court and briefed in the principal briefs is the ineffective assistance of counsel client the three other issues have not been certified that i did brief them in both my opening brief and in my reply brief and to the extent that the court may have any question counsel claim of course begins with what standard of review is subjective and under the the an effective death penalty act the standard of review is certainly deferential to what the nevada supreme court decided back in the year two thousand when it reviewed the ineffective assistance of counsel client the question then because then becomes really what layer of review does this court sitting as a federal court impose upon the nevada supreme court's decision and in our briefs we took the position at subsection to urge to i believe the twenty to fifty four d applies and that is that the nevada supreme court's decision was an unreasonable application of the facts that were presented in light of the controlling law it found that there was no prejudice right yes and well that event supreme court found actually that the they and this was something i was going to get  at down down the road in a bit but essentially they found that there was no prejudice but the reason the reason that our position is that that finding is not entitled to any deference is that they seize upon what i would consider a what i would characterize as a red herring presented by the state of nevada at the evidentiary hearing in the post conviction proceeding in that red herring was mr paraded didn't present any alibi witnesses or any proof that there was he indeed had an alibi that was a red herring because that was not the gravel none of the ineffective assistance of counsel claim the gravel none of that claim was that mr paraders lawyer did nothing to prepare for trial but like our viewers if there was nobody to interview who would people to interview there was marissa katz the fourteen year old girl who said that she saw the two black men in the white man arguing in the parking lot and then six minutes later heard the gunshots which was in complete  the he'll found out if in not interviewed here's here's what i think here's here's why i think in you've got to kind of understand what happened in this case and why i think the prejudice is more compelling than it looks like if you just take a superficial look at it but the prosecution put that on the eve of trial was not real confident with regard to the quality of their case and whether or not they were going to be able to prove what it is they had transcript his preliminary hearing transcript was not all that compelling he picked out the wrong guy and if in a physical identification lineup he testified that at the preliminary hearing he testified well you know i guess what i'm remembering is the clothing and not really the two defendants that are present in court so obviously the district attorney number one was very concerned about the fact that his case was had become much weaker because of the end of the untimely death of  and you can tell that the district attorney had also failed to really prepare his case because it was not until the eve of trial that he even realized that there was another bartender mysie for it i believe that could corrupt that would conclude come in and testify and corroborate knew that and knew because he had the police reports he knew that wheeler and c first had all been had been interviewed he knew that wheeler was going to be a witness because it was listed on the information and then they battled on the eve of trial as to whether or not seaford should be allowed to testify these are this these are out of out of the mouth of mr wolfe brandt the alleged ineffective assistance of counsel attorney he says that you know i probably should have interviewed them because the theory of my defense was going to be that parade chronic this is pretty close to no defense whatsoever because by his own admission france says that the post conviction hearing yeah you know i thought i went to the bar but i didn't want to talk to these people because it was kind of emotional and and well he could have at least if he had that if you think you know first of all criminal defense lawyer shouldn't be practicing criminal defense that they don't want to talk to witnesses that they have direct evidence as to his as to his client's complicity in a crime the automobile accident the district attorney was going to my god got his investigators out there and found you know started to learn his case and once he learned his case he thought well maybe i you know maybe i better maybe i'd better offer these guys a deal as you may recall from the evidence that of the trial evidence domingo's was also offered a deal dominguez was ready to plead guilty started pleading guilty the judge the trial judge didn't take the plea because domingo's was refused to implicate parade it refused to provide evidence to each and every count in the indictment and each and every element in those counts yeah then i think you've got a problem if there's prejudice obviously i mean the law is the law that you know i can't rewrite strickland i'm not saying that this is error say it's darn close friends i thought i have to show prejudice and i and our position and you know i don't want to just keep going over what it is we have we've argued in the briefs but you know i mean the prejudice i'm so i'm certain the prejudice that the prosecution was worried about was was an effective cross examination of the two barlett bartenders the ladies that were in the bar and effective cross examination of aristocats and a lawyer that would get up there and say ok we don't have gregory r ladies and gentlemen of the jury while he's cross examining mersa katz the fourteen year old but we have his preliminary hearing transcript and you just heard that read into the record i wasn't there but mr mr parade as previous attorney was there and cross examined mr rabbani did not that kind of cross examination never happened it never happened because mr will plant mr will grant was basically flying blind we're talking about a man a defense lawyer who was going into a trial where his client was the federal court has to speculate a little bit you know i think there's no way that you can't that you can conduct a prejudiced analysis without some speculation and i think what i just portrayed the little vignette that i that i to the bar and not talk to the people what's the point or ineffective assistance is failure to talk to the witnesses in advance the impact that that failure had his his right to a fair trial not not that not just the failure the failure goes to deficient performance the impact that that failure had is what i've been trying to impart is is the prejudice problem i mean obviously i can't stand up here and say i win just because mr wolfe rantin interview witnesses i have to prove that that failure to interview witnesses impacted the risk you know had a it was reasonably probable that the outcome would have been did not have been different it undermines this court's confidence in the outcome decision i guess is is somewhat subject to whether or not the decision made any sense i mean the sanders vs retell case and older case from this court twenty one fed third fourteen forty six deficient performance  dissatisfied an attorney does not investigate and does not have sufficient reasons to justify that failure will i think that that statement of the law that derivative principle from strickland certainly applies to a decision not to cross examined i mean you just can't say that there i is a potted plant as they said during iran contra if the decision to to not cross examine is and is based on the fact that i didn't prepare i mean that's not that's a that's a clear violation of six minutes but if the decision not to cross examine is predicated on i got just what i wanted out of direct i'm not going to mess it up by doing some cross examination here that's that's effective counsel but that's not what happened here by mr wolf brandt's own admission in the conviction here he's like i said you know i don't want to beat a dead horse but he kept saying i'm going in there thinking i'm going to do a defense that's based on my my client was merely present not that it would there was an alibi again the red herring that the nevada supreme court sees which is why their opinion is not really intitled any deference but that he was going to you know that he was doing a drug deal he finds out for the first time during the direct examination of the two barges and and mr contrarians and the the coin man mr walter that they were in that they were indeed inside the bar so you know it's like were you ben here you know if you just asked a few questions perhaps mr parade is  trial would have been different i mean to me that's an outcome determinative fact that you can that this court can take into consideration you know paraded this makes the decision to go to trial based on what his lawyer has done investigation wise and that would nothing nothing unless the court has any other questions i can reserve my remaining had beginning of his argument stated that that counsel did nothing to prepare for trial and he states the same thing at page thirty one of the opening brief statement vission is that under the two thought well it went to some of what he used in his closing argument and some of his questioning of the officers and the officer i think that certainly is an answer to an argument that counsel did absolutely nothing but it's not it's not much of a response to counsel with well prepared trial i think that counsel based upon what he had on the police reports the p hearing transcript and the fact that the victim died before the trial he was going to if you look at his closing argument he based his argument upon that there was a miss identification robot that the timeline of given by some of the witnesses those were off and that there were other people in the area that might have been involved in this but it wasn't his client now the decision to do that was reasonable based upon the information that he had even and at the state post conviction hearing when he was asked well if you knew about the testimony from the bartenders in advance with that have changed your strategy at all and he said no it would not have changed the strategy so you've got a case where he's and he's hasn't been provided any alibi information whatsoever by his client so there's no one to do as the courts pointed out that there was no one to question in that respect so he's got no one to question about the alibi possibility the words i'm not there because his defenses while i'm there but all i'm doing is dealing drugs i'm not trying to rob anybody or shoot anyone well then what the closing argument i think shows is that he did have a plan it may not twelve years after the fact  not look in twenty twenty hindsight to be perfect but a person is not entitled to a perfect defense the reasonableness of actions should be gauged by the particular facts of this case one of the things that we look at is what information would have been obtained and would it change the result which leads into the prejudice prong of supreme court thought that this was the case with overwhelming evidence not a we case if you look at the facts in this case you have a situation where petitioner and his codefendant were caught not hours after the event not minutes but seconds it was their bad luck that when the shots were fired into the victim that there was an off duty las vegas police officer in the vicinity finishing his dinner he hears two shots he goes towards the  took place the to the shooting so there's a physical evidence there there were some inconsistent statements between the petitioner and his codefendant regarding well geez i don't know more than what they were doing in the area they were fingerprints re lated to these two individuals on a rent a car that was in the area so i believe that about a supreme court characterization of the evidence is actually overwhelming as once again they were arrested seconds after this happened  feelings about their case without a supreme court felt that there was overwhelming evidence and i don't think that finding is unreasonable and i don't think that there is a united states supreme court case very fact appendant upon the information that's provided to the attorney and it's not so much talking to every single witness is that they do a reasonable job that they conduct some kind of investigation  gun there was never any there was never any definitive evidence that that was indeed the slug that came from that gun he was the criminalist was equivocal on that point and i think the district judge below pointed that out in the opinion as did the nevada state was the gun don't think he remembered actually seeing a gun because it was so dark but i may be wrong on that point that was on the weapon found and it was pretty close to where all it was it was it was in the same parking lot and it was the only weapon found but you know i want to clarify one i a mistake that misstatement that may have been made i don't mean to say that suggest was intentional the record my my review of this record is that the only witness that actually as is judged by the can ask the question how many witnesses who were the witnesses that saw the incident and by incident i mean that that suggests that actually saw the two people a cost and shoot mr robot and the only witness that saw that was rebutting himself the bartender's did not see  that miss katz did not see that the fourteen year old girl the mr contrary as the guy taking the trash out didn't see it to police officer didn't see it nor did the coin man see it so you know reviving was the key and it wasn't a photo line up that reviving with failed to pick the the the defendants out of it was a physical lineup it was a lineup where there were actual people there and mr reviving failed to pick them out and also with the preliminary hearing with both of the defendants sitting at has quite a bit of circumstantial evidence around the time you have you have you can place the man inside the bar immediately before the shooting we can place them running away from the scene immediately after the shooting place and it is doing that but not parade a parade  surrendered immediately everybody is in the senate yes absolutely i mean he is in the area and there just as appear to be anybody else in the area that looks to be running away or tucked under a car doing anything else i mean fairly strong circumstantial evidence here and there's no question about it that it went to the jury in a way that was a violation of the sixth member it should have gone to the jury with a lot more poking and prodding at the old reasonable doubt concept and that's why that's why i'm hoping that this court will find prejudice and i do appreciate the fact that i was allowed to go over a minute ok thank you mr lemon mr warwick's thankful counsel and our la