as the result of convictions that by lated his constitutional rights but this man the majority of my time today discussing the ineffective assistance of counsel that he received that both his trial and his posting diction proceedings and then this is because  instructed and the put the mission counsel did not raise that issue during the postcondition proceedings and then with whatever time remains i discussed insufficient evidence to support these convictions first mr thorne did not have effective assistance of counsel at either his trial it may i'm sorry apologize not give you the opportunity to proceed as you would like but it seems to me that the anthony case which is what we're talking about which judge daughtry was the author i understand correctly gave a benefit to people in the kidnapping are met anthony said not quite so fast the judge has the constitutional obligation under tennessee law independently to determine whether conviction even though the elements have been set aside meets due process is that correct understanding of anthony's structure so yes anthony does it does make it a question of  long with regards to the whether to due process review by the judge the judge says ok the judge has to take the jury's findings that the elements of excessively aggravated kidnapping are expectorant that were met and that's not a question here forever in situations like this but then in the supreme court comes the supreme court held not quite so fast the trial judge who sat there heard all the evidence independently review the acceptability of this conviction under due process principles fundamental fairness principles that's my predicate question i mean is that a fair or fairly accurate reading of the anthony mechanism question is isn't this like the situation in the capital case where the law requires after a capital verdict has been return the jury has found no all twelve jurors have voted for death as i understand the law and again i may not be correct but it's my understanding of the law that before that capital sentence can be pronounced and thus ultimately perhaps implemented the judge independently has to affirm the verdict has an independent judicial review by the trial to determine whether or not in that case the case that he or she is just presided over that verdict by the jury is the appropriate verdict on the role of circumstance but the jury verdict would mandate the loss as the jury verdict and the verdict in terms of the sanction the consequence cannot be implemented almost as it is favored the defendant did not disfavor him as a practical matter it gave him and his lawyer a second bite at the apple that the subsequent decision took away and it seems to me as a defense attorney i want that second bite i want to avoid that forty two extra years or whatever and judge daughtry and the tennessee supreme court at the time said you get that second bite as a matter of fundamental fairness and i know you're not and thought about this and you're not really fair but it is for me the core of the case because it seems to me if my assessment is correct  the prejudice issue and ineffective assistance of counsel goes out the window it's no harm no foul he had a he was better off under anthony than he would have been if the lawyer had done the job you judge but it still doesn't mean that trial counsel wasn't required to put in info in pursuit of her duty to adequately represent her client to still ask for the instruction be given to the jury because here you have a fact that to the aggravated kidnapping conviction i would agree with you if somehow anthony had been interpreted to require that kind of confirmation by the by the jury p convictions on both kidnappings increased mr durrant sentence by forty two years that fact was not the jury and not a reasonable doubt so here you do have a sentence that violates not just anthony as you suggest but also supreme court a reasonable probability that they would have found differently given how close the given given where the evidence stood with regards to both convictions now a review that we should use here is to know because this issue was not raised during the and the tennessee courts misapplied that rule under lead to supreme court case misapplied application a generally sound rule can provide an excuse to tripped me provides cause to excuse a a procedure to follow therefore because rule twenty seven was a play was adequately followed by mr thorne he cited three cases beyond the standard of review but also made relevant citations to case law the statutes into the record as repaired by rule twenty seven the china sea court criminal court of appeals apply that rule incorrectly and therefore this court can have a chance to review their one just remind me of the time sequence petition was submitted in the tree doesn't twelve and in the one month afterwards is when white came down that overturned anthony so actually to jump back to the ineffective assistance of post election council claim councils that post invasion councils also i notice that she could have raised the similar one month ago i gather that there was no effort on the part of postal mission council non coms white timeout leave to amend my post on the petition exactly around and that's exactly a post in the can and it seems to me to be a much stronger argument for the ineffectiveness of cultural and so i trial counsel failing to see that far in the future when you've got a clearly controlling tennessee problem with the outcome of those cases i just don't see anthony at the argument in may it might potentially raise been detrimental to your client whether in the trial court or otherwise but th i'm sure we'll talk about that i'm sure we'll hear from the board in about their thank you thank you morning morning my pleas the court next thing on behalf of the state of tennessee in respondent morden if there's a theme to this case it's that there has to be limits on the liberal construction of a heavy as petitioners presentation of a federal constitutional claim whether considering presentation of that federal constitutional claim for exhaustion purposes in state court or whether that presentation of the federal constitutional claim is in the operative hades pleading for the district court the two issues before court are the due process questions related to the sufficiency of the evidence and a related ineffective assistance claim related to counsel's further to request an instruction on this anthony slash white due process issue about whether or not  kidnapping was that the confinement of the kidnapping was sufficient beyond that for the and for the attendant felonies of rape in the robbery i'd like to start actually with the ineffective assistance claim because there are a couple points i'd like to make first is under rule two under heaviest rule to the pleading requirements or more the notice it requires more than notice pleading in this case the petitioner simply did not plead an ineffective assistance claim the trial counsel failed to request a jury instruction requiring the jury to make a determination that the confinement was beyond that necessary for the underlying kidnapping i mean for the underlying attendant felonies of rape and robbery he pled if it ineffective assistance he pled ineffective assistance for jury instructions but he did not marry that legal theory with the specific factual basis of that jury's finding additional confinement it's simply not in the position of moral law in our brief with for the citations for that proposition but in some the district court simply construed that claim by marrying broad legal prince's principles asserted in one part of the petition the factual basis a sort of in another portion petition we contend that it's appropriate for the court to affirm the district court's determination  review council's failure to raise the claim in this case post conviction counsel during the post conviction here and it's signaled by the state that he did not raise this in the operative post conviction pleadings that's that's conceded by the state what counsel did do is when he had what it really doesn't matter i mean tennessee has gone on to determine after white definitively that not only the underlying due process question about the beginning of the jury instruction that that's not a cognizable basis for most conviction relief in other words it's not going to give retroactive fact that underlying due process question but also the sort of derivative ineffective assistance of counsel claim is not going to be i would say it's not cognizable that you can always raise ineffective assistance but counsels not going to be held deficient for failing to request a jury instruction that was resolve the court tell me if i'm off base on my interpretation of anthony gave a bet of two defendants as to whom the elements had been found by the jury and that this independent judicial review due process equals fundamental fairness by the trial judge as the seems to me to be analogous to the independent review given to a capital murder by a trial judge as a matter of potential grace or mercy before sentencing yeah and i'm not sure whether it gave defendants a benefit or not i mean my understanding of sort of the transfer between anthony to then why it is it really was a flip between whether or not it was a judicial question which it had been at the time sort of related to a sufficiency of the evidence  practical matter and we'll never know i mean obviously just come up and testify but we'll never know but it just seems to me as i try to understand this that the tennessee supreme court and the minute she at the time were trying to to give us a create a safety valve situation a second bite at the apple and that it's not so much whether it's a judicial it was a  process that required something more than simply the satisfaction of the elements and i just to me to explain that that's something while that's terrific i'm a defense lawyer the jury and the evidence is there and i threw everywhere to assume for this conversation that it is but and if it if i'm correct and i'm asking you is there something because of my ignorance of tennessee law that says judge that has nothing to do with this case i guess it made it said you've fallen so far as it required the judiciary whether it be the trial court of the appellate courts to make that additional due process inquiry under the anthony factors mean the independent judicial review before capital verdict can be imposed we just i'm sorry get off of this woman because he was me to say to the jury that just found the elements now you have to come back i have to charge you in essence did you really mean it no and that's where i should be clear i think maybe the misunderstanding is and we've had a discussion about this recently in the office it's not a bifurcated proceeding it's not a situation where you have the trial there's a determination as to the elements of kidnapping being met and then they're given a sort of supplemental instruction in a bifurcated proceeding to make that additional determination about whether or not it's on work on the way it works under you you basically just give the instruction with the primer instructions before it goes to the jury and  considering all the offenses that were charged and you know the person made about the state they consider that question just from the get go they don't make an initial determination as a kid as to kidnapping and then come back and make a separate terminal but are they charged on the question it's fundamentally fair to impose i don't think it's not a special in a rocket or i think it's just simply listed almost as an additional element under the kidnapping offense that because he's all because the defendants also been charged with these attendant felonies that also involve some degree of confinement you must also find that that confinement in terms of substantial interference with liberty means that it was it was confinement beyond that necessary to commit those attendant felonies i think it's just listed along with the sort of elements of kidnapping  i do want to touch on this point because i think it's important to relating it to the atkins case not only did post conviction counsel elicit this testimony from the petitioner in the post conviction hearing about this failure to raise a jury conviction court said it referenced the petitioners testimony where he stated quote there were jury instructions that counsel did not request and i want to give you the citation for that its record sixteen dash twenty eight page id twenty seven forty one and we said that this is on all fours with because in that case it was exist the exact same scenario you did not have the claim in the operative postcondition compose conviction pleading you had the claim raised during the post conviction hearing on the matter and then you had the post conviction denial order referencing that claim that was raised during the testimony and that's what we have here so supposed commission counsel wasn't ineffective because even though he didn't raise it in the pleading he offered pro base question under a lower threshold the same threshold that's associated with the courts a futility issue you know acceptance or denial issue about whether the claim is substantial and the reason this claim is insubstantial again is because tennessee law is well established that counsel is not ineffective for failing to request a jury instruction that tennessee law at the time did not require the white instruction again did not come out until post conviction proceedings even if counsel had amended those pleadings i mean post conviction coun pleading said try counsel was ineffective for failing to request this instruction certainly that the white opinion would not have been given retroactive fact either as to the underlying due process inquiry or the derivative ineffective assistance claim so our position is that the district court correctly resolved the ineffective assistance claim on the matter of its substantiality for that reason it falls outside of the martina's rubric there is no cause to excuse the default flowing from the ineffective assistance of post co of rule two would be appropriate i'll briefly address the secondary issue of the sufficiency of the evidence claim slash due process issue related to the anthony's lodge white issue in this case again it's a fair presentation issue and in this case the petitioner in plea in offering a sufficiency of the evidence claim in his direct appeal brief generically stated the evidence is not sufficient to support my kidnapping conviction the court of criminal appeals the tennessee court of criminal appeals clearly applied regularly enforced procedural bars under rule ten and rule twenty seven to deem that claim waived and the state defends that determination and defends the district  we assert that that's a different claim is when considering exhaustion this court again it's a question about marrying a legal theory with a specific factual basis and even though the two claims share the was one of the elements of the offense do those elements match and the additional fact of i had these attendant felonies that were charged and attempted to be proved by the state that's an additional fact that needs to be answered to answer the question that the petitioner briefed it is a separate question it's related because it relates to the elements of the offense but eventually creates an additional factual element of i have these additional felonies that were charged were those also proven and was the kidnapping the confinement of the kidnapping be on that necessary to accomplish those attendant felonies and that's a separate separate factual inquiry the distinguish is a sort of typical jackson be virginia sufficiency question from the question of the petitioner actually briefed but in any event the district court determined that essentially those were the same two claims and it may be neither here nor there because either under the nova review or a depth of deference review of the evidence is clearly sufficient to establish that element of substantial interference with liberty there are two victims in this case or and a b an r n testify that you know this is a home invasion led by the petitioner they go in the home they start taking property out in the victim or in testified that after they were finished taking practically all the property from the home he was tied to a chair and they were beating him that was additional confinement beyond that necessary to accomplish a robbery th already taken property from the home at that point they required the second victim a b to come in and assist with the beating of the victim again that confinement of that victim was beyond that necessary to accomplish the robbery so either under a depth of view or an overview  thousand and before this trial makes very clear that any element that increases a sentence beyond the stature maximum must be submitted to a jury in found beyond a reasonable doubt so even if we have the anthony trial put put a court i don't know if it does the judge still make an independent due process determination under white sort of you know that's what struck me about this whole struggle and others have to deal with it in discussion with let's go to judges and have no idea where the heck did i merit to it or not and if not that's fine but what about the argument right at the end where he said even if i'm correct in you're correct that the petition should have been amended in any council meeting constitutionally minimal standards of effective representation would have immediately sought to amend t itian nonetheless the issue did come up in the hearing and the court dealt with so where's the harm in their words the harm in the fall of not having amended the petition actually raised in the petition and at the trial count and at the state post macian trial court made clear that it was only addressing in word issues a fair failure to consult with the client or and investigate before the trial and then