please the court my name is in your brandon i've already requested three minutes for rebuttal to represent police should listen to your honor's miss glisten was the least culpable of four individuals accused of murder the three individuals who actually committed the killing three men received thirty years twenty years and no years respectively alecia listen received a life sentence despite having not actually participated in the killing but you're not here on a sentencing issue right here no you're not there are three factors that make this case uniquely amenable to hay vs corpus relief which is what we're here for the first factor is the fact that the tennessee court of criminal appeals eroni asli analyzed this as a failure to call a witness case rather than a failure to investigate a witness case the second factor is that because this is a failure to investigate a witness case we don't defer to counsel's so called strategic decision not to call that witness because counsel had no basis for that decision and third because this was an incredibly close case indeed the trial court stated that the evidence was extremely thin we do not we have a lower quantum of proof for  prejudice as the supreme court recognized in strickland i'll address the first point intended to start with addressing the ineffective assistance of counsel claim and i'll address efficiency evidence five time as far as the first point this case is is squarely in line with english the roman alice where the because this is a decision of our court of this court where because the case because  of criminal appeals addressed this as a failure to call a witness claim rather failure to investigate a witness claim we don't give deference to the state court there was some reference to sort of controversy all issue for us at least herrington be richter is a case about an unreasoned decision and courts have on occasion applied it to a reasoned decision like this but i would just way it is and reasoning where it's totally independent in the end and you could say if they reasoned this way they wouldn't have to reach that but they reasoned wrong this way or something like that it's something that you raised for your party raise and what they were thinking but it doesn't matter what we would submit that what they told us demonstrated that an objective leean reasonable analysis of the issue which failed to look at the under strickland failed to look at the investigation and  i would just ask that i mean harrington the richter itself dealt with an unreasoned opinion and our position is it does not apply to a reasoned opinion like that and the reason for that is that to the extent that it is about deference to state courts it's not deferential to say well if if the state courts had just been smart like us you know we they would have they would have said this that's that's not it was pretty much we're hearing can be written well again that was in the context of the entirely own reasoned portion of the of the states how is that different from well this this take or actually reason they took it on directly that they said this is ok because of this reason and they  gave that reason and to this court i think needs to first deferred to that and then say why it's wrong and it was wrong because they failed to analyze this as a as a we should look at it under and put them no we should look at it we should say that under ed they were the decision was contrary to law under under d one twenty two fifty four it was contrary to the prevailing all because it failed to analyze this as as  what it is and there are numerous courts in skewed numerous of the decisions of this court published that say you know you counsel could not have evaluated or weigh the risks and benefits of calling richard as a defense witness without lawyer was a woman and her call did no investigation i mean she hired a private investigator who among other things investigated solved she talked to sullivan's lawyer she talked to glisten about what sullivan mights and then i mean really the more remarkable thing as i understand the record is that sullivan at his plea hearing i think hearing and so if we have a case where the witness whom the lawyers supposed to investigate has already basically testified under oath as to the relevant facts and what duty is there left to courts alluded to is is no investigation at all i mean everybody has a self interest and motive to take a plea real problem either way right i mean on the one hand it's essentially his testimony already about the subject which is contrary to what's useful glisten on the other hand if he were to testify to the contrary he gets impeached with his sworn testimony or oath or whatever it was in the plea hearing at this point i mean is is this guy's value so clear that it's ineffective assistance to just say i'm going to go with the dog theory with this guy well i think the question raises sort of two issues and one is deficient performance and one's prejudice  and i just want i don't want to conflate the two because just because i am complaining and i guess it's a kind of come together i mean you know the guy testified the other way so any way they kind of come together and you're on i hate to just throw quotes at you but but the the i mean there's so many six circuit cases and elsewhere that you know counter ebookers has to make a reasoned judgment about whether evidence is worth presenting one must know what it says so yes you would have an impeachment issue but but but is there a single case where the witness who the lawyer did not investigate actually testified in some manner as to the subject matter of the testimonies or single case in which the lawyer had that prior testimony and we said a failure to investigate further forget the other steps she did here was in effect i don't know if the prior testimony i don't know of such a case but there are cases where the the court has said that although defense counsel ultimate decision not to call a witness may be a reasonable trial strategy it's not reasonable not to investigate and i just want to put some context on this you know we i mostly operate in federal court where in the criminal context you know you don't get to depose witnesses before trial  you know you get their prior statements after they testify well tennessee has a jinx at twenty six point two of the the code and the idea that  trial counsel facing a murder charge a life sentence would not want two years before the case you know that she's got a choice between a wait for during trial to learn what happened from the eye witnesses that night or two years beforehand i can go talk to this guy who is literally a captive audience i mean he can't go anywhere he's a vailable he testified that he would have happily talked to someone he would have happily  testified at trial and any lawyer would jump to it's i mean he even if you know that the guy has some impeachment issues you can use that i mean you would for it you would base your entire trial strategy off of what i don't know about that i mean we're looking at this you know what really with blinders and she made a judgment that he's already testified to the contrary guy's a total thug i just want to separate my client from these guys and just make her make it seem like they just dropped on her doorstep and i mean that's those are just two totally inconsistent lines and one years of just in the one she adopted under the circumstances there doesn't seem to be a case under the circumstances that makes clear it's ineffective your honor i believe that there are cases that make clear that it's ineffective to make a kind of call like the thug call because i mean the thug thing is a non sequitur because it does not attach your client to that person to go talk to the jury doesn't know that you drove to speak to the guy and again you're go go talk to the person who would be the only eyewitness who is available at all to speak to and it's just it's astonishing that someone would not go speak to the person that can say minute for minute what happened that night and this sufficiency just real quick i mean is it kind of a coincidence that they end up at her doorstep or isn't that supports the idea that she was acting in concert bringing those guys to the location  where the cd would be your honor there i think we can we can concede that she did give them the information that led them to her apartment it is also clear which she gives them that piece of information also contains the words don't do it and i don't want any part of this and so yes she gives them that information but that's not the standard under criminal responsibility she needs to have the intent to facilitate that and it's not a reasonable assumption from i'm going home i don't want any part of this to say understand thank you thank you his or her choices are uninformed because of inadequate preparation if and it is denied effective assistance of counsel thereby recognizing that the trial counsel strategic decision and not calling david sullivan was the result of an investigation that was complete  this court as previously stated the allegations of ineffective assistance of counsel relating to matters of trial strategy or tactics do not provide a basis for post conviction relief this court does not have to second guess strategic and tactical choices made by trial counsel however when counsel's choices are uninformed because of inadequate preparation a defendant is denied effective assistance of counsel the record shows that counsel a veteran criminal defense attorney was more than prepared for the petitioners case she engaged in a conscious decision not to call sullivan and therefore we do not find that prejudice or deficiency occurred ok thank you the chief complaint that the petitioner has in this case was that the trial counsel did not personally interview david sullivan but that is not necessary to conduct a  appropriate and complete investigation under this case as the court noted hired a private investigator to investigate david sullivan that investigator learned about several instances of violations under the investigation was was done and whether an informed choice was made in this case it's clear that that occurred so whether or not trial counsel would have testified to well it would have been difficult for me to do this it would have cost money to do that the issue is whether or not understand why might not have done it while she counsels look good the lawyer would have done this because this is the eye witness if it turns out to be somebody who says things we don't want to hear at trial we will call him he already said things they didn't want to hear a trial that was the point that's what counsel was saying that i knew what he said at the plea colloquy i had a copy of those stipulations he the state would have presented those statements to the jury which were completely eviscerated the strategy that we had agreed upon so it's not a question of what he would have said said absolutely hundred percent wrong and that was the problem and that the trial counsel heard that testimony at post conviction here in specifically testified during her portion of the post conviction hearing that that was the reason that she didn't want to call all additional  considered and approved by the jury but that's that's not the issue for this court under jackson versus virginia and under differential review the only thing that this court looks at when considering state law is the essential elements of the crime other than that this court looks at jackson first of virginia to decide whether or not the evidence was sufficient to to demonstrate that those elements were met in this case it's clear that there was an available  insufficiently corroborated or state law but that that doesn't apply to the criminal elements that were presented on that point i mean as i understand the argument made by mr brandon  it's that there are really two different robberies that take place during this this night she's apparently on board for the first one that's obviously where not where you see is shot  or herself with a venture act with the knowledge that the offense is to be committed and share in the criminal intent of the principal in the first degree no particular act need be shown and the defendants need not have played a physical world in the crime so the petitioners argument here is that there was  she knew that second robbery was going to occur a phone call was made by mr henry and david sullivan to her to find out to explain to her that the first robbery did not yield the results that they had expected so they called her and said what does he have on him and she told them i'm not sure but we are going back to my apartment later this evening and he'll be there and they said well we're going to rob him then and she knew that an armed robbery had just occurred so she knew they were all armed and she said ok i will let you know when there meredith runnion who she's with  her apartment the petitioner locks her door and the victim is shot so she not only knew that the second robbery was going to occur she provided specific information to ensure that that second robbery would occur she confessed which was on tape in play for the jury detective danny satterfield who was with the national police department testified as to the statements she made to him at several interviews that he took with her and then all of that was corroborated by her codefendant michael henry who testified that he spoke with her throughout the evening including the time in between the first the second robbery she knew that the second robbery was going to occur and she kept providing them information about where the victim would be when he would be there and conspiring with them for them to lay in wait for when he court this court needs to look at this under under jackson burst virginia whether the evidence is sufficient to support a conviction after viewing the evidence in light most able to the prosecution any rational trier of fact could have found the essential elements of the crime beyond reasonable doubt  i thought i remembered her pacifically mentioning that she renounced her participation in the second but the theory of it is that there are two separate two separate robberies and there's insufficient intent for the second robbery and that's fine  your argument with respect to these are two separate robberies and there's insufficient temp for the second one while our argument is that there was sufficient evidence to demonstrate that they were but that the second robbery took place and that the conviction was valid  briefly your honour's just to clarify we have not raised the renunciation defense that was raised at trial we haven't raised it in the briefs we've pointed to the fact that think hurt her statement don't do it i don't want any part  are guilty of a little bit of maybe play acting some dialogue that was not in the record in this case and so i just want to be really clear the it is clear that ms glisten said don't do it i don't want any part of this that's about all that is clear from what the actual content of these phone calls were there is evidence from which a jury could conclude that ms glisten told them where she would be there is evidence that  she knew that their plan had changed there is not evidence of her intent to join or facilitate that plan and less this seems sort of academic you know this court in brown v palmer in two thousand and six said that you can't just that reasonable speculation about intent is not enough and in that case it cited two who said that she said don't do it michael kennedy who was who was  allegedly on the phone with her so he was the eyewitness that that's the state's witness saying that that the brownie palmer opinion cites to an admittedly put case but of  it where it says hobson's actions following the shooting may have made him an accessory after that the fact but this cannot form the basis for a conviction as an aider and abettor so it matters very  did arguably have the intent to facilitate or whatever second robberies pacifically you would have to base it on the speculation from the fact that she told them where she was going you would have to speculate that that was her intent to to direct them there and you would have to speculate make that speculation contrary to the only evidence about the content of that conversation which was grammar a bit but but if that is in the record michael henry the state's own witness stated as the amount of time thinking rodgers thank you ok the case will be submitted please call the next case