cover broadly speaking the issues that i see presented and then i'm hoping that we can spend most of most of our time together answering specific questions that you may have there or as the court is aware for different ineffective assistance of counsel claims presented there are then uncertified issues which we have asked this court to consider i intend to limited my opening or at least my mind initial remarks to the certified issues which are the ineffective assistance claims but of course would have answer any questions that you may have fundamentally i think we can say that this is a case about the role of criminal defense attorneys you know i think broadly speaking there are two  different sixth amendment issues presented for your consideration the first is whether consistent with the sixth amendment right to the effective assistance of counsel a criminal defense attorney provides adequate constitutionally adequate assistance when prior to trial he fails to conduct an independent factual investigation but opts instead to rely upon the facts that  him if you will in the normal course of the discovery process in a criminal case in this case that is what occurred and it caused two specific problems for mr bray the first was his trial attorneys failed to discover evidence purporting to link him to a large amount of methamphetamine discovered at a storage facility on clocks to road in salem and that's an issue that came back to bite mr bray during the penalty phase of his trial so the argument the government makes is that at the core it gave defense counsel time to investigate and what they found was mr bray's fingerprints on the bottle which as their expert didn't rebut and the quantity they did and so they put on evidence merely of value is that correct and so the argument as well because the defense counsel have enough time to investigate that was in prejudicial i so what the record reflects is that yes when the during the penalty phase of the trial when the clocks the road evidence was sprung upon defense counsel if you will the trial court in polk county did in fact turn to defense counsel and say gentlemen i'm going to give you whatever time you need to but the case i'm not going to declare a mistrial and there are references in the trial court the criminal trial court record that would suggest that indeed defense counsel did some after hours work i think they would suggest they call down somebody to perhaps test the substance that was discovered to determine whether that was indeed methamphetamine and perhaps to determine whether indeed that was mr braised from print on the apple juice bottle that was discovered in the lab but that was it there is references are there are there's a reference in your pelleas brief to the fact that they had brought in somebody to testify and dispute the street value if you will of the five gallon drum of methamphetamine but that's incorrect that's something that defense counsel who was called to testify during post conviction proceedings testified that it happened but in fact it turns out he was mistaken if you go back and you look at the actual polk county criminal trial transcript no such witness came in for the defense and testified in to answer more directly the question the timing issue was that yes the police would have had that information at the time of plead this gushing so they had the fingerprint and the correct so there were a series of search warrants that were served throughout marion county that ultimately included this trailer those were in july of one thousand nine hundred two it was then a few months later in september of ninety two that william steiner went down to the oregon state police and essentially confessed to the homicide implicating mr bray and mr hathi those individuals were then arrested the polk county murder prosecution commences at the same time that that's occurring the police in marion county where those drug labs were discovered are our investigating and prosecuting through the marion county district attorney's office the drug case and so all of that dance absolutely so mr bray testified during a deposition it was taken by the department of justice by the state during the post conviction proceedings and mr bray's testimony was he said a couple things responsive to your question he said he first of all if i had known about this prior to trial that would have contributed to my decision about what i'm going to do about a plea offer he said during his deposition testimony the state had offered me an eight year deal at one point and i didn't want to take it in part because i didn't want to plead guilty to murder but in part because i didn't know about this clock's the road drug case and five five gallon drum full of methamphetamine and he so his testimony during the deposition is yeah that would have made me think well better to do eight years on a homicide case than have to face the drug case the other thing that he said during that doesn't go all the way to he has to say or at least the government argues that he has to say i would have taken the plea and the government cites a response in response to the question would you have taken the plea if you had  incident he says that's not what i'm saying i may have just given more serious consideration you're correct your honor and that is in this is really the test the only testimony you only evidence we do have in the record on this point about would you take in the plea or  not and you've got the you've got the record in front of you but essentially says well i think i seriously would have considered it or something to that effect but the other thing that he said during his deposition about what would have change what would you have done different if counsel had in fact discovered this prior to trial is they could have prepared to prove prior to trial that he did not own this trailer that was found at the clocks the road  yes except that you know at the eleventh hour of the penalty phase of all of a capital murder case it's too late to develop any evidence that would sit there would just you know relate to why could it be that his fingerprints are still on the the apple juice jar now it's entirely possible and there is evidence in the record that at one point in time earlier mr bray had owned the trailer it was parked at his residence and so it is certainly plausible though there is no evidence in the record to refer to to prove this because they didn't have time to develop but it certainly plausible that mr bray drank some apple juice despite the continuance that he was given and there wasn't enough time when he wasn't given a continuance i think the record reflects he was the judge looking in the polk county trial judge said hey you can have whatever time you needed but as i'm reading the polk county trial transcript at least what i'm gathering from that your honor is that these guys are scrambling after hours in the middle of the trial to try to get experts and down here and they did not in fact request you need to lay in the proceedings to further their like to leave just a moment or two for rebuttal in that is your honor the other issue that i think is of paramount importance in this case is council's failure during the trial to adequately object to the introduction of sexual misconduct evidence which was elicited by the prosecution from mr william steiner and then when mr bray testified on cross examination of mr brace and it was extensive it was graphic and there is one to two a long litany of questions about sexual misconduct involving other minors in the salem area about prostitutes about annalie raping mr steiner there is one relevance objection to the question of whether or not i think the question was how often did mr bray want to have sex with you mr steiner objection relevance it was overruled after that counsel sat down sat on their hands and did nothing this evidence was relevant to nothing at issue in the guilt phase of the case no reasonably competent criminal defense attorney would have been satisfied with that single relevant well i think with respect there was one point during the trial or during that call that series of questions where defense counsel that a break asked for a conference with the judge and said judge you know i have some concerns about this line of questioning i didn't object because i didn't want to emphasize or to had this experience but i many times counsel with a judge i didn't because i didn't want it drawn to the jury's attention and not bring it to our tent bring it to the judge's attention that side bar or  had testified after the cat was well out of the bag or the bell was rung or whatever the metaphor was there's there could be no doubt that the jury understood the implications of the questions that the prosecutor asked it wasn't counsel's position a classic instance of counsel making a tactical decision under strickland i agree that counsel said during post conviction proceedings yes this was a strategic decision because we didn't want to but your honor but is it clearly wrong to presumption in terms of that they are constitutionally adequate when they make when we make tactical decisions but like every presumption it can be overcome and in this case the record speaks for itself no reasonably competent defense attorney would have taken that tact there can be no question the jurors well understood the meaning of what was being implied by the prosecutor your memories are of my last minute thank you yes you may please the court and good morning i'd like to start by apologizing to the court in the reply brief it points out to errors that i made and it is correct i did make two errors but i'll explain to the court in short order why those two errors don't matter to the result of this case i'd also take a little bit of issue with the fundamental issue that we're addressing here as stated by opposing counsel the fundamental issue that we're addressing here is whether the state courts are owed deference we are not here to really let a gate the underlying post conviction case and so with respect to the first claim the clacks to road laboratory claim the state's courts are owed deference because they reasonably determine the facts with respect to the clacks or road lab counsel objection objective they move for a mistrial they got all the time they needed to investigate this situation and they did consult with a fingerprint expert and an expert on the meth lab the on the math itself that expert was called down to t l and ultimately the two parties discussed whether the expert testimony was going to be presented the prosecutor engaged in a colloquy about the discussions and said that after consulting with the experts defense counsel had determined that the expert testimony would not be helpful to the defense and defense counsel agreed with that statement so there is no question here that there are facts in this record to support the underlying court's determination that they adequately investigated also remember that in this case it was the petitioners burden to present proof that counsel could have done something to rebut the state's evidence and petitioner never came forward with affidavits from experts showing that they could have rebutted the evidence about the fingerprints they never came forward with any expert testimony showing that counsel could have rebut it the presence of methamphetamine or the amount of mathematic me in the post conviction he is correct ace correct and so there's a failure to prove prejudice here that's supported by this record with respect to the claim about the plea negotiations it's still our position that that is procedur defaulted but even if it's not the record here supports the determination below that petitioner failed to prove prejudice because he failed to prove that he would have taken a plea under any circumstances his position was i was not guilty of murder i will not plead to anything that involves my admitting culpability to murder that was the plea offer on the table i wouldn't have taken it claim and the reason that we argued below that this was procedurally to faulted was that the the only mention of this plea deal was a couple of sentences and the petitioners deposition the way the claim had been pleaded in the petition and argued below by counsel was that counsel failed to adequately investigate and present penalty phase evidence and you'll note in the  included the state's brief on direct review that they're saying suddenly this claim has metamorph ised into this plea deal situation so below we were never able to ascertain whether a plea had been offered whether it was an eight year play deal or anything concerning the plead deal because we simply weren't aware that that was a claim involved in the case and so in the end though it doesn't make any difference in my mind because what petitioner was saying in his deposition is boy if i had known about this clacks to row drug lab stuff it certainly would have given me pause but i wouldn't have taken that plea to deal because that required me to plead guilty to murder and to me that's the end of the discussion that part of the record supports the determination below that petitioner failed to prove prejudice with respect to mr steiner's plea deal again it shows the record here shows that the state courts reasonably applied strickland and that strickland requires ication on steiner's part that the transcript accurately reflected the plea deal counsel also called steiner's counsel and was at least considering calling her as a witness and then in the end as cited in the red brief decided not to call her as a witness because she was not going to be helpful to the defense so when you apply double deference it's reasonable that counsel would have relied on the transcript in the cross examination just as he did and it's reasonable that the state courts found that petitioner did not prove this claim under strickland with respect to the testimony about sexual relations with mr steiner and potentially other children i'd first like to ask did the court get my twenty eight letter ok reasonable trial counsel could conclude that at this point in time the oregon evidence code has changed somewhat since this point of time but at this point in time that evidence was absolutely admissible to show steiner's plan and mode of under four zero for three and that there was case law and capital cases at the time that show that this type of mode of evidence was not considered to be more prejudicial than probative so because there was some case law because of the evidence code at the time counsel reasonably made the determination about steiner's testimony he objected to it that objection was overruled further objection on this particular basis would not have been fruitful with respect to other children when steiner started to more directly testify about what petitioner might have been doing with other children counsel objected and that objection was sustained so he stopped that testimony with respect to the innuendo that the prosecutor was presenting about what petitioner might have been doing with other children that he had taken into his home counsel made a reasonable tactical decision and again it might not seem reasonable to us here but that's not the standard the standard is could it have been reasonable to counsel and did the court reasonably apply stricklin in making that determination and given this record it did and finally with respect to  the military records and the reply brief counsel cites to testimony by a mr allen with respect to the military records mr allen says at the beginning of his testimony that yes he saw petitioners military records he doesn't recites them he appears to be giving testimony and that's a combination of petitioners military records and his own personal experience but regardless petitioner in the underlying post conviction case never presented those military records and without those military records there is no way of knowing whether they would have bolstered any aspect of this defense so the military records were not introduced with robert allen's testimony because he's reading from documents about what awards this year breaking receipt the military phase there was a lot of testimony about the military awards that the petitioner had received so in that respect the military records were really helpful to the founts in the penalty phase in the guilt phase with the issue with the military records was was there were there were two somewhat contradictory claims by the petitioner one was evidence from some of the witnesses that petitioner had claimed that never would have been found if he had dispose of it because he had experience disposing of bodies from his service in vietnam and then the other somewhat contradictory claim was that mr brand his own testimony said that he had dealt with bodies a lot and vietnam bodies freaked him out and he could not have been involved in something like disposing of cho dutton's bodies so the issue with the military records was whether they did or did not confirm whether mr bray had dealt with bodies and vietnam and we simply don't know we don't know to this day whether those military records said anything about any duties involving bodies i don't think there was any dispute that he served in vietnam i don't think that there was any dispute that he was in what was called a tank retrieval unit where they go out and with heavy equipment apparently they get and retrieve broken down equipment after combat but there is no showing by the petitioner that the military service records would have reflected mr bray's dealings with bodies in vietnam and without that evidence we can't tell whether it would have  bolstered his claims in the guilt phase of the trial or not and so the adjudication below that he failed to prove prejudice on this claim is supported by the record and it's  deference if there is anything else i can address for the court i'd be happy to do proceedings are you talking about did did the judge in this case i think that the judge in this case and again i can't remember this specifically but i think he made an overall broad finding petitioner failed to prove prejudice i don't know if he made a specific finding on this particular claim that he failed to prove prejudice i believe he did i believe it was judge lips comes opinion thank you your honour's very briefly your honor i wanted to answer the question that you had raised early on regarding how the potential for a federal drug prosecution might have played into this clocks to road issue the evidence in the record in this was in the the trial court record polk county was that at the time that the homicide prosecution was commenced in or around september of one thousand nine hundred two there was an ongoing drug case involving mr bray and others as a result of these warrants that was it going in an adjacent county marion county marion county prosecutors did have discussions with the u s attorney's office about perhaps this becoming a federal case because of the quantity of controlled substance involved the u s attorney overseeing that aspect of the investigation had written the letter that was introduced into evidence in the polk county homicide trial that letter said in essence it's the u s attorney's position that if all of these individuals get say we're going to back off and not pursue that your honor and the other the only other point i wanted to address related to the sexual misconduct claim there is this or you meant that that the testimony from william steiner about having to have sex with mr bray was somehow relevant to his motive to kill georgia doesn't i think that can be easily answered by saying mr ste at the trial exactly why he killed mr and it wasn't because he wanted to continue living in mr bray's house or having sexual relations with him mr steiner testified that he killed georgia didn't because he was afraid that if you didn't john bray would kill him so that was his motive in testifying the sexual misconduct evidence therefore was simply not relevant to the case you're on the only other issue on dress is there was a question about whether in the military records were introduced during the guilt phase of the penalty phase it was the penalty phase in which those were introduced counsel is correct they were not subsequently reintroduced during the state post conviction proceedings however ok thank you thank you