the next case on the calendar is  me please the court good morning my name is jesse segal i'm representing adrian riley the petitioner here in mr riley's currently serving a twenty five year state sentence for sexual conduct with  ability on a single issue and that was whether mr riley received ineffective assistance of counsel when his attorney failed to consult with the medical expert in preparing for his trial instead counsel conceded that the victim in the case had suffered sexual abuse and chose to pursue the case as one based only on the question of identity so there is a good reason i wouldn't presume to know that this was the reason but there is a good reason why a certificate of case and there the court noted that in sexual abuse cases because of the century ality of medical testimony the failure to consult with her quality medical expert is often especially true where the people's case rests on the credibility of the alleged victim as opposed to direct physical evidence like d n a were rd party eyewitness testimony and the court noted that defense counsel would not be justified in failing to conduct an investigation that would not be equal to objectively reasonable performance record demonstrate failure to consult with the medical i'm sorry to the record reflect as a record show failure to consult with a medical expert well i would say that it does and it does because mr riley alleged that in a sworn affidavit he submitted some correspondence that he had with his attorney competent on that question scuse me reilly is not competent on that question mr reilly doesn't know st hand everything that is attorney did or didn't do i think that's correct judge but i think i would point out something else that during the entire pendency of this case the state in one capacity or another either as the attorney general as the county prosecutor  been a party to this case at the trial at the on appeal state appeal during the litigation of the four hundred and forty dollars motion and in the district court and total we got here the respondent or the state has never before claimed there was any ambiguity on this question they've never said that their record was insufficient to show that the defense counsel did in fact fail to consult with an expert in one of those places for them or in none of the court let me that you continue your ar in none of the court decisions addressing this issue has there been raised any question over the claims that the defense counsel failed to consult with the medical experts nor has there been any implication that the record was in big you was on this point is your argument that in effect the state conceded defense counsel failed to consult and a medical expert i mean i've got something there that they're in a position to know probably either well i would disagree with that respectfully your honor of st of all i would say if nothing else they've waived that argument before we got here but nd of all they've been party to all these proceedings that i've just outlined presumably or at least it certainly seems logical that at some point somebody would have spoken to the attorney and said did you in fact consult with the medical expert that was the argument of the state court and it was rejected for insufficient evidence and we have to decide whether the state courts rejection of your claim was contrary not to law of this circuit but  clearly established law by the supreme court and of course we have the supreme court telling us and think it's herrington the record that you know give great deference to the calling of experts witnesses by counsel so i put all this together and i'm troubled as to whether you can show an error by the state court here well  well st of all i would suggest that the state court never resolved the issue of did in fact the defense attorney fail to consult with an expert what do you use them am i mistaken that it rejected your claim for insufficient evidence court there they did they really didn't address it and they also ultimately concluded that mr riley's arguments were at quote at best or properly considered on the appeal because at the same time the four when the expert notes of the prosecution show damage that's recognized even in cases such as mccammon to be consistent with studies of abuse the damage here is of a different sort from what was of concern about the lack of expert testimony in the two cases from our court this abuse so my point is so you consult an expert in an expert's going to say yeah that's consistent with abuse not all of the concerns that it might have other explanations that were identified about the degree of damage in the canon techs air but i think those are the concerns and i think basically me to spell out what the what the what the damage showed here in this case i mean i think we both know what it showed right i have reviewed different from what was of concern it's to a different location and to a different degree than in mccann and tex era i wouldn't disagree but i wouldn't say that the right to have the effect of assistance of counsel like but now was less consulted an expert what was an expert going to say you have a basis to think it's going to be any better is because mr riley was prevented from developing an evidentiary record both in the county court that considered the four hundred and forty dollars motion and in the district court you have to show prejudice to  being litigated and in the district court mr reilly averred that he was indigent he did not have the resources to hire an attorney he asked for an attorney to be  to secure an expert to obtain evidence that this kind of damage is not consistent with child abuse because that's not what the experts in mechanic said about this kind of damage i'm  explained by something other than sexual abuse well a very frankly judge i don't know if there is legal requirement to be he be afforded those resources but the flip side of it then is that you  medical testimony you can't you can't point to the lack of an evidentiary record on it when in point of fact he was denied a hearing that he requested so i see them substantially over i'm happy to keep going my name is michelle merrill and i represent the respondent joseph no the stake or here reasonably declined to find the petition or establish prejudice in the in the county court given that he has never provided any evidence that rebutted the prosecution's expert conclusion that a tear at the base of the victim's hymen was consistent with the penetration petition provided the county court with a list of articles the most recent article at the time that he said at the time of his trial was fifteen years old and a number of these articles were plainly irrelevant to his claim and to the extent that these articles addressed the injury that the victim sustained in this case these articles tended to support the testimony of  the people's expert petitioner has never identified an expert who would have been available to get to provide the expert testimony that he claims he was entitled by the court to establish prejudice by hearing so there is a up a showing that needs that he needed to make before the county court in order to have hearing granted he needed to provide the county court with evidence admissible evidence that list of articles is not evidence it's simply a list of it's simply a list of old old medical journals  that was not a sufficient basis for the court to to order a hearing he did have some correspondence with his attorney and when his attorney the last time his attorney wrote to him his attorney said the appellate division will assign an attorney for you and i will speak to that attorney for all we know about that those conversations there were conversations between those attorneys so he did have an attorney who may have been aware of these issues may have researched these issues it's just not it's just not a complete record but he has not been thwarted by the state interest too in terms of his efforts to develop automatically get counseling funds to fund investigations to post conviction really well i have seen cases where court appointed appellate counsel will file a for forty on behalf know he doesn't eat doesn't have a right but petitioner presumes that counsel at all stages didn't do anything to help him and the record just doesn't show that and this court can't assume in the absence of petitioner was you will have an attorney appointed and i will speak to that attorney and clearly in this case it is better for attorney to speak to attorney than for petitioner and his face former attorney to go back and forth in a series of of of argumentative letters so he didn't he didn't just ignore him he said when you are appellate counsel is appointed i would be happy to speak to him  are you you're continuing to press you're arguing before us too that there is insufficient evidence in the record to determine even if an expert was consulted during the trial  that's that's correct your honor this this is this attorney was assigned to this matter for six months before trial and he should be presumed to have been effective during that period there  his attorney a letter in which he asked his attorney why didn't you present an expert at trial he did not ask his attorney why didn't you consult an expert and what the attorney the attorney's response was the medical evidence was such that the question you know to paraphrase the medical evidence was such that the question was there was one how did in the hallmark injury for for sexual penetration extent the argument is if my attorney had found experts such as were found lacking in  helped because there are studies like this make and and a study out there the state's response is that deficiencies they found are not a gay says like this one right i would also penetration that was the expert who testified in the in the county and the county court trial as well as the expert who testified for the defendant at the four hundred and forty dollars they both agreed that such an injury indicates that penetration where they disagreed was whether the slides that were introduced at trial actually showed that kind of an injury but that appears to be based on the articles that petitioner cites the consensus is that a tear in the hymen at that position is consistent with respectfully i don't i don't think the record here is sufficient to establish whether or not consulting with a medical expert would or would not have led to favorable information on was no i would agree with the court on that and i would say that the reason for that is because mr reilly was denied the opportunity to develop such evidence at an evidentiary hearing which he well at this point the record evidence that would be favorable to mr riley is evidence that he was able to develop and space sentenced prisoners and indigent sentenced prisoner i must be clear right so the the point i'm trying to make and i understand the court's concern is that it's unrealistic to think that without even an evidentiary hearing much less without the assistance of an attorney that mr reilly could have you know done this five years ago that this case was before the district court who certainly had the discretion to appoint to counsel for him to help him in developing the factual record if not the obligation to do so and furthermore that there was a basis for an evidentiary hearing as my fact the case cried out for an evidentiary hearing  because his assertion which was not meaningfully controverted was that his attorney had not consulted with a medical expert and at the very least at that point  x in every dense area hearing was appropriate to determine whether or not there was anything here that could have been helpful to his case and so therefore at the very least i would ask the court to remain in this case to the district court with a suggestion that the court consider appointing counsel and at the very least conduct an evidentiary hearing limited to the record that was developed  i don't believe so because i think that under i think it's pinhole stair is the case and then there is a non presidential case from this court i think it's called ridgway they assume that st of all there was a decision on the merits in the state court which there really was not as a matter of fact the court that decided the four hundred and forty dollars motion said in any event this is something that should be taken up on the direct appeal and on direct appeal i could you know the court said this is something that should be taken up by forty four first of all there was no decision on the merits and nd of all he was prevented from developing a factual record in the state court because the court didn't grant him an evidentiary hearing thank you very much thank you beth thank you for th