first collateral review counsel missed filing deadlines by three to four years without explanation he failed to make a timely investigation of his client's claims and he failed to make a filing in direct violation of his client's clearly stated wishes second trial counsel who was defending a robbery charge didn't examine the physical evidence collected from the scene even though it included a wallet which is the  item his client was accused of take the warden doesn't dispute that these failures constitute deficient performance and for good reason these are textbook examples of profit deficient performance at the collateral review level a complete abandonment of a client's claims and at the trial level a failure to examine investigate and present key physical evidence so where does that leave us we're asking you to find  cause to excuse the default and remand for a hearing on prejudice so looking at cos again the the warden doesn't dispute the first element which is that collateral review council performed efficiently and that brings us to the second element which is whether the underlying claims are substantial what's requires them to merely have some merit and these claims do have some merit the factual basis for them are underdeveloped because my client has never been given an evidentiary hearing at the state or federal level but the limited evidence that's available in the record certainly suggests that further factual development is warranted particularly on the claim of  prisoner's presenting that his trial counsel provided ineffective assistance when he failed to investigate and present evidence that the police responding to the scene turned up the victim's pockets confiscated his wallet and then attributed that conduct to the defendants and looking at the claim i proposed today that we focus on whether mr prison time was prejudiced by trial counsel's failure to investigate and present this evidence because again the warden doesn't dispute that this failure constitutes deficient performance and indeed failing to investigate and present physical evidence that's readily available and of which counsel was or should have been aware was on reasonable under prevailing professional norms counsel was under a well established duty to investigate all relevant leads as this court held in blackburn all the way back in one thousand nine hundred seventy so the question for this court really is whether mr byzantine was prejudiced by this failure and we think he was prejudiced and not just for the basic reason that trial counsel missed an opportunity to undercut the only robbery evidence that didn't come from the compromised witness ra much more important reason that this would have served as the cornerstone of trial counsel's central defense that the police investigation was too incompetent and incomplete particularly from a forensic perspective and was thus unreliable and couldn't sustain a conviction beyond a reasonable doubt now in it in that argument at trial this was the central defense trial counsel made you know essentially right on two points one the police failed to take photographs of the car used in the crime and two the police failed to dust that car for fingerprints but this defense would have been far more powerful if trial counsel had exposed the trial that the police and the prosecutors had had made this mistake that they had failed that they turned out the pockets they'd taken the wallet and then they'd asserted the wallet had been stolen by the defense now i ask you to look at this from the jury's the jury's asked to weigh on the one hand a case that's essentially built on the testimony of this this compromise witness and they're asked to weigh it against this defense that the police investigations unreliable what a lot of use keep saying the compromised witness now joseph says quote cording to him your client told him your friend just got shot and robbed so mr joseph was compromised he lied repeatedly about the case he admitted on the stand that he lied about the case he changed his story well on the stand multiple times and most importantly the jury had serious doubts about his credibility which you can see from the fact that they didn't find intentional murder they would have found intentional murder if they thought mr and it's true is that he was not there and didn't participate but the central defense the trial counsel put on was that the prosecution hadn't carried its burden beyond a reasonable doubt because this police investigation was so unreliable and so incomplete  and frankly that case that trial counsel put on was was then i mean i think the this was not a slam dunk case from the prosecution but this defense as presented at trial was was fairly thin to relying on just these two points about the car but it would have been exponentially stronger if counsel had exposed this significant mistake by the police and the prosecutors with physical evidence and if you done that we think there's a real chance that the trial might have come out differently t is not more more probable than not your honor strickland itself says that to show prejudice you do not have to show that it's more likely than not you have to show that it's a reasonable probability probability or isn't that the definition of probability it's more probable than the so i share i share that the sense the probability may not be the best word but strickland explicitly says you do not need to show that it's more likely than not but regardless at this stage of the preceeding for the purposes of showing cause we don't even have to show that we have to show just that there is some merit to this idea the judge go and i'm sorry to interrupt you but now that was ok i mean i guess that your defense is largely based on the the while it was mr nash's wallet but we all know that at this point we don't know that and that's why we don't think we can show prejudice at this stage we don't we think that the appropriate disposition here is to remain for an evidentiary hearing on prejudice all we have to show is that there is some merit to this argument and and we would suggest that under townsend the that our client is entitled to another one cherry here on this question why are we why are we are we not bound  by double deference to or we're not you're not bound by i had put all your honor at took us back townsend in many respects but not on the question of when to hold evidentiary hearings on uniquely federal questions like cause and prejudice and that's what required and we think that that if you disagree with that could you hold us to a higher standard we feel we can meet it we think we think we have a very strong case that there is some merit to the idea that if we pursue this evidence that we will be able to show that there was a reasonable probability that the court the case would come out differently and that we can't be fully confident in this verdict and although it's outside the record because my client has not had an evidentiary hearing we certainly have evidence to put on on this point if we're given a chance concluding from alex fleming the trial counsel himself so we believe that under townsend our client is entitled to prejudice and we certainly certainly except that at this stage the the record doesn't show prejudice it doesn't make need the strong showing under strickland but but that's not at all surprising because my client has never been given a chance to present evidence on these points and i do i do judge going to do want to just return to a question you asked earlier it is it is certainly my client's contention and it's true that he is innocent and that he was not there but that was not the central strategy but defense counsel pursued it from the central strategy the defense counsel pursued was to show that the police investigation was incompetent incomplete nuss that the prosecution couldn't carry its burden by relying on an investigation and and trial counsel presented a pretty thin version of that defense but if he had shown this really significant mistake that they disturbed the scene that they took the wallet and then said the wallet was stolen i think that really would have changed and strengthen the defense and we can't be confident in the verdict that the jury reached that it was correct with having seen that evidence the evidence that was there was readily available one of which trial counsel was aware should have been aware if there are no other additional questions i'm inclined to let our brief speak for us on the other issues and reserve the balance of our lawyers the the appellant continues to talk about some merit we don't dispute that there was cause for post conviction counsel yes he was ineffective but in his was he prejudiced did this prejudice in some way the defendant or the appellant no it did not mean he has to show that there is some substantial ineffective assistance of trial counsel claim and that's what simply what he cannot and does not show in his argument either in his brief or here today he continues to talk about the wallet he has mentioned at all the second issue which was the defense and probably because that's a much weaker argument that he has there is simply no reason whatsoever to give an e d s direction under kentucky law an eating instruction requires that there has to be some type of enraged state of mind or disturb or inflame state of mind that overcomes your judgment also there has to be a triggering event the testimony that was given was that they came into the apartment mr brzezinski and mr hobbs along with mr joseph and then mr risen they went to the back of the apartment when they heard someone else was in there they brought him out then they were told they would have to wait a few minutes before the drugs were brought to them at that point mr brzezinski and mr hobbs brought out guns they took mr nash mr wilson put them on the ground and when those guns were brought out they put them on the ground mr hobbs as he ran out of the house and as he ran out here heard shots mr joseph mr joe some of our mr joseph ran out the house and he heard us shots being fired all this is based on the testimony of mr joseph right it is your honor minister the the appellant says that the jury would have found intentional murder if they hadn't believed mr joe's if they had really believed mr joseph but no they  would if they hadn't believed him but if they had believed mr joseph they wouldn't have found anything at all in the jury clearly believed him to be a credible witness because they found him guilty of murder based quite a bit on his testimony not solely but  build on this testimony but there clearly is no reason here to show prejudice under the e d defense rather than say they found him credible or not i mean isn't third option is that was a compromise for the jury compromise what we're not going to find intentional murder we're going to find felony murder and that's very onset all the time that's sure that's that's very possible judge griffith but doesn't go at all to the issue here today about whether there needs to be this need to allegations that they have that they may be able to show prejudice here and have some merit and therefore they have a right to the evidence well i would disagree with that and of course because i don't think they've actually shown anything here to demonstrate that they could even prove something further they've made some includes three allegations what the weather arguing is that there was testimony by the tech to james clark who was the lead detective who said that he took a picture of nash's pocket mean turned out because he was a little concerned about that if you look at the context of when that was said it perhaps meant he was concerned about someone moving the wallet it may simply have been he was concerned that they take a picture of it it was important and they concern the scene i have been disturbed by the police director that's it that's the argument is made by the appellant yes that it may have been the story by the police but that's a conclusory allegation they make they don't they don't present here any type of affidavit from the first responders in any sort to say that something would have happened and we would have testified differently they're just speculating that they might have said so and what they're saying is the defense attorney should have made this examination at trial but as i believe did go in pointed out mr brzezinski means entire defense was that he wasn't there or actually more specifically is defense was the commonwealth could not prove that i was there he didn't put on any witnesses whatsoever relied on the commonwealth failing to make their case which they did not the jury believed their case they looked at the evidence they found mr brzezinski and mr hobbs both guilty of one murder so when they have this wallet or this miss turned out pocket then that simply is something that doesn't go to the testimony of mr joseph who is the main witness for for the commonwealth at this point and furthermore as the kentucky supreme court noted and as the maj measure judge recommended but in the district judge adopted these are insubstantial claims because there is other evidence of this robbery occurred the revenants being that mr risen in carried out a bag that had the cocaine in it according to mr joseph he said he carried the last of never saw what was in that he did not but the that was enough for the jury to believe that because later on they found the same bag containing whether there's enough there is reason for prejudice here to show prejudiced and show prejudice you have to show you have to go through the strickland standard the appellate continues to say that we have to show there's some merit here that there's some merit as if and he said that he said at some point that he should be held to a higher standard well he should be held to the proper standard and the proper standard to his credit he points out in his brief is shown in the ninth circuit case of the  and that's the same standard this court has adopted already which is to go into the merit of the ineffective assistance of trial counsel claimant look and see was the trial counsel deficient and was the trial counsel did that deficiency prejudice the he wasn't a fish in this case because his client was saying i'm not there so what good would it have been for him to i thought rather investigate this argument by conceding that he was fish and the only issue was prejudice no your honor there's  whether the council was deficient in or in doing this and accounts councils is said to be reasonable and looking at it in objective way he's presumed to have trial strategy that we're to give great difference to trial strategy is there to not investigate i mean the argument is that trial counsel should investigate everything about the scene and here i guess that there was no investigation because trial counsel to look into it been isn't there a duty to do basic investigation there is a duty to investigate and how is their investigation here i mean there was no strategic decision made by trial counsel not to look into the wallet or the pockets i mean they just it was are well there's there was no evidence of that but there's no evidence that there was that they decided not to strategically i mean he his count his client was saying he wasn't there so he was relying on the commonwealth having to put on   a pair of blue jeans if the come with the calm of the tourney who did the case in closing argument pointed out the pulled out pocket yes but i also point out the fact that there was a pot there was a pair of blue jeans someone else's that was thrown on top of mr wilson and he made the argument that they had gone through different people's pockets looking for wallets and looking for looking for something to to take with them as they were going you had that along with the with the testimony of mr joseph that they had come in there with out that they never saw any money from on mr risen or mr hobbs they leave with the bag the tommy hilfiger bag and then later is found with mr hobbs and you have evidence that is separate from whether there was a wallet there not the question is absent this deficient performance would the outcome is a reasonable probability that the outcome of the proceeding would have been different and if this trial had been have been pepper seated and there had never been an out turn pocket i don't see how there's a reasonable probability that the outcome would have been any different based on the testimony of mr joseph and all the other surrounding circumstances i mean we all we do is we leave out there there's not that outearn pocket and there's not that wallet if you take those two pieces out i don't see how there's a reasonable probability that the the jury is swayed by those two pieces of evidence  in this case so i think that's the only thing that we can talk about in the indian struction there's simply nothing of merit or substantial about that because mr hobbs asked for an e t a instruction and was rejected by the court because there simply was no information for any instruction be based on no evidence there and here again the appellants have not shown any kind of evidence to base this on all these speculate all this is just simply speculation that they have they they need to have more than that they seem to argue that as long as they proffer some particular facts that if they can make an offer a fact then we're supposed to send it down back for i had five alibi witnesses that would have put me somewhere else but my attorney wouldn't call them but you don't present any evidence of these people we don't sin that now and have all these alibi witnesses put on the stand same thing is happening here there was there was no deficiency the the trial the trial it was a trial strategy it was it was because there was no evidence i mean the the vince attorney was saying his client wasn't there so whether there was a granting and i've been unfair hearing in the court below didn't articulate and the correct standard is the standard from williams of proffering specific facts and williams was the exact same situation that that opposing counsel was just criticizing where you come forward and you say i can present witnesses who will say that this happened or i have there is physical evidence that this that this failure occurred and then you get a chance to present that and that's because as we all know townsend was incredibly brought towns in brooklyn mandatory hearings in very very broad situations and i think that's why congress saw fit to cut a bath in many ways but not in this way so we benefit from a very very broad standard here and the warden hasn't articulated in the alternative stand him well this is the first time in this argument that we've heard the state suggest that failing to look at physical evidence taken from the scene when you're defending a robbery charge is not deficient performance and i don't i don't think that's credible i think if you're defending a robbery charge you need to look at the physical evidence from the scene you need to investigate all relevant leads particularly when you are in possession of a list that says a wallet was confiscated from the scene and your client is accused of taking over all and finally i just like to say that all of the other evidence of robbery in this trial actually exculpated our client because it tied hobbs to the robbery and hobbs said that he did it with joseph and my last point would just be that opposing counsel seems dismissive of the some merit standard but but martinez in the supreme court has said that we just have to show these claims are