in the face of that strong case against myers has counsel used a strategy that miers has never argued was reasonable counsel suggested to alternative suspects was for children north and the other for south as any attorney would in a long trial counsel made mistakes but only one of them was professionally unreasonable and none of them denied miers a fair trial the district court should have reviewed the actual reasons that the se court gave for a suspicion and then deferred because they were reasonable unreasonable the court actually made two compounding areas here st it should not have reviewed any of the performance prong question sunoco just because a state court didn't consider that part of a strickland claim ineffective assistance of counsel is one claim with two components it's not a performance claim and a prejudice claim it's clear from harrington director that if a court only addresses one problem then has  after reviewing the claim to know did it find multiple deficiencies and so that comes of the nd the nd problem in addition of course reasoning the state court actually only found one act deficient performance and so there were there were multiple standards let me let me ask you this i know this is contrary to what you argue but i would help us if you could address this assume ok assume we conclude that there was deficient performance in all on all three aspects of the primary in effect of the system's contentions what i mean by that is the false statements during opening the bloodhound feel you object to the bloodhound evidence in failure to object to the rape testimony evidence assume that we conclude deficient performance do you agree if we we would have to then move on to prong to prejudice and what would the standard of our review be in your judgment the court would still look at what the state court did for president so the state president's prong was reasonable then the court should defer to what the state court did even though in paragraph ninety of the indiana court of appeals opinion it seems pretty clear to me that they did not undertake a cumulative prejudice  we conclude there's sufficient performance on all three dimensions of the claim as i is i just mentioned the question i have at its core is why wouldn't we then undertake the prejudice analysis to no well because the court so recently decided that the president compartment of each of those claims incidences that it would but even if the court did review it to no cause and the outcome would still be the same because act where in the state court's opinion are you relying on for that argument that they did consider all three as opposed to just a particular error that they were it did not do a cumulative error analysis but if we were defined deficient performance on all three then what standard of review would we address in performing that analysis for prejudice what they think if a court were to find that you would necessarily have to find that if a court unreadably applied strict went and if it pathologist's opinion that jill might have been raped only suggested the murderer's motives it did not suggest miers motive isn't miers that the pathologist when when he was talking about the nature you know no clothing the way the body was recovered the gunshot wound to the head was talking about somebody other than the motive that the defendant may have had no that's not my business nor honor but the point i was trying to make is that the pathologist did that identify the defen it seemed to me st only evidence of rape came through that expert well unfortunately i think the jury could have concluded just based on common sense that you have a young female found in the woods with  argument even without the fall of testimony is there any evidence of motive other than what the state argued that rape evidence yes there is a writer there is also motive that could have supported this crime here don't i don't know how to answer that i think it's i think it's correct in and i'm trying to just draw white why do you react that way i think that's the right reaction well because you did holler did have an alibi  it wasn't failsafe but he did have ok and so if you just keep going with that isn't that person eisley your adversary's point nobody's talking about brian howlers testimony and i don't for the life of me understand why but isn't that precisely kind of the upshot of your adversary's point that when you stand up and when a defense lawyer stands up an opening statement and promises not that the evidence is going to fail to show beyond a reasonable doubt that the defendant committed a crime but we're a firm if we we will show you who committed the murder and you say it's a it's a felony brian hollers and then that guy comes into the courtroom and testifies as he did doesn't that make the error in the opening statement all the more prejudicial it's conceivable that it could make it more prejudicial your honor but it was reasonable for the sake were to conclude that there was a different outcome there was other evidence from a college to the crime and of course myers counsel didn't solely depend on the hollers theory in defense i don't think it would have made a difference even if there were evidence of the dog actually trac approached in jail by a lawyer who wanted to make a name for himself trial counsel would later at mit both that he was quote motivated by selfishness expecting for both city from the case would lead to an increase in his business end quote and that his conduct quote victimized three people including john myers brian hollers and john myers as mother what's more council's promises of free high quality representation were far more than he could deliver again and again during trial is the lack of preparation and misunderstanding of critical evidence undercut mr myers's cause and these failures transformed the closed case and which mr meyers had strong defenses against the state purely circumstantial theory into a proceeding clouded by and admissible and profoundly prejudicial testimony it's no surprise that trial counsel was ultimately suspended from the practice of law in indiana for his misconduct here and the district courts must take us one hundred and forty seven page analysis was correct this is an exceptional case warranting a writ of habeas corpus i hope to address four points with you this morning st of all explain the prejudice caused by trial counsel's undisputedly false promises  during opening statements nd i'll address the indiana court's unreasonable application of strickland and wiggins the smith trial council's failure to object to bloodhound evidence rd i want to touch on why the indiana court was also on reasonable in applying supreme court authority when it held miers was not prejudiced by the state's experts conjecture that the victim jill berman had been raped before she was murdered and finally and i'll touch on this st actually i'll also address the state's outright the state court outright refusal to assess prejudice flowing from multiple instances of deficient performative performance cumulatively this point is key each of trial counsels errors i sufficient to grant relief but together there on that fast prejudice is far more than the sum of its parts and judge scotter you touched on this and mr drum my colleague on the other side just conceded that if there were multiple instances of deficient performance the indeed the indiana court of appeals necessarily unreasonably applied strickland the washington that seems to be a major concession from the briefs in which they argued that there was no clearly established law on this point mr drum just conceded as much i want to turn st to the opening statement this is point one where everyone concedes there was deficient performance now argues however that the jury simply didn't notice counseled unfounded and debunked promises during opening argument that jill behrman a young woman became involved with her much older supervisor brian were not evidence and that they should not consider them as evidence how should that impact our analysis and just strictly so i think your honor that's absolutely true but  these opening statements infected the entire at the trial proceedings and the state made sure it was so the state pointed out trial counsel's mendacity again and again hitting defense counsel for either not knowing what he was talking about or outright lying to the jury at least three times during its closing arguments about this bloodhound evidence that the defense counsel would later admit he hadn't thoroughly investigated this court and hampton the lie back observed that promises during an opening statement of particular testimony quote creates an expectation in the minds of jurors and when defense counsel without explanation fails to keep that promise the jury may well in for the testimony would have been adverse to his client and may also question the attorney's credibility and quote to judge scudder's point a few moments ago in this case defense counsel didn't just promise that a certain witness would say something in a certain way he promised evidence that would prove that jill thirimanne supervisor brian hollers was the murderer he promised that evidence without reviewing the bloodhound evidence he thought would support it and he was embarrassingly his misunderstanding was pointed out again and again before the jury so these weren't just simple m that these were attention grabbing false promises designed to conjure up headlines which they did brian hollers whenever he was on the stand during cross examination artist sorry responding to a juror's  question st he had heard of the bloodhound tracking to his home was in the newspaper so they did what they were designed to do but they also betrayed counsel complete lack of understanding of what the evidence actually said and the state courts approach to assessing the prejudice here can you move to the prejudice pran and let me tell you what weighs on me here to get the benefit of your reaction is i think you've done a terrific job on the decision performance problem your brief is very very well done and you'd be complimented for it on the prejudice prong there is there is quite meaningful evidence on the other side of the ledger is there not and what i mean by that is you seem to make the that well yeah john myers was talking a lot of people at a lot of different times about joe berman's disappearance but you know so so too was everyone in the local community and indeed throughout the state and maybe on a broader level throughout the nation there was a lot of discussion of that jill berman murder i think with a fair enough ok but john myers wasn't talking about the disappearance in any with many people that's what that's around it all based me on the other side of the case so i think that it's true that there's evidence that john myers had conversations and sometimes even exaggerated what he knew about the case and tazz will conversation with with with folks around and with equating the coworkers but i think it's also true that simply talking about this case likely with not enough i mean certainly was not enough to establish beyond a reasonable doubt that he committed a murder and indeed the state argued just a few moments ago that he had no alibi but it didn't meaningfully contest in its brief that if jill bierman had written the southern route cycled the southern route on the morning she went missing he had an airtight alibi and unassailed alibi at trial which was that he was home just a few moments a few a few minutes before her bike was found and he couldn't possibly have made it physically to the to the southern route in order to have  back to the to the core the prejudice argument in your view could the jury has viewed the statements mr myers made to his grandmother betty swofford and as an admission to the crime so i think that if we were applying for instance sufficiency of the evidence standard it's it's possible but that's that's not what the district court dedham that's not what this court no no but we're on prawn to right when we have to ask ourselves the question is is our confidence is our confidence undermined in the outcome in light of i think was pretty clear deficient performance on defense counsel's part we would then wouldn't would we not we consider that if he myers was going to hide a body he would do it up north in a wooded area and i think what you're learning i think that you're correct that this is this is evidence from which a juror could could infer that there was some consciousness of guilt and the district court discussed this furley throughout its its prejudiced discussion there was some sort of self aggrandizement and i can't i can't get inside mr meyers his head on that and explain why he would want to portray that he knew more about this crime than he did but was told on your self aggrandizement or that he knew more it's more than that that's my concern been called that it's not for whatever reason some guy in bloomington indiana had an op session with a local crime ok it's more than that is the concern that i have so your honor i think that there were even even this sort of these statements that he made to his the people around him was far from enough to convict him of this crime particularly given his strong defensive and if if if i made sort of discuss briefly how how i think these errors interacted to prejudice him that hopefully will will crystallize this just a little bit councils promises to the jury about evidence he said would call paid brian hollers and show the state was covering for him destroyed councils credibility any defense that he may have had on on on really anything that counsel was putting forward was called into question the jury was left to conclude the defense counsel with either clueless or willfully misleading them on the theory destroying that defense second counsel false statements primed the jury to pay close attention to the bloodhound statements there is a there is a it's clear that had she written south there's no way the state could have met its burden and the same evidence this is the same evidence that allegation even where there is other evidence that the jury pool would be used to infer guilt is extremely prejudicial in that case it was prejudicial enough to meet the actual innocence and you agree with the state that there's other evidence that the cherry could have been charged rape was the motive here no your honor i've been that the standard here again is not this is not jackson view mississippi and i think the state sort of tries to to muddy this water a little bit by saying a common sense approach or a possible supportable inference is enough the question is whether there is a discord has as this in mr drum's words a few moments ago all the defense lawyer is trying to do is create reasonable doubt in one myers to this crime that gave him motive the state argued in closing quote you know the motive in this crime is clear dr raddatz told you this is a classic rape murder and house the supreme court said quote when identity is in question motive is key the state concedes here that identity the identity of children is the family wasn't the question and this was the only evidence of motive and it therefore was a central importance because without it the jury would have found it necessary to establish a very tenuous defense in the st place but it's the one defense counsel chose to pursue that was undermined by the misstatements during opening and then the other two defenses his his alibi which was not meaningfully contested and question and these clear instances of official performance were enough to carry the day because together they caused this incredible synergistic prejudice there was not enough in this case to meet the beyond a reasonable doubt standard the state had to meet without counsel errors trial counsel paris together destroyed each of mr myers's defenses and left him in the position that got him convicted and that's why he spent fourteen years in prison mr crowley you have just a few seconds left you want to make a final summation yes your honor thank you judge flom and thank all of you for taking the time i know that on behalf of mr meyers  this great deal that you you've made this happens today despite the circumstances john myers has been in prison for fourteen years he got there because his trial attorney was more interested in making headlines and drumming up publicity for his practice than he was in researching the case reading the evidence deposing key witnesses or preparing for trial the supreme court has made clear that the th amendment guarantees better it's the state's burden to prove beyond a decided the opening statements issue and the race issue on prejudice only so that they should the district court's job and this question is a look at what the state court said and ask whether it it only does if there are multiple act professionally and reasonable conduct that can like it ok and if we are if we conclude here just assume i know you i know you i know you're arguing for a different conclusion but just then need to undertake a cumulative assessment of whether those three errors resulted in prejudice within the meaning of strickland no because the only way the court could get there is if the term in the state court unreasonably concluded that miers was not prejudiced by the opening statement or by the right that that's the only way that the court to get towards an overview and could actually conclude that capital performed efficiently at all three respects