in denying mr winkler relief this state court acted contrary to and this court should reverse a new appeal is also warranted for the separate and independent reason that mr winkler can and has shown ineffective assistance of counsel under stric washington and this is demonstrated by two main facts st the state concedes in pages twenty one and twenty of its brief that mr winkler's counsel is deficient nd because it's reasonably likely that mr winkler's arguments on o if an attorney in let's just zoom deficiency in both cases and attorney strategically chooses not to pursue suppression you have deficiency an attorney situation he has to show prejudice but in the nd situation he doesn't it's pretty clear right that's correct so what's the law i'm not sure i understand the logic behind that and then aren't you isn't the natural extension of your argument that any time an attorney forfeits a argument on behalf of his client it's automatically presumed prejudice no matter how bad the argument it ok i saw in so your st question st we're presuming that counsel is deficient in failing to put forward a suppression argument on appeal he would still have to show actual practice and i think that's different than the case here because there are still arguably an adequate and effective review of the merits culminating in his conviction there's still an argument for it that way in which situation where counsel to go forward with an argument both in both situations assuming there's two arguments one sufficiency one's suppression sure you're saying in the st situation he has to show actual prejudice where the council makes its decision but in the nd situation we're going to presume prejudice that's correct but i guess it's hard to think of in the abstract here i think where two arguments would be suppression and sufficien in this case the only evidence against mr winkler and the only evidence is now you are looking at the actual evidence which presume prejudice goes into like if i'm presuming prejudice i don't care how bad your argument is i'm just prejudiced as soon as you look at the evidence you're moving into an actual prejudiced world right but i think in the st instance where counsel failed to put forward an argument and you're saying that's deficient you necessarily would have to look at the evidence in that case where you necessarily have to look at it here it's no different here i think it is different actually because here the mr winkler raised three arguments relating to his conviction on appeal two of them dealt with eviden back to the broader question you're a answer what's your answer to any time made forfeit an argument we have to presume procedures and you mean by failing to file an adequate record for whatever reason whatever reason a necessarily related to the theory this is exactly like in and understand what's going on in this case and i'm sorry to interrupt you we're going to bring her in a nd but i want you to answer the st question which is i still want to know where the line is like what line are you asking us to drop because right now if you read floors or take and it's the entire appeal by failing those cases your failure to follow the notice of appeal ok so now you're asking us to bring or which has line right where here and he vs so we're not extending and meaner and making any line drawing determinations here all we're saying is that the state court it did acted contrary its and or when it found that  same argument that judge parker raised which is yeah the same could be true if i as appellate counsel failed to raise in my brief the winning argument and we would say well we've got to look at whether there's actual prejudice from that and that is that would be insufficient so let's say you have a dead bad winner argument on i don't care what it is a motion to suppress and you don't raise it on appeal to we don't presume prejudice from that we have to look at whether or not that argument would be a winner sure and i think i am having a hard time conceptualizing why your case is different i understand i think it's a little different in the sense that there is that kind of additional layer of deference and i know you said we're presuming that it's deficient to not raise this argument but here i think that nd layer of deference is completely missing where counsel did to put forward these winning arguments but just didn't perfect his appeal that's almost more akin in my view to not filing a notice of appeal than it is to choosing not to pursue a certain argument on appeal  but even if you were not going to presume prejudice here mr winkler has demonstrated actual prejudice under strickland vs washington as well no reasonable court applying strickland would have affirmed mr winkler's conviction at st there wrong and he made in this manner it was that he the district she she made an assessment that the evidence that was sufficient under the best evidence rule and she made an assessment on the prior conviction that she didn't want side trials which district judges make all the time and she looked i think it's rule six nine dollars and it took over ten years not a crime involving dishonest ray i think plan or motive then it's an exception and it comes in rights but under tennessee law there are four required steps to a four a four b analysis that the court failed to apply here does post for one moment i for this evidence was only offered to impeach the witness not a substantive evidence which evidence are you talking about that did that action of the witness or of the voice oh i'm sorry i was talking about the conviction so you're saying i thought you were saying that the conviction evidence should have that's not what you're saying i'm saying both should have been analyzed but if it's impeachment why would we be going to be i see the amount of time but i'd love to answer your question here under rule six hundred and nine that governs when convictions can come in to show that someone is more likely to be a well i'm staying a prior bad act as and having a conviction and there is tennessee case law that has analyzed whether convictions can be analyzed under for a four and b for purposes of showing but i have absolutely against the defendant when you're talking about those cases those have to do with the defendant not a witness you have a case that has to do with the witness and or b because my understanding of your argument and you should tell me if i'm wrong is this guy said send his convicted felon in possession of a far greater shooting and so it's highly relevant and the prejudice is a whoa because he's not on trial begin with so he's not it's just a witness and that's what i thought your argument was which is look six o nine has nothing to do with this this is this witness and his motive to lie it has nothing to do with the crime having to do with honesty dishonesty it's in so why are you trying to pigeon hole you're so it seems harder for you to get him through four or four p versus just arguing hey this is highly relevant under three sure i mean i think either way six o nine does not apply and you're absolutely correct that that's why we wanted to put in the evidence of the conviction to show he had motive to lie about what happened on the night he in fact did lie on the stand about being a felon and all i'm saying is that the appellate court's review of these evidentiary decisions would not have been an abuse of discretion standard because the four  counsel please the court i'm austin watching from the tennessee attorney general's office appearing on behalf of the word in the save us corpus action decision of the district court in this case should be affirmed because it properly afford it at the deference to the tennessee court of criminal appeals determination strickland imposes a two prong analysis for ineffective assistance claims one being whether or not the attorney's conduct constituted deficient performance and want the other being whether or not the defendant suffered actual prejudice as a result of his attorney's conduct in this case your honour's the state courts you and i know you just do this in passing you argue for future but it seems to me in reviewing his petition it pretty clearly are actual and  prejudice your honor that is true we drop this in a footnote merely to point out that there is a little we didn't fully respond to some of the arguments that were raising now because the process a petition of primarily sided only presume prejudice cases you admit he was any did state strickland any did discuss how he was actually prejudiced and is just wrong or the state's business will be that he did not actually discuss how he was actually prejudiced he argued how he was should receive presumed prejudice but it does appear that he was trying to get before the court the same claim that he exhausted in the state courts which was that he received ineffective assistance in the state courts they applied strictly but we give it a more liberal construction than an attorney and he does say this is highly prejudicial to the petitioner as this lack of action on the part of trial counsel just yes right at sounds like actual prejudice to me for a year and we would understand if your friend on the other side right that this isn't a six o nine analysis the four hundred and three analysis and under poor three this is highly relevant in other words he's the key witness and he has a motive to concoct this whole thing because he he's a the actual record they called in a clerk from a county to talk about whether it was actually a felony condensor great point and if that if the record shows that it was represented by counsel of course that's wrong then i stand corrected so but why did he not make an argument that hey i thought he did that this is this guy's motive to lock you out of the argument was made in it wasn't explicit supposedly fleshed out with the basis for the argument was a response position would be that it was actually made in context of part  question is there a situation here where the specific facts of this particular conviction go to credibility that would substantially outweigh unfair prejudice so this response and i understand all the levels of deference create a lot of problems for credibility and the actual conviction itself doesn't have anything to do with truthful interviewing in a vacuum versus looking at the bigger picture and i think you have an obligation as a trial judge to look at the bigger picture and say look what they're really getting at is not what six  nine zane did excluding six thousand and ninety and excluding old convictions because we believe in rehabilitation and allowing in convictions for dishonesty because we want honest witness this conviction has nothing to do with that they don't care about the underlying conviction what it was they just care that you have a felony conviction because they want to show you had a motive to lie in this case so for example if we actually just did the forty three analysis then there is some probative value but your hon rs if you look at the entire record the theory that this victim created all of this he dashed his house in his vehicles and gasoline to create to hide over the fact that he allegedly for some odd reason was shooting a firearm at four am in the morning when no one else called the police but his girlfriend there's there's really not a strong narrative that supports the claim that he would have made this up strictly to to protect the fact that he should have had a firearm and would it have been a defense to his say he had been arrested and prosecuted for being a felon in possession what it have that it defends to being a felon in possession that he was acting in defense of others or self defense or defense of property or whatever the claim is in tennessee only did it seem an appropriate use of the gun even if it was in self defense he claims that he stepped out the perpetrator started running and then he emptied a clip in the woods at the met some point it may not it may have still been reckless endangerment he may be out of actually been using it in a protected manner so if we look at the  probability of jury confusion here if i have to have a mini trial on whether or not this guy has this record and what was the prior conviction in that that are even i think is beside the point because you just give a limiting instruction if he has a prior conviction no one's contesting you're not contesting as a proclamation right well there was some debate at the trial for whether or not it was a felony or misdemeanor but well but he has a prior to us yes your honor and that would be if the defense would still have the obligation to demonstrate that to the trial court satisfy your yes your honor so if they end the trial court didn't exclude it because of that i thought i thought the trial court excluded it on six o nine and then said what you said about the side issues but the reality is the tropper could figure that out ahead of time and if it was a felony then it would just be that he was a prohibited person that's right your honor i mean this thing it just depends on the way you look at it i mean at some point it would be a collateral issue you're getting into this the state of the defense becomes about this putting the victim on trial because it's completely even though there is some it's not if it's a motive to lie i understand you're i mean there's a lot there's a lot going on here and there's a lot of deference going on all of it in the supreme court said we're going to presume prejudice in that situation your honor a couple things about its bigger one is that it does appear to be factually distinguishable and that is pretty plain from in the way i understand the way you're going to it you're going to say well we file the complete transcript here that offense attorney did but the reality is is that a substantial portion the way i read and springer is when you leave a substantial portion out the supreme court said doing so council had taken all hope of banning adequate an affective appeal at all away from the defend it and why isn't that going on here under the defendant under the petitioner theory and under  we excluded this testimony about the phone call and had we won this six o nine then the evidence wouldn't have been so that's not correct john i would like to correct that based on state law the the analysis of the evidence analysis would go based on assuming that those items had been it were properly admissible so even if the court had given full review of the evidence cherry issues said these were improperly admitted it still would have done a sufficiency analysis that included the improperly admitted evidence and i've got a citation for your honor state versus gillie reporter to non seven southwest rd page number seventy three thousand nine hundred and ten is published in support of criminal appeals decision from two thousand and eight and it specifically says the vision see would include the improperly admitted evidence so there was nothing regarding waiver of these two issues that affected the sufficiency analysis that was a proper complete review and so honor in this situation this is far different this was a non page motion for new trial transcript three page is of the nine pages discuss the issues the other six is were basically courtroom noise and logistics this was not a substantial portion of the transcript and in your honors that would be most likely to happen in this case trial counsel didn't ask afterwards maybe for there to be a supplement and record after the opinion asked for a chance to reconsider rehear the argument this appears no you are in the state's position is lie isn't that a so what you're saying is you don't file a notice of appeal you present prejudice you agree with that mr r if you follow a notice of appeal but don't follow up anything to help the defendant don't file the transcript or anything no motion for new trial transcript but you had the substantive transcript so you're just saying based on the number of issues as long as one issue gets through even if it's the worst if you win all the good issues and we don't presume prejudice kno ortega what you see is they have cabin prejudice to three very rare circumstances where we have no actual or constructed denial of counsel we have actual conflict of interest or we have no in car versus paris pointing out look like what we're trying to see is did you get an appeal if you got what looks like an appeal and you had counsel represent you in that appeal it's ok for us to go and do the actual prejudice analysis of entering or got an appeal a counsel right he did but your honor if you read the due process and rationale and lying in her part of it was is that they kind of are saying he didn't really have counsel functioning as counsel he was left in a situation where it's meager lives on these due process issues your argument is that not anything that's correct and actual prejudice would cover this situation just fine what the supreme court is telling us is we presume prejudice in situations where we have  the structure of the proceeding we have no adversarial process is rendered fundamentally unfair or unreliable and in this situation your honor we have the transcript this exhibit thirteen of the post conviction hearing it's nine pages long the supreme or the state court could have done for analysis without that transcript it changes nothing it was just argument there's no evidence this is very easy and in these situations it's not difficult for courts to apply strickland's akhil prejudice prong and review whether or not the issue merit this is not a situation where we're losing the entire proceeding even if there's a situation where you know these are the bulk of the issues wrong we can flip this around easily to your hypothetical you know to hell and say well what if the capital used corpus case for example we've got a one hundred issues that are being litigated and you forgot to include the motions the suppression hearing you forgot to include the jury instructions you forgot to include one small portion of it so we're going to redo the entire appeal for all of the issues issue the prison if you presume prejudice you get an entire new appeal for all the issues and so in this situation i would not be able to just live it really gave these two issues on the standard in theory he could raise as many more issues as he wanted to based on the record it so i'd like to just follow up on a couple things that came up during the state's case first actually to go back to your question regarding what would be the difference if we presume deficiency with an arctic argument about suppression that wasn't made or presuming deficiency on failure to that's an intentional strategic choice by counsel and you know we're presuming that it's deficient but it's still intentional in that sense so that makes sense that you would have to examine it for actual practice before determining ineffective assistance of counsel whereas under in includes two sentences in a court hold for future that you could argue that's a mistake they didn't elaborate for an attorney doesn't include an underlying record that for future an attorney doesn't include a transcript out or picture what kerning doesn't say the controlling case law forfeited because it didn't it didn't present the issues to the court and i see your point but i do think it's a little bit different if we're looking at how much attention an attorney gave to a certain argument and a brief that is far more strategic and firm and of decision on behalf of how often and in this big right what you're saying is mistakes of counsel i'm saying that it's also limited to just a failure to give the appellate court what it needs to adequately review your arguments and have the last page of the briefs so it's very clear they're writing a fifty page brief and they're for some reason they put their best argument last  and it's page forty nine and you can see the they didn't finish the page fifty and so the best arguments on page fifty but it's i mean that's a mistake sure or there's just page twenty four in the middle it's just gone well i think that's a little i mean in essence meaner and that's what applies to this case we're talking about the failure to give the appellate court the record to review the arguments you did raise you did  the merits underlying his connection to the state's point about sufficiency review under tennessee law they conceded that the sufficiency of evidence review always includes the evidence that was challenge during the trial i think that just underscores the importance for the court to review those evidentiary assignments of air directly that kind of feeds into our argument that although there was some review here just like an engineer there was some reveal it was insufficient to adequately and effectively and so we really appreciate with great advocates like yourself take this i mean thank you to tennis shoes counsel as well this was an excellent argument on both sides and we really appreciate it thank you for the opportunity