sixth amendment is that the defense counsel prepares investigates and communicates with the defendant that's not what happened this case the defense counsel failed to find or even talk to judge certainly had qualms about the trial counsel performance made some remarks about the deficiency in the opening statement deficiency in the closing statement  and there are the four witnesses five including the medical testimony that should have come in about the complaining witness that alcohol level were easily obtainable and because the jury didn't hear that evidence the government's whole case the complaining witness remained unimpeachable on contradicted for example the witness who was listed in the police report who was never contacted counsel i don't think there's any question about the performance itself the fraudulent so the opening statement gave me quote the distinct impression that his attorney doesn't have a clue about worries going or what theory is or what the defense is or what the case is all about and comment that closing argument doesn't do much to dispel that initial impression frankly the real failure occurred before the trial started with the failure to adequately prepare for trial adequately investigate this with the trial court system and to blow this more out of the water than the so the question is whether it was because of the injuries could or could be the the doctor said that the cause of the injury could have occurred from falling on a sharp object he said was also consistent with the complaining witnesses version which was that she was kicked so that's why these witnesses including the central witness i think which is there a path who  the witness listed in the police report and whom defense counsel never even spoke to that witness indicated that he carried the complaining witness into the house with no injury  altercation with mr pizza and then he then heard a thump and he went into the bedroom where he had placed the complaining witness and saw the injury to her face that testimony would also have been corroborated by did you have on another witness who was found shortly after trial and who corroborated and saw that  he saw the first witness their path carry the complaining witness to the bedroom said she was very intoxicated so that there was no facial injury and heard the thump and then also saw the complaining witness bloodied in the face region so this is sexual testimony and the state courts finding that the evidence was strong seems to me to be a kind of circular reasoning it was strong because it was unimpeached and were no witnesses contradicting the complaining witness his version the other witnesses specifically contradict the missing witnesses specifically contradict the complaining witness on whether there was an altercation at the bar whether she had fallen to the ground at the bar how much she had to drink whether she a i'd have to double check i don't remember whether i'd put his now but his full testimony is not in the excerpt i apologize for that it's in the in some of the largest exhibits i know the excerpt is to your brief what the evidence in a trial is to your opening statement and things like this are very important we believe that stuff in the excerpt i understand i'd be glad to supplement his testimony may be critical here to the decision in the case and you didn't give it to us night neither side i guess and i don't think there is state's position has been on appeal that the doctor said that it only could have happened the way the victim said and they haven't claimed that it's impossible to have  occurred by a fall on a sharp object well you get into that old problem of anything is possible the council how many times have you heard that and except for the fact this is a specific injury and the doctor was specifically asked now you said the doctor said on direct it's inconsistent with something you fall to the ground but then on cross examination was clarified and said it was possible for this type of injury for factual statement where he describes the doctors testimony that the doctor testified the injuries were consistent with a kick to the face but not with the near fall to the ground because such injuries that require force applied to the eyeball and sell only because that's completely wrong it leaves out t a record the the record the full trial transcript is been lodged with the just record it's in the record and it's been cited by need to the full quote that i'm relying on that shows that the state courts a claiming that it's not consistent with a mere fall is not a full this is fully correct in that it is almost the fact that the doctor said that it was consistent with a fall on a sharp object and i put that in in fact the doctor's testimony and explain why the court of appeal opinion maintained that in fact the injury to the on could have been caused by a fall too rapidly on a sharp object injuring the determine when you know of since the record i do have it here i will make arrangements for the court to have it however i did not provide that to the court because i do not feel that this court needs to to review that is in fact this court but i will say your honor that this victim suffered multiple multiple severe injuries and the subject of the new declarations provided in support in support of the motion for new trial would have only accounted for the one particular injury to her eye ball and there was never any any dispute that th was seriously injured in a multiple of ways that only the testimony of the victim accounted for the defendant punched her in the face she pushed her to the ground then as he was trying to be restrained from a friend he broke away correct and and in fact it would be almost impossible to conclude that it was unreasonable in this case the victim's testimony contrary to what mr explain pre sented earlier rectums testimony was was discredited by the district attorney himself and closing argument the victim testified that she only had two beers however the evidence  establish that her blood alcohol in the hospital was a point one nine the d a during closing argument told the jury we all know she's lying we all know she was drunk that night she obviously had more than two beers with a point why not i however the injuries speak for themselves so in other words the victim was impeached by by her own statements on cross examination his wor the part that's missing well your honor in fact it appears from the record that defense counsel made a tactical decision there is no statement or declaration from defense counsel so we don't know what defenses he considered and rejected i did appears that there were choices available to him either to allow the jury ten for this victim suffered his very injuries in the bar fight before returning back to the defendant's house or to follow up on this theory that she fell back at the house and hit early during have a crowded bar fight that argument i possibly can and for all the injuries that this victim suffered falling from the bed stand and hitting her her head on and specify piece of furniture would not have accounted face but she would not have had her entire head the rest in practically by one fall and you know yet in fact despite no no where they did none of this new evidence is anything to do with any medical testimony there his testimony was supporting and in fact he did testify and you remember this that his testimony was exactly that that the victim's description of how she was injured in the attack was consistent with the injuries that he treated in the e r that but i do have the testimony and i will copy it and provide it to the court after oral argument this morning and i've asked records to look specifically at that page one thirty three which is where the doctor said that the eye injury could have face and the there are both of the other witnesses testify that there was an altercation at the the bar and that the complaining witness was involved in that