r.j. reynolds tobacco company versus durham county, which the court has cited in 1986, the court said unless there was positive assurance that the decision was not a decision on the merits, then the writ went to the spate supreme court. and the georgia court, while it has rules and statutes and its own opinions that are not totally in harmony with one another, the rule, nonetheless, that a certificate of probable cause, which is what was denied in this case is to be granted if there is arguable merit to the case. >> do you think that effects the scope of our review? are we addressing arguable merit to the claim or adding on its own merits purchase i think what the court has done in all the cases is look through to the last decision, decision of habeas corpus court. in georgia rules an application is made for certificate of probable cause to the georgia supreme court and that is often denied summarily. it is denied summarily as it was in this case. >> i really don't understand that. you say we would be reversing the georgia supreme court not the habeas court, right, and all that the judge of

r.j. reynolds tobacco company v. durham county which the court cited in 1986, the court said that unless there was positive assurance that the decision was not a ruling on the merits, then the writ went to the state supreme court. and the georgia court, while it has rules and do you statutes as own opinions that are not totally in harmony with one another, the rule nonetheless is that a certificate of probable cause -- which is what was denied in this case -- is to be granted if there is arguable merit to the case. >> do you think that affects the scope of our review? in other words, are we addressing just whether there's arguable merit to the claim, or are we addressing the claim on its own merits? >> i think what this court has done in all these cases is apply it versus -- or to look through to the last reasoned decision, and that would be the decision of the habeas corpus court. typically in georgia, the court rules an application is made for certificate of probable cause to the supreme court, and it is often deni

r.j. reynolds, that was the courts law. could i ask you another question about another preliminary issue before we get to the underlying question in the case. pageuperior court said on 175 of the joint appendix that the issue of the batson violation was not reviewable based on the docket of res judicata. pageter said, and this was 192 of the joint appendix, that it will review the batson claim,n that -- batson -- if you put those two together, you could argue that the superior court decided only the question of state law. namely, whether the situation here was such that there could be review of the batson claim. what is your response to that? argue thate does not and the reason for that is that thehe court said court what address step three of batson and said foster's batson claim was without merit. >> is it a question of federal or state law as to whether or not the petitioner has shown a --is thatficient to the state law question? here, -- >> if it is a state law question, then what you have to argue? it, it isr to decide

r.j. reynolds tobacco company versus durham county, which the court decided in 1986, the court said unless there was positive assurance that the decision was not a ruling on the merits, the writ went to the supreme court. the georgia court, the rule nonetheless is that a certificate of probable cause is to be granted if there is arguable merit to the case. >> does that affect the scope of our review? are we addressing the claim on its own merits? >> this court has looked through to the last recent decision, the decision of the habeas corpus court. in georgia, an application is made for a certificate of probable cause to the georgia supreme court and that is often denied summarily, as it was in this case. >> i really do not understand that. you say we would be reversing the georgia supreme court. all that they held is there was no arguable basis for its review. if we reverse that decision, we tell the georgia supreme court, you are wrong, there is an arguable basis for you accepting review. we ought to remand to that court requiring them to accept the review. how can we reverse them on an i

r.j. reynolds.here you had almost identical situation where you had an intermediate appellate court that ruled and then you had the north carolina supreme court denied review and the question was do you issue the writ to the intermediate appellate court or to the north carolina supreme court? and this court decided and justice blackman writing for the court said "we want to give practitioners, we want to end the confusion about this." so it goes to the state supreme court. there's no difference in our situation here and the situation that r.j. reynolds -- >> but you're saying in that case more to other cases and if so which other cases that in that situation we nonetheless addressed the reasoning of the intermediate court? is that what you're saying? >> you did in "sears v. upton" a case out of georgia, 561 u.s. 945 in 2010. that was certiorari to the supreme court of georgia but it came up in the same posture of our case. >> is there an argument that the petition for certiorari could go to the tria