this is mr jenkins appeal from the question of whether they actually reach the issue of the state court with the burden on the defendant to make up with his gaps and the record and show that he who really did not voluntarily waive his right to get on the witness and you say the federal rule is that the burden is on the government is and i cracker correct ok so why and the case that you just cited but they've never decided the question of who's got the burden of proving waiver in a right to test the supreme court initially decided you should waiver in johnson the have case after case repeat it that same standard saying it applies to every fundamental constitutional right in case after case they take that same standard but by the right choice of  right to counsel court has never said you have to have the rule of applied to every specific factual situation that could ever be imagined in order for you to have a general rule this is a general rule for a waiver which the court has repeatedly said applies to all fundamental constitutional rights rock the arkansas the court held the right to testify is a fundamental constitutional right  to your question just that the court said in fact limiting some language in service saying that the burden it's always is on the state except in those cases where there's affirmative evidence on the record that the defendant acquiesced in the waiver absent that affirmative evidence on the record the burden is on the state to prove the way were valid in this case have you read judge wo that because it's a direct refutation of your argument and says that the states in fact have a lot of leeway on who has the burden and they've adopted different procedural rules in fact different federal courts have different rules about what it takes to trigger the sheriff to the state and that the supreme court has never  the defendant when there is affirmative record evidence of acquiescence absent that remains on the state the court has decided that and the fact that the lower federal courts apply like in this case the demand have that says that you can make the type of transference that you want us to make that we can accept as a as a rule of constitutional law a clearly established rule of constitutional law or that should have a general must be applied in varying actual situations there are things does not mean it's not clearly established but that but the court there was talking about about a similar context and they was they were saying if we if we found the right you want to do something different from what was discussing and williams you want us to say the fact that the supreme court has articulated a constitutional rule on a level of generality in a completely different context clearly establishes the war in a variety of other contexts to a sufficient extent that it should mind state courts every well i think we i don't i'm just asking if if if williams is the best case you have for the proposition that's fine i just want to give you a chance to direct because your brief contains no helpful well again the fact that it has court is the plight in every case that has come before it on a fundamental cause to tional right involving criminal defendants in criminal trials you can't get a context i think more specific than that this is not taking something from a choice of the defendant it may have one of those cases the court has applied the standard in fact the court has said specifically that the general standard apply to those cases  those rights that are provided to protect and preserve the fair trial for criminal defendant and may i ask what your understanding is of the massachusetts rule well the cour well that's why doesn't rule something close to that but that's exactly what i'm saying they place them in this case they place that burden on the defendant which they can't do that is contrary to supreme court laws spring court has said unless there affirmative evidence on the record of acquiescence in the waiver of the right the persons upon the state to prove that there was a valid waiver that's what the supreme court said that's contrary to there is a very real risk of either the judge or whoever's making the inquiry putting his thumb on the scale of whether the petitioner will keep his fifth amendment right not to testify or conversely exercise the right to testify because he thinks the judge thinks it's a good idea of the six circuit explain that the reason for the war that the petitioner where there is evidence that he's aware of the right just signal his desire to exercise it is to avoid that situation or at least be sensitive to the risks that defendant was going to testify in order to lay the foundation for an entrapment defense as the trial went on the defense lawyer realized that probably wasn't a good idea call a few different witnesses and then signal to the trial court that he was not going to call the defendant you know and court the defendant defendant never voiced any concern about that there was no call it like here there was nothing more than that and still the six circuit in that case so that there was no violation of the right to test and the affidavit what he says is that he wants to refute craig's testimony he says that he wants to potentially offer some testimony that would lay the groundwork for a third party culprit defense and he also said that only he could explain how he felt in the face of the accusations perhaps that night he felt that he was innocent but he doesn't in his affidavit come right out and say that and i think evidence cases in cases where the defendant is going to testify that he is actually innocent are the two circumstances where in most that is the court has specifically rejected the man waiver regarding waiver of a fundamental constitutional right and i would note here that the although this was a speedy trial situation and the court's holding it did not say or or i'm sorry rocky arkansas the court said the right to testify is a fundamental right of the third thus the supreme court has directly helped him and we rule plying to a waiver of a fundamental right i inconsistent with the court's pronouncements on waiver now whether the seven circuit held to the contrary is relevant because it can't overrule the supreme court it is the supreme court's jurisprudence that controls an eight case not the lower courts and the number of lower courts have applied it to man waiver rule notwithstanding the fact the supreme court said you can't with regard to a fundamental constitutional right now i think there never was an issue of whether this defendant knew that he had right testify in court told him that his counsel feel that the problem here is he was prevented from exercising that constitutional choice and he was prevented because that unilateral decision that he was not going to call this a witness there cannot be a voluntary waiver an intentional relinquishment of a no right if you're prevented from exercising that choice and that general test for waiver has been the law and supreme court pretty much for eighty years that probably has nothing more clearly established than what the test for a waiver of a constitutional right