of their duty to protect mr dancer's constitutional rights or the trial or end is defense attorney i'm resulting in a trial process that was fundamentally fair i'd like to start with the argument and eight holds that a criminal trials fundamentally unfair if the state proceeds against an indigent offender this is a quote without making certain that he has access to the war materials integral to the building of an affect thing was confirmed in medina versus california which which explicitly stated that the holding in a can be understood as an expansion of earlier due process cases cited in our brief holding that an indigent defendant is entitled to the minimum assistance necessary to ensure a fair opportunity to present his defense and to meaningfully participate in the judicial proceedings that did not occur here in the state trial judge's limits on funding for a defense expert equated to a denial of the funding necessary for a defense expert mr dancer his attorney essentially began the trial begging for money the i don't think it covers every request for an expert because i think that there is a minimum showing that must be made as that it is essential to the defense but yes i do read it and i think the supreme court reads it as being broader than just the limited facts of that case and that's why i pointed to medina which describes it as the holding of vague and really that built on earlier cases that struck at the heart of the right to present a complete facts and if you deprive someone  of this essential basic necessity of the case and it really was essential to the case here i know i pointed out that the prosecutor repeated this phrase of the one in two point three would really and  this i think it's clear that this was a situation where the d n a expert on the defense side was absolutely essential to be able to confront the government's case against mr gansler and also do you agree that so the michigan court doesn't have to be right about how far the supreme court's decision goes they just have to be reasonable about how far the decision goes that's right you're making a very attractive i would point the court to look back at the michigan court of appeals ruling the michigan court of appeals doesn't even cite and it's real it's ruling says well the trial court decided that a twenty five thousand dollars f so you've got to say that the broad reading of it was the only reasonable reading and that's tough it's not that i don't think that stuff i think that that's what courts have done i think that's what medina makes clear and i think it's on the facts of this case i think that you have to look at the backs of this case and how essential this particular evidence was to this defendant the a lot case and i know the district court did not cite him to and respondent has not cited ins and in the response brief it's a supreme court case on point that it bears striking resemblance to what we have going on here where a defense attorney recognized that an expert was necessary that in that case they actually did retain an expert but didn't realize that they could get more money for a better expert and the supreme court found that it was deficient performance i'm sure we really have no explanation by the defense attorney why he didn't do more to try and go out and get an expert and we don't have him there are several steps he could have tried to make an offer of proof to the district court of why and why he wasn't able to get some one for the funding that had been available why wasn't able to retain a rd expert and this is the one place where and put deference on the prejudice question doesn't apply because the trial court the state court did not get to the issue of prejudice so this court in the district court reviewed the question of prejudice for the purposes of the ineffective assistance claim de novo and this court also must review that question do you know and i'm not question and one of the things that happened repeatedly in this case is what's been termed by the literature as the prosecutor's fallacy and the prosecutor by repeating over and over again that one in three people two three could really and that dancer's hat was on the  was on the hat the defense never pointed out that that's not the correct way to read that evidence that is a that's the probability d of a random marriage it's not the probability that his d n a was on that hair or that he was guilty and you've got to explain to me that difference comparing this against a codice survey of other people with of d n a samples and the this was a cold case st for four years until they got funding to do this test and do a random testing sample and with the probability numbers it is different that number would look different if you were to say how likely is it that he's guilty versus how likely is it that this would nat is that they're just oversimplifying the application of the fraction correct it's oh it's you know i mean the next part to explain the i think that there could have been a lot of i only this is one piece of prejudice and i see that my time has expired but my answer to that is that there was no if i may answer briefly the the problem was that that didn't happen here no one explained this problem with the statistics if you look at the trial transcript none of that was done anything about the testing any complex questions about wheels and about how this testing was done none of that was done by missed by the trial counsel jury is there some indication that all of that which goes to the  fallacy that goes with how you use that fraction but now when you say what the expert would have done was to sort of question whether that's the correct direction and i'm wondering where whether there's any credit where there you've shown  to show that it was wrong and i just went back to that makes the point that prosecution evidence has to test in order for there to be a fair trial and i mean i think i can imagine a case where you're right where the let's not this case where they actually was tested and you need to come for a some argument about why that's not speculative as to why it is not testing would have given you credible evidence to make a contr i'm not sure what more you are trying to pull what additional d n a evidence or arguments you you want to pull from the additional from the testing that you say was able to be done because you didn't have an expert and i think some of trial that's that's where the show prejudice and we don't have to show in order to get really d but there's a that he's innocent just that there's a reasonable probability that for the unprofessional errors the results of the proceeding would have been different  with one possibility b that the d n a could have a higher likelihood of a longing to a relative this defendant and that a d n a expert would be able to ascertain whether which which had some purchase at least logically is that when those women when they're doing this kind of surface d n a has more than one person a fraction changes radically and that that was never presented to the church right and that's right that's not the prosecutor's fallacy no that's not that's a that's a technical fallacy when how precise you can be when it's contact talking about now where he says that the adversarial process can't have been said to function properly when the prosecutor was arguing science and the defense counsel was complaining to the jury he did not have enough money to challenge the prosecutor's scientific evidence i think all of these points we're making right now are exactly why there's prejudice here and there is a one million different ways that's an exaggeration but there are several different ways the family knows let's not have too big numbers too big of a number of could really  yeah there's there's all these different ways that expert could have looked at it i mean from doing trial cases i know sometimes you don't know exactly what we just point is until you have an expert go in there and look at it it could have been the family point this was all this case involves six people that were arguably from mr dancer's family that was the government's theory at least who went to this apartment and his son was implicated in ultimately pled guilty to pointing people to where this victim was you know that certainly could have been an avenue for an expert to look at and i think that that's exactly the point there's several ways that an expert could have helped in this case and it wasn't there and i think some of the technicalities of this argument i've fleshed out in my brief about the what we call these things that it was multi source d n a that it is a touch sample which is really dangerous type of evidence because of the reasons that we flushed out there's no way to confront it but you know to mr dancer his prose there briefing he said they were arguing science about this argument being presented in different ways in the state courts in the district court here and i don't think that in my brief i've really kind of raised it as a this is a new argument a new claim that we haven't really raised this is exhaustion point but what i think is happening is that sort of new facts and new ideas are being added to bolster and i understand my brother counsels argument that he was represented he was not represented in the district court and that he's entitled to  liberal construction of this pleadings but my concern my chief concern is less with the difference in the arguments between the district court and here it is a concern but my chief concern is the difference in the arguments presented between the state courts and the district courts in the state courts and here and i think that what is happening essentially is that the defendant has painted a picture and shown it to the state court and said to doesn't this look like a denial of due process doesn't this look like a denial of the right to counsel and then the state court says no and then he presents a different picture to this district court and says well doesn't this look like a constitutional violation and don't you think it was unreasonable for the state court to say no and so i think this is really more of a pinhole strong point is that when when this court's job is to review the reasonableness of the state courts decision you have to look at what was given to the state court and it's not a matter of blame for anybody it's not a matter of well dancer didn't present it this way so we're going to punish the answer by not considering it the point is we're we're evaluating what the state court did right we're not a valuating whether this was a constitutional violation we're is well the state court was unreasonable for denying relief based on all this information that some of that wasn't provide it's some of it couldn't have been provided to them i think that i think you have to review this claim on the terms of think that's what procedural default and the error that the district court made which was in sort of assuming that this had to have been either a procedural default or a marriage such occasion and if you proceed under that assumption then i think the district court got it right the tie has to go to  but the problem is that that assumption is wrong that an opinion can be both a court can rule that a claim can be denied for reason a and in the alternative reason b i think courts do that all the time we see that there was no error here in the alternative if there was there or it was harmless this is the same thing this is procedurally defaulted and it's also without merit and there is nothing at ambiguous about the order in this case that it just it may in that circumstance we can review either ground or we we is where we have both and we just sort of want the merits issue right and that's the thing as a court is allowed to simply say well i think the default is too complex here and i'm going to sort of ignore the default because and deny relief on the merits and that's permissible to  do you know i don't prefer that because then when we get up here we have to say well you know we have we have a two defenses here and one which didn't get ruled on you know and so but here the district court explicitly said there is no procedural and that was  because the court started out the state court started out by saying here is the rule six point five zero eight d three not just the but the three here is what the defendant is required to show under this rule could cause an actual prejudice because he could have raised this claim a direct appeal aforementioned reasons i'm denying relief right so there's just no ambiguity here's the rule here's what he needs to show he hasn't shown it and this is one of the reasons all the aforementioned reasons that i'm denying relief there is no argument here that there is any ambiguity the only way you can find that there's no procedure to fall is if you sort of adopt this fallacious either or right that a court can't rule that a court can't deny a claim on two different grounds but you know the chris actually i would like to ask the question going up on th i'm not relying on that section of the opinion for the procedural default i'm relying in the beginning of the opinion of her go meaning in the opinion which is what were your graph and then the last yeah i said well the last two paragraphs i think i don't have it right in front of me but it's the one that says he hasn't shown cause and hasn't shown prejudice and then the paragraph that says for all the aforementioned reasons right so that makes clear ok you mean so we i think we do see cases where they just kind of recite six five thousand and eighty three and then they never come back and say that that's a reason why they're tonight relief and so in those cases i'm usually in conservative and don't argue default and just rely on the merits but in this case he says all the aforementioned reasons so when i said that there was no cause or no prejudice i'm relying on that as one reason to deny relief because as i told you at the beginning of the opinion a defendant has to show those two things right and so that this is where it is where does it show where does it show that there was good ca with respect to correct you can't fault on that so in that scene it's as if these three substantive sections weren't there because all they do is deal with the merits of the last sentence of each one says the merits we have the statement that that's the standard and at the very end you say he has not shown good cost but where has he shown that there's anything that he failed to raise that low things that you see in some agencies where there's a pro forma form and they fill out the st part and they fill out the last part and then they get something else in the middle well i think when the trial court says we would make an ambiguous know i understand i think when the trial court says if you're raising a claim that you could have raised could have raised under rect appeal you have to show cause and prejudice and then you discuss the claim you discuss one of the possibilities the only that it kind of goes without saying when it is true that he never raced to interact appeal i think if he had raised to the right in order to weigh in on that issue you have to say that it goes without that he said it without saying i don't think he did need to say it he said that the rule applied he applied the rule to the claim that wasn't raised on direct appeal and said this is a rule that applies to claims that were raised under act appeal that could have been and i'm applying it to these claims i don't think that he has to go through the extra step of saying these claims could have been raised under appeal but weren't i think that where it is true that they could have been raised by direct appeal and work and where it's obvious that they could have been raised on direct appeal and learned and the court is applying the rule that applies only to those claims or only to that and i understand they ar talk about the burden here which is sort of that i think that with respect to my brother counsel kind of wants to skip to the trial where the expert testifies and says well actually it's not two point three quadrillion it's blank right we don't have  blank field and i think that's a problem what is the number is it a one billion is it a trillion i don't know and and therefore the and in the jury says well if the d n a evidence is is subject to subject cute there is a reasonable probability that he's not guilty and i think that skips too many steps right we don't have an affidavit from an expert we don't have hearing testimony from an expert we don't know if he could have found an expert if he had kept trying who would have been able to engage for a point throughout the sub's the proceedings were to have given us a little more little marginal nation of what the exploit next part might have done and other would influence the trial you know i mean not just explanation but some kind of evidence some kind of evidence of what an expert would have t estified to and why it would have made a difference we don't know right we have a lot of articles right and studies that say well these numbers are bad and there's different numbers but we don't have an expert who looked at this case and said well if i had been called i would have testif longer be productive or any reliable d n a evidence right and i understand if i'm not saying that we that a couple things st of all i'm not saying we put it this way i'm not saying that we need an expert who says that i would have done the retesting and based on the retesting it would have shown this i don't think that that's his argument i think that the sort of youngblood argument has it's gone i don't think that's before this court i thought what i see dancers argument now as being is that even happened that that an expert could have been retained at all and that an expert could have testified in a way that was damaging to the state's d n a case and with my sort of last remaining time i would also point out that the d n a was not as crucial or as critical i mean the answer could have referred to the d n a of many times but this court is not going to defer to the prosecutors opinion of the importance of the evidence i think he has to look at all the evidence together and say you know he could have this somebody could have borrowed his hat that has d n a evidence instead you've got the motive you've got the car you've got the weird inconsistent testimony about the car the other strong evidence i see my time's expired a big lead if i'd like to ask the question unfortunately i am in the middle of a fire zone and there's a lot of sirens and you hear me i can hear you fine yes grabbed on the way out the door right i i agree i thought harlem out of the jury what what what other evidence was there that this person was actually there it seems like they have d n a or not it's kind of we there something else going on there that meant the jury believed this person was there yeah and i agree that the hat was wrong with the d n a was relatively weak evidence i think that the strongest piece of evidence was probably the fact that it was a car that was associated with the defendant that was driving these people around the people who are related to the defendant one of them was his son the defendant had the motive because the person who they were sort of avenging by killing the spectum was related to the defendant and related obviously to the defendant's relatives you had sort of some weird answers at trial which i think that the jury could have used to say it's the guy doesn't seem trust for the for example he testifies that he had a gold colored car right and said gold color not gold right and then later again and so then later on he says well i finally said an old car i did i not a cold car but it wasn't gold it was gold colored so that even then there was the court of appeals noted that there was testimony that while he was still friendly with the victim even though the victim had beat up his relatives now the court of appeal sort of says that is sort of favorable evidence to him i kind of take it as unfavorable because it seems untrustworthy i think the jury could have come gone either way on that piece of evidence  but you're basically relying on motive plus the car but none of those are the strongest he's already sorry those are the strongest pieces that's not that's not everything but yes and motive is i mean motive is not an element of any crime but it is relevant in any crime and the fact that his relatives i mean that we know that the other people involved were his relatives and that turner was his relative and i understand certainly you're not you can't convict somebody or relatives who are upset or their relatives are just that person has no no i agree and the motive alone is not enough the car alone probably not enough i think that when you take them all together even without the inconsistency i don't think it was his it was his testimony versus his alibi witness where i think one of them testified that no he never had a black knit hat that was like that he just i guess i had a black not have that was like i don't recall that the page of the record where that was but that was something that was notice as being inconsistent and again it's like if he didn't have it that's fine if he did that's fine but i think the jury has to wonder well why are we hearing two different stories about the hat you know it's sort of all ends up  together and i think the d n a i agree with judge rogers it it shows that he wore this hat at some time but these were his relatives that took that carried out this attack clearly maybe he just drove them there or maybe he was there in there or maybe he was the the leader we don't ruling on the merits versus procedure i agree with judge rogers and i wanted to point out that the district court did as well and the district court found ambiguity in this decision and i think then that what the district were overlooked was that the ambiguity should run to the end mr dancer's favor and that this should be a treated as a decision on the merits and regardless of whether it should be due any deference  i would point this court's wearily to and then and the i agree with judge rogers as well that this order from the trial judge on the six thousand five hundred motion strikes me as a pro forma order and that's essentially what the district or here said it struck that chord as pro forma order there's very little analysis of the actual facts of this case and if essential he says that this was a trial trial strategy reason  and i don't see how that can be reasonable given the conversation that happened at the start of the trial in this case where mr answer is attorney is saying is in the middle of a sentence when the jury is called and about the a expert and he's saying you know she'll be here we don't have the money she was demanding and then the sentence gets cut off mid sentence and in walks a jury and so i don't see how we can call that and he's were reasonable trial ensure that people have a fair trial that it's not just about guilt and innocence in the sense of a defense expert proving in a sense it's about testing the state's evidence and that has never never happened articulate either through an expert or other ways what time create things could have happened had he retained an expert and that if there's ever going to spit balling on this it's all argue about things maybe that could have happened as opposed to things you really could have your client  appellate counsel system about that lawyer on his direct appeal and then a six thousand five hundred motion was pro se and he asked for an evidentiary hearing but he wasn't given it he just got this pro forma order so certainly in the six thousand five hundred they could have opened it up and said look the court's go honour's thank you both for your argument the case will be submitted