raised two issues in his brief and i'd like to start with the first that is whether there was action government action that substantially interfered with the witnesses exercise of his decision to testify in this case the when you're talking about it if you could address the procedural default argument as well as be helpful ok then i think that i should start with that  sorry the respondent the respondent claims that this is not preserved insights to michigan state court rules the exhaustion doctrine is not a preservation doctrine the exhaustion doctrine comes from the federal statute and it requires that there be a fair opportunity for the state court to rule on it and we would suggest and i think that i misstated this in my reply and didn't use the word opportunity but it is the opportunity that's that's important here and in the this issue was presented to the michigan court of appeals and to the michigan supreme court as the district court judge noted although he does name is not mentioned in the petitioners heading there is extensi extensive discussion of the facts that of his facts and a discussion of course of the legal conclusions of though they weren't applied to hit al was that a fair presentation a must say that's the part that concerns me is right in there doesn't look like a fair presentation when you're talking about coursing someone else it i understand it except it's all woven the backs are all woven through starting words mr henderson isn't saying to you coerce one person is the same as you coerced another person i mean maybe you mention that the other happened but if your argument is you course this person how is that asking the court to reverse because you course another person that's my question well i agree that doesn't show that it's the that it wasn't the central focus but i think that this is all part of this part of this interference with both witnesses right that you can't just look at what happened to mr uniquely about so uniquely about one person and i agree and the fact that the name wasn't stated in the head no i don't think should dissuade the score from finding that the state court had the opportunity to rule on it and this is the kind of situation for instance where you're looking for a needle in a haystack and you can't find the particular issue or the head on itself this big there was a denial of due process in this the courts are alerted to the fact that that the witnesses and i think they talked i think that they had no says denial of i think they have not used as plural witnesses were there right there i'm sorry the their decision whether to there is no parsing this heading witnesses is what part of what the constitutional right is but the way he was denied it was being not being able to present a defense by the threat to prosecute lee in the subsequent ruling that lee was entitled i mean i can see how you could say part of the subsequent argument related but the heading is clearly limited to lee well i'm going with that plural judge but i think early on a lot of the constitutional right i mean you can say denied his constitutional rights would mean that he could do any right in the constitution no i don't say that and that would be vague but and if i was going to write they had not only about lee i would say the right to confront the witness against him i would i would phrase it that way i want to use to plural so i'm suggesting that the plural is what saves this for your review make an alternative argument of ineffective assistance of you could you could say that the appellate attorney was ineffective for not composing a better head no but  there is no remedy back in state court to raise that so under twenty two fifty four without a remedy this court can reach the issue anyway i'm not sure i follow that last are ok under under the exhaustion doctor if there is not also a state court remedy remaining for the defense for the petitioner then this court can reach if there is no remedy left for my client to go back and raise ineffective assistance of a when you read what happened in this in the cult way between the judge and the two witnesses charles lee gets up and he says i don't want to testify there i mean there's nothing that the trial court said that changed his original thing i don't want to testify out so when mr hill he threw his first statement is i want to testify and then it's only after he talks to an attorney and then comes back in front of the judge and says i want to testify and then the judge says you know you could be charged with conspiracy to commit murder that he then that at that point does let me talk to the attorney again and many comes back and says i want to exercise my fifth amendment right you've got nothing with well i think it's because i was able to go back and look at twenty two fifty four and see that the extraction requirement can be avoided if you can raise that effective assistance of appellate counsel yes you're right about that in the  conspiracy he was convicted of several things but the major sufficiency argument has to do with conspiracy the conspiracy to commit murder in the first degree that that crime requires two intense be intent to combine with others but it also requires that intent to commit the object of the conspiracy which was first degree murder requiring the specific intent and deliberation of premeditation there is no evidence to show that my client joined with mr crime in any conspiracy in which he knew that the objective of the conspiracy was going to be first degree murder the prosecution decided a case called i believe it's coleman versus johnson in which the court did find sufficiency and i think the it's so clear that the that the evidence in this case was extraordinarily speratus when you look at what happened in cold but in that case the defendant is present in the afternoon when the  defendant the the defendant third i mean it's from those facts you could infer that the defendant knew what was going to happen when they walked into the alley in this particular case there's nothing to show that my client knew that crime wanted to kill the woman he either wanted to get in danny and i agree that d n a only davis testified allegedly to statements made by my client but the major point that he talked about claiming that my client said that they were going to overdose or that was completely attacked by the medical examiner's report that showed that there was no drugs and just in her system other than metabolize cocaine agree that mr davis presents problems but when you look at the fact that the criminal is alleged to have occurred i met and labor day that one day and my client then goes to prison for twelve hours and mr crime carries a gun using his brother to come in get him and take them places and then after he threw drowning the woman he calls the brother and brother have to come pick him up all of this was done without my client's knowledge or any any participation in it definitely davis is a jailhouse snitch in for my client to spend the rest of his life in jail because of what a snitch was offered and now he's recanted i mean this seems to be to be a malfunction of the kind that  talking about where this substantial the complete denial of freedom for the rest of your life hinges upon the credibility of someone who has no credibility jackson the case that coleman talks about the fact that the evidence aspires i would suggest to you the danny lee davis doesn't even rise to the level of spares all the evidence i mean we may agree with you but we don't get to overturn the jury you came to a different conclusion do you get to overturn the jury is a rational rational fact finders could not find and nothing evidence in the record that's what you've got to do is on how believable this jailhouse snitches right and also you have to make the  yes it does it will it is so we would have to second guess how believable that guy is not having seen him testify isn't that sort of strange i don't think so i think that all this efficiency cases look at that and you know the one of the besides identification of false confessions most of the back to the fictions rest upon jailhouse snitches yours after deciding after deferring to jackson versus virginia you also have to decide whether it was about procedural default because i'm still trying to get this straight you're saying you're saying now looks like you may not have raised it is that appellate counsel on direct appeal may have been ineffective that's a right yes but wouldn't that have to then be raised on collateral attack in the state courts yes it would except collateral though that was not raised on collateral tech that very ineffective appellate counsel was not raised on collateral that's correct so are you arguing that that person was ineffective as well my client was improper i can't argue that he was ineffective he was just stupid ok and i can't a again there is no collateral attack left for my client because of the of the michigan court rule six point five hundred union he did the collateral attack pro se yes yes pro se c and there isn't one for him to go back to because under michigan court rule things point five hundred you only get one collateral damage i see thank you well the district court ignored the fact that the michigan court rule and michigan case law both say in order to preserve and raise an issue to exhaust an issue you have to presented in the statement of questions presented and that did not occur here in  fact as i was preparing for argument i came across the fact that federal rule of a poet procedure twenty eight eighty five has the exact same requirement i did a quick search of that court all slash paragraph on the word waiver and there are at least three six circuit cases that is an excuse for a procedural default except there was a subsequent motion for relief from judgment filed by the petitioner himself where it could have been raised he did not raise it there was no what tourney for him to blame it's only himself that is to i don't see any relevance at all it's not a though there's been a that if you say that that he didn't raise it if he'd had count if he'd had poor counsel that didn't raise it then he'd have an our human or martina's right well there's been no holding that that those cases even apply in michigan because you can bring an ineffective assistance claim on direct appeal in michigan and that happens all the time that's what i'm trying to get so your answer to any conceivable martina's argument is that martine is just flatly not  it would not apply that's correct your honor but there's been no six or a case to that effect yet and really hasn't been argued here would have the case of generally about michelle trevino and in michigan i don't know that there are any have said anything about one way or the other i'm sorry i don't know that they've said anything one way or the other but i know they haven't said that they apply thank you so there is the michigan court of appeals is entitle to enforce a court rule that's identical to the federal rule of appellate procedure that has six circuit enforces and that's why the the court of appeals didn't discuss the issue at all is not in their opinion whereas there's a lengthy discussion regarding charles leave the other witness whose name was specifically included in the statement of questions presented now the district court found it relief was not available on this witness intimidation claim even on done over a review and i believe that certainly was a correct decision and it is true that webb versus texas you know found a particular case that a judge went way over the top with a witness and intimidated that when this into asserting his fifth amendment but web easily distinguishable here because in this case the judge appointed an attorney for the witness that didn't happen in webb and the judge and webb specifically said i'm going to personally see that the green jury hears about your testimony if i think you committed perjury and he went it over and gratuitously the supreme court talked about unusually strong language and that this was the sole witness of the defendant in this case the defendant had three other witnesses other than  and the judge also found out that mr hill was only nineteen years old and only had a tenth grade education and the consequences of him if it all had testified would have been great because it was the possibility of a conspiracy to commit murder and there was a lot of evidence of phone calls that were being mr head all possibility of it all providing drugs a lot of things going on and the final decision by mr junta was made after a second consultation with his attorney that lasted at least twenty minutes and the judge found that the judge that mr hill made his own decision so i think that this court can find that this first issue was either procedurally to faulty or that the district court properly analyze the issue and that the judge did not engage in improper warnings as for the prosecutor's comments there is no u s supreme court case finding a due process violation on the basis of prosecutor warnings there is a six circuit case law but and habeas you know all the six are cases aren't controlling it's only us supreme court cases and just two weeks ago in white versus wood all the united states supreme court said federal appellate court should not extend rulings from one case to a new scenario and if you were to extend webb to it which is a judge warning face to a prosecutor warning case i think that would be inconsistent with white versus what all and finally the prosecutor did not in fact say anything to mr hill his comments were made or mr kendall was out of the courtroom so there's no way that the prosecutor's comments in appropriately scared mr hill into not testifying what happened is he talked to a lawyer two times and finally after the second conversation he realized you know i could really end up in trouble here and he decided he made his own decision not to testify case opposing counsel just discussed and when i write these brief said if i find a case i think particularly helpful to me i think to myself i wonder what opposing counsel is going to say about that when they file their reply brief well i was quite surprised by what opposing counsel had to say about coleman in her reply brief she said if the united states supreme court was going to adopt a new standard after thirty four years of the jackson standard it would not do so in a pro korean opinion this double deference cannot result in a bar rationality test well i'm sorry but if you recall to be jobs it is specifically says quote the only question under jackson is whether the jury's decision is insupportable as to fall below the threshold of bare rationality and yes it was per curiam but it was a nine to zero opinion so it's an elaboration on the jackson standard is not a new standard and counsel did not argue that this verdict is not supported by the bare so now don't we have the testimony of danny davis who specifically says mr beck tell told me that he he went with william crone to the trailer where the victim was and they were they were going to attempt to kidnap or at that time when that failed then they made a subsequent plan they were going to grab the victim on her way home from work bechtel on a friend were going to wait at one spot and cronan a friend were going to wait at another spot in the plane was to take her to a lake overdose or and make it look like she drowned and drove her car into the river and sure enough the victim was found drowned or in the water dead and her car was partly in the water so the testimony of danny davis was supported by what actually happened  here in the motion for relief from judgment the state court judge specific place said there's reasons to believe that danny davis told the truth and he said for three or four reasons why he thought the any davis didn't tell the truth but in addition he also had the testimony of scott ripple  who was called by the defendant and he confirmed that bechtel was aware that crone intended to kill the victim before they went to the trailer and they botched kidnapping attempt failed through and then sure enough a day later they made a subsequent plan or maybe you know right then but they made a subsequent plan and the subsequent plan was it did occur now there's been an argument that well maybe the crime occurred when he was in jail well michigan law says that the crime of conspiracy is completed a moment the agreement is entered into and you don't even need an overt act and that's why coleman to be johnson factually is not a pluggable here and under pennsylvania law and call my view johnson was a third circuit case where they had granted hey vs and the united states supreme court unanimously reversed and in a pennsylvania you needed an overt act to support a conspiracy conviction in michigan you do not so it doesn't matter still it's pretty clear the jury would not have convicted if it hadn't been for the testimony of the jailhouse  what isn't your honor and the reason i see what the basis for it would be well for example this event that happened which was and then later on she's found it's clearly if they believe his testimony i mean it's a slam dunk ok but i just want to point out on page twenty four that that was my question my question is without it it's kind of hard i mean i guess maybe you could say there was conceivably enough but it's kind of hard to imagine they would actually convict on the basis of well i think the strongest evidence for hank ham for one  is one page twenty four of the sentencing transcript the judge said maybe the jury dismissed danny davis is testimony they certainly could have returned a verdict without the danny davis testimony so that was the trial judge who presided over the entire trial and that was his view of the but the false mustache right that's correct that's right because they planned on getting her as a trainer when that fell through they made a subsequent plan to get around her way coming home from work and then bechtel got arrested not bechtel buys all this yes it was her own and his brother went and bought the disguise elements and everything but certainly find enough evidence that groaned it where's the evidence that right it's that well first off it's entering into the agreement and then going so before they is there any of that in the remaining evidence well there's the school there's the inferences from all the phone calls that people were you know working together and that clearly had a plan the attempted kidnapping that fell through they want to appear ground looking for her and then finally somebody found come up with an answer really there well there is some though because there is you know the jury isn't entitled to make inferences from things that occurred and just actions and put the took place you know i would not concede that there were insufficient without it but we have it and so that's really you don't know that control and of course so we clearly have once davis testimony is considered there's more than enough testimony especially under the double deference so clearly i would ask the court to affirm the district court's decision that the defendant was not entitled to have us relief why why are the courts suspicious of happen that we don't know about at the time i or frequently when they testify there they want to deal and then they got the better deal another they have the better deal now they can they feel they can you know hold back from i mean what state won't take the deal from them necessarily and were any of those things going on in this case he was offered a better deal yes and the jury was told that he was given he pled to one cow got two to fifteen years danny davis thank you thank you very much a judge that if you turn to page three of the reply brief at the very bottom i talk about the fact that appellate counsel failed to preserve the issue and i just want to point that out too but i want to address other issues because i think i could see did that i hadn't of course that in a ineffectiveness says self to be exhausted yes and that was my point that it hadn't been exhausted in state court you can't go back because there's no collateral nothing no collateral procedure for him  i want to talk about you asked about where this evidence comes that she was going to tell about their drug use that was a prosecution theory and the prosecution presented it to ira hank who was the victim's boyfriend and i were thinking testified that the prosecutor asked him about it and i were he said she would have never testified to that so that was just a fall from but there is testimony from that to that effect i don't know whether there is or isn't i can't recall there and if there was it was then fed to him by the prosecutor and again this was a high publicity case where anybody that wanted to could read the paper and find out that she had been drowned  and that other other factors too i just don't believe that there's such a thing is that this bear and i did read it in cullman this bears threshold of rationality or whatever it is but coleman also talks about the sparseness of the evidence and i think that that's the more reasonable way to look at what they're now talking about in terms of double deference and danny davis is testimony it doesn't doesn't make up for the sparseness of the evidence against my client in math i would argue  that in terms of recantation us to question that the michigan court of appeals has talked about it said it can't figure out who to believe so it throws its hands up and goes with what came first in time in this particular case the prosecution offered  on the other camp when he found out that that wasn't a deal that's when he recanted so it's hard to tell whether he was lying in order to get the deal from the prosecution because facing two counts of criminal sexual conduct against your recanted at that time he was sentenced i believe after he got the deal before and judge i don't want to i don't want to speculate about when he was sentenced but that was not raised the jury knew that he got a deal but they didn't know that he was dissatisfied with the deal and that he t to that because that was the deal he was going to get i would just say the closing again danny davis is testimony does not make up for the sparseness of this record i've asked the court to reverse this and send it back to the lower court thank you it will be submitted thank you for your arguments