appeals decisions about the suppression issue is going to be identical to the one that you make one no no no i don't think so that's to say the question here and i think there's a fair room for argument assuming the facts are as the california spear court judge found them which i think the california court of appeal would have done then the question is as a matter of law is this a violation of the fourth amendment i don't think i mean that's what other than a procedural thing which is the point out that in this case the attorney general's office in the morning has never argued that there wasn't a fourth amendment violation their focus has always been on the prejudiced front so actually i don't think in the answer in the objections and even in your opening brief they did of trying to answer that question if we go past the first prong of the second isn't the second prong the prejudice really the fourth amendment issue i think it is but i think my point is more of a procedural one in the context of this specific case twenty general  that isn't can see prejudice but the pleadings that were presented to superior court allege that he had a meritorious fourth amendment the answer did not challenge that answer doesn't say anything about the fourth amendment was not my lady and that's their objections were talking when he briefs stuff what the state conceded was that he should've filed a real brief greg doesn't answer whether it would have made any difference so the question now is assuming he had filed a real brief that fully argued everything you now argue with the california court recently was it reasonably likely that the california court of appeals would have bought the defense argument i think given the discussion that's in the findings or recommendations that  adopted by the district court that it is reasonably likely i think this is a very strong because of the burden of proof issue which falls away in haste review in state court this would you would you spell out to me again i just i frankly don't understand your burden of proof issue of this case even with the determination as set out by the trial court the trial court never put that burden on the state because it found that we've got these on the passenger side presumably although the record is not clear it says center floor but it's not the one on the consul and he just opens it he doesn't ask any questions this state i would like to point out there's a variety of factual characterizations and states reply brief that are just flat out wrong that you should not rely on for example the state says well the officer didn't say you know that it wasn't mark well there's no testimony about what it was mark the officer didn't say anything about it they assumed that this thing that was  the one closest to the driver's seat that's not what the record shows best on the floor maybe closer the passenger but it's both in the center so yours when you say they didn't put the burden of proof wrong if you're really s the outcome was wrong oh absolutely but it's because the officer had an obligation under the supreme court precedent to ask under this in the situation that an reasonable officer would say i got two guys who said lots of equipment to they just came off work he's got out of the car there's another factual point i want to make that is wrong in the police the appellant's brief which is the sort that steenburgen saw mr brewster get out of the van without the eagle and that's not will understand that and that's not what the record shows let me let me say this if i can it strikes me that anybody who has any sort of realistic understanding as to the likely situation of a couple loggers coming home from a day's work with two or girls anybody who thinks that the likely situation is that one of the two loggers has both of the lunch boxes and that the other one has no lunch box is was outside of the vehicle he knew that there had been consent to the search he said nothing and that there somehow a notion of implicit permission now that implicit permission might or might not have been given a mi might or might not be appropriate as a matter of law but then i'm coming back to my question of i'll call it raw prediction which the court of appeal going to do with that because i think that i don't think the supreme court judge relied on the notion that it was very likely that one of the two guys would have to lunchbox and the other one would have none which i find very very unlikely i think you have to hang around with guys coming back from work very much to know that right i think that isn't that to me is a red herring because under the actual fair reading the transcript shows that he was five to ten feet away he's already engaged with the officer he's already been told to get back there you know and he had you know was about hey there's nobody in the house  was not aware of and so it's not in the brief i already briefed the standards are different and i think their arguments are not going to anything to that but i want to add that if you take a look at the spirit quite rich and the rest of the warders and you actually look at the citations th honors i'm going to sum up very briefly because i'm running out of time myself the first thing i want to emphasize is that we have we have never conceded that there was a fourth amendment violation in this case and as as  prediction that doesn't entail a prediction our point is that we have additional ammunition to make that prediction here it's virtually certain that the answer is no he would not have prevailed because the substance of this claim was addressed in collateral hearings before the state courts and state hideous and it was rejected therefore there there is no reasonable likelihood that he that the result would have been different had