good morning honors tyler bank scales for respondent and may have to leave the court because the indiana court of appeals reasonably concluded that marling failed to meet his burden to prove ineffectiveness and post conviction proceedings the district court hearing granted maybe it's overcome the burden to prove counsel's in effect that court recognized that counsel didn't argue that the officer could not open the lock box with a screwdriver and it nearly killed that marling had not met his burden under strict and that is all that the court of appeals opinion stood for because this was neither an unreasonable application of strickland nor based on an unreasonable factual determination deference to the state court is required but when the district court shut itself of deference it actual damage in the court's opinion it was usually couch strong or always couched in sentences that were rephrasing the issue or read characterizing mr martin's argument in the state post conviction peel and no one getting concluded that the box was motion to suppress he argued that the search was argued that the impoundment was not in keeping with the status mark berndt police department policy showing that counsel was aware of the policy and also argued that the officer was not permitted to open the box with  so the issue that mr martin criticises counsel for not making was was raised in available for the trial court to rule upon the trial court just simply disagreed with marlins position which is not show deficiency or prejudice but even had counsel used the you know the under result henschel damage language in the trial court that argument would not have that of reasonable probability of success if the policy for e action that could cause a reasonable potential damage it's hard to imagine an action less intrusive than using a common household tool to pry a party hinge from a locking mechanism the question is not one of the actual they have is whether the officer would perceive an unreasonable risk of potential damage from the means and i would submit that this case typifies an action that would be a reasonable risk of damage and mr marlene's argument basically hundreds i haven't i have a question for you mr it's judge scott or i suppose we suppose we're inclined to take a look at the photograph i think your your description that the box was damaged but suppose we're inclined to look at the photograph i i've looked at it several times i think it's pretty plain that there hinges then to make any difference at all i do one reasonable potential damage in the district court went even further here this record not only said hey this is actually damage but it's likely in all there's no evidence in the record that this box was operable or i think importantly an additional thirty three years in state prison that's thirty three years longer than mr marlin would have otherwise that in the custody absence of attorneys think the failure to prevent the meritorious the pression argument could not have been justified presented the argument it would have lost the district court the federal district judge thinks that the state court should have ruled otherwise but the state court is certainly entitled to be taken  word as saying had it been presented it would have lost have we ever said that a lawyer was ineffective for not presenting a losing question on its own premises the federal district court believed that the state court was wrong believe that the state court should have said this was a winning argument look at the picture right and we know the picture wasn't presented but the state court in fact said this is a losing argument so we've got two layers here one is whether the argument would have won in state court and the state court said no the nd layer is whether the state court should have said yes the question i'm asking is whether it is appropriate to hold counsel ineffective for making an argument that the state court  analyze the question to know about it because of you then reasonable factual determination so i think you have to sort of separate that you question whether i'm going to ask this one more time it is not an unreasonable finding of fact for a state court to say if this argument had been presented to us earlier it would have lost that seems to me to be decision by the state tribunals about what it would have done the district court believed that the state judges made a mistake of fact on the way to that conclusion but that doesn't undermine the statement that here is what we would have done in fact the question i am asking is how does strickland apply when we know for a fact that the argument was a loser so far as the state court is concerned even though the federal judge thinks it should have been a winner your honor i think we don't know that the argument here was  know i think i agree with you that if we had in the thora tate of a decision from the state court that properly analyze the facts of the case and came to a you know a legal conclusion we would be in a different situation but that's not the case that this court has before it today and the reason why i had to separate out both unreasonable legal determinations and reasonable factual determinations if because the state court should not be entitled to deference on its legal conclusion where it rests on an unreasonable factual premise and that's why this case has been litigated under two thousand two hundred and fifty four days too because it's really the factual premises of the state court's decision that are unreasonable in this case and sure and i do think it's a bit convoluted but my best understanding of the argument that both mr narrowings trial and a politic turn you've made was that whether or not the inventory policy urged the officers to conduct the search in the way that they did that the search was independently unreasonable because there was no exit jensine or other law enforcement purpose to backing up the search and that we believe is actually quite a mis understanding of the inventory search exception and i think primarily the attorneys were arguing under the indiana state constitution as opposed to the th amendment although their argument sort of go in both directions so that's our best understanding of what his attorneys did in the st instance but i don't often like to address what the state court actually held in this case so i think  friend on the other side is right that the state court focused here on what mr marling had shown but i think the bad only matters for purposes of the th amendment if it's only an accurate description of the factual world if you both agree that the powers can hear terms on actual damage and the photograph doesn't show actual damage i mean there's a couple of reasons for that so you know of course when the secret is talking about whether mr marling has pointed to sufficient evidence that talking about evidence of damage and that doesn't answer the th amendment question amen less the policy also turns on actual damage which as we've said in our briefing it does not and secondarily cited several times to the point that the state court itself even cited the photograph in its factual background and it was also cited by mr marling in a petition for rehearing which sort of more centrally emphasized the photograph argument has always been that it's the officers methodology that violated the policy not necessarily the actual damage that resulted from the search miss jones and judge scalia just to it's just going to let me ask you a question about that the understand your argument just fine and your you know your brief is well done written very well we appreciate that very much the hard part that i have with the substance of it is it's hard for me to see how using a screwdriver to open the lock box here is an extreme measure or one that risked on reasonable potential property damage under this policy i think your arguments much better if you we're talking about the use of you know a crowbar that they drilled the top off this this box that you know they used an explosive device or something like that but i mean to use a user screwdriver to just jimmy this box open i just kind of think well ok how how is any not unreasonable your honor i don't disagree that we can imagine for the more destructive methods of opening a closed container but i'd still don't think that that helps answer whether the use of a screwdriver on a lock that is affixed to the container and that of course is designed to sort of make the box useful in the st instance is the type of search that entails unreasonable potential damage  and i do think the fact that the photograph shows actual damage is fairly good evidence that the method in the st instance entailed the unreasonable potential for damage if the court has no further questions my time is expired but court of appeals making it a reasonable factual finding because while it may not have found that there was actual damage but it's kind of opinion centered on that that was an argument that even the district court rejected in this case it said in a footnote that while that approach may have been quote misguided but it's true in the vast majority of cases that actual tensional damage and restock potential damage would be very similar so the extent  mr jones the court appreciates your willingness and that of your law firm to accept the appointment in this case and your assistance to the court as well as your client this case is taken under advisement and the court will be in re