please the court i mean alice and i represent robert ford robert ford appeals from the denial of his petition or motion for relief filed under section twenty two fifty five of title twenty eight following his trial and the southern district of south dakota he was found guilty of sexual he was found not guilty of sexual abuse but guilty of kidnapping his case was before this court  direct appeal and in an opinion authored by judge smith in two thousand and thirteen his conviction of kidnapping was affirmed and the issue on the direct appeal was whether his conviction of kidnapping for restraining his weston to prevent her from reporting a sexual abuse could be sustained based on his acquittal of the sexual abuse and this court held that there was no conviction necessary of sexual abuse just a stay in the kidnapping because he could've held her in the belief that she intended to report of abuse even if it had not occurred in his twenty two fifty five motion he has alleged ineffective assistance of counsel for failing to investigate and uncover evidence that would have served to undermine ms weston's credibility so on her bias her interest unreliability and lack of credibility on the charges the district court focused on the prejudice prong of strickland and thus did not order a hearing the judges the judge the performance from i agree i would like to focus first on the prejudiced i think i think that's right but i assume you're going to are you going to start with your hearing argument because because i want to talk about that with go i don't want to well i would agree that there's a well if if there is a finding that there is just no possibility of prejudice and of course i suppose the court doesn't have to order an evidence che obtain and he admits in his own affidavit that we have we have  whether you're new for the appeal or not but in any event was was this was this a failure to call impeaching witnesses at trial or a failure to use should who do you want to call and want in and out and in when i get an answer to that i'll tell you whether you get a hearing i don't see that in the in the briefing here or in the in the appendix ok well i believe that i have showing that there is a wealth of information of that the trial counsel did not have trial counsel said that would have been helpful like a false allegation of kidnapping that's you had said i want to i'm the the in we we are lacking here and i think it was mr ford's attorney byrd to present to the district court exactly what factually and was needed for a hearing and white we have a pretty good record of what you're investigator found what counsel's investigative file and what counsel of the process i think absent the finding that there was no prejudice allege ineffective assistance of counsel i expect that i will call defense counsel and if i don't call defense counsel and i just call an expert to say this was totally ineffective because defense counsel didn't use this then the prosecution calls the defense counsel to say well maybe if i had done that i wouldn't have used that so i don't i mean i wouldn't expect that i have to say i'm going to call defense counsel because that kind of goes part and parcel with the claim of ineffective assistance of counsel when you prejudiced i mean that when the court just says seems it's kind of convenient to say doesn't really matter whatever you say i'm not finding i find these three other pieces of evidence so strong  court and decided that there is three little pieces of evidence or so strong that it didn't really matter the council those other pieces of evidence were evidence that didn't depend upon the credibility of the victim right but however much impeachment you put into discredit the victim there were other persons present who testified about their impressions of what had happened that were consistent with the commotion at some point and the other woman said she heard a sound like a shattered so all well a commotion was it furniture that was moving was it a bad leg that scraped is if the trial court is going to look at three pieces of evidence that they that the trial court said this was so convincing that nothing you say about what trial counsel did or did not do this conviction on kidnapping would stand based upon bruises when she's asked how did you get those she said i have no idea and based upon two people saying they heard a commotion of no particular designation these are issues that the court the district court pulled out on its own and then does any of the proposed evidence that was missed affect the credibility of the two outside witnesses as opposed to the victim no mrs weston and so i believe that this court would have to fine and at no point has anyone said this evidence was so strong or so overwhelming that there's no way in on this earth that this kidnapping conviction could not have been sustained so aside from the commotion and the bruises which she has no idea how she got them then there is the issue of he may hall to her mother and the magistrate relies on the fact that the prosecutor argued well why would he call her mother if she was free to leave but i mean that's just kind of all you know various interpretations but he called home mother because he found her in a state that he says was either what was a mental breakdown she's having a fit or an attack is what he told her cousin so it defies logic that he was going to call her mother after he had attacked her and held her against her will also note that the district court does sort  circular argument rationale for saying that there's no need for a hearing because this of other evidence is apparently so strong but the district court said that the commotion was heard  as evidence of confinement while he was detaining weston well that circular that saying he was detaining and then there was the commotion there's a commotion that was heard it wasn't connected up in any way shape or form any confinement similarly the district court found phone calls were made while he was detaining weston and again the court then is making a finding of detention and then saying the phone call supports it and in fact both the magistrate and district court seem to say or want to imply that bruise commotion and his phone call to her mother were so strong that any other deficiencies by counsel or any other problems with the case but out of manner it takes and leave the problems with her credibility because the jury already took that into account and in acquitting him of the not necessarily because there was a medical evidence to contradict that and defense counsel as the court noted brought out some inconsistency is between what she told the police and what she testified to and then brought in medical evidence and the medical evidence was probably more what impeached her claim of a sexual assault and unless the court finds that this other evidence was so strong that there's no other way that he that i mean that he absolutely would have been convicted of kidnapping then i think that it's incumbent upon the court to remain and the the much more would have made a difference well i think of a key one would be he she made a false allegation of kidnapping against her ex husband on direct cross examination you're here testifying in this trial sexual abuse and kidnapping alleging that you've been confined you have claimed in the past that this record that would support upholding the conviction even if the victim's credibility used eliminated entirely the thank you your honor i'm kevin colander from south dakota here arguing for the government  i'm here to say that we agree with the district court entirely in this case and both the district court and the magistrate detailed variety of pieces of evidence here that were distinct from miss misunderstood the question because well my question was let's get right to it what do you have if if we just assumed the victim couldn't be believed at all what is left of a case against the defendant that he had committed the crime of conviction and what i was about to say was to talk about the evidence of the kidnapping aside from miss weston's testimony and i want it for and that includes there are four separate witnesses witnesses who were there with miss west in the night before who testified at trial and who also told the f b i agent that the bruising that they saw on her the following morning was not present the night before we have the physician's assistant who testified not only miss weston reported to her that the bruising was new but that in her experience based upon her medical experience the bruising appeared to her to be new the jury also saw photographs of the bruising and  the closing argument the prosecutor talked about how they could use their common sense and their own experiences to judge from the photos that the redness and the darkness of the bruising made those bruises appear to be new  bruises we also have testimony about this commotion that the witnesses heard from the bedroom we heard that mr ford left upset we heard that miss weston was upset mr ford even agreed in his testimony that he was the one who had miss weston cell phone he was the one that made the call to miss weston's mother when asked on cross examination why did you use her phone to call her mother if she wanted to talk to her mom his response was beats the heck outta me that's all evidence aside from miss weston's credibility that goes to the kidnapping of course the kidnapping here was defined as if if he uses her cell phone the call her mother would what is it factually support it's all circumstantial evidence there's nothing definitive here but it all from stands would circumstantial proof of what it mister sherman he testified that you know he'd been there the night before that there'd been a drinking party going on then in the next morning he awoke he heard at some point he heard some commotion in a bedroom i believe his testimony was that he and miss read earth were in the kitchen maybe making some breakfast and he walked over mr ford came out of the bedroom door as he walked up he found miss weston on the floor he found her curled up she was upset she was crying mr ford left the property abruptly mr sherman testified that she looked like she'd been roughed up she had red marks on her arm her face was swollen she didn't have those marks the night before when the term commotion was that explored and it's in of itself quite vague it could be anything from people cheering at a sports event or someone screaming for survival i believe there were some follow up questions asked of both witnesses on that question that's where michelle rhetors testified about how she heard a sound like a fractured soul she claimed that she heard a cry or scream coming from the room i believe one of the two witnesses testified a sound like furniture was being moved that there was you know a muffled sound one of them talked about of some sort of distress we also had testimony from  earth again very similar to mr sherman that she was in the kitchen they heard this sound they went to the bedroom they found her on the floor crying trembling she said she used the word broken in a hea then she said that miss weston said to her he did wrong and pointed towards mr ford who was at that point leaving abruptly out of the house again she testified about marks on the arms and legs that weren't there the night before i also point out that there was cross examination of both of these witnesses and this goes to the effectiveness prong but defense counsel explored all of this testimony explored the timeline with both of these witnesses there was a great discrepancy here about what time all this occurred in the defense counsel talked a lot about that he established that miss red earth had seen mr ford or miss west before this incident in the hallway or in the bedroom that morning and mr sherman he cross examined nailing again down the timeline and establish that whether he could hear the sounds in the bedroom or any sounds before that so it's not as though counsel you know sat on his hands and let this testimony come in without exploring it in detail i also like to talk about the question that judge lo asked at the beginning about the evidentiary hearing the record is replete with all of the evidence that mr ford thinks that his counsel should have found and gotten in the government didn't file a motion to strike when the twenty two fifty five was filed and and attached as exhibits all of these tribal documents all of these arrest records affidavits from a private investigator hired by defense and also a letter signed by someone claiming that miss weston and talked about kidnapping so essentially the seven entry hearing that's being requested has already occurred it's in the record it's largely in the appendix  all this information was considered by the magistrate court discussed at length and also discussed by the district court so it is isn't part of the reason for rejecting the claim that some of these warning even going to be admissible though that's right and you know the magistrate the report recommendations really does a job of going through each and every one of those and i'll remind the court of kind of what the distinct pieces of evidence are here  there's a protection order from december fourteenth two thousand and ten seems to me what we don't have or the prejudice ruling is a precise handle on what mr ford's post conviction attorneys think the think the trial record would have looked like if all of these deficiencies had been had been run through and green out for those that were inadmissible so forth and so on were were are we making a prejudice ruling here only we have sure we have all of the from which the distillation would have begun we don't we don't have the distilled facts of what the trial would have looked like and had certain deficient performance allegations that  were sustainable not that not occurred or not what we do have from the report recommendations is the court went through all of these pieces of evidence and found that in all but a couple potential cases record counselor talked about the false so called false charge of kidnapping of children and so i so you've got whatever court records there are and then you ask in cross examine and you get not dramatically different but i guess i may take issue with whether or not even the statement of prior kidnapping would be admissible but i think your general question oh isn't it true that you you you have alleged in the past that your children were kidnapped and you know right now you know there's an assumption being made that that would be admissible and then there's this evidence and then we have the question how would she have answered if it's just impeach and or let's suppose investigator is the councils in the fact of count if investigator malloy didn't do all he told couns got a completely different case right now can we do this well there's no prejudice appeal ruling out those details the district court talked about cast in terms of the strickland standard that it's not just you know some potential effect some possibility of an effect on the outcome there's a real probability right and so what's being is such that no jury would have greater with anything in it to be admissible it must be godor truthfulness i mean it's it's experience of proof right that's not that's that's ignoring the items that are discussed in the twenty to fifty five don't go to truthfulness aside from three insufficient fun checks potentially going to truthfulness you know give me and give me the case that the u s supports the proposition that you can't win a twenty t of information that are discussed in the twenty two fifty five don't deal with truthfulness or something sunderland that was a mutual protective order entered into by both parties it doesn't write it doesn't go to truthfulness it goes to two people throwing things at one another and i guess my point is the authority is simply rule and i think that's probably correct but here we don't have facts that go to truthfulness that are even being alleged we have some some insufficient fun checks i think three different ones from about seven years the latest of which seven years before the trial in terms of potentially admissible allegations about her past records that's the only one that the magistra the report recommendation said was even questionable so applying the strickland standard to that is that the sort of information that has a a real chance a substantial and on cross examination the prosecutor asked more questions about it and you know mr ford when he testified he did talk about how how he was going to have to go to court because he was a witness he did and then on cross talk about about how the charges were dismissed they did talk about these pending tribal charges i see that i'm out of time unless there's further questions i'll take my se oh did she have any time left well did you hear anything that you absolutely feel the court needs to hear him but i won't just correct one factual point and that is that the evidence was that mr ford used his own phone and his phone records were introduced by the defense that he used his own phone to call her mother because he found that she was in the heat of some assistance so that was some a statement of the facts and there are many other arguments but