johnson the bailey had previously been convicted of this murder and then by failing to object to the statements appellate consul was also ineffective for failing to braise this issue on appeal by way of background johnson was and that he hoped to reduce his sentence i gets tossed in the money johnson had not come forward with this information until four years after the murder in two thousand and seven this was a murder that was committed in two thousand  on direct examination johnson stated that he had not told the police immediately about the can allege confession because it would not benefit him and because they had already been told by other people so he didn't have to worry about it now defense counsel decided on cross examination asked several times why he had not come forward sooner and this was not reasonable trial strategy the information that would have benefited his client mr bailey was already before the court johnson had not come forward immediately and johnson was receiving a benefit from his testimony by asking johnson and again why he didn't come forward earlier defense counsel only provided johnson with additional opportunities to give self serving reasons why he didn't come forward earlier and not only were these reasons self serving they ended up being extremely prejudicial to mr bailey and one of the questions i was asked the first question that elicited one of these statements was five years we're not going to say anything to anybody about the fact that someone came up to you and admitted they killed someone which elicited why would i he was already locked up for it and counsel would have been aware of the timing here because he knew that they only had been convicted of this murder once before and that this court had overturned that conviction he knew that there was a mistrial in between and so when he was asking about those five years it was not unreasonable to assume that johnson also knew about that conviction although he didn't know whether johnson knew or not because he hadn't spoken to johnson before this prosecutor nation and that's brought out in the tr johnson not to bring up this previous conviction and he did not move away from the topic instead he doubled down and asked the question not once more but three more times so three more times a similar statement and the next statement that was a less than ed in response to the question because it couldn't help you right was he was already in the penitentiary for being found guilty on the case so if the jury was confused by the slightly ambiguous term locked up they were no longer confused once they heard that even found guilty and then that another fact einar another jury or the bench the jury didn't know had already found him guilty beyond a reasonable doubt this is some of the most prejudicial tax money that can come in front of a jury and the supreme court has that that when a jury hears about another jury's verdict it can diminish their sense of responsibility the first district has said this is the tension more damaging than hearing about other prior crimes so this is those statements and then failing to cut them off at the pass so this wasn't a one time thing this wasn't one statement this was there were times that you brought forward these statements and so yes i guess as a as counsel sat the horse was out of the bar  gates and that's what we're talking about now is his counsel acting enough actively you know listening and failing to object to those statements and that's not the sort of thing that can be waived because he did not knowingly and voluntarily w of overwhelming guilt the only evidence against mr bailey are three statements by three convicted felons who were negotiating with the prosecution at the time he made the statements against mr bailey and  the second issue it's a fairly straightforward issue here the petition made ineffective assistance of trial counsel argument based on trial counsel's failure to object to the in this case the trial come forward with this information and it was going to benefit him and he waited those five years and we're aware of the timing of what happened with billy during those five years which is he's been convicted of something the proper time to make an argument that johnson should have come forward really are and what was he doing during all this time would have been closing argument not in terms of the jurors exploring a witness that he had never heard from before he had no idea what he was going to stay particularly when he knew that his client had already been convicted and certainly he should have cut it off and objected after he got the first presidential statement well this second fastest let alone the third and the fourth and he him the same answer so the state has now flipped its position but back then they read the record as we read the record now which was trial counsel continue to ask why he didn't come forward trial coun counsel i'm not going to have a court and buys you if you can't give the answer and then to do the same thing again and again and again and expecting different results is insanity so that's certainly not reasonable trial strategy offer them more rent the second stage so for looking at the waiver question and we're looking at what did counsel say regarding decided to take his chances and then maybe a third track third stage this issue dies but that's not where we're at right now we're at it at a stage where the record is liberally construed in favor of the petitioner and furthermore waiver issues are liberally construed in favor of the defense and just on the second issue you don't need to get the merits of this argument because we know and it's take us can see it the counsel failed to make the argument because i can't get into the merits because it wasn't preserved for me to get into the merits because there was no ineffective assistance of a power counsel in direct appeal claim but there are possible compulsory join your questions here there are possible double jeopardy questions here so this is a question of whether the state decided to times to proceed all the way to jury deliberations and not to ever files and maybe there's a good argument to be made about it maybe there's a good argument to be made about it and post mentioned maybe there would be a good argument to be made about if they lose another post election and i get it on appeal but right now it's not proper legal form so i couldn't make