good morning your owners may please the court my name is john spencer i'm a law student at the university of washington innocence project northwest clinic representing for easter at this time i'd like to reserve three minutes at twenty two five forty one says that if the state court does not apply the rule that is contrary to or an unreasonable application of law the federal court is then empowered to reach that claim just based on this whole testimony of one eye witnesses which should counsel have done its part in the time that i'm allowed to articulate what they should have done but i think it can be one of the key things that they should have told her that you picked the right person and that came out before the jury that did her your identification and that's a representative example of what counsel could have done and counsel had not done any investigation that failed to investigate the detective officer but it came out to granted your honor but if they had realized that that it come out before they could have done the necessary preparation to prepare experts and to understand themselves what many studies have officers pointed out a white person as the possible suspect and someone who took ten minutes poring over the photo montage of six faces into someone who at trial said i have no doubt that the black person sitting in front of you is the person who robbed me and this is again evaluated in the weakness of the state's case that this was an identification that happened with the hooded robber who is wearing dark glasses the robbery allegedly happened from behind asking we look at what should have been if defense counsel had properly parent prepared and properly advocated that had a whole host of things where they could have raised doubts in the jury's mind about this eyewitness identification it's not the test prejudiced that clear holding is reinforced by belief by the rationale in strickland but also by william speech taylor another supreme court case where the court held that one in the under heim's v thompson this ninth circuit court of appeals precedent is persuasive on the reasonable application probably a strict what the stake court said was first and analyzing ineffective assistance counsel which supreme court you talk to the washington supreme court has in the the opinion which is founded excerpts of record specifically on this claim one seventy through one seventy three the date supreme court said that mr easter argues his counsel was that in effect of mr easter right to obtain collateral relief under our state law you have to show actual prejudice right so they did not and i third prime district land and they did not apply any improper cry judas under strickland what they said w funder and what the supreme court u s supreme court said in holland which is jackson is that the courts should not the federal court should not be so ready to attribute care to the state court opinions because they cite to their own i'm having difficulty seeing why that is the way we're going to have to review this case i would respectfully disagree that they added something to strictly it would be the same the saying that under twenty to fifty four d congress has added something to strictly here there was an additional standard that was developed which is inconsistent strickland no your honor what the court did and there are at least two examples that i have written down in my notes excerpts of record one seventy one the court sa in addressing the challenge to the identification of counsel scary to challenge identification but as to none of these claims does mr easter demonstrate every small probability that the outcome of the trial would have been different then th that case came down in actually what that case did the case that was it affirmed the exclusion of the evidence the reliable the evidence and it said here is the standard for determining in future cases whether such evidence should come in or not applying the evidence will suddenly to standard in determining whether such evidence came out that the cheatin case was four years later the parker case which is cited by the commissioner an excerpt record one seventy three held the limited resources that she had available to her in a reasonable decision not to pursue such expert witness testimony because in her experience such testimony was would be excluded and instead she focused on challenging the victim's own identification on cross examination and the detective statements in this court has said it's challenging i guess if kitchen through cross examination is the proper method for  pages after that counsel inquired of him a great deal about the need for reliability and identifications and the harm that can be done by making a comment such as the fixed price line so she was not examination she aggressively challenge the identification and she argued that the jury found that the victim was telling the truth except that the victim stirred in the victim's story and the jury is the that's a simple statement you picked the want the right wants is not enough just to satisfy that burden so the petitioner has not shown that that statement alone would be enough to exclude the import identification but even if it did there was still the kurz out of the language of strickland clearly what we say about klym and human and therefore our case the ninth circuit don't deal with the issue and i'd like to have you give a response as to whether you if you wish to use it for cumulative error analysis is very vague and i would submit that under lockyer vs on driving and under the the remaining supreme court cases taking a holding and stretching it that far to say that it incorporates an accumulative error is an incorrect stretching of what strickland actually help with strickland said was that you have to look at the errors in of the circumstances to determine whether counsel's errors would have a reasonable probability that would have changed the outcome of the trial in other words don't just look at the errors in isolation look at what the prosecution reasonable interpretation that is a reasonable application of strickland because what the record is never says u s supreme court has never said you out of all but the one major fallacy in having them all up is not every alleged an error when it's not even an error so i i think where it comes up is supposed none of these ten are in and of themselves the sufficient magnitude to show in effect of the system little there's forty  them when you put them all together they chose ineffective assistance and i think that's a very what's your response to them is that even well first that even if you put them all together it's not enough to show not you're taking all these alleged deficiencies which they have not even shown is for mr researchers not even shown far below a reasonable level of competence and think group them all together and then ineffective assistance but the five errors are sufficient that there is some prejudice can you learn from together for the prejudice prong i would respectfully submit that strickland does not require that it is not a holding us supreme court and therefore the state courts alleged failure to do that is not even a holding in the ninth circuit on that issue but your position is that you can't lump them even begin to mean for the prejudiced prong not hundred for purposes obtain an expert on when this identification testimony what counsel did do was properly challenge the witnesses on cross examination so you can't take that alleged care and then the alleged e and failure to get bankruptcy records and the failure to seek an alibi witness and say ok you have ten areas here automatic prejudice you have to do is you look at what they actually did right but it's not inconceivable  serious oversight of history is just counsel was their failure as we did as we've indicated to challenge the sole eyewitness testimony that was presented against him which was the basis of his conviction that the a number of other deficiencies including the failure to identify and that's to good and to use mean interview she witnesses including the officers who responded to the nine one one ensure that criminal defendants receive a fair trial as a result of his counsel's failure repair adequately to investigate this case and to advocate effectively on behalf of their client mr easter was denied a fair trial we