hurdle to jump the victim who survived identified your your client and as the shooter and there were other pieces of evidence that also point to his guilt such as the fact that he never returned to his job he fled without paying you know picking up his paycheck and so forth i don't understand how that one additional piece of cross examination would have made any difference there is not only identification of the petitioner by surviving eye witness and victim but it is evidence that was emphatic that of the witness testified that he was positive that it was the petitioner who committed the crime and i don't think that in terms of the limited role of reviewing court and gave us corpus it is enough to point out that the witness was cross examined or that there were potential possible inconsistency in the testimony the standard in this a d p a context is quite high and one would have to say that notwithstanding the dispute as to the testimony in this forest it is reasonably probable that this position would have been acquitted in the absence of this evidence and that simply cannot be said not only in light of the minimal nature of the claim itself but also the overwhelming evidence of guilt and as you do you have the same argument if this were an  eyewitness it would not be the same argument potentially because the evidence would be different but it's an argument that's only bolstered by the fact that there is that i would see in addition to the testimony of flora suppose hypothetically you have a crime and you have t witnesses who said they witnessed the crime one is perfectly coherent good service and etc etc the other one has the same or similar drug history that this witness did well the ok to restrict cross examination of the second witness it would depend your honor on the reason the cross examination was restricted and that brings me to the merits of this claim the restriction i think it's interesting both today at oral argument in the briefs that the the argument is made and i think it's really exclusive argument to show that it was the importance of this witness the asserted of portions of the witness that rendered the proposed cross examination acceptable admis and i would submit that that is not the entire calculation that goes on in determining whether evidence is admissible to have to return to the context in which just arose the witness has testified as to her duran's why wouldn't that ordinarily be admissible it would we think it might be admissible your honor depending upon the showing that was made that would allow it just as i don't think this court would entertain a routine claim that any witness can be questioned about potential not only potential prior drug use but that claim in this case is far more than that necessarily it is that this witness at the time of these events i was ostensibly operating under the delusional effects of p c p and the only support for that and it's clear that this is an issue that's been sandbagged in the record the only support for that is a statement by the defense attorney that he has access to a probation report relative to this witness written eight years after the crime in which the witnesses allegedly made a statement about drug use not drug use around the time of this crime but but prior drug use that in and of it's and i think if you read this revelation in context it's clear that the party that the opposing party in the quarter taken by surprise by th and it's pointed out that that disclosure is in fact a crime one cannot access a probation report in california absent limited exceptional circumstances and so it's entirely to certainly one can inquire into areas that reasonably relate to the ability to perceive interact collect but in this case to in order for this inference in order for this testimony to be relevant it one she was using p c p and she's using it on a regular basis in one thousand nine hundred one therefore i have a sufficient basis on what i know not only to question her about it but to argue jury that the witness was intoxicated or delusional or impaired and this attorney was not prepared to do any of those things he didn't have any of that information he didn't have any other source for his claim he didn't have any source for the client he certainly didn't indicate that he was pregnant any sort of expert testimony that would that would bolster that type of client which she would obviously need i don't think it would that any court would allow the attorney to regale the jury with stories about how this witness was or wasn't impaired based on a statement she may or may not have made about her drug use and finally two things notwithstanding the fact that there were these obstacles to presenting this evidence she's asked the question in open court in the presence of the jury and the jury learns that years later she was convicted of the sale of narcotics so there certainly was the suggestion raised to the jury that that the witness had problems in terms of her credibility stemming directly from her conviction if nothing else so for that reason and because as the court has pointed out she is not the only case there is a case cited by the petitioner on that has to do with the fundamental right of cross examination and that is the davis versus alaska case and that is a case involving clearly relevant obviously relevant cross examination that was precluded by a trial court for reasons totally unrelated to its relevance for policy reasons having to do with the fact that the witness about whom the defense wanted to ask questions of his probationary status was was shielded from any of that by i think a state statute that made that sort of thing confidential so that quite quite obviously impaired the defendant's ability to pursue admitted relevant cross examination this is a case in which the immediate relevance certainly based on the showing that was made is not clear and therefore it is certainly not davis versus alaska that would that would warrant relief and so finally treatment that the ruling has subsequently received at least at this point so in other words we we have judges evaluating that play not as many as we should have had because a petitioner elected not to present this claim to the state  that i think the trial court's evaluation standing alone is not unreasonable nor is the district courts and so i think that's helpful lisa tell people when the courts and i really for me to point to that when they don't appoint something else but anyway that's