who is the most thoughtful figure in the defense theory of the case and who on the defense theory would be guilty of felony murder mr sullivan claims that he never discovered the fact of this prior presentation of mr williams we submit that the record told a different story assume for this this is a high volume practice this lawyer probably would have represented hundreds of clients over that time period that was his  claims you have to make some showing about the the alternative defense theory at least enough to have to it that raise reasonable questions that the could have influenced the outcome of the case i believe they have to enter kyler is whether there is a legitimate strategy that was not pursued because of conflict that conflict of interest and i think your honor that the record is clear that in this case  not test given that even if someone had been able to impeach mr williams much more vigorously than occurred here we still had three other witnesses bullet the angle from which the bullet came and the two shots came and certainly this is fully consistent with what all forward this is a new we take mr williams out three witnesses testified in seems to be n rob nash but williams trying to rob johnson with the gun in the back right of the car and you have an entrance wound on nash's had left side three inches away it's pretty hard to i understand how that could have happened on johnson's count i'm not certain it is your honor if you believe the defense theory of the case there is effectively a conspiracy among the other on the issues we've just been discussing right because kyler isa prejudice like you only have to show that the attorneys performance was somehow impacted strickland is credulous and that's a moderately high standard so if the difficulty for your side of the case is all of this other independent evidence against johnson your case gets harder when you move from stric doesn't testify then the line up is for doing nothing against him instead of four to one against him in terms of what the witnesses say i don't think we're going to see how that helps i'm not sure that the i'm not sure that we're saying that he wouldn't have to testify at all but i think he certainly would have been better prepared i mean mr johnson the seventeen year old kid who had this very traumatic thing happen to him trial happened at least nine months afterwards and i do think that it is more than plausible that his recognize mr williams as a former client and that is the threshold inquiry that's critical and it puts an end to the argument that palin here is really raising the same arguments that were made in the district court about  if and then a procedure for the district court judge to look at those challenge points more closely and in that challenge i believe it was only there were only three came along and the notion that he did nothing other than go with his memory which would seem to be profoundly fly and this free card maybe he's too busy to have that memory but i we've made no real effort to check for conflicts and so i think that's very troublesome i think but i think that we have to put ourselves back in that context and sadly i was practicing in that courthouse in that those years trying these cases but not have as a system in place he did have not just hundreds of cases and thousands of cases but this case was eight maybe eighteen to ten years before mr johnson's case and it wasn't it didn't go to trial it was a certainly certainly now in terms of that the mechanism for doing a conflicts check i would agree with the court completely but the point is that appellate argument is that if he didn't because he didn't have that conflict check we can't believe him that he didn't know that he didn't recognize steps out of this is your claims and that there's a clear fallacy in that argument because whether we think you should have done something differently or not it only that only supports the notion and the factual finding made by judge pressburger and drench harvey that he did not in fact recognize he did not in fact recognize mr williams and any of that even if even if you disregard his testimony even if you concluded that it was not credible to this day helen has not explained anything that happened at the trial anything judge belvin did or did not much more aggressive in cross examining him and bringing information out and then you may not just be that one thing but they get to say there's a cumulative effect here of an bearer's and you combine that with the fact that we didn't know about incredibly powerful impeachment evidence in their view like in my nine hundred and ninety four no paper in just a couple weeks before trial and the nature of a prior conviction and them a long list of other objections to brady evidence that wasn't disclosed service disclosed in very late time and what i'm wondering is that it seems to me that it's not quite right to say they haven't shown with the problem as i think they say there is this conflict and that might have made that aspect even worse and then when you mix it in with all these other problems how do you want to have confidence in this verdict they certainly assert that those things happened but those challenges as allegations were thoroughly examine overstatement or judge and judge harvey this is a restatement of the evidence and ignoring certain other evidence in the record so the testimony was not that he did not think the testimony was this occurred twenty years ago and i don't remember the details of this particular case but let me tell you what i would do in my normal normal cases and and he lays out you know investigative techniques best to get things that he would have done and he would have had his investigators not if you done his them at that point in time you don't you wouldn't know who represented that person until you got the hard copy files and that took two weeks to get you could find myself assuming i had not been a criminal defense attorney but i assume they do more than just go oh here's a conviction when they find a conviction particularly a robbery conviction that and this is a case involving who did this robbery which in theory instigated this situation at least under one theory and they would look into one of those oh there's only inventions were ultimately disclosed at trial or before trial so there's nothing about any convictions that have not been was not adequately disclosed and once those are disclose though that it was not his approach was not irrational at the end it made sense that was very little use that could have been beyond what was made it was the same prosecutor or not or do we have no way of knowing i think one thing we that i do want to remind the court is that when a case like that has no paper it's no paper at that moment you know when when the police bring the  arrest information to the prosecutors to decide what to do with it so the prosecutor's office my office decided not to prosecute but there is if there had been some sort of link between that decision and mr  williams testimony some time later appellate could have been able to show that i think by now but there there has been no explanation there's no there's been there's no showing you have any promise by the government to go he just didn't want their witness coming and them having to admit that he was under prosecution but them very time for was that also a robbery there is nothing i be we just don't want to mess up his work we don't have to want to have more of a record when he comes to testify that's not holding anything over his head well that's an interesting theory but that would mean i think your honor that we couldn't  strategy was a sound one and pit and not rise to the you know very tough standard of ineffective assistance which of course you know we know her how how much deference is given to strategic decisions and to there's a wide range of acceptable representation so there's nothing to suggest that those conclusions should be overturned here and more importantly as that both  judges in the district court recognized there were so much other evidence it was a strong case there were three eyewitnesses that the friends again finance completely lined up and you  know i think that i think it's much more likely that that someone went in the driver's seat returned right away if in the back seat than to turn left but all of that that i just heard in that part of the argument is speculation and inappropriately considered do you have any impeachment evidence or do any of your brady claims or insufficient investigation claims pertain to sharon nash yes your honor mismatches carrying a gun and the night of the crime and she tried to get  why not go your your theory before us is ineffective assistance of appellate counsel yes for failure to raise brady claims and ineffective assistance of trial counsel claims that the failure can't be an effective if those underlying claims lack merit but it is true that you have to look to the merits of the underlying claims to decide that you don't need to decide