view the simplest analysis in this case is that the state post conviction council cancel performed efficiently by omitting this claim at the state post conviction proceedings because at the time of that state post conviction proceedings the organ court of appeals already rejected a similar claim in the viable claim here that doesn't resolve whether trial cancel would have been ineffective for failing to raise it and so clearly ineffective the post conviction counsel was required by stricklin to raise this claim even when umberger had decided against it o k i guess i didn't quite follow your argument on that one so you're saying even though this is a federal claim to six and then claim that if a state court says we're not sympathetic to this claim that that absolves post conviction counsel who one of their relief for a possibility of really let me ask just a little bit different type of question there is no federal case that would suggest how this case would come out under federal law is there there is no binding i will binding precedent how this would come out under federal law and by me and by this your honor you mean by that by the allowance of this testimony i mean what i'm saying is the thing that's worried me about this case all the way along this is a state issue correct it's a state procedural issue whether the testimony comes in or now  out is all state issue it goes all the way through the state court in the state court says not a trouble no problem umberger comes out and says no problem and now what is the federal that we would have which would somehow say the state had misapplied its own precedent that's what i'm trying to figure out i mean i i i i'm reluctant to make my points argument for her and i take that question frankly i'm going to ask her i just want to read it was near as i can tell near as i can tell strickland is the only thing that that that that we can point to all i have in strickland right but as far as i can tell yes all right and you know as long as we're applying stricklin we're looking at you know a different species than the testimony in souter and what we have here is the actual testimony was that a recommendation that the victim the alleged victim i suppose that can we can say now because of the conviction should participate and i'm the victim participate in counseling that we know and i'm paraphrasing here but that we normally would require for victims of sexual abuse to the connection there was the victim in this case was required to do something that we require because clearly there is something going wrong with that child if they're making this allegation and that is the most that this testimony suggests so you just you're just arguing that probative this testimony is very high correct this to argue and the argument is it was in front of a district judge so that's the story are you here the one argument is the program not very high which suggests to me that maybe even on appeal this would not have this would not have presented the as good a factual scenario as souter to get the ruling that this judge was going to be motivated by this but this federal judge had all of that in front of him all of those arguments made and said distinguishing the cases which you would very easily use hey it isn't good enough for this particular case how do you respond that the trouble that we have with the district courts analysis is primarily the dischord appear to have conflated what we see as two distinct inquiries the stricklin analysis of trial our view is is there any reasonable argument even even if if me looking at this case and my own view thinks the trial counsel performed on recently is there any reason for going to trial counsel did perform reasonably and if so could post conviction counsel in this case have acted reasonably you know making this claim in harrington director and as a district court should have been required to do that these sorts of decisions are made as a result of considered double deliberation rather than as a as a result of neglect then we have to presume that this post conviction counsel looked at this and said this claim is not as strong as the claims that i'm going to raise and for that reason i'm going to admit it help me keep straight the layers of analysis here so if i what i hear you just saying now just tell me if i'm wrong is that you're saying the strongest and i am happy to answer the question so yes what i'm saying is that if postcondition council did not perform adequately then that fails the cause element of martinez as much as applied coleman and if that's true if post conviction counsel did not performed efficiently then it does procedurally to falsely claim is procedurally defaulted ok but you made a point and i think it has some significance that you thought the district court's mistake was to c of trial counsel question if any of us thought that that might be somewhat close question we could nonetheless say notwithstanding that post conviction counsel was not sufficient and not raising this because yes it were that's all it was  the court now brown on behalf of the fisher house white maybe you can just start with the point that your opponent just left off on that's my guess that's where i'm sort of seen trouble with your your client's position deficiency of post conviction counsel yes so by the time post conviction counsel was acting the supreme court of oregon where the courts of oregon had decided and number of different things they took this issue very seriously they found that there really could be no tactical reason not to raise this they found it basically never harmless in the clay and feller cases that was before post conviction was acting they found it harmful whether it was  implicit or explicit this would be an implicit diagnosis because the testimony at issue here is really about the sexual abuse evaluator saying i believed the victim when she told me without any other evidence that this happened so it's a it's a dog is that accurate though i didn't read it to say i believed the witness i thought i read it to say just the opposite we could we couldn't find any evidence i don't know what to believe but i'm recommending counseling i don't think it says that she doesn't know what to believe but definitely doesn't say that it simply says if that i'm recommending counseling to deal with the issue of sexual abuse i think the jury would take from that in the way the oregon courts would look it wasn't a jury trial that's what i guess determination they've suggested there's no problem because this record would have simply sas without all questionable evidence would be disregarded  piece econet one thousand and one we can assume the district court any questionable evidence would have been disregarded we cannot do that with a jury trial so  assume that any question will evidence would be disregarded that's what it says in front of a district court case distinguish that line of cases i understand what the vet said but i think you're well the district court relied upon this court did not say that it did not rely on it it didn't say anything in giving the verdict in this case so there's no record on whether it relied on it or not the oregon court say if the court doesn't explicitly say i did not rely on it then we presume in this scenario with this type of evidence that the court relied on it i don't think i answered judge walker's question about post conviction counsel so at the time post conviction counsel was acting the oregon courts had taken this issue very seriously and reversed and remanded ordering new trials in dozens of cases the law on ineffective assistance of counsel was not yet developed it was developing the umberger case had been decided that is a case that's actually distinguishable from this one it involved a much earlier trial it did not address the evidence of the prevailing professional forms like we have here had post conviction counsel done his due diligence and developed evidence of what the prevailing normalise which he would have been obligated to do in order to claim which is not really his role if he had done that due diligence and understood the professional norm he would have realized that umberger was distinguishable he would not have been deterred by that court of appeals case i mean what year was the post conviction p absolutely no way that there was a stronger claim than this one in the post conviction counsel in the post conviction petition the claims in that petition were about failure to investigate failing to call their client's grandmother who was suffering from dementia and things like that  so it would have been unreasonable based on what those other claims were and their likelihood that they would never prevail for post conviction counsel to decide to drop this claim include those ones instead so i think that that we have a very strong argument that objection right so wrecked correct and so in judge smith said earlier that you know this is a case that's gone all the way up through the system in oregon courts have said no that's not quite correct because this was never raised or preserved in the s assessment of what kit what claim should i raise wouldn't he is a he or she is he wouldn't he have to take into account the fact that this is not a preserved bill because that's the claim he'd be raising failure to preserve it that's the claim at issue post conviction counsel it was ineffective for not faulting trial counsel for raising this issue which was important and which i think the other side in this case has already conceded was questions are apparently whether post conviction counsel was ineffective and whether that was prejudicial and also whether trial counsel was ineffective and i think the state has conceded that it was prejudicial for a count trial counsel not  in response to the state's point that the testimony is not that damaging i would point to the oregon decisions finding in every situation that it is damaging in terms of ineffectiveness of trial counsel i think it's important to understand that the challenge this case is really about trial counsel's failure to research and understand the law the challenge that's at issue here is not a south or challenge it's a brown challenge brown is like saying in oregon this is a dobber challenge it's a challenge under state evidence code to whether that evidence should be treated as scientific and so council failure to reach a brown or dobber type challenge is what's at issue it's not about a south or challenge right we're talking trial counsel yeah that yes your honor we explain why that wasn't true so i guess i'm trying to figure out how that would be so court had numerous cases that supported the objections that's why i'm saying it but you know you're talking about under brown brown is the oregon decision that this challenge would have been raised under southard was a brown case so there wasn't any need to be clairvoyant or to anticipate what was going to happen down the pike the challenge with a long standing challenge under oregon supremes court precedent and all counsel here needed to do was his basic duty to research the law he needed to you know look at the cases that oregon supreme court had repeatedly ruled that this type of evidence was inadmissible the oregon court of appeals kept getting it wrong and we have attorney affidavits in this case that say all the attorney not all the terms competent attorneys who  state versus sanchez crews are red states versus wilson doesn't seem to me that they would be if you looked at those cases this lawyer should have made an objection at all if you look at sanchez cruz you would see there's an open question of law on whether in a case like this one where there's no physical evidence that evidence should be challenge under basically brown and the four hundred and three portion of the well then i'll have to read that again because i didn't see it that way at all  another whole line of oregon supreme court cases so that was what the attorney feud at the time they saw there was tension between the court of appeals decisions in this area they thought they were wrongly decided and they believe that challenges should be raised because eventually the oregon supreme court before you go through all this affidavit because i've read it what is there in strickland that suggests that prevailing norms of practice are more than just guides in determining what is reasonable well what's practice for only guy is merely guides at best as to what is reasonable so if i'm trying to determine whether an attorney has deficient performance and i'm supposed to give deference to this attorney  did just a minute that's suggesting that sanchez cruz and wilson don't say what i say they say they say what you say they say and they're all under brown i'm not sure about that in fact i think you're wrong but to take it for granted nonetheless even if i get to the attorney's affidavit and i look at them they're just basically that this is the prevailing norm and that's a guide if i can find somebody is now committed malpractise or they've done something objects of violation of law because they don't make the objection i think the key your honor is they have to have a strategic reason for decisions saying it's not worthwhile to make the objection that they've got to have something outside of that tactical which would say they ought to make it yes because the only this is obviously this issue had been decided adversely by the oregon court of appeals although the issue in sanchez cruz was an open question so there was a viable challenge that could have been ruled on an open question in sanchez cruz that was worth raising the other issues which you know wilson sounds like  forecloses the claim there's no way to get to the oregon supreme court the court that defense attorneys believe was likely to rule in the petitioner favor without preserving the issue in the trial poor and raising it through the system so deterred where the oregon and intermediate appellate court is getting it wrong groo team lee and you can see that inconsistency in the existing law at the time of trial you raise this issue you preserve it and you take it up to the oregon supreme court is there any case federal case that would suggest that the lawyer should have objected at this particular point in time in the trial are my rights are my reviewing all of this under strickland because it is i now just a minute i ask ounce one same question seems to me like the oregon court has had a chance to look at this they have we have am hamburger we have this case which has gone up and gone and come back and you're suggesting it was an exhausted and i understand that's why we're there but what i'm really saying is oregon i don't think oregon is jesting that this is a breach of conduct and i can't find any central specifically says the attorney there did research that case had to do with a body cavity search of a number of prisoners fifteen of them who had been expected to do a riot at a prison and they were all searched there are a number of attorneys challenging through motions t particular search and in lowery the attorney at issue talked to the other attorneys he did research and he understood that that motion to suppress it had no merit in contrasts here the the motion or the objection to then that he should have made the objection when i think lowry says the lawyers conduct has to be evaluated for purposes of performance under strickland at the time of counsel's conduct correct at the time of that informs the deficient performance analysis at each at each stage because when we have a claim that's close i think that that's a reason to provide to give even more deference to trial counsel you know deciding to omit a particular objection or claim in favor of others and the reason we think it's close is tested it goes much farther than the testimony in this case so we think we think would be a very close question whether it's today in a criminal trial in oregon that this testimony could come in or not and because the question is close we don't concede prejudice and because the question is close we think that and post conviction counsel were unlikely or did did did did not performed efficiently in concluding that this is not of a worthwhile objection or claim to raise and if the court has no further questions we ask you to reverse thank you thank you very much the case just argue just a minute and we are in recess for today