was represented by two ineffective attorneys those attorneys presented a defense that the state court of appeals said was not a defense and they also failed to object to an alternate juror going back into the deliberation room where the alternate juror actually participated in the jury deliberation process and expressed her opinion that mr north was guilty at the office  every jurisdiction that i'm aware of including the federal jurisdiction has rules against outside interference with a jury that is a fundamental principle of jury deliberations and is designed to protect the sanctity of the deliberative process and the violation of that principle calls into question the the integrity of the jury's deliberations and that's really at the heart of what we're talking about here the today is the prejudice to mr north from the failure of his attorneys to protect the jury deliberation process from the actions of this alternate j  form and that was done in this case and then it allows for an optional memo to be filed in support of that application and so that's what resulted in the petition or the application being dismissed  a perceived problem with the optional memo there's not even required to be filed along i guess that is do you agree that the texas state court treated it as improperly filed well they dismissed it under the rule that allows them to dismiss applications that don't comply with all the rules and one of the rules is that a at that age supporting memo must have a certificate showing the word count in that no the state did not object to the lack of that certificate in that when the application was filed the trial court addressed the merits of the application sent findings to the court of criminal appeals but still there was no objection from the state and the court of criminal appeals toluene the supreme court talked about a court's equity powers should be exercised on a case by case basis and it's not to be applied in some mechanical manner and i think you need to look at what happened in this case of equity powers and in that case an answer to a citation which filed light and the core here held that the that the answer should be prejudice to the agency in the ocean so we have all the same principles here obviously the district court below did not address the timeliness and went to the merits there is no harm to the state the state in state court and in the district despite the fact that the application was dismissed it was properly filed because it was on the form that is required by the court of criminal appeals for writs of habeas corpus and because of the lack of prejudice to the state and because exercise its equitable powers and proceed to the merits of the case just in my opinion makes no sense just to dismiss it now at this stage and everything's been brief in the district court never addressed this issue to north from the alternate juror being allowed to be in the jury the district court did not really explain or address why there's no prejudice from an alternate he's not all authorized to participate in deliberations and vote and was allowed to participate and express an opinion and how that could not be prejudicial to the district or just simply said that there was no no prejudice  if you look at all of the cases that are side in our brief in clued in cases out of these cases out of this court every court that i'm aware that it's ever addressed a situation where an alternate goes into the jury deliberation room and participates in the deliberations as found projects you have cases whether it's in stead of taxes or this core other circuits this supreme court in a in a lotto or an alternate goes into the and with respect to an error of this nature assuming there was an error by the by the attorney yes that's what we're we're looking at here right we are looking at it at the strickland standard in and of course again just like with bar with respect to merits decision by the state court so what decisions of the supreme court can you point to that were reasonably applied by the state courts in finding in denying this claim it's trickling versus washington and  well you got to give me a little bit more specific than that right or maybe a lot more we're looking at we're looking at the the prejudice from the participation of the alternate juror where where is the supreme court decision there reasonable juror could find say a lack of prejudice and in this situation you know so so if you look at every court that i'm aware that has looked at an alternate participating in jury deliberations h  this is you know strickland talks about showing it one part of the stricken prejudice standard showing that the actions probably alter the outcome or had some effect on the outcome of the case but it also talks about the fundamental fairness of proceeding and that's kind of the that touchstone of what you're looking at in strickland that you have to show reason that the project undermined the competence in the outcome of the case things of that nature but what's important and strict and it also recognizes that there are some cases like we have here where it's impossible to say whether someone talking to these other jurors affected their deliberations and there's a lot of reasons we can't do that but that's a different that's is that if that's the standard you're arguing for that sounds more like a perceived prejudice standard is that we're saying that there's per difficult to say this affected the outcome of the case when this situation because of the rules of evidence federal rules of the same as the texas rules of evidence you cannot get affidavits or testimony from jurors about what affected their deliber process and so in that sense it's impossible to say what happened here affected their deliberations and cause people to change their vote and that's because the supreme court ever held  directly as now and but even if you look and stricklin itself it talks about in determining prejudice you presume that the jury acted in accordance with law and that's right out of strickland and in this case the jury did because the jury's been influenced by an outside person who's in the jury room participating in the deliberations and the loft so strickland talks about in that situation you look at prejudice differently and obviously there's all kinds of cases since strickland where there is a presumption of prejudice not with this exact facts situation but this is an application of strickland did this  undermines a i think if you look at the public and this is what every court that's looked at this if you look at allowing sound person to go into the jury room that's not authorized to be participating in deliberations  and you have no way to show that someone vote guilty or not guilty because of that that's the type of thing that undermines confidence in the the judicial system and it had it's that type of error that i think stric itself allows for and it's the thing that every court as i said it's a look at something like that happening has found it to be prejudicial all right thank you very well here next from ms tucker please the court how their hacker for the state of texas nourse petition fails for two reasons st it's time barred it was improper as the state court determined it was improperly filed and thus it did not till the deadline under at that but nd even if the court were to reach the merits north has failed to show that the state habeas court and reasonably applied strickland or any other decision of the supreme court my friend just mentioned that start he's relying solely on strickland yet he said that merely that strickland leaves open the possibility that his argument could work that's not good enough here that does not that's not strong enough to meet the high bar of add that st thing address that issue and i don't believe that that's a problem in this case the court does have jurisdiction here in black the court denied a c away on a strickland claim and then the petitioner raised a chronic claim on appeal and the court distinguished between those two things a separate claims if the weaver argument here were a separate claim then we would agree that there would not be jurisdiction not only because of black recommended that you should be dismissed as time barred yes yes that's correct so but here it does not appear from the arguments that they're making that they're raising lever as a separate claim it seems that they're trying the nature of that era which was what was a closing the closing drug public or something like that yes it was open court and violation and but importantly you know what what they're using we were for in this case is to say that they shouldn't have to meet the regular prejudiced standard of strickland that it's just unfair and for that reason they shouldn't have to show prejudice in a traditional sense but we've heard does not support that argument in fact we were told that despite the fact that there was an open court violation it continued to still apply the prejudice standard under strickland so even though that violated a bright that is in the plain text of the th amendment  the court in reverse still applied the normal prejudiced standard under under strickland and it's interesting because the petitioner leaver actually tried to make the exact same argument that i think they're trying to make here and the court expressly said that it would not sanction or it wasn't going to pass judgment on whether or not that argument was correct justice alito is concurrence however does explain why that position is wrong and why it actually conflicts with strickland itself and also why the harmless error standard when you look at structural errors is totally different from the prejudice prong of it really doesn't have any implication there at all it also did not presume prejudice so it just doesn't help their argument court really doesn't need to reach the merits of this issue as as the court mentioned there is a time bar issue and the supreme court has held that the petition must comply with state rules including technical rules like the one at issue here in order to be properly filed under at that and it's black letter law in this circuit that if the c c a dismisses an application for failing failure to comply specifically with the requirements of texas rule the color procedure seventy three dollars which is the at issue here that that application is not properly filed within the meeting that he or the st petition that was filed in state court did not told the deadline because it was and you should not because there are no there was no showing of rare and exceptional circumstances which is required for equitable tolling to apply in the circuit in the circumstance garden variety excusable neglect does not qualify and does not support  attorney errors down either now north argues that the state misled him because it didn't object to the lack of compliance certificate in the state hideous court but the state's not obligated to object when the other side doesn't comply with technical rules like that in their application and they also argue that they were misled by the court because the state court considered the application the trial court and then the c c a then decided to dismiss it a couple of months later but the biggest problem with that is that north was on notice as of january  and sixteen that his st petition was improper if he had just filed a corrected petition right after he was made aware of that his federal hate b s petition would not have been late he has never explained why he didn't do that and there's really no excuse for it i think really the big mistake here was trying to file a motion for reconsideration when the ed clock was running and there again an intern mistake just does not rise to the level interestingly there there also been other opinions by this court where the state court where the where the courts have done the same thing the state court accepted the application and then the c c a dismissed it later larry versus dried key is why and so this is really isn't that unusual for sarge case was the same thing that case the state court looked at the at the petition but then the c c a dismissed it for lack of compliance with the rule seventy three dollars said it was illegible and the court still still said that it was this court still said that it was improperly filed even though the defendant claimed in that instance that the legibility problem was because of the court clerk photocopying the application and wasn't his fault so these are strict rules of the court has to apply the court has to apply deference to the state courts determination here and the state court determined that this st application was improperly filed if that st application was improperly filed then the federal habeas petition in this case was late and  in the alternative if the court does reach the merits it should deny relief because north can't meet either prong under strickland and has not shown that the state court and reasonably applied any decision of the supreme court or strickland for that matter rehearing in a tacit certificate and point out that if the memo really was in compliance with the court of criminal appeals ruled that they denied that then in terms of diligence we went ahead while that was still pending in the court of criminal appeals and question when you when you st found you stated did you wait eleven months to do that with and i know again that's an argument that the state raises which which would i mean my only point is should that or should that not count against the diligence we did wait that long but if you go back and look at the original state application really was a good idea to do that and proper practice and if if the state saying if we had just gone and filed the new application right when we followed the motion for rehearing the everything would have been timely that to me that's the best argument that this ought to be e told we did a proper thing in my opinion in the corner a court of appeals that didn't work we went ahead and file the new application and while that was still pending just to try to be extra safe we did everything we could in a diligent manner  i was dealing with planar under rule fifty to be the rules of criminal procedure but it is not fair as the state asserts to say that has nothing to do with the prejudice standard under strickland because  do not presume to produce is not correct well i do agree with that because the facts there are different but what a lot of talk about st on the prejudiced point is for an error to be corrected pursuant to federal gifty to be the euro must effect substantial rights which is the plane or a language and in most cases that means here or must have been prejudicial the in the supreme court's language and they interpret in the law no prejudicial than mean it must have affected the outcome of th whole proceedings the same kind of language that we have in strictly then in a lot of they determine the are not to affect substantial rights because there's no evidence the alternate participated in the deliberations and then they went on to say the prejudice in effect on the jury's verdict would be shown threat from this court in two thousand and seventeen united states versus kelly the court saying the same thing that if an alternate goes back to told not to participate or doesn't participate in  deliberations no prejudice but if there is participation there is prejudice it's clearly prejudicial