supervisory attorney to be argued by mr meredith call your lawyer good morning you may please quote i am david moran director of the michigan innocence clinic at the university of michigan law school and it is my distinct pleasure to finally judge o'meara erred when he denied mr caesar the evidence here hearing because mr caesar ledged sufficient grounds for release demonstrated that there are relevant facts in dispute surrounding the shaken baby diagnosis and the state courts never adjudicated his appellate counsel claims on the merits and so because we are under twenty to fifty forty two in the statute mr caesar's claim should be remanded for the evidentiary hearing no state court ever reached the merits because as the attorney general conceded and judge a mirror found the state courts erroneous lee applied procedural default to his ineffective assistance of appellate counsel claims mr caesar brought ineffective assistance of appellate counsel claim at the earliest possible time which is on his motion for post conviction relief but at that time the state courts as the attorney general conceded apply the procedural default erroneous lee underlying mr cesar's ineffective assistance of appellate counsel claim is the ineffective assistance of trial coun claim that appellate counsel botched and so what appellate counsel did was recognize that mr caesar had a valid strickland claim on appeal but he failed to make the proper motion for against their evidence here hearing in the michigan court of appeals under the michigan court rule and so there was never anything put on the record about finding an expert in two thousand and five to testify mr caesar's trial nor was there anything put on the record about what an expert would have testified to at that trial and so because the record was never developed as the michigan  of appeals pointed out in their opinion there was nothing for them to judge trial counsel's ineffectiveness on and so mr cesar's conviction was upheld on appeal that was objective lee ineffective assistance of appellate counsel his de performance is apparent from the brief and from the machine court of appeals ruling we don't have and we look at what appellate counsel did there's no conceivable reason why he would have raised the stricken claim in his brief and then ask for the hearing in the wrong adequate strategic basis for counsel's determination and we can't really say that having ordering a hearing would have resulted the well your honor first to address the michigan court of appeals opinion in mr caesars two thousand and seven appeal they alternately had a deficient record in front of them because of appellate counsel's and effective assistance had appellate counsel properly moved for the evidence here hearing the appellate counsel would have been able to put on the record what it was that trial counsel should have done finding an expert to testify to rebut the prosecution's just in light a little wor  yes the coral at the time in two thousand and seven was seven point two one one c one and it simply asked that appellate counsel make a separate motion for an evidence she hearing evidence here hearing outside of the body of counsel's brief mentioned the strickland claim in the body of his brief but did not make the separate request for the motion and had appellate counsel done so appellate counsel would have been able to put on the record that there would have been experts available in two thousand five to testify on behalf of mr caesar and those are the affidavits that we provided in mr cesar's motion for post conviction relief as well as habeas petition here what those affidavits swear to first is that as of two thousand and five there was a significant disagreement in the medical community over the validity of shaken baby syndrome diagnoses they also swear to after having examined the child's medical records that his symptoms indicate that he was much more likely to have suffered a concussion after a short fall rather than from shaking alone which was the prosecution's theory in two thousand and five the prosecution also put on the witness dr gilmer hill who testified to and she actually flipped a really examination and of the baby would it would it not you're talking about the examining physician in the emergency room and children's hospital who actually examined the baby who understand is now recovered  and you weigh that against some expert after they was that were subsequently submitted on behalf of the the defendant by physicians who never examined the child and they're talking all about who was in the medical literature and all of that but in terms of determining whether there was adequate strategic decision making by the attorney or an ability to hospital in detroit and she also not only misstated the medical literature but she also failed to note that there were no neck injur why would we get into that here as she we're not looking for a medical journal article she was she she was a specialist and experienced physician  that you don't have the money in and these appear to be that maybe that's the reason yes your honor in fact at the pretrial hearing mr caesar's counsel sat stated on the record that this was going to be expert versus expert and to that end when mr cesar's trial counsel did not obtain an expert we do have several affidavits that swear to the observations that the reason why trial counsel did not do that was because he could not afford to pay out the retainer fee for mr caesar's expert and if we look at hinton v alabama meaning mr caesar or mist or the attorney there mr caesar or or the attorney and so under hinton v alabama the supreme court found that failing to understand the law about obtaining money from the trial court to obtain an recognized that there was a valid strickland claim but then it was objective we deficient when he failed to follow the law and requests to remain for the evidence you're hearing i think you can get good morning may it please the court bruce edwards a michigan assistant attorney general on behalf of the warden this court granted a certificate of a pillow ability and whether or not a poet counts what was ineffective yeah what petitioner is now only asking for an evidentiary hearing i'm not splitting hairs when i point out that asking for an evidentiary hearing is outside the scope of the certificate of appeal ability they apparently have abandoned their request that you guys that this court find ineffective assis only want a lame man hearing and that's outside the scope as far as my understanding so this court could find that the money in the release is within the discretion of the court i mean we don't grant certificate of and why in the world would we start this assange relief and a certificate of appeal ability well i think it's more than relief if somebody comes in and says i can show a constitutional violation the failure to grant an evidentiary hearing is not a constitutional violation post conviction and that's why you would know that's why you would mention it i think in the certificate of appeal ability but that's all they're asking for something that they're asking for relief sort of i don't know why you're complaining i mean they're not asking that the court out right to calais or as close as he received ineffective assistance of counsel i mean there's they're recognizing that that is an issue is subject to an evidence a rehearing and i don't think the word not a spin frankly i maybe they're interested but i for one is not too interested in show prejudice and it's the state's position consistent with a district court analysis and they have shown neither for deficient performance you're supposed to look at the decision the appellate attorney made the day he filed his brief on appeal not anything that happened afterwards your only if the inquiry ever did three here what's the showing they have to make to get that i'm sure that you they can ask for quite frankly because they have to show a constitutional violation in order to get relief from a good argument about that and you know what you can have never did three hearing in the district court i don't know that you have the constitutional violation occurred to me that's putting the cart before the i think this is the theory of raising serious constitutional issues and it probably would help us in the war if you would engage in that rather then sort of latching on to kind of cute argument now the standard can't be that i have to establish what they're going to attempt to establish here so the question to you why what is the standard way you're to apply in determining whether there's a sufficient value to believe that i could be constitutional magnitude under these factual circumstances is that what you're trying to get to a six circuit has held several times that a party has not cast a totally entitled to an evidentiary hearing after assigned those case he reviews the transcript and he has to make a decision of my going to argue the trial counsel was ineffective this counsel decide yes i'm going to make that argument that he has to make a decision can i make this argument in good faith based on the existing record or do i have to argue i need to show something outside this existing record if he believes he needs to show something outside of the existing record he would file a motion a separate motion for a hearing with his appellate brief but many appellate attorney saying you know i think as the state's contention that under the wide scope of professional handling of cases and discretion that's given to appellate attorneys that that was not an incompetent decision to so proceed on one of the problem argument that was made by appellate counsel that they say was ineffective and the only reason they say is ineffective is because they said the trial record wasn't sufficient to make that argument but that's the kind of discretion that is given to appellate attorneys they have to decide do i think i have enough here or do i need more and i can tell you i also defend criminal appeals in state court and we got many requests for going through hearings but we get many cases where they say i think the record currently shows you know supports my argument and many requests for going through hearings are in fact denied even when they are made for a variety of reasons so appellate counsel did what he thought was best he said i think the existing record shows a trial counsel was ineffective and then he said if this court disagrees then i asked for a he put that right in his brief now he didn't make it a separate argument or a separate motion because he was trying to win on the existing record what he had just bets a little bit by saying what if this court disagrees and the court could have if it thought there might be something here it could have still remained it even though he didn't file the separate motion but if you filed a separate motion he would have been precluded from arguing that the existing record show the trial counsel was any factor pursued and could only be pursued through devon gingery theory if you read the cross examination by trial counsel of dr john moore hill he brought up these other theories he brought up one of these an article relief from judgment and subsequent appeal to the michigan court of appeals in michigan supreme court was an adequate substitute for the lack of filing a separate motion for an evidentiary hearing during the direct appeal and if that's the case there's no showing or prejudice and would be no need for an michigan appellate court saw these affidavits and never the last did not grant and evidentiary hearing even though it was requested so and then one last point i'd like to bring out is that there were there was a lot more evidence against the defendant than just dr goh more hills testimony it was brought out that there are several stories the mother and then the petitioner changed their story several times to the doctors and to the police and they could claim all the only discrepancy was whether or not the mother was in the room when it happened that is not true and i would refer this court to page id to ninety five when dr christopher hunt is testifying and he says that he was interviewing mr caesar so the initial response was the child had fallen off the couch and hit his head on a table and was unresponsive and then subsequent to that i spoke with mr caesar again and at that point he said he didn't know how it occurred and i documented there was a change in the story at that point so independent of dr joe moore his testimony there were plenty of reasons for the jury to find that this child was injured not from a fal absolute actually thing that right but he certainly didn't actually see it but that's what he said he thought happened that's correct but the point is his first story is all the child fell off the couch at the table second time around i don't really know how it happened so either he knows or he doesn't that's reason enough right there independent of the expert testimony so i would ask that you support find that appellate counsel was not an effective he had the reasonable strategy of i'm going to try to show on this record that counsel at trial counsel was an effective and his decision to do that rather than conceding the current record was insufficient and then filing the guenter hearing motion was a reasonable strategy and i'd ask the court to affirm the district  been few tile for a public counsel to mention that hearing in his brief but not actually follow through with the law in michigan and ask for a separate hearing for to develop the record we also need to make a prima fashioned showing here was never developed on trial counsel's ineffectiveness when appellate counsel mentioned in his brief that mr caesar suffered prejudice as a result of trial counsel mr mr cesar never opened the record back up through an evidentiary hearing and that's what we're asking for today so there is absolutely nothing for the michigan court of appeals to refer back to to see whether mr caesar could have found an expert in two thousand and five and what that expert would have said and the michigan court of appeals opinion mentioned that several times they have no evidence of ineffective assistance of trial counsel on the record and they have to rule what's on the record alone and appellate counsel failed to open the record and that's where that's  here today the third point i want to make is that this case was very close even without a defense expert and had mr caesar's trial counsel obtained a defense expert the outcome is is reasonably likely to have gone an entirely different way the jury deliberated for three days and twice requested to hear dr gilmer hill's testimony so dr graham hill's testimony ultimately went unreported three times in the ears of the jury they  were they did they delivered the either the transcript or the recording i'm not actually sure which they delivered but they did hear or read the transcript at least twice and addition to what they heard in court they even initially delivered in a notification of a deadlocked jury at the end of third day and were sent back with a deadlocked jury instructions this was a very very close case and what we need to do ultimately is open up the record to build the record on the ineffective assistance of counsel here through an eviden hearing and finally all know that while the attorney general noted on collateral people the affidavits went in front of the michigan court of appeals and the michigan supreme court the attorney general also conceded that that essentially what happened is that when mr caesar's post conviction relief motion came in front of the court they saw the ineffective assistance of counsel and assumed that that claim had already been raised on appeal but mr caesar was raising an ineffective assistance of appellate counsel claim and there's absolutely no way he could have procedurally defaulted that on appeal you simply cannot raise an ineffective assistance of appellate claim on appeal and so the the state court the appellate court and the state supreme court considered it procedurally defaulted and the attorney general found that that i never had occasion to really consider the import of the affidavits no your honor so they did not consider them and got to that step of the analysis no they did not get to that