and i'm going to try to reserve about three minutes for rebuttal i'm asking that this case be remanded to the district court with instructions to chain the trial record appoint counsel and reconsider the claims of prosecutorial misconduct the reason for that is that claims of misconduct in closing argument cannot be considered in isolation i think everyone agrees on that standard  they must be considered in the context of the entire closing argument the harmfulness of them must be evaluated in view of all of the evidence presented at trial to the extent the state is claiming invited error as it is here the court must review the defense closing argument to the extent the state is arguing that a comment is a reasonable inference from the evidence as it is here the court has to see that evidence appealing from the court of appeals to the supreme court in washington they just felt were the record on up he was shocked when i told him that the transcripts weren't there and i don't see how a pro se litigant sitting there in his prison cell is supposed to know that he has to do that and state's view is that this court should determine the reasonableness of the state court decision simply by looking at the face of that state court decision now i maintain that that with essentially no a obtain it and i'm not angry with you that there seems to be some line in our case law as to when he has to do that when he doesn't but even when there is an allegation the allegation is not necessarily to bring transcripts and it's just something plain and he thought the district would have them he had no idea that the district court didn't have the transcripts and you know even if he had known enough to read rule five if i think that might have led him to believe that it would be provided to the district court by the attorney general or that the court would have gotten them on its own motion but you know mr watkins i mean he said he's gotten help from other prisoners i mean i mean the best he was able to do was at some point he or some other prisoner looked through the transcript of closing argument and noticed the defense counsel had objected six times and wrote down the comment that immediately preceded that well i guess the state isn't disputing that these comments have been quoted accurately but one thing i notice is that he mentions six and there are only five that were discussed by just record i agree i can't i can't there's a guy who says he's fifty percent sure the defendant was driving the car you know no one says that they saw him shooting a gun or holding a gun and yet the state commissioner is saying the evidence was overwhelming in allen instruction given here apparently that was unnecessary and i'm i'm getting the sense just from reading the commissioner's decision because it's the only issue the appellate counsel brought up and apparently the jury at first announced it was hung but then by the time they got they i guess they all they did was they told the jury well keep deliberating until we can get the attorneys down here and by the time they get the attorneys down here the jury says we'll give it another try in a couple hours later they reach a verdict i think that's what happened know how long they deliberated the commissioner's ruling does discuss that it says that in about three hours had gone by when they announced they were hung and case we don't even have an any meaningful summary of the evidence if anywhere in the record because appellate counsel didn't present one the commissioner doesn't present one there's nothing to indicate what this case was all about and i'd suggest if this court were to look through all of the hague cases in which it has reversed state court judgments i think it would rarely find that it would have reached the same result simply by looking at the face of the state court decision i know that's true in the three reversals i've been involved in for example and then the lambert in the state court decision seemed reasonable yes the some impeachment information on their informant but the defendant confessed to two other people as well so it's harmless well in fact if you read through the transcript that those confessions to the other two were a claim of self defense whereas the informant was claiming the defendant confessed to a cold blooded killing because he didn't want to pay back some money he owed the people but there's no way the federal court  for the district court to act to obtain a transcript from the state and i got on the steering is here and this line that has been drawn by this court partly because of the tension between the from i'm not sure that it does and in fact i think even if the court looks at the cases dealing with a factual finding by the state court this the supreme court has said that in reaching this determination reaching the one critical issue under the statute whether the state court decision was was reasonable the federal courts don't have to follow one particular methodology  occurred but simply whether the state court decision was a reasonable application in the record that was before the district court was sufficient to make that determination the petitioner does have a burden the court and the respondents counsel are not the advocate for the petitioner the petitioner does have a burden to to at the very minimum say i want the transcript before the court i'm unable to produce that court please or name it and do you disagree then that that court that those cases are all pretty deep a case is there all create twenty to fifty four d cases and that line of case law just doesn't have any validity now under lockyer vs in driving in the statute the statute that the court refers to is not limited to sufficiency of the evidence what the sufficiency of the evidence against in the state court proceeding to support the state courts determination of a factual issue so it's not limited to sufficiency of the evidence claims it's anytime the petitioner is challenging a state court determination factual issue while the factual issues are what are the prosecutors say what your instructions were given and then the legal issue is did that have an effect on the t do was ask the district court to produce this he did not raise this is an error in the district court and i suppose i should have objected on that basis in my response brief and argued that this should be reviewed for playing our i did not do that i will not hold position to  ding that no transcripts were relevant and therefore did not submit any and the seventh circuit noted that although it is occasionally necessary in his cases to review the transcript it is quite rare and that is the case here the state did not participants we would like to make that decision ourselves yes your honor but again i am the attorney for the respondent i'm not the attorney for the petitioner i did not hide evidence i did not do anything anything unethical  deemed nothing relevant i understand and that is quite acceptable as the seventh circuit recognizes that how can we for example one of the complaints is that the prosecutor sent the car the street with him it was on its way back to look for the kids back to the texaco station and the complaint is that that there's nothing in the ad in the evidence just stating that and the state court said well yes there was no how are we supposed to make any judgment about that without a transcript if the petition argument and it's your argument the way you're reading twenty to fifty four and intention with our case law you seem to be reading it as as dealing with any you're calling the fact the question of what went on a trial as opposed to some connection between what went on treatment trial in the real world right and you're saying that that's a sufficiency of the evidence transcripts thing but you do not need to have the transcript of the court if i can clarify your end of the stay court quoted what the prosecutor said and what the jury instructions but it didn't work out  that is a factual finding if the court ordered a reference hearing or an evidence or a hearing to determine what was presented during trial let's say the transcripts were lost that we had everybody come in and testify and then it was determined this was what was said and your honor if i may i think the simple distinction is between you know what what did a witness say factually and how you're going to impact how a chord is interpreted evidence now other words to say well a certain argument is a reasonable was is based on reasonable inferences from the evidence presented that's a legal conclusion i mean the evidence isn't precisely the same as the argument the court has to see whether it was reasonable i think even more significantly the commission is finding that the evidence against mr watkins was overwhelming that's not a factual finding it could never be a factual finding i mean that's a judicial assessment of well so i'm starting from it but it's deficiency is a different question and in fact that's the only one discussed by the commission here whether the evidence was legally sufficient to support a certain finding by the jury or certain finding by a judge is a very different question from saying whether the because you have to do is point to you don't have to get into weighing all of the conflict being evidence you just have to know whether certain things exist in the record but whether evidence is overwhelming involves weighing the strength of the state's evidence to what extent where it's witnesses impeach to what extent were they contradicted by defense witnesses