good morning your honour's randy cohen for appellant and l pratt i would like to reserve a couple minutes for rebuttal please may please the court i'd like to focus today on our strickland and chronic claims and i'd like to begin by talking about section twenty two fifty four the district court correctly found that our claim five the chronic claim was inadvertently overlooked by the state he be a scored and thus is not governed by section twenty two fifty four of course we agree with that the district court however incorrectly found that claim for our third strickland claim was not inadvertently overlooked and therefore is governed by section two twenty two fifty four we disagree with that your honor the record doesn't support the district court's conclusion about claim four because claims four and five as court knows were on the attachment form the state heebie as court twice listed claims one and two first in listing the claims that mr pratt was raising only listed claims one and two which were in the form petition and then again in making its ruling only address  strickland claim that trial counsel failed to investigate right and present evidence that dollars as so let's assume that there was deficient performance and let's assume we review prejudiced and of let's hear assumptions and let's hear that the best case for why there was prejudiced sundered an overview well first of all of course in evaluating ineffective assistance of counsel claims we do look at them cumulatively we consider the you know counsels overall performance so if you isolate just that let's assume you lose on the other two ok i apologize let's assume that you don't prevail on the other two and you only want to talk about that i just want to hear your best case for why even if we had another review on prejudice why was there pressures from that well your honor this this was a case of mistaken identity as the court knows and there was some vulnerability it was not an airtight case the complaining witnesses and nationally identified pratt's brother lanao the only identified mr pratt when it appeared that leno had an alibi it's a little unclear exactly when they were told but initially they had identified the now had evidence been presented that mr gonzales had told police officers that the twin he saw shortly before the shooting short how  so but but it's forty five minutes or a half an hour before and i don't even understand why the inference is that that person he ran into is necessarily the shooter well your honor is correct that it's not a very strong infinite inference but that is what the state argued  with that evidence that the identifications by carmen and andres gonzales of the twin that they saw at some time before the shooting you know approximately a half hour forty five minutes that they believed that twin was mr pratt because he was the serious quiet twin or the bad twin who didn't speak and that's how they distinguish between the two twins so of course there's the other ineffective assistance claim that there was ample testimony available from multiple relatives of mr pratt that they got it wrong these neighbors though they lived there for many years there was evidence that it was very difficult to tell mr pratt and his brother apart so between these two items of evidence you know we can focus on the parole issue well if if that person that mr gonzales saw half an hour say before the shooting if that indeed had been one now and there is only evidence i mean there was there was an evidence that there were two people there was one person that was seen before the shooting and then carmen gonzales also testified she saw one person hurrying down the street and back into the pratt house afterwards so there was no evidence other than mr pratt's testimony that the two twins were around that night though that's certainly possible that whoever you know andre's and carmen saw before the fact it's it is possible that that was not the shooter anyway but that is evidence the state presented and could have been rebutted mister defense counsel had he properly investigated could have presented persuasive evidence i just i guess i think you need maybe to address the ineffective assistance as to the manufactured alibi because it absolutely and his explanation was that his brother had told them he had an alibi and that mr pratt better get an alibi and that he didn't take that entirely seriously even after the shooting until he was arrested and then once he was arrested and his brother was not coming forward to exonerate him that at that point he did try to manufacture an alibi because he didn't have a good alibi and the reason for that is because he was with his grandmother who had al alzheimer's and then passed away so there is that evidence but i do think a juror could have had a reasonable doubt whether mr pratt was the twin who committed the shooting even though he tried to now but the one i have counsel yeah yeah exactly but the letter was written when your client had the other where right when he had what you know that earlier lawyer not the trial lawyer you know what i'm saying so i guess i don't see why is it i don't understand why the inference is strong at all that it was trial counsel who cooked up this whole scheme when in fact your client had already been apparently in the planning stages before he even retain well he did attempt to manufacture an alibi certainly i don't know that i didn't i don't recall from the letter and the phone calls any evidence that the alibi he was attempting to manufacture  coincided with the opening statement that mr graham gave and i think it's a question of credibility your honor as to first of all who cooked up this defense theory mr p declaration and his consistent report since you know i took the appeal in state court was that it was a complete surprise to him he never wanted to testify he urged mr graham to defend the case just by attacking the identifications and not putting him on the stand in that the identifications were vulnerable and he after the opening statement he  that mr graham told him to study it and testify accordingly now you know when to when a client tells me that as a trial lawyer lied or you know broke the largest something like that of course we can't just take these things at face value and in many cases we might find that there just isn't you know anything to support it and the defense counsel is credible in this case as the court knows this may be the least credible defense trial attorney i've come across in twenty five years and there is authority for considering the trial lawyers state bar discipline record in evaluating whether he's credible in positing the excuse me that he had a legitimate tactical reason in sanders vivre tele which was actually a rather similar case this court found ineffective assistance based on the trial lawyers failure to investigate and present evidence that the defendant's brother was in fact the shooter and there was an issue of presenting relative's testimony that it was in fact the brother that was the shooter and this court looked favorably on that proposed testimony that these relatives you know would would support the defense theory that it was the brother and also that the defense counsel's disbarment and state part state bar discipline record showed a course of conduct of failing to adequately investigate and represent  failure to observe ethical rules for attorneys and that's very similar to what happened in this case we have a state bar a court here that described this trial  blind to conflicts of interest and ethical norms of an attorney and that they found he had no credibility he was very willing to use deceptive methods to accomplish his objectives and then there's my declaration from my conversations with him from one day to the next when i first asked him about the opening statement transcript and he said no he didn't recall giving it to mr pratt me couldn't imagine why he would and i asked him well could you have any idea how he might have gotten hold of it because he clearly didn't get it from me or from the appellate record and the very next day he called me back and started telling me this long story about a former client and the gist of it was that ever since that former client testified in consistently with his opening statement that that became his general practice to provide as client i'm just to take another run at explaining why in light  letter and the letter which predates this lawyers retained retention and taped phone calls how is your client's account of oh my god i was sitting there i heard this opening statement and i couldn't believe that he was you know talking about this alibi when in fact he's been engaged in planning for some time on how to plan this fall so far but it wasn't just the alibi your honor we don't dispute that mr pratt tried to fabricate a false alibi but there's no evidence that he was involved  fabricating this whole defense theory that he saw his brother it is grandmother's house his brother said he was going to go shoot these kids and you better get an alibi that was not part of the letter or the phone calls i think what we've got is a credibility issue here who's more believable mr pratt if they're both not credible excuse me but if they're both not credible i mean i have my own i appreciate your remarks about counsel but you your client admitted to falsely trying to he perjure himself under oath that's right your honor but one can imagine the position a criminal defendant might find himself in taking the factual allegations as true because mr pratt has never been given an opportunity to prove these allegations taking them is true one can imagine that if if mr pratt is telling the truth and his trial attorney unexpectedly without any notice to him got up and told this false story and had been trying to persuade him you have to testify you have to testify and even trying to get his wife to testify falsely that that mr pratt was persuaded by coun that he had no choice now he had to testify once trial counsel gave that story he had to testify and he had to testify consistently and you know it is it is a difficult  proposition when the client is admitting that he testified falsely he's certainly not entirely innocent however the specter of a member of the bar of a trial attorney first of all failing to properly advice his client about whether or not to testify the risks and benefits it damages and disadvantage is when he had these prejudicial prior offenses and there was all this evidence that his family was involved in the drug trade and involved in gangs including again called the taleban there you know a competent attorney i think would have discouraged mr pratt from testifying and the fact that mr graham really didn't advise him at all didn't really give him a choice he tried to persuade him mr pratt continued to resist he didn't want to testify and then mr grimm forced his hand once mr graham gave that opening statement and then told m will you have to testify consistently with the opening statement or we lose that's it that he he was coerced to do is his lawyer told him the lawyer is the guy the lawyer is the one steering the shi making that tactical decisions and to the extent there are just there are decisions that the for the defendant to make like whether or not to testify it's up to the lawyer to give competent ethical advice and the fact that it's not just that he advised mr pratt to testify falsely or encourage him but he actually forced his hand and for in indigent defendant who had no more money to hire another lawyer you know had i had an opportunity to advise him at that point i would have advised him to promptly tell the trial court what had happened and request a pointed counsel if necessary but he didn't have an opportunity for independent legal advice he was trapped all of his family members report that they felt trapped they were horrified to see what was happening with the case and they didn't feel they had any choice  our issue is whether the state court could have reasonably be reasonably rejected that allegation as it did for a lack of prejudice and what do we have the state court takes the petitioners allegations as true and then decides if i take them is true does it state a crime a face a case and i argue that the state court could have reasonably found ok will accept pratt's allegation that his attorney gave this false opening statement had it in the opening statement and then coerced him to testify consistently with that opening statement as a strickland allegation may i interrupt you there just for second because i'm looking at the state court order and it appears to me that you are correct as to prejudice in terms of the strickland allegations about the testimony of family members but it appears to me that the state court rejected the coerced testimony as a tactical decision very i think they just read us who are on the same petitioner who is not believed by the jury fails to show a reasonable probability that the testimony of his family members would have dissuaded the jury from believing i would miss testimony identifying as the perpetrator so it seems to me that there are independent reasons in the we should evaluate for reasonableness counsel's unethical behavior but let's let's even assume this court were to review prejudice from the that stricklin allegation d so where's the the in my view petitioner never makes a claim of prejudice from that allegation everything gets mixed up including the chronic claim here we have a petitioner who fabricated alibis twice not just in the letter where he gloats to his friend they i d d the wrong guy i went to the law library it's double jeopardy we're both going to get off then the phone calls given that evidence given the idea evidence which i submit is stronger than petitioner believes it to be there's no reasonable probability that this defendant would have received a more favorable verdict had what happened been what he wants to happen that is i don't testify and we only attack the i d s and that's what happened this lawyer attempted to attack those i d s now with respect to the chronic claim and i said this in the brief as well you can't read this record and not cringe at a lot of times as a district court said as i said he wasn't particularly skillful he made lots of mistakes but this isn't a chronic case this isn't a case where petitioner was without counsel present of counsel at a critical stage of the proceeding and this isn't a case where petitioner did not have you know the adversary he challenge the excuse me counsel challenge to the prosecution this is in the absence of a test of the adversarial process he gave powerful closing argument as best he could with the i d s he cross examined the government witnesses in fact it was mr grimm in his cross examination of alfredo who elicited the evidence that alfredo was one hundred percent certain the first time he aidid from the photos that it was leno that wasn't from the prosecution that was from the defense so this wasn't a lawyer who was sitting on his hands he wasn't a lawyer who slept through the trial or conceded guilt as in this case is this court's chronic cases previously and i acknowledge chronic is a day novo review here the state court did not a valuate it so this court does have de novo review i can't go to the a d p a i was thinking of that when the first case when justice watford said well it's just a draw i like draws because usually we win here i don't have that and i acknowledge it wasn't a great performance but it wasn't chronic stricklin allegations fail for prejudice unless the court has any questions i submit thank you c i agree that the prejudice prong on the claim and opening statement and false testimony to novo for the reason the court states and also for another reason if the third strickland claim which is the one basis also the prejudice from the fabrication and the false testimony is reviewed as in terms of commute of prejudice on the one that is clearly which is the one involving the parole evidence i would like to speak very briefly about the conflict of interest cases i think in addition to the idea that it's a complete denial of counsel to have an attorney who's not even trying to brave the law or the rules who's just blatantly falsifying evidence and argument in addition to that being just not the counsel that's contemplated by the sixth amendment to basically have a criminal as your lawyer in addition there are those lower federal court cases identifying it as a conflict of interest when the attorney becomes and broiled in the case in such a way that to protect himself he can't protect his client as he's supposed to there are two cases in particular that were closer to close to the facts of our case one where the lawyer and client attempted to obstruct evidence by persuading a codefendant not to accept a plea offer and to plead not guilty and another one where the lawyer and client were both implicated in the destruction of drug events now after mickens you know it's not clearly established that the presumption of prejudice from sullivan applies in context outside of the concurrent representation situation but that's just for the presumption of prejudice it is still a conflict of interest for the lawyer to be become embroiled in the illegality that the trying the client is charged with in conclusion i just want to say again that the issues in this case depend largely on the credibility of the witnesses mr pratt does have some credibility problems but his attorney certainly has some as well and there's never been a hearing i don't think the