proper deference to the state court adjudication of those claims the united states supreme court has repeatedly reminded the federal courts that the hevia statute twenty two fifty four d imposes a high level of deference when reviewing the state court judgment ineffective assistance of counsel the state court could reach the opposite conclusion by reasonably applying supreme court case law because the state court decision was not contrary to or an unreasonable application of supreme court case law really should be deny i would like to address first the claim of ineffective assistance of counsel for failure to agree to offer evidence of hypersensitivity of the but i am you know but there is an area that you can go into to show that that you know to get into this evidence the way that i basically understand the case that was presented that resulted in a conviction is that you have the statements of the minor them minor child does not qualify to testify as a witness today so essentially unavailable so you have statements to i guess the mother to the police and i think a daycare person and then you've got certain behaviors that child exhibits certain sexualized behaviors that would you know could arguably say why would this child be behaving this way if something had not in fact occurred to happen to this child especially since the child herself does not testify and the mother is really an important part of this case i mean i'm really concerned with how you can say it wouldn't be prejudicial to be able to impeach this woman with evidence that you know she  involved i guess and three other claims involving and apparently this was part of her work in terms of what she did i mean she was that was part of her professional personified i mean she herself apparently had made those allegation against a member of her family that it occurred to her she had made them in a prior to forced perceiving involving a son of hers and she had assisted someone else in doing that it just seems that her credibility so crucial to this case in terms of because the child couldn't testify the child you know there's nothing along those there was a physical evidence of abuse although there was sexualized behavior how could that not you know i mean how could a while mean the mother to testify with that you know without more information not be you know how can we be sure that a different result when that happened for two reasons your honor  first is that the evidence wasn't admissible the second let's all dressed right now is that even if it wasn't this of all it would not of the fact of the jury's verdict the mother was an important part of the state's case but she was not the only witness who heard the victim make statements that mr sharp had raped her so this wasn't a claim that the mother was making these statements up so that's a limit so it's not a credibility that whether the victim even the issue that mr sharp now claims to should have been proven with this evidence is that the mother because she had been truthfully involved in abuse in the past unintentionally coached the victim into making these statements not only to her but the numerous other witnesses and engaged in sexual behaviors which included the child raping a dog this evidence would not have the fact of the jury's verdict to three and a half year old while you wouldn't always find physical evidence i mean i've heard enough of this you know where they say well it might have physical evidence it might not but obviously since she claimed to essential and have been raped that you would expect a three and a half year old or there would be an argument they would expect a three and a half year old and had you had physical evidence of you know after some sort of you know physical exam to she she did have to say well evidence of penetration i would describe that as an overwhelming evidence case but here i'm struggling with that in a case involving a three or four year old child your honor and i believe the medical testimony at trial was to this effect children heal very rapidly and a child who's raped will not have that physical evidence that you would expect to find in an adult who is raped in who mediately goes to the hospital the child who is raped who goes to the hospital much later you're not going to find that and the doctor that i agree with that argument if you're arguing sense whether there's substantial evidence because i know that there are i think testimony emphasized to that effect but does that make it overwhelming evidence do you have to there have to be overwhelming evidence for you to prevail here now you know there does not have to be overwhelming evidence it's the state's position that there is overwhelming evidence and hung on the prejudice that it does but it doesn't have to be overwhelming for the state to prevail because first the evidence that would have come in would have been that she had prior that the mother had prior involvement in sex abuse cases not that they were false just that she had the steak and then in all fairness prove that they were true the victim or the victim's mother was telling the truth it brings to mind perry mason examining a show prejudice was objectively unreasonable so if there's a failure then it's the petitioner's failure the the victim a twenty four disclosures of sexual abuse and was seen fourteen times in gauged in session last play the statements that came in were not just the statements made to the mother there were statements made to the teacher to her brother to us physician to a child psychologist and to a police officer the prior the fact that the mother had been made prior accusations unrelated to this case would not have affected the  prior accusations of sex abuse against someone other than mr sharp and she answered yes and for this reason your husband described you as hyper vigilant she answered again yes so the jury did know that she had been followed  prior cases and the defense's position throughout the trial were was that these accusations were false they were false against other men they were far off against mr sharp and they were made to gain an that would eliminate the defense so delving further into this evidence would not have supported mr sharpe's position if anything it would have weakened it for anything in the record that the prosecution could easily show that people had been  incidences the the reason the judge excluded the evidence was there was no evidence that they were false there the case involving her her son and her ex husband the evidence was substantial that abuse had occurred that has nasa my question was there anything that the prosecution could because obviously the court was concerned about spinning out of control and having three other trials where in any of those three allegations was there like  trial and that is why the court of appeals recently decided that this evidence would not the admissible and that's the second reason why there is no prejudice it could not have come in because the state court found but was there  that there were prior accusations the trial judge inane camera review found there was substantial evidence to show that the sex abuse in those other cases did in fact occur so the mother's prior accusations were truthful she was a truthful witness i think i'm not a trial lawyer i have done trials but i don't consider myself a trial lawyer but i know that i don't prevail by showing that the other side witness is truthful i tr discredit that witness and i cannot just discredit that witness by showing that she's told the truth in the past if anything that will hurt my case well the record if there is any that that caused the trial judge to say i assume i assume that the failure to follow my advice was a tactical decision that weren't worth the record that he ever come up with that idea that the trial judge if i understand your honour's question the trial judge in the post trial hearing after hearing testimony from the defense attorney and from others found that the defense attorney acted unreasonably in not pursuing the trial judge's suggestion to pursue this novel theory this novel theory of theory it is to the extent it has never been used in the state of washington it has never been used in a criminal case as a defense against sexual abuse allegations john where did the issue of tactical decision come up well the issue of tactical decision came up and to manage your  honor the judge found that the this is a state court trial judge found that the defense counsel did not make a conscious decision not to pursue this this evidence of true allegations she simply didn't realize what the judge w suggesting that's one issue she was asleep at the switch yes runner but that's not a tactical decision it that might not be a tactical decision but what she did make a tackle a tactical decision was i'm going to pursue this defense of false accusations and fabrications to gain tactical advantage and she talked with the defendant she investigated this she obtained records to support that she presented th trial she did make tactical decisions and presented the street strategic defense what apparently she did not do was pick up on the suggestions of the trial judge to go with a completely different defense that's my question decision but then another way or came and presented evidence showing that it wasn't which i'm assuming with trout counsel's affidavit it wasn't a tactical decision i just misunderstood that's right try to  and in fact the supreme court and yarbrough versus gentry has said that the presumption of competence and all that goes with that presumption and the fact that counsel is presumed to act reasonably in presenting a case provide effective representation counsel litigated this case counsel did what she felt was appropriate she decided i'm going to try to prove that the mother created all this purposely to win in a divorce proceeding and she pursued that and the jury heard evidence of that what she didn't do was say ok i'm going to pick up on the judge's suggestion that i do the complete opposite of what i prepared for trial a procedural standpoint there were there was another for a determination of whether the east and the charles hearsay statements violated the confrontation clause and it's the reason the state appealed that issue although the judge did not reach the merits of the claim he did find the state court unreasonably applied or have the roberts and i hope versus right it's our position that the state applied the same test that the supreme court and that this court have accepted at that time to be the proper cast and the factors applied by the state court were the same exact factors approved by this court and spawn versus peterson by the u s supreme court and i hope versus right therefore the that issue should go back to the district judge for a determination of whether or not the the statements violated the petitioners rights and the complication clause if i may i would like to preserve the remainder of my time for  the morning your honor smith is the court my name is james love sense i represent michael scharf i'd like to begin by answering some of such callahan's questions your honor you asked if any of the other people had ever been acquitted and i just actually asked that his name be removed from a c p s registry of sex offenders and there was a trial on that administrative matter and his name was removed with regard to her accusation against her about whether there was overwhelming evidence and i just wanted to point out that in making his findings and conclusions of law the trial judge judge scott said that there is so the showing of the fish and conduct by microsoft's trial defense attorney has seriously undermined the court's confidence in the reliability of the jury's verdict in this case that's it that's there's a record for ninety three he also said taken together there's a strong possibility that the lack of a reasonably competent defense attorney has resulted in a conviction that would not otherwise have come about he also found in finding in fact number five when the trial attorney mr rachel levy testified that he found her credible in all respects and he found all of her testimony to  your position from the standpoint of i think i agree with your co counsel that in order for your co counsel to professional there doesn't have to be overwhelming evidence that you know he basically said there wasn't i mean obviously overwhelming evidence helps when you're assessing prejudice but he is also but but he's also stating what the court of appeal found and in terms of what the state law was on those particular issues do you think the fact that there's not overwhelming evidence means you automatically when you know ok well can you respond to his argument about how even if there is an overwhelming evidence his fall back position for purposes of a claim of ineffective assistance of counsel to prevail the behavior petitioner doesn't have to show that it's more likely than not it doesn't have to show by a preponderance of the evidence that there would have been an acquittal or a hung jury does have to show that there's a reasonable probability that there might have been that's strickland and that's been repeated so we don't have to show anything other than a reasonable probability or serious undermining of confidence in the verdict both of which the trial court found i completely disagree with counsel that there was overwhelming evidence of guilt what i think i would sort of recast it as saying is that there was overwhelming testimony by linda sharp linda sharp testified for for ever about statements of things she supposedly heard and observed there's no corroboration that any of those things were actually said by the child or done by the child and i do not agree with him that there was no challenge that that it was admitted that the child said all these things that is your point and that that that makes impeachment of her all the more crucial absolutely the center piece she is definitely the centerpiece and she's like ok what about what about the teacher and the doctor and the police officer i mean how i think it might help there is no teacher your honor but i can run through what there was the mother asks the child the question after the child puts the mother's hand on her crotch so she says i gets an answer that alarms or that indicate sexual abuse takes the child to children's orthopedic hospital the next day where she's questioned by a social worker but the child refuses to talk to the social worker then she's questioned by police officer but she refuses to talk to that police officer then she's questioned by a second police officer officer alan him i think it is great bellingham she does make incriminating statement statements which incriminate her father to the second officer after he lets her play with the lights on his police car and after she's refused to make statements to two other people then she does make statements to a pediatrician a few and then she goes home and the mother keeps a notebook at the direction of her child therapist the same child therapist who treated her other child philip who was allegedly sexually abused by her other husband mr jets and she then keeps a record and there's about twenty four twenty five statements that she claims the child made over the course of the next eight months so if you look at what isn't coming from the mother and what comes right in the middle between some mother and after mother you get a couple statements to a police officer and finally to that pediatrician very very few and you've got statements here some of the statements from the child there i dream this some of the states from the child are it happened oh it didn't happen oh yeah it really did happen and it they would never pass muster under the old ohio versus roberts analysis which which is not old which meaning the state court of appeals should not have permitted anybody to tell them that there's anything wrong with that finding a precious sooths party on their own they came up with this strange idea even though no one had challenged it that this was a novel scientific testimony and that there wasn't any evidence that was accepted elsewhere in the country we cited cases and a district judge cited the same cases there's a nine hundred fifty nine i think it's pennsylvania case that recognizes at that time that this is recognized everywhere and recognized by the american psychiatric association so you can simply affirm here on grounds that of ineffective assistance of counsel you so far only we've only explored one of the areas of ineffective assistance of counsel and i want to say something about the other area which the crown which judge scott also found in which the district court judge also agreed it was ineffective and that was the failure to ask more than those two questions with mr sampson read to you the state court said that the trial judge limited clearly limited the kinds of questions which miss levy the trial attorney would be allowed to ask after the prosecution opened the door to the whole subject of her prior accusations by asking her about something that mr sharpton said during marital counseling in their br attorney general's brief reply brief on page twelve they go through at great length the section of the transcript where the trial judge spoke to the trial attorneys about what defense council was going to be allowed to do and they stopped at excerpts of record one ninety two after line five stopped after a particular line that makes it look like the judge has said he's only going to permit two questions having stopped after the judge it's that if that is so after then prohibit the defendant from getting into the specifics of the accusation who when where why and the judge instead of answering yes it does he turned to miss levy and he said we are all satisfied with that for now and miss levy said that's fine that is why magistrate then when she made a recommendation she just last night said that the transcript does not bear out what the court of appeals said in this case and it is a completely unreasonable this rule for all for v which is virtually the same in washington state under our state rules the federal rule and cross examining when the shark is that there is a key difference between presenting extrinsic evidence of her prior accusations and cross examining her about it and the difference is that under washington law and i assume the same is true for the federal but i'm not sure under evidence rule for a for b if you're going to bring up a prior bad act you first have to lay a foundation that there was a prior bad act and you have to make that foundation you have to have the trial judge find it by preponderance of the evidence that i was to contrast with cross examining a witness you do not have to show anything by a preponderance of the evidence or by any other standard in order to be allowed to cross examine in order to exercise your sixth amendment right and that's a key difference and a key mistake which the trial judge made in this case he took both of these issues extrinsic governessing cross examination in the same pretrial hearing you heard argument about them and then he will develop them both at the same time he said that he had reviewed these sealed files of the he said he was not going to allow the presentation of extrinsic evidence because sharpe had not proved because these previous files did not show that these group are accusations were false he couldn't has his new trial but what about the issues that the district court never got here i don't think you need to reach them and by the time he would then have a new trial if he's entitled to any trial because of ineffective assistance of counsel then the issue of whether that hearsay evidence should or shouldn't have come in will come up again at the new trial but at the new trial the law will be crawford versus washington at that time and then they'll have to deal with it and that might be a better time because i think justice scalia himself said that crawford will leave interim uncertainty i think were his words  get but i just wish to point out that for purposes of extrinsic evidence you cannot say to a man mr jakes whom you never knew at the time who was your wife's prior husband he didn't manage to prove somehow where the court supreme court of the u s said you cannot bind mr mckinney to a prior determination made in another case in which he wasn't a party you can't say that he's bound by that in his subsequent criminal case as for cross examination when the trial judge again said you didn't prove it was false so i'm not going to let you cross examine linda sharp on these prior accusations because you can't prove it's false that is simply flatly contrary examine the prosecutor's key witness and wanted to ask him if he was not currently federally and in federal custody he believed he was in custody charged with a crime and he had some motive to curry favor with the prosecution because of that but he couldn't prove it and the judge asked him can you you know that and said no i can't prove it and then he said well i'm not going to let you ask it then the u s supreme court reversed saying and this is a long time ago you know offered and they've subsequently r d the same principle in subsequent cases this is alford to say that prejudice can be established only by showing that the cross examination if pursued would necessarily have brought out facts tending to discredit the testimony in chief is to deny a substantial right and withdraw one of the safeguards essential to a fair trial they said that again in davis versus alaska nobody can tell you whether the jury would have found that mrs sharp was a liar but we can tell you we have shown you that the jury never had an opportunity on their own to assess her credibility and decide whether she was a liar or not because they never got to hear that she had done this to a previous husband i noted  this is also contrary to all them versus kentucky and those cases which say that it is always relevant for a defendant to cross examine on a subject of partiality or motive of a witness to lie judge posner of the seventh circuit had a very similar case it's redmond versus kingston which is cited in our briefs it's a two thousand and one decision of the seventh circuit and in that case judge posner affirmed the granting of heaviest relief to a rape defendant because that defendant was not allowed to cross examine the alleged victim and the fact that she had made a prior rape accusation which he said was false this case is also somewhat like shipman versus mercer which is a decision of this court from one nine hundred eighty that decision was written by then judge kennedy that was a reversal for denial of cross examination when the defendant was in a burglary case was not allowed to cross examine on a prior fost accusation of theft made by the main witness against him here in this latest matter the district court judge just as nick never reached this issue he said he wasn't going to reach it because he said proud counsel miss levy did not specifically point to the sixth amendment case law involving denial of an opportunity to explore mode so he appeared to find a procedural default and he never he never discussed the merits of this issue at all i would just point out that the washington state court of appeals didn't find a procedural default no one ever argued to them there was a procedural to fall and they decided   merits incorrectly by saying that well you couldn't prove it was false so it's not relevant those i think are pretty much the exact words of the court of the washington court of appeals there isn't any support for evidence the victim's mother's prior accusations against her own father and they said that this evidence of a history of abuse or hit or history of false accusations does not show motive to testify falsely the eighth circuit and united states worth versus with on and reach the same conclusion what this evidence would have done if we just factually based as well i mean you're not saying as a matter of law that just because because the state court said you haven't shown that these are false therefore they're not relevant and they're not admissible at about just point that the the state  prejudice on without essentially the spontaneous are without that without the benefit of briefing from either side or without a request to address that from either side i just agree because it's the petitioner's burden under state law and under federal law to prove the ineffective assistance of counsel claim in the collateral proceedings such as this was it was his burden to show the council should have presented this evidence that the evidence wasn't visible and that it would have resulted in a different verdict a reasonable probability of that he failed to do that this court often will reach issues or firm convictions based on an item that may be