argument and i would like to reserve five minutes for the proposed time your honour's this case presents a classic example of the importance of the right to confrontation at the first trial  this matter after hearing the three critical state witnesses gets a lot of testimony the jury was unable to reach a verdict at the second trial when those three witnesses were not presented and as live wit s by the state but instead their testimony was read by law enforcement officers the jury convicted both petitioners because the state stale just satisfy either requirement of confrontation clause necessary to admit that prior testimony we asked that the court granted the petition in order for the state to admit this prior testimony  that the state demonstrate that the witnesses are unavailable it also requires the state to demonstrate that there was adequate opportunity for cross examination at the time of the prior testimony and the state that they were soon thereafter told by a relative that the witnesses no longer resided there the state did send a detective to speak with a relative the relative indicated that he knew precisely where the witnesses were but chose not to give that information to law enforcement instead of subpoenaing that witness into court to provide that necessary information the state did nothing further quote the witnesses could not be located and yet at another point in the opinion the court recognized that there was a witness the relative who knew where these witnesses were sent somewhere in my review enforcement said that they had moved to mexico but did not want to tell law enforcement precisely where in mexico and that the relative also understood they had plans to move to harlingen texas so i had very specific information as to where they were he told the law enforcement officer that he did not want to provide the specific information court in addition there was no showing by the state no conclusive showing that those witnesses even were in fact in mexico as the relative indicated they had plans to move to harlingen texas and which case certainly the court could have compelled their presence in court but it was incumbent upon the state who was the proponent of this evidence to bring that witness into court to get a specific information as possible in order to demonstrate either where the witnesses were or procured but it's necessary to make those efforts and i request and a rebuff is not the equivalent of making no request at all and in this case where the state had available to it a relative who knew  precisely where these witnesses were and made no effort to compel that witness to provide that information the state cannot be said to have exhausted the reasonable efforts available to it in addition as i said i believe the state court enforcement he knew where the witnesses were but he didn't want to tell the witnesses were because they were afraid of the the object of some revenge well that relatives never testified before the court to verify that information that witnesses could have been subpoenaed and brought before the court at the evidence cherry hearing regarding the un availability of these witnesses and been compelled to either provide that information or be held in contempt and in addition your honor your honors the prosecution failed to show that at the time of the prior testimony that the defendants had an adequate opportunity for cross examination with respect to the burglary charges they had not those charges were only filed after the first trial at the time of the first trial there was no issue with respect to burglary and the burglary evidence that the state relied on victim was really not a victim that he'd gone willingly with them to the motel that he was a friend and now the evidence in the kidnapping the door was open and then i think very contradicted the sciri that he had gone on his own so therefore you were people have adequate opportunity to cross examine your honor i don't believe they did it was not those for insight that dwelling however there was no testimony specific testimony from ms serrano regarding the condition of the home prior to her leaving part of her testimony was that coke cans were open on the table  she also was unclear whether our roommate sylviana really was present in the home at the time she left there was also no conclusive evidence that the kicking of the door actually led to the opening of that door it's rather vague testimony that the door appeared to have been kicked none of that testimony was essential to the kidnapping charge and it's just simply we're not on notice portion of the opinion talking about whether or not the defendants had some motive at the time of the first trial is actually in the state's discussion of the evidence and cheery ruling prior to that in a few paragraphs prior and quote and that is what they relied on to find that there was no confrontation by elation they did absolutely no just scotian or analysis of whether there was adequate opportunity for cross examination at the time of the not there was a similar or same motive at the time of the first trial and that is where the court does state that there was some motive but some motive again is contrary to establish the cream court law that s attempted to present at the second trial however again the waiver issue has been the court's discussion only of the other densher it will not and it's analogous of the confrontation clause violation and and that case i don't believe that can be so easily dispensed of the defense became aware of information that the state had represented simply did not exist at the initial trial defense counsel was later able to find that information attempted to introduce that at the  trial even though the witnesses were not there for them to confront them with evidence proving that they had lied about their knowledge of the pickup truck so the state's discussion of the other century ruling council and the prior argument  reasonable application of service that was federal law that existed at the time district court decision and for that reason relief is not available there are three points that i want to focus on the first is the issue of one availability because that applies regardless of whether or how overseas roberts or crawford applies the second is whether proffered applies at all in the third is what does proffered require addressing the on availability issue the  question is basically one of good faith a reason wallace and the state court in this case after him after conducting at evidentiary hearing for witnesses testified found that the witnesses were unavailable because they were no longer in the country there was simply no evidence to show that the prosecution knew where the witnesses were there was no evidence to show that they had fact moved to texas at the time of the second trial all the evidence showed that they had moved to mexico that they were hiding and that the prosecution and the investigating police officers had no idea of where they were actually located in that i think you're going to pick that one step further though saying with unreasonable for the state not to inquire of the person they have there in front of them to bring them into court and force them to testify there's no showing that the defense attempted to subpoena this person this relative they could if the defense isn't trying to g your honor what i'm saying is there is no evidence that even if this witness would have testified in a pretrial hearing that the witness would have given information that would have allowed the state to go into a foreign country and force those people back into washing into the state of washington to testify there's simply no evidence presented either in state court or in federal court there are major claim is that if this witness what have testified either a the witness the relative want to testify that they had actually moved to texas there's no evidence to support that or that they would be somewhere in mexico where the state could then use some extraordinary methods to get them back into this country there's no evidence to show that the relative would have testified that way there's no evidence to show that the relative knew that the state could have learned exactly where they were living the relative information the relatives information was that they were living in a part of mexico where there are no phones very rural part of mexico there's no showing the state court to force them back to washington the state court decision was a finding of fact i submit that the witnesses were unavailable and that as a reasonable they challenge it as a fighting the fact it was a reasonable objectively reasonable finding they have not rebutted that and it was reasonable application of both roberts and the crawford test he moving on to wh crawford applies or robert sort of applies i'm aware of this court's decision in the boxing case i am aware that there is a petition for certiorari that has been pending since january unless the court issued a decision today i believe  crawford's retroactive i understand your honor i just do not waive that issue at all even under crawford however the petitioner asks this court to do more than what crawford requires t opportunity to cross examine now and it makes sense that you have an opportunity to cross examine without knowing all the charges against you yes your honor and why why is that that's the one part of this when it wasn't asserted in the first row i view it as an opportunity to cross examination on the testimony and the testimony clearly was presented this is not new testimony that was developed after the first cross examination the witness testified regarding the cut lines regarding the damage to the house regarding the open so that they had an opportunity to cross examine or regarding that because it went directly or at least indirectly that would be sufficient to whether or not this was actually a kidnapping the defense theory was that we really didn't kidnap them he went with us and we had fine in a hotel for a couple days and then the money that was paid to us examine on on those issues because they weren't answering wasn't an issue it defense counsel could've made that strategic decision they could've made that strategic decision in the second trial if the witnesses had testified li but the fact is they had the opportunity to make that decision they had the opportunity to question the way this is written are they have much of a motive and that brings me back to my point your honor that motive is not found in the supreme court's jurisprudence  that the supreme court requires is opportunity for cross examination and because of that this was a reasonable application of that when this when the court state court reached its decision reached there is nothing in the supreme court twenty two fifty forty the state court decision would be a reasonable application of clearly established federal law that existed at the time because the state court would have said you had an opportunity to cross examine this witness and i think one of the key points is this is not a situation effect such as that addressed in crawford where you have evidence presented through the police testimony evidence presented through the p through prior testimony with absolutely no opportunity for cross examine it's not like they got an affidavit from these witnesses after the first trial that added additional testimony everything that was presented at the second trial was presented that the first trial through as far as these witnesses testimony was concerned and the defense had an opportunity to cross examine each and every word that came out of that witness's mouths to simpson i couldn't really tell this from the breeze that may have missed something but is there anything that tells us how what would be the impact or your honor i have not looked at the sentencing the issue would be or the information would be contained in the judgment of sentence which is in the excerpt excerpts of record the judgment sentence sets out what the standard ranges are what was available at the time for each count of the convictions and whether the prediction trend concurrent or consecutive so that review of the judgment of sensors answer that but it would be the state is whether there's an entitlement to relief i mean assuming there's on availability on the opportunity to cross examination hard i mean just thinking about the for theory and that information should be contained in the judgment sense as to  in prison he twelve or his record will contain one further conviction that would be that would be the issue which is usually enough of a clatter of consequence to warrant a hideous petition that would be that would be and the court could grant testimony the fact is the state court adjudication was subjectively reasonable so even if it was clearly erroneous that's not sufficient we would ask that the court affirm the district court's judgment in this case thank you thank one factor the defendant's convictions including the burglary conviction so even the range of one hundred fifty one months for the kidnapping charge was affected by the fact that there was a burglary conviction and that's my understanding of how th witnesses were no longer in the country and it was conclusive that the prosecution had no evidence where the witnesses were again there was a witness who knew where the witnesses were and that witness never came to court and conclusively stated that they were outside of the country the state argues that there is no clear showing here that even if that witness had been called that it would have resulted in those witnesses coming to court barbour versus page makes it very clear is that the possibility of a refusal is not the equivalence of asking and receiving a refund the state police have an obligation to seek further information from now with respect to the state's argument as to similar motives or some motive the state court opinion clearly it's contrary to supreme court law because all the state court looked at and looking at the  prior opportunity for cross examination was all for all the former witnesses testified in a prior trial and became unavailable they didn't talk at all about an adequate opportunity for cross examination whether that be