good morning and may please the court my name is jeffrey ellis i'm here on behalf of mr alderman this is a case involving the unreasonable determination of facts by a state court  involves a young child and like many cases involving young children that child's testimony is not definite and many respects what she said was that she felt something between her legs going back and forth she testified once that it hurt once that it hurt a little bit and said that previously she said it hadn't hurt at all and she also say that when in doubt she did say that there's no question but that there is sufficient evidence to support the rape of a child conviction the question is whether there is any evidence to support the conclusion that in fact what happened was an attempted rape of the child and therefore  the lesser included instruction should have been given and her she was not able to describe what happened she said she couldn't see it she didn't have prior experiences obviously that she could draw from to compare and she did express that she felt something going in out of the issue is whether or not the lawyers performance was deficient for not asking for the lesser  right the question is whether the lawyer performance was deficient where there was evidence to support the giving acceptance of the lawyer said that it was his view that there wasn't evidence to support  the attempt instruction but why wouldn't it have been a reasonable strategic choice to you because there were instructions on child molestation as i recall correct there were ok that the lawyer may have thought with this kind of confused testimony from a young child they're better off to to try to argue for an acquittal on the right charge and and hope for child molestation it's hard for me to see how that's an unreasonable strategic option that's not unreasonable but that's not what this attorney said this attorney if that i attorney had stated in a declaration or if there had been an evidentiary hearing and it come out at the evidentiary hearing that the attorney was making this calculation better for me to ask the jury to convict on child molestation because the penalty is lesser that would be strategic well while the that also bears on the prejudice analysis because the jury was presented with one option they didn't have to go all the way for a rape and if they thought that the rape had not occurred they would have gone for it seems to me for the child molestation option and so why would they have you know what i guess if i just have difficulty seeing where the prejudice lies as well right well first of all it's important that none of the child molestation counts were offered as lessers of rape of a child he was charged with four counts they convicted on three including the one count of rape of  child in acquitted on one the evidence i think the parties agree that the the evidence mostly supports the idea that there were three distinct child claymore but she was unable to distinguish between more than three also assumes that the jurors viewed child molestation as is equal to or at least very close in terms of its seriousness to rape of a child what you have is clear evidence clear evidence of attempted penetration which also could have supported the conclusion of penetration what you don't have is the ability of jurors to say yeah that's right what he did was attempted rape and that's more serious than melissa station and therefore your thought ok and let's say that he had asked for a lesser included instruction and then when he got up to give his closing argument if you find there was not penetration then seems to me on a practical level like a problem it could be a problem and i agree and i agree that an attorney could make a strategic determination to ask for the lesser would have returned the attempted rape if they had been given the instruction you're agreeing with them that there was a greater likelihood you know that they were going to otherwise no what i'm agreeing with is  that counsel could have requested the lesser included instruction when jurors are instructed they're not told now defense counsel wanted this instruction and that's the only reason i'm giving it to you they don't know why they're being given lesser included instructions counsel could have asked for it if you'd asked for it the evidence supported it would have to be given and then counsel could have decided strategically not to argue affirmatively for that but the question is not whether counsel's argument substantially advanced or even and i think it's fair to say even if counsel hadn't argued affirmatively for the attempted rape theory is there a reasonable probability that the jury would have returned the verdict if they had been given that option  to talk about that for i'm sure as i understand it based on the record there are two different things that point that one is the testimony nurse are correct correct also true that at about the same time she made a comment to the effect of well i can't really she can't she said it it does happen in what certain number of cases but then at the end she qualifies she seems to back away from from that statement by saying that she really camps a short and again say that i think that's a fair assessment although i want to make it clear that she says the simple act of pushing against that gentle area would create this sense of penetration you made it clear that that's not what happened that she can't say that what happened she wasn't making any determination about with what focus on the credibility of the witness you know i wouldn't characterize it so much as credibility as the lack of certainty or the lack of definition by the victim most of the questions by the defen attorney essentially go through what she'd said previously and ask are you sure about that haven't you said something differently think consistency sure absolutely but those two things those two items are what you believe would give rise to if this instruction had been given and there was a probability that the jury would have returned the less good you've got uncertainty by a young child about exactly what happened to her is what's incident like well the answer is yes i'm sorry i was like i was going to repeat your question back and try to make it to sound a little bit more like my argument than your question but i agree do you want to sa rebuttal time i will say the remainder thank you court my name is paul wiser i am an assistant attorney general representing the appellee in this matter we believe the district court's decision should be affirmed and that he was relieved should be denied although this case comes to the court under twenty eight u s code section twenty two fifty four d under ed standards as the district court concluded even if it's reviewed under it the noble standard alderman cannot show ineffective assistance of counsel defense counsel didn't request a lesser included offense instruction lesser included offense of attempted rape of a child because there was no evidence that alderman merely attempted a rape of a z you don't agree that discussed was the fact that whatever it was that mr alderman was doing to earn it was causing pain so he was touching essentially touching coming into contact with her hymen which is by definition penetration under washing when that was that would be what was painful but as i understand washington law that is sufficient for penetration because it is however slight and it is the wording of the stand shoot so even under her testimony it seems to me that she what she's describing is legally speaking penetration i think i mean that's at least how i read her testimony i did as well your honor and i believe the state courts read it that way as well that what you're saying or was describing and again she viewed the incidents if at all five years after the fact i think what she was describing was in fact penetration under washington law penetration however slight is sufficient course you see that we all know  has to be a line between penetration and penetration there is a line somewhere right yes your honor if even you know i something could be not however slight so the question is i mean does this evidence support trial and he did sit through trial and he did have mr alderman that was a mistake as part was that no it was not your honor that he did not want to offer a jury instruction when there was not affirmative evidence supporting that particular  washington law in that regard it was he's washington law such that there has to be affirmative evidence supporting her requested instruction as distinct from simply not leaving the testimony of a witness that's correct your honor that's the state versus fowler case which is cited in our brief as well in the state versus fernandez medina case it's not enough that the jury simply disbelieve or that they might simply disbelieve the state's evidence there has to be some evidence presented that so we know it all comes down to the nurses testimony as to whether that is affirmative evidence that would support the test i mean th instruction i think that would be as close as the defense could come to finding something affirmative that would be through their cross examination or or through the entirety of nurse hangers testimony again five years removed from the events  penetration that they're not there with not but they could not you know maybe there was so that it would support the giving of an authentic structure right now but in light of the fact that we're reviewing under ed is that change the result yes your honor i believe that because why under ed we have to give deference to the state courts conclusion regarding counsel's effect well with the state courts conclusion the state court concluded and this was in the first volume of the excerpt of records in light of the victim's testimony that she felt something moving in and out of her private and those were in been fails to demonstrate that his council's decision was unreasonable or that he would have been entitled to lesser included offense instructions had counsel requested them that was an alternative holding by the court they first concluded that the claim was procedurally barred from the law and from counsel's decoration your honor yes that based upon all the evidence that was before the court and i would remind the court that the evidence that was presented to the court was presented by mr alderman this was not a declaration that the state put together or had former defense counsel signed this is one that mr alderman obtained from mr greer of the former defense attorney and as i said the easy testified that she felt the sensation of something going into and out of her private and that all moments body was moving back and forth as this was going on closer and farther away from me and that it was painful if there was no evidence to the contrary that it wasn't painful or that it was not going in and out of her private though she had said and some prior occasion that there was no thing that's correct and we don't have any any tapes or transcripts of those prior interviews so we don't know exactly what questions were put to her at that time or maybe there were no questions put to her about whether it was painful or not so we don't know the extent of of how much inconsistency there might have been but yes she did in fact affirm on her direct testimony and on cross examination that she had not initially described it as having been painful defense counsel's performance was not deficient under the strickland standard counsel can't be faulted for failing to ask for a jury instruction the fence was not entitled to and to do so is comparable to making a frivolous objection or filing a frivolous motion and i would point out since there were questions earlier on rape of a child attempted rape of a child one had there been a conviction for that the sentencing range for that crime would have been one hundred eighty to two hundred  thirty eight point five months under washington law the sentencing range for an attempted crime is seventy five percent of the range for the completed crime so that's what what the range would have been had jury doesn't know the jury does not know that that's correct your honor but as judge zilly found at the district court if the jury had truly believed that or had it truly had a reasonable doubt about whether penetration occurred the jury could simply has no further questions for me we request that the court affirm the district court's decision and deny its relief i just curious how would you characterize the testimony they're saying that it has no meaning at all that it has some significance but not enough to push it over the line of what i think it that first of all much of it was instructive your honor it was to explain to the jury anatomical features that most of them might be unfamiliar with when we're talking about five year old children and i think that that was the purpose of her testimony to apply one point she says so pushing against it often kids have the been argued that i don't believe it comes to that level i don't think and rises to the level of of of rendering a zes testimony about penetration equivocal thank you thank  you you have some rebuttal time or money yes judge ma'am you just hit on what i was going to say which is that portion of the testimony because one they're saying or talks about touching the hymen being something that would cause pain during that part of  testimony she simply discussing rubbing up against the vegetal area and says two things that would be painful and that the child would have the sensation of penetration which is what a z described in this particular case mr  that don't we still have to affirm i know well first of all we don't have any your question assumed deficient performance the state court found no deficient performance after the deficient before but still you know he had a reason for asking for that and the state court accepted it and the state court asking for that for not asking for the right let me let me make  state court viewed the evidence supporting the verdict not the lesser included instruction and found counsel acted reasonably because there was evidence supporting the verdict the state court did not reach the prejudice prong so that would be