this argument not make the trial fundamentally unfair and it's for that reason that the state court decision in this case was reasonable and the district court's failure to to apply pressure be reversed the state court reviewed all of these claims of prosecutorial air with the entire record before it all of the evidence all of the instructions the entire record of the proceedings before it and found after reviewing that entire record that there was no fundamental unfairness in particular the court had before it the complete record of the jury instructions wherein the jury was instructed the standing the arguments of the prosecutor jury you must base your decision on the facts you must decide this case based on the facts and the law you must follow my instructions if something the attorneys say conflicts with what i say you must follow my instructions and they were told that the jury was entitled to that and that rather the defendant was entitled to the individual opinion of each notwithstanding anything that the prosecutor said was told that the attorney statements were not evidence so in light of all of those instructions combined with the absolute dearth of any evidence of a colorable defense in this case there only issue and it's a charitable description for the jury to decide was whether there was self defense either perfect or imperfect self defense in this case and as i said there was no evidence of that the only thing arguably supporting it was weight than the comments of the prosecutor counterbalanced whatever the prosecutor said and let's let's not forget the prosecutor in this really nothing case where there is no defense the prosecutor went on for any six pages of transcript talking in his closing argument and what's at issue here are maybe excerpts from three or four different pages so it's literally snippets of the process of the prosecution's closing argument which as i indicated are not only counter argument which is jury this is a silly argument there's no facts to support that's not attacking defense counsel defense counsel has to be asked to play the cards he felt and there's nothing wrong with criticizing the manner in which those cards have been played the  disagree with the state court and therefore i'm going to grant relief that is the exact long standard that has been prohibited by the u s supreme court it's not enough for the district court to simply disagree it's not enough for this court to say if you were sitting on a performing de novo review and so it doesn't matter that one might look at this case you know and say oh yeah this is this might this might be enough this might be unconstitutional can the state court reasonably conclude based on all of the instructions based on the lack of any defen nits that in this particular case there was no constitutional there and the state court could because the trial court instructions counterbalanced the various sort of there are various areas areas of the before there were two separate incidents one in which they tried to force entry into his home and once in which they challenged him to a fight now there was even a fight in this case albeit in the aftermath of the shooting what the prosecutor said in this case is that he not only said that doesn't fly that's laughable defense he equated defense counsel's thought process with the thought process of violent criminal and then as the district court judge that singleton pointed out into your world and with these repeated attacks on the integrity of defense counsel where the prosecutors referenced the facts outside the record going back to juries in the saying i'm surprised when defense counsel was presenting this argument to you they were all in rebuttal he said i'm surprised when defense counsel is presenting his self defense slash imperfect self defense arguments you smile did not crack on his face in his own mind that's not my real defense here i'm not going to be able to pull that one over on you all my real defense is imperfect self defense and i'm paraphrasing but that's the gist of what he said he has prosecutors up there in what's wrong with saying that the way that he put it in terms of the defense attorney is that he's arguing that the defense attorney caused it up and presented a defense that just he's impugning the integrity of the is isolated three instances of what they characterized as misconduct judge singleton in his opinion below identified quite a few more instances of it's at page six of the reply brief footnote to that there's no support in the record for the proposition that i have urged which is that the history court found that the prosecutor denigrated the defense of the sham that the prosecutor implied that defense counsel believe his own client was guilty and that the prosecutor diminished the state's burden of proof and i've cited in my brief factual support for each one of those propositions the poll to conclude that it didn't render the trial fundamentally unfair i agree that the health for new court of appeal problem is did not even ask that question they didn't ask the question did this misconduct render the trial fundamentally unfair they simply applied the watson type of test ok we have misconduct is there a reasonable likelihood that that have affected the outcome of the case they did not ask the due process question and it did in this case it's i mean i agree and as judge singleton pointed out look these to the defense that was posited in this case was a long shot but i think to any rational observer th defense in the o j case was a long shot whether the jury do in that case i mean i think it would have been it's to say that this prosecutor when he is making remarks implying that defense counsel thinks his own client is guilty how does that not render a trial fundamentally unfair that the defense that the advocate for the defendant is up here talking to the jury floating  defense and making up things out of the record of you with in support of a historical argument if you jurors do not find this man guilty then you're going to be gullible like these  unfair and the willfulness or intent of the prosecutor is irrelevant to the inquiry you must look at the entire record of the proceedings where the prosecutor did it inadvertently or not it's not going to save him if the trial was rendered unfair and it's not going to make a trial unfair if it wasn't from looking at the rest of the circumstances with regard to the notion that the court of appeal failed to apply the constitutional standard that's incorrect the court cited repeatedly to people versus frye was just one of the leading california supreme court doubt that this court of appeal apply the correct constitutional standard and the the notion of the defense being a long shot is i disagree with my colleague there's absolutely no basis whatsoever to conclude that there's any of basis for self defen shooting so there's no notion of any provocation of any current regard to the notion that the prosecutor attacked defense counsel i just don't think that's supported by the record the one thing that arguably comes closest is the following where the prosecutor near the end of his closing argument is talking about how criminals think and he says they think differently than you or i think jury you or i or i might even say differently than mr grossman thinks so he's equating mr gro an with you or i you and me jury not not the criminal so if anything i think that's the opposite of an attack on counsel and finally with regards to the that were decided by the magistrate dredging the findings and recommendations footnote three of the findings and recommendations and look it's on page six of the effen artist makes quite clear that the magistrate judge to look at did this was the state court adjudication reasonable and if it was there simply can be no hay because really and it is reasonable for the state court to find no constitutional error because again the jury was misconduct you deliberately gives them wrong but the supreme court has informed us that the intent aspect of the mental state of the prosecutor's irrelevant to this inquiry what's relevant is were the proceedings rendered fundamentally unfair and in this case given all of the instructions the relatively minor in terms of the volume of the prosecutor's argument and nature of the misconduct and the absolute dearth of any defense we cannot say that this was a fundamentally unfair are facing the death penalty the opponents and a number of other co defendants agreed to enter into a joint defense agreement that's right defense agreement occurred both in new mexico and in arizona after the case was transferred from certain communications and certain documents