case number fifteen twenty one thirty nine allen marion versus jeffrey woods oral argument not to cede fifteen minutes per side mr john palace of the may please the court my name is john pallas assistant attorney general from the state of michigan representing the respondent appellant in this case warden jeffrey woods i would like to reserve three minutes for rebuttal the morning your honour's the morning counsel i political because the state trial court denied petitioners ineffective assistance of appellate counsel claim on collateral review on the merits which on the facts of this case necessarily includes  finding that the underlying ineffective trial counsel claim was without merit a second under ed petitioner loses the district court should not have granted hippias relief quite simply that the district court failed to apply the ability of upon the district court in marion question whether at the deference even applies in this case but there should be no question about that for two reasons first there is the motion excuse me the order on the motion to remain on collateral review i collateral review marion filed a motion to remain in the michigan court of appeals referencing his ineffective assistance of trial counsel claim and i just want to note for the court's reference my footnote to on page thirty one of my brief i mistakenly cited to pages of the application not the motion that footnote should have referenced page id numbers fourteen forty two and fourteen forty two fourteen forty four this privilege or this presumption would be denied it could be simply that alone for that presumption to be invoked and that was was that a motion to remain and was it based on newly discovered evidence  based on ineffective assistance of counsel specifically the one on collateral review was based on ineffective assistance of trial counsel the marion acting pro se at that time was asking for the case to be remanded to the trial court talk about and i know that opposing counsel my adversary has talked about the fact that the michigan court of appeals denied the application on collateral review citing that ambiguous language of six five away de that does not mean it meant to do the same thing with the motion to remain on and one of the things i'd like to point out is if you look at that order when which three things happened there were three things that happen it denied the application for failure to persuade under six five away de then there was a motion to waive fees which the court granted and i don't think any of us would say that that was that that was granted under six five or eight d and then third the motion to remain under seven to eleven c one was just simply denied i mean the the motion to remain and and the application for leave to appeal were denied on two separate lines separated by the motion  structure of that order that it issued on collateral view is very helpful marion's argument to the contrary really makes no sense if what we were saying were true it's our position that the michigan court of appeals would have structured the order in a way that both the motion to remain and and the application for leave to appeal would have been denied in the same line citing six five away de but we're not going to simply rely on the motion to remain and i think the district court as it suggested correctly suggested the trial court's opinion an order denying the motion for relief from judgment where the trial court denied marion's ineffective assistance of appellate counsel claim on the merits serves as an alternative means by which to determine that plies and we all agree here that the trial court improperly d to the ineffective assistance of trial counsel claim i'm not going to stand up here and say that's a merits adjudication but in the course of adjudicating claim the court said defendant's argument fails because defendant cannot draw any possible prejudice from appellate consuls decision defendant was afforded a fair trial and full appeal defendants claim is without merit that's on page assumed that the federal court deemed to have adjudicated the that federal claim on the merits and the assumption is that it's also in title to twenty two twenty two fifty forty one deference knowing that at  i think is very important in this case because i think part of the problem with the district court's opinion is is that she struggled with determining whether or not had been applied and i think that leapt over into its merits discussion of whether or not the strickland claim had any merit i think it's our again our position that had there whether it's a noble review whether it's at purview we prevail but i'll talk about at first the combination of the highly deferential standards of stricklin and twenty t fifty forty makes for doubly deferential judicial review and that the court knows the standard under strickland i'm not going to go through all of that but but essentially what we have presented here is a failure to investigate and what and what do we know about that claim and what do we know from the affidavits that were presented to the state courts well trial counsel mult of interviewed multiple witnesses including charles lewis who put lewis told counsel that he was with marion from this and his original contact with him that's what lewis says in his affidavit and we're going to assume for sake of this argument that that's true so that all of that information was presented to trial counsel shark no no witnesses and this is what shark says no witness including the alibi witnesses or marion was able to corroborate where they said at the time of the murder and i think it's safe to assume here from all of these affidavits that trial counsel did not have the receipt showing the purchase of the engagement ring on that particular date that would ban a good defense counsel just called gross without corroboration wouldn't i'm not so sure about that judge seiler because he had an excellent excellent defense he had a defense of the star witness of the prosecution this ricardo simms individual didn't come forward for many months after this murder he only did so after he was arrested himself on a federal offense and he had an expectation that he would get a sentencing deal or his sentence would be reduced if if if he testified favorably for the state in this particular case so i think actually what counsel and we you can assume from this here is the counsel said look i want the jury to focus entirely on the credibility of ricardo simms i want to tear this guy apart i don't want the jury to get confused with what could have been a at that time and uncorroborated alibi defense so he wanted but i realize he had a prior record that's probably why it right and i think running an uncorroborated sketchy alibi defense might distract the jury from focusing on simms and his credibility if worked at will they found that that they were turned off by that defense they might take it on trial counsel they may not believe him about his attacks on on ricardo sims so you could imagine ways in which what trial counsel's did here was  that's at page id's seven hundred forty three counsel never spoke with the owner of the jewelry store nor did he attempt to locate the receipt counsel did nothing to verify lewis a story that's at page seven hundred forty three to forty four the problem with these assertion as there is nothing in the record of the case to support them he's taking basically the district court is taking a silent record and saying from the silent record well i'm going to assume the trial counsel didn't do any investigation into any of these things we don't know for example perhaps try to counsel did have the fiance try to look for the receipt for the ring and she couldn't find it why would the fiance have received the ring well that's a good question i'm not sure why she did she apparently she did because the find it i get it i mean that might not be the first thing that trial counsel would have thought of all let's go see if the fiance to whom the ring was presented also has the receipt that's very true  judge wouldn't it wouldn't naturally come to me if i were a defense attorney and that's an excellent point the the store owner himself said i mean maybe we trial counsel spoke to him and he said well i don't keep receipts more than six months we have affidavit that said that so that maybe went nowhere i think your excellent dissent in the low opinion bert versus tetlow and that went up to the u s supreme court is very helpful it should go without saying that the absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of professional assistance and isn't it low what the district court did here was turn the presumption of effectiveness on its head by making assumptions the trial counsel did not perform when stephen shark agreed to take on alan marion's case he was accepting probably the most serious task that a defense attorney in michigan to take on and that is defending a client against a charge of first degree murder in our state no crime is more seri it is it is matched by a mandatory penalty of life imprisonment if a person is convicted and from the very beginning of this case to add to just the general severity of a murder charge attorney shart knew two things from his client number one the client was maintaining his innocence and number two that the client said that he had alibi witnesses who could help improve that and at first i think attorney sharp did what we would expect an attorney to do he did talk to the proposed alibi witnesses and he  notice of alibi just about a month before the trial began but his conduct after that point would let mr marion down in probably the most significant way possible instead of following up on the known and easily verifiable leads that the main alibi witness did produce mr shark gave how do we know that from the record your honor i would suggest based on the a g s position that they've actually got it just backwards i think there are instances where a trial attorney does not give you any indication at all about what his or her reasoning is and you're forced to sort of hypothesize and speculate but in this case the defense attorney submitted an affidavit and that if that affidavit did offer specific information about why he did what he did and what he suggested was that yes i talked to these witnesses but i could not corroborate the things that they said and so at that point i decided not to use them counsel is asking this court to treat those words and silence i think the fact that there is a bitch since attorney on record in a case saying these are the things that i did what does could not corroborate what are we supposed are we supposed to in your view mean that i talk to these people and i did nothing further or does i could not corroborate mean i couldn't find anything else that would corroborate i think he says  what he says in this is that page id twelve fifty six is that at the time none of the prospective witnesses could corroborate where they believe themselves to be so he puts the burden i think quite clearly on the prospective witnesses to demonstrate where they were there is a note in the government's pleading that makes reference to the fact that defense counsel can't be expected to scour the corners of the earth to find evidence that you know may or may not lead to something but that is not at all what we had here after information if we accept charles lewis his affidavit is that he said that he was with mr mayor they went to a jewelry store in hamtramck and were there for about an hour before they went on about their business hampshire amick is a city that is completely system by the city of detroit and rather than expecting him to scour the earth he could have said and i think would have said in an affidavit had he done these things he could pick up the phone and call the store owner and say hey listen i've got this case can can i come in and talk to you but he could have gone to the store and talked to the store owner directly the store owner was as we see an affidavit pretty quickly able to say some important things one these are the types of rings that i sold to i recognize the ring that's in the picture here i recognize mr marion as one of my former clients those are things that by itself are significant because in the context of a case where it is going to come down to a credibility contest if you are going to put an out of alibi defense on it it's critically important that you be able to present the testimony of a disinterested witness we have to go but what i do believe that we have to go by what he said and the words in his affidavit are our look they couldn't corroborate it it doesn't say i did additional things myself to corroborate it as well and it doesn't say that it doesn't and i understand that the however both stricklin and the supreme court's decision in wigan's indicate that that judgment is only it's only as good as the investigation you've done to decide that a particular strategy is superior to another in this case he had no idea that this was actually legitimate right because he didn't take those basic steps again we're not saying he had to you know know that a receipt would be hiding he may not have been able to return to turn up the receipt even i is the diamond ring is so he does speak to the receipt in a number of things but let's assume that defense counsel would not have had the receipt when he'd just been doing some basic investigation to go and talk to the jewelry store owner what the jury store owner says is that the diamond in the woman the diamond ring that the woman in the photograph is wearing is consistent with the disc is consistent i'm sorry it's consistent with the rings i was selling at the time is still carry in my store and then separate and apart from the receipt he says i was also shown a photograph of the defendant mr marriott and recognized him as a customer of mine i think that last fact is particularly important because from the beginning mr marion turned himself in on these charges to face his accuser from day one he was in custody he is absolutely dependent on his defense attorney to not just listen to the information that's been given but to substantiate especially the easily verifiable things and the things that are identified in an interview i'm sorry but it isn't verifiable what is absent of the in the absence of the receipt there isn't anything to place mr marion in that store in the presence of that jeweler buying that ring on that date at that time your honor i don't know that it has to be but yeah i think you know you if you present that to a jury they can say yeah well gosh maybe it was that will that's a reasonable doubt maybe but why in the absence of a really critical piece of information isn't it maybe a not a very good strategic decision but a strategic decision not to go down that road which really there aren't specifics on and instead focus on the defense that the council did focus on well your honor i think again as as the court is well aware it may be the case that it was a strategic decision well if it loan i don't think the fact that a kind that an attorney made a strategic decision in the analysis not under strickland not under wigan's i think it's pretty clear from the case law that it still has to be a sound strategic decision and  court should evaluate that and i would say that this was essentially a case where the government offered the eyewitness testimony of this very conflicted witness this eyewitness testimony puts mr marion at  not inconsistent in there's nothing to say that these are mutually exclusive defenses in fact i would argue that the submission of a alibi defense that may not be perfectly corroborated as to every element but as to important details the fact that this man who is a friend of mr marion is not lying about the fact that there is a hamster store and that there is a ring that it that was purchased in a down payment made on that ring whatever the financial  obligation was that he made i think that is important information and frankly the alibi defense is the only information that would negate this inference this put out there by this eyewitness that mr marion was  provide no corroboration for lewis's testimony as to the particular time we're together yes i would say this is what this is how i would look at it your honor  i am and it is not uncommon for a defense attorney to have a conversation with a witness that a defendant produces and that witnesses hey listen i mean i had a case like this last week the witnesses you know what i do have a video and it will support everything that the defendant said and what i'm saying and if you want to come and get it from me you can that is not a difficult thing to do and so it's several pieces of evidence that get considered together i don't think that the corroborat evidence has to support every single aspect the did the jury is entitle to consider the alibi witnesses testimony and make what it will of that testimony and then in conjunction with that other information again it is even let's again let's assume for the sake of that mr shark was not able to find the receipt itself i think it would have been persuasive for the jury to hear again that this was a person who the jewelry store owner recognized as someone coming into the store yes he sold rings of this kind and so on and so forth i mean all of the evidence that the appellate attorney was able to discover with the exception of the receipt itself could have easily been acquired by trial counsel and i think the failure for him to do even the most basic of investigation to confirm those facts absolutely amounts to deficient performance but this visit to jewelry store the time of the trial in about three years or something like that it was about the jewelry store visit would would have been the same day as the incident which was on march first of two thousand and six the trial commenced believe in late june of two thousand mean i believe in late two thousand and so there was a fair amount of time that had passed but again i think remarkable such good memories three years later i don't like i could remember where i was three years before that well i mean if your if a good friend of yours gets accused of a crime again again this is information that mr marion was able to share with his defense attorney right from the beginning of this case which was not the full all the way into two it was to been carry that a step further and i would also add frankly that the time between the initiating the initiation of proceedings which was in late december i believe a two thousand and eight and the beginning of trial was only about a seven month period so it's not as though the witness just sat on the information and did nothing i'd like to say a few words if i may about prejudice and about the relevance of the court of appeals decision making in the state court as to the question of prejudice i think we are all clear that it we don't have to show that there's a propounder it likelihood of a different result or anything like that this was a case that was based almost entirely on the word of a man who had successfully for years moved large quantities of marijuana without being detected by the police and knew instinctively that he had to give the government something that it wanted if he was going to help himself he wasn't shy to say this and he completely agree that he probably never would have been motivated to speak up had he not been unbraided by federal agents himself and it was against that very i don't know what the word is forward troubling backdrop that the government was  this man that he identified mr marion as the shooter there were also some inconsistency with his testimony he said that there was a second man with my client and that that person was using an a k forty seven yet police testimony established that there were no sh counsel this verdict would have been in place anyway on that last point i would say a couple of things number one oh goodness i'm going to run out of time it's are you going to ok all is another explanation for an adjudication on the merits and i think that exists here for the reasons that i've explained in my brief i would add that the court of appeals docket the state court of appeals docket on the denial of the sixty five hundred motion indicates quite clearly that the record was not sent to the court in the same way that was at issue when mcclelland be repealed geom that you're citing that case accurately but i would just ask the court to consider that in addition to the other arguments that we've raised thank you you thank  thank you again your honors i just have a couple of brief points i'd like to make i meant to say during my opening remarks that trial counsel in fact did file a notice of alibi and i think that's a very important fact to consider in this case because that distinguishes this case from many of the cases that this court has issued where it's granted habeas relief for example click stale avery stuart and so on cases where either no alibi notice was filed or an alibi notice was filed late and the defense was alibi alone and so sit in a case like that certainly i think that presents a situation where there may be a very serious question as to whether there was deficient performance here we had a notice of alibi being filed with charles lewis being prominently on that list and strategically in our opinion trial counsel decided to withdraw that that calling of that witness and to proceed with a different defense i was curious about who this arnold was who was listed as an alibi which as we don't know that do it right it appears from charles lewis's affidavit that are now with somebody that they stopped at a home that they stopped at along that route that they went that night  it appears to be the same person somebody else they visited that night of the murder as well it appears from from my reading of the record i think that i don't know sister counsel mentioned something about proceeding with alibi defense without the receipt i think that would have been a total disaster in this case it would have rely totally on charles lewis his credibility we don't know what kind of credible witness he would have made we don't know if he had convictions on his record we don't know why it was that trial counsel decided not to call him he could have made a terrible witness and trial counsel made the decision not to call him and it could have made things worse i would know him as a matter of fact that he was charged marion was charged with first degree murder in this case and he did trial counsel did manage to get that down to a second degree conviction in this case so at least he has the possibility of getting out on parole someday and i the judge given as you made an excellent point that even with the receipt the defense here is is really dependent again on charles lewis to establish the time that they were in this store because the receipt itself doesn't indicate the time that was that these individuals were in the store purchasing that ring so unless your honour's have any further questions i'll simply rely on our pleadings that are filed in this case i think we do not thank you counsel thank you very much base will be submitted and the nothing further to be argued this morning closely during the