important to note how the allegations in this case arise there are allegations from his stepdaughter who is at that point an adult having just graduated from high school and she's in some pretty intensive counseling over drug and alcohol problems  i think what is one of the strangest aspects of this is how the actual allegations of abuse that are at issue here allegations that three of her uncles and her brother also forcibly raped her and that the uncle counsel indicate to the judge most of what i'm going to be questioning her about comes from prosecutor's notes as a grand jury because in oregon grand jury proceedings are not transcribed and i think that's salient both in terms of getting a handle on why the factual development is a little bit earlier and also in addressing the state's claim that this is collateral extrinsic evidence when in fact at the indictment stage in this case the state was putting this evidence before the grand jury the sworn testimony that we have because a grand jury was not transcribed comes from the rape shield hearing where clearly mr kelly w honestly it was new year's day on new year's eve and that allegation is i think interesting because it appears to be supported by or the chairman kelly was told about that and that was one of the things that seems to game the prosecutor says to her on redirect i want you to or perhaps this cross examination actually proceeding i want you to think real hard you gave maybe an answer before that maybe you said something but do you remember ever telling your mom that intercourse with your brother robert on new year's eve in one thousand eight and she answers no that had been questioned by defense counsel earlier and it seems quite clear that at the grand jury she says that has happened there is no other references to that in the case other than this litigation the big picture together for me i understand the grievance being focused it's offered up in terms of  sexual stuff all that they hear are the allegations against her stepdad my client and they here say oh and i told a couple of lies about having sex with boys to my dad i just said that to try to get him to leave me alone or to because i was so and on appeal my lawyer should have raised issues about the rape shield hearing but the gravel none of that is he one of these people called he's not stab in the long he doesn't know that's a prerequisite to calling him for that purpose that the rape shield hearing include that although both he gets to say lawyer of the rape shield hearing she argued these are constitutionally mandated at some point she argued you know it's their fault they come in but but her real argument where she focused was these allegations are true and they go to showing she had i think a wrong theory and a theory that mr kelley certainly would not have  been there now close by saying that in this case the rape shield pairing was really the fundamental importance because if frankly what happened and the jury missed a huge picture in not being able to speak that this girl had made some small arms false second when the victim was testifying don't tell us that we he was not there i can't tell from looking at the transcript whether he was there for the arguments but his point is he needed to be there when she testified so we aren't really disputing any of that but the bottom line for this whole case and the heart of our argument is that pages twenty three to twenty eight of the red briefs and this whole theory if only i had been there if my attorney had done the right thing and had me there i could have done something to show that the victim was lying when she said these things and the whole case hinges on that and that's the piece that petitioner never proved when he came into post conviction proceedings he never presented any evidence whatsoever that in fact the victim lied about any of these things and so that's really the heart of the the heart of the defense he just never proved prejudice even if we assume that the attorney screwed up testimony about this claim that his attorney didn't make sure that he was there and what he would have done differently he talked about it in terms of other claims that were in the case at that point and after he invented his petition to add this claim he did not produce an affidavit at trial the attorney tried to get me and she said well i have his wife here she can testify that there was never a time that the three brothers were at this location at the same time well we don't have an affidavit from the white in the post conviction saying this is what i s to show that this is not true so the whole thing we have all of this discussion about what did she say how did this happen what were the facts but the whole thing boils down to his theory is if i had been there i would have made my lawyer show that she was lying and we don't have any evidence that she was in the room so he simply never proved prejudiced in the post conviction stay post conviction court was right the district court was right and there are no questions that's really all i have to say thank you