of counsel which was his failure to object and protect mr allen from the prosecutor's introduction of a fact outside the evidence that was critical namely that robert dewberry the known accomplice in this robbery of the goodwill store was the brother of james allen and i want to go directly to the state court ruling because as the court mentioned in the prior argument the issue before it is whether the state court decision denying relief was contrary to our known reasonable application of clearly established law in this case we say it was an unreasonable application of strickland which requires relief where the defendant shows deficient performance of counsel and prejudice this we start with the state evidence but but but that's not the issue the prosecutor doesn't get to bring in any facts outside the evidence that may be true or not we have a trial process for a very good reason and a defendant is entitled shouldn't be too hard to establish if in fact it is true but he was unable to do that so you know i think what happened here was in this is that with news he's investigated the case he knows quote unquote that they're brothers a foreign concept introduced into the trial the evidence was asked from fisk was there may been some reference she didn't remember whether it was a cousin or brother but that's not the way and i remember so there'd be no reasonable basis just to try not to not object on the basis of the jury we might overlook this is especially when the prosecutor is making the representation throughout his arguments not like a passing incidental reference that that maybe is best left untouched this is one of the main points the prosecutor is making he's bringing back all the time how many times seven or nine times seventy nine times both in the opening argument to the jury and in the rebuttal he makes reference to the fact that you know with the court of appeal said that there may not have been any evidence that they were brothers but matter if they were brothers cousins were just friends that was the point was that they had some connection to one another they really did you know that this is not a this is not a will contest where you know we're trying to figure out his exact relationship the point is that they were affiliated in some way so it didn't matter if it was mischaracterized but the point is that there was a complete absence of evidence that mr dewberry and mr allen were anything but total strangers that they had ever met in their entire life there was no connection naturally there's going to be some connection between mr dewberry and the robber i mean it could have been brothers it could have been cousins they could have been colleagues at school they could have been wrong time friends the identification evidence of mr allen despite all the discrepancies and you know so forth you should fall i mean that it's a good one because a little after all the than the odds of the d n a evidence out of all the universe you know humphrey bogart out of all the gin joints in the world i suppose out of all the universe of people who merely evans could have identified as the culprit in this of someone who previously weren't there but the prosecutor is shoring up there are serious identification problems in this case it is a very good identification case the state court is right that there's a rich vein to fit was mr allen was known to be totally bald and all of the witnesses described the robber as having short hair by one of the witnesses as most closely resembling the robber he didn't look like mr allen either and he was impeached with the fact that he was convicted robber but i think your honor the point that i am trying to make is that having the prosecutor come in and hammer and these guys are brothers these guys are brothers these guys are brothers it's not based on the evidence of that was presented a trial by a witness who says there was a reference to them either as being cousins or brothers i mean if it had been then the prosecutor would have been said there's some evidence that mr dewberry in the robber on or brothers or cousins but so what that doesn't get the prosecutor any way anywhere through there in getting the jury to accept the fact that mr allen is that robber what gets him  some evidence independently that mr allen and mr dewberry are some kind of associates so then oh yeah well then evidence must have been right in her identification because we can we can resolve all the doubts on the basis that these guys are actually brothers so it stands to reason that mr allen is that guy he's the one who's associating with mr dewberry without that that's why it's that's critical evidence and that's why the state courts finding of no prejudice on the basis that there was an instruction given that statements of counsel are not evidence it's so on reasonable because that is such a strong procrit of fact in what is a very close case and it's not appointed admonition that is given at the time that the evidence come or that the argument is  made to advise the jury like i was talking about earlier pages there's no evidence of this fact you can't rely on the prosecutor's representation instructions that were given that arguments of counsel are not evidence and so you don't think the of counsel are not evidence the instruction was any statements of counsel may have made in the course of this trial are not evidence that was just a generic instruction that was now that was given among a number of other instructions not pointed for specific or directed at misconduct at all and i've cited a number of cases that have found that that kind of instruction does not overcome off on but but i mean that was not misconduct because the prosecutor you know a good fellow thought he would be able to present evidence of that with misconduct comes in is that after all the evidence  morning your assistant attorney general representing the respondent pelly in this case i have to begin by taking issue with the characterization by counsel of whether mr do they mr allen the day before with mr dewberry who's identification has never been questioned and unquestionably was a former employee of that store who knew their procedures including the manner in which the money was handled he had been earlier with his brother or cousin or witnessed this cannot remember precisely what it was but she said he clearly referenced that person as having ben related to him the prosecutor had substantial evidence available to him identified mr allen she did it in a lineup and she did it in the courtroom and she explained that the first line that she was shown she had tentatively selected mr morris when she was later shown a second lineup she was absolutely clear that it was in his cross examination and his argument into the descriptions into the differences in the fact that there had been that there been conflicting identifications and he argued reasonable doubt at length and obviously the jury paid close attention and we know that from what they asked to see during the deliberations they asked to see the photographs of the lineups in which mr morris and later mr allen going to fight they asked to see the motorcycle that mr allen that receipt and that motorcycle ticket was important because it connected mr allen to a motorcycle which had been seen the day before the robbery by the witnesses across the street and they asked to see a charge the district attorney had prepare d the various identifications but most critically i think they asked to have we waited for them all the testimony of the witnesses get the things that the descriptions of the robbers i think dr ralston that goes precisely to the allen the person who was in the store with mr toobin whether or not they were brothers was not a critical component to that determination the prosecutor never argued you must convict mr allen because he was mr dewberries brother he made references at various times to them having been brothers for example that very last comment that was quoted from the from the end of the prosecutor's closing argument by counsel the prosecutor said how is it that mary happens identifies a man in a photo lineup that just happens to be the brother  motorcycle but that's just one example the prosecutor threw out his arguments focused on all of that evidence and the critical evidence the identification pretrial and the trial by ms evans who was the robbery victim and the identification  in a car and that car could be connected to mr dewberry who was also seen in the store with a man who we now know was riding the motorcycle all of that evidence circumstantial as it may be nonetheless continues to  misconduct there was should have been an objection and the critical issue for this court is was there prejudice and you have like your honor mentioned witnesses seeing romper multiple times before but as the state court found that was a rich vein for the defense counsel to mind because with all those multiple contacts two of the three couldn't identify mr allen as i'm one of the two employees who did not identify mr allen did the previous identification of morse as deputy attorney general stated evans herself had made a tentative identification oh north we have no physical evidence that ties mr allen to the robbery and no evidence that ties mr allen to mr dewberry the prosecutor concedes in his opening argument there's a lot of inconsistency in the witness id of the robber in admits there's enormous variation he says again in his opening argument the defense is going to have a heyday with the direct evidence on identification he's going to make a great argument there's not a lot i can do to rebut what the facts are but he can do one thing and that is add to the facts and that's what he does in this case with the addition of by the way my investigation he doesn't say this but this is what's coming from my investigation show these guys are really brothers and you should know that now the jury deliberations which show that the jury was clapping seriously with the misidentification defense they requested review with specific evidence they requested a copy of the jury instructions or requested read back they deliberated for almost a day and a half all of that goes to show you the prejudice because it shows how close the case was and that the jury may well have resolved it look mr allen happens to be the brother that's the kind of coincidence that could make the difference in this case and that was what the prosecutors point was in repeating over and over again in closing argument