bradley if the court edition or messed mr stack honor was in a hospital emergency treatment room where he was subjected to intimidating threatening presence of at least three police officers and at all times when officer he was threatened with an x ray he was prevented from speaking with his friends and his family including his mother who was also threatened with arrest if she attempted to speak to him and he was given a powerful opiate about forty five minutes before the police arrived an opiate eight times more powerful than morphine based response here is only the self serving statements of the officers that mr stuck on or appeared lucid and the circumstances mr stuck on are was in custody and the hospital your treatment room and the opiates rendered his statements and voluntary deficient only focused on the prejudice therefore here this court reviews the performance prong of the stricken standard genova furthermore the trial counsel is not entitled to a presumption of reasonable in this under the performance prong because truck outs of did no investigation whatsoever of the additional evidence to show them brought forward at the suppression hearing its addition that evidence is the medical records that the stablish mr stuck on or was given this powerful opiate forty five minutes before the police arrived by i v as well as these additional witnesses excuse me there's no witnesses that included not only his family and friends but third party neutral witnesses the treating physician mr stuck on his position and the record indicates here that the truck council did send out an investigator but that occurred after the suppression hearing which in this case was hollerin the good child hearing that occurred in january  he talked to the doctor and the nurse and they would not be favorable there's certainly that you could draw that reasonable conclusion but you could also draw the same reasonable conclusion that they could have been helpful because they were there treating him not materially contradicted by the state the fact that this drug had it mental impairment on mr stuck on a wall he was being interrogated by the police at the very least entitles him to a hearing hundred percent holster and escorts opinions and to determine whether there was prejudice and if and the effect of a million medical record as to the witness witnesses then as your honor mentioned two of them the doctor in there is worth their parties and the record is silent here whether the trial counsel to talk to them before hand but mr stuck on a doesn't need to prove his case today here we just need to show that there's a reasonable probability of a different outcome and there is at least a reasonable probability of a different outcome here the state argues that in response here t e mr stuck on his mother her name is star ella frye she submitted the declaration they argue the declaration won't help mr second or at all so mr stuck on her certainly disagrees her affidavit established two items that are very essential for the custody determination the first one being that she was prevented from contacting mr stack on her while he was in the hospital being interrogated by the police the second point there is the threat she was threatened with arrest if she even attempted to talk to him so going threat prong in the custody determination that if if the police are threatening the the suspect that shows that there's interrogation going on there's custody and here the only evidence we have is that the officers threatened to  stuck on her and they threatened her mother his mother i'm sorry there's no evidence the contrary here so again trial counsel's was deficient and failing to bring forth this evidence at the suppression hearing mr stuck on her other claim that was certified for appeal as a miranda claim and there are three parts here the first is that contrary to the supreme court precedent the wisconsin state courts unreasonably applied an incorrect subjective standard when the term the custody first we're aware that the correct standard is an subjective statement that mr stuck on a was not a custody it's important point that he never told mr steiner that it was just his own belief check the plots the subjective belief that mr connor was not a suspect in any particular crime again never told mr stuck on at the time this is just what's the subjective belief and third which is actually objective fact or the mr stuck on or was not handcuffed this even though this is one of the objective factors it's not the positive of the case here the state courts incorrectly and unreasonably applied a subjective standard here in determining custody when an object of standard should have been flight if we look at those object the factors then the clear and convincing evidence shows that he wasn't custody in the hospital room one of the key factors is but he was not told he was free to leave and he was not told that he was in custody that never happened here instead the officers just began asking questions my second key factor that's developing the case law is the location here this interrogation took place in the hospital emergency room treatment room mr second or was wearing a hospital gown a pair of socks and was hooked up to an i v and the room we believe was likely small hospital your rooms are these large spacious place and other factors the threatening presence of police officers here there were three at some points and at all times there was always one officer given the fact that weren't treatment room it's also not unreasonable to believe that one of those officers or maybe all of them were blocking the correct but that he did not call the police he came to the hospital with a gunshot wound his friends dropped him off there he did not call the police and the evidence shows that when the police arrived he was not forthcoming he didn't want to talk to the police and he didn't want to get his body involved because his body was also on probation or parole i mention the threatening tone earlier he was threatened with an x ray his mother was threatened with arrest there's no evidence otherwise here he was not permitted any outside contact with his family and friends who are either what they are or nearby now the state correctly points out he was allowed at one point to call his friend mr mayer's regarding the location of the gun however looking at this phone call it leads to a determination of custody because it was in furtherance of the interrogation the entire reason why mr stuck on or was allowed to call mr mayer's was that the police could go retrieve this got a gun that the police knew at that time match of the scription of a gun that had been used in several other crimes by a gentleman who just happened to match the physical characteristics of mr starr finally the link the movement and the duration of this and terry patient leave the issue of determinations that mr stuck on or was in custody the entire length of  over sixteen hours the hospital room was a short article of it from there though mr stuck on it was ten placed in the police car and directed the police officers to where the gun was supposed to be located after that he was brought to the police station way it's undisputed mr stuck on or was not given his miranda rights any point during any of this interrogation it does not appear there's any dispute the mr stuck on or was interrogated in the hospital room so move on to the police car mr stuck on his discharge from the possible into police custody he's handcuffed and he's driven around trying to find this guy it's the act of driving here that's the interrogation to develop case law is that it doesn't have to be question and answer any conduct by the police that might as recently likely to elicit an incriminating response is an interrogation here after that when the police handcuffed mr stuck on and placed them in the car they knew mr s and someone who's on a felon who's on probation or parole is not an allowed to have a gun so the driving around was an interrogation as well all of the statements that mr stuck on are made therefore were given while he was in custody and being interrogated appeal mr second or of course disagrees this that the district court certified for appeal the entire miranda claim in the court's opinion it's page ten of the appendix attached to the opening brief the court addresses the marine the claimant on page ten is where the court addresses it please the court under ed the state court recently held that stock honor was not in custody in the hospital room and not interrogated in the police car therefore his miranda claims fail further the state court recently held that stick out or fail to show prejudice under strickland and therefore his ineffective assistance of counsel claim also fails so i'd like to begin with the miranda claim the question here is under and to the state court under recently applied federal law as determined by the supreme court so broadly speaking there may be good arguments for mr second or either being in custody or not being in custody but because there are good competing arguments on both sides that does mean the determination is reasonable under and so the standard for custody is whether a reasonable person would have felt he was free to terminate the interrogation and leave this is a factors test my friend of the other side lists eleven different factors from both this court and the supreme court to make the determination such a test receives even more deference under because of the different ways that the court is allowed to weigh the factors depending on the case so plying the test here we have no physical restraint from the police to mr second or he went to the hospital voluntarily he was free to leave the questioning was not very long in the hospital they were investigating a shooting not a crime of mr second or as i like to address the d x ray comment the three alleged threats to take an x ray that wasn't presented to the state court in the miranda goodchild hearings i believe it comes from the district court record docket entry ten page four and that's a report from the detective where he says quote the hospital was ready to take x rays to determine if he had ingested the bullets so i don't think that's a threat meant to over bear mr stock counters will i think it's just a clear indication mr stuck on or that ingesting bullets is a serious medical problem and the hospital's reddick ready to take preventative action so i mentioned in the brief that many circuits have held that a defendant questioned in the hospital room was not in custody so we have the jamison case in the four sick at the new case in the circuit and the various case in the tenth circuit among others and so the fact that other circuits on direct here so moving to the next miranda claim about interrogation in the police car the standard is whether the defendant was subjected to express questioning or words or actions the police should reasonably know would that factual conclusion reason is given extreme deference under at books accusing and there's just simply nothing in the record to show the police made any statements in the police car and my friend on the other side says that it's the driving to the location itself that counts as the interrogation of those actions would have really likely to lead to an interesting response but i don't think that's true because this is the state court held mr second or was not suspected of a crime at this point so the police's actions were meant to secure a dangerous weapon that was available to children not to interrogate mr speck out here and moreover there isn't a supreme court case with similarities that this type of behavior counts as interrogation which just re the state court on recently applied supreme court precedent the standard for prejudice is whether there's a reasonable probability the result would have been different so the first claim is with the eight witnesses and my friend admits  to the witnesses now after the hearing but the fact that he talked to him at all is relevant for the predator's inquiry because mr stuck on or has the burden to show it and he hasn't put forward at the stake or or to this court what those witnesses would have actually said so he says in his brief that they would have testified whether mr second was handcuffed associate with the doctor and the nurse or what he needs to actually say is what they would have testified to and back it up with alleged affidavit be the certainly the most helpful or least say when he saw the doctor a nurse if you saw them when the police were present remember he was waiting just charge of the time in the hospital so it's very likely the doctor and the nurse were done with mr stuck on her and that perhaps an administrator would have just charged him he never says if they actually cruelly saw a handcuff he's just speculating on them all this and that's not enough to show prejudice strickland and it's the same thing with the affidavit with his mother she says that she didn't see him in the hospital room that's not enough to make a reasonable probability that the the reprise heating would have been different and just to press the point a bit further in mosley which is a case from this court which my friend relies on heavily a court ruled the court ruled for the heaviest petitioner on a similar strickland claim but there affidavits there from the witnesses and that was crucial to the court's holding and again that's just not present here so finally i'd just like to address the hospital record he claims that would show that he was overpowered by pain medication which would help in the custody terminations but the hospital record more likely would have hurt his case because it severely undermines his claim that he was intoxicated when he reached the hospital to begin with i remember he claimed that he took fifteen shots of hennessy shared three joints took twenty two sleeping pills and a half bill of ecstasy in the first two hours before getting to the hospital but the record says that he was alert and cooperative had no altered vision was discharged in good condition despite the gunshot wound and then was given crutches to cut himself out of the hospital but there's no way a hospital would give someone with that many narcotics in his system crutches to cut himself out so it doesn't the record does show he received the pain medication but it doesn't say what how the pain medication affected him in this case and that's the relevant consideration is whether or not his bradley thank you judge just two quick points here addressing the prejudice prong the reason why there are no affidavits here is because of his trial counsel's deficient performance he didn't call these people believe the state here is trying to hold mr stack honor to be the standard of an attorney when he put made his abs petition but he was pro se at that time so this court has to give him deference and has to give him an opportunity in this case an opportunity three penpals for hearing to develop what those facts what those witnesses would have said as well as the impact the the direction of the paddle him as for the custody determination here again it's what we're looking at here is this the state courts applications they applied the wrong standard they was incorrect if you look at them the totality of the factors the explained earlier they all weigh in favor of a finding of custody here and then finally as mentioned in our brief i just want to point now a reply brief all of the cases the state relies upon that they say hold that interrogation and hospital room does not constitute custody none of them actually hold that the vast majority of them don't even address these factors that are tissue and then the one seventh circuit case here that the