by the appellant the st of those is that he was denied effective assistance of counsel by the failure of his trial counsel to fit to present readily available available character evidence in the pennsylvania supreme court decision denying relief on this particular claim was contrary to and or involved in i'm a reasonable application of clearly established law and was also based on an unreasonable determination of facts which over here it was which of the two issues do you do you wish to focus on st well i was going to focus on the character evidence st your honor however now that's going to kind of you know that that's fine but you know the proposed witnesses are family keaton's family and friends so they in  you know the thinking is d that they often have a motive to testify in his favor favor that testimony is largely conclusory and it's not very specific and moreover the two rape victims  testify they keep why don't we assaulted them around the same time in the same neighborhood under similar conditions so i wonder which character evidence have made any difference here your honor i believe that in order to consider is entitle to in a jury instruction that character testimony alone can present a reasonable doubt and i believe that the hands of the supreme court essentially determined that the trial counsel was ineffective in failing to present this character testimony but then some a supreme court essentially determined that there was no prejudice that was shown as a result and we believe that that particular finding in itself was also incorrect so we're  miss gotten it got the facts wrong and if you look at their record and they got back facts wrong in the record that also is is reviewed by does court but again that's a reasonable determination of the facts in light of the evidence is not to know that i now i met some of judge ambrose reaction because when you look at the four witnesses one of them his sister said we'd hardly see him he is living in the street you would want to be around him when he's high another sister says he just wasn't himself when he was high so that's at best two edged swords they are of his own sisters are going to say that and then you've got that and testimony is not going to be admissible because she hasn't seen him she's going to testify what he was like as a as a child and young adult and then you've got the childhood friend who only saw him occasionally so i'm not sure that yet are the childhood friends testimony would be admissible and then the sisters looks like it might be positively harmful what's your response to that two things here on are number one the testimony that's available to us is testimony that was taken not at the trial guilt phase but at the capital face so the testimony as it comes from the transcripts is an entirely different line of questioning and that line of questioning wasn't developed in the way that it could have been and should have been if it was presented properly in a guilt phase like so much a proper as to what would have been developed we barred from developing those facts in the state court in peace or not well there was never a hearing of these witnesses as to exactly what they would have testified to had they been called in the guilt phase well ther gut under congress pen holster why are we allowed to develop any more facts than were developed in the state court and i'm not suggesting that we should develop more facts what i'm suggesting is that the supreme court listing that testimony out of the context of the penalty phase reasonably applied no lot of those facts because had that testimony been developed for briefly in the guilt phase that testimony would have shown that all four of those witnesses were competent witnesses and that all four of those witnesses or at least three of the four would have testified to his character for peacefulness and nonviolence at the time of these events which three himself when it was harder you would want to be around him i mean because it's hard to find prejudice to sit on a reasonable and prejudice if they're going to say if his own sisters are going to say negative things like that about well that certainly would have been for the common law to draw on cross examination however their testimony and direct examination especially the way it's cabined in a pennsylvania courts for a character witness is very limited in terms of scope and it's essentially do you know other people in the community you know him do you know him and do that among those people what is his reputation for peacefulness and nonviolence and they would have testified it was good as the affidavits clearly set forth generally if  defense counsel tries to go outside those four walls they're stopped by the objection of the prosecution on cross examination point there's no reason that pennsylvania supreme court can't consider what would have come out on cost as  prejudice except that some of that trust may not have been admissible number one and number two what they're doing is they're inserting their judgment basically without looking at all of the facts they're inserting their judgment for what should have been a determination was no physical evidence in this case the only thing tying keeton to deceive is his own statement which is largely exculpatory while he says he was with her and they had sex and that they were ice and she was a lot when he left and said and which should have been and if we get from point to testimony ship was available and could have been raised that would have undercut that for really the prejudice point what do you have a basis for asserting that  the bad parts of the sister's testimony would not it was unreasonable to think that they would be admissible focusing in specifically on that testimony it would have had to the ben what reputation would his reputation was but he opens the door to you have pennsylvania authority that makes it clear that it would have been admissible if he opened the door by putting on the stuff on direct it would not have opened the door by putting the stuff on and direct because an under pennsylvania law at the time what what trial counsel the mistake truck counsel made was he assumed that this testimony could come in but clearly individual acts of wrongful acts are not admissible as cross examination under pennsylvania law and at the time the case law wasn't exactly clear scott had said that that if there if i made the focus here should be on the fact that with the pens i'm a supreme court did was an outcome determinative view of the case and under and this is clearly strickland case because you have ineffective assistance  the defendant's own version of the facts this didn't involve any independent investigation of what happened it just if this all happened as he said then there could have been  was no examination of the r v your medical records or anything else but this this doctor right when they did they didn't review the medical examination examiners report the testimony and they did determine that that testimony was medically normal reasonable jury could have convicted beyond a reasonable doubt based on this but again if this is if this is a rehash and it's predicated on the defendant's own version of the facts you that the idea of a sex game theory to the jury a trial so i don't see how it very difficult for me to see how doctor arden's report even if it were admitted would change the jury's mind well st of all again the evidence that was presented by the prosecution was keeping statement which is largely exculpatory and this medical examiner report basically that's about all they had with regards pacifically  this murder they had the prejudicial effect of the of the testimony regarding the other two rapes admittedly but at the existence i think this is we found it twenty eight a rule twenty eight filing when this court ruled in in the and it basically said the existence of the conflicting evidence supports the need for a hearing and in this case the arden test the arden testimony would be conflicting evidence on the critical linchpin to the convention and therefore we have overwhelming evidence of guilt here beyond the circumstances of the victim's discovery of how she was found bound alone she was amongst debris her legs still lifted up by the ligature around her neck if we look at also the testimony of the two other rape victims who for whom he was convicted of raping by the same jury i counsel pointed out that there was no forensic testimony our forensic evidence beyond their direct testimony constrain the rape and i respectfully disagree on one point with the victim's name with michelle b she testified that she was penetrated by both a glass bottle and a tree branch both of which were a reasonable doubt not actual innocence there isn't but under slot and on a piece for the common what the petitioner does enjoy the presumption of innocence raising a reasonable doubt doesn't exist you actually have to  disprove that allegation that trial could have possibly happened in one way here we just have another possible way it could have happened similar goldbloom argan are all correct all right and right where there is another possible way it could have happened but it was clear from the other president at the time where the law was going and in this case that's my response to the fossett issue with regard to the nd issue it's not in terms of having a because doctor arden's testimony would indeed could indeed raise the specter that don't know reasonable juror would find the defendant guilty under these facts thank you very much mister reagan to understand you