good morning we depreciate each appellant indicating how much time she or he would like for rebuttal with the court call the first case please good morning your honors may please the court dockets from the michigan attorney general's office on behalf of response and bert i have reserved three minutes for rebuttal time this is a case where the district court granted habeas relief to petitioner nigel right for his role in the murder of twenty one year old travis good when the state asks this court to reverse that grant for the simple reason that the district court failed to apply at deference when it evaluated the state courts merits rulings rather than look at the state court's rulings deferentially the district court disregarded the state's fact findings and went on to make its own findings regarding the credibility of a witness based on a very selective view of the record while ignoring some evidence and giving improper wa other evidence while the district court acknowledged it went on to play pay lip service to it in its opinion reads much more like to know of a review as this court knows your view under is extremely limited in state court decisions must be given a high measure of deference to a federal court and haiti as can only review or overturn a state court's decision when there is no reasonable dispute that the state court was wrong and that's what the supreme court recently said in the woods case did in the state court decide the issue of whether the performance of the attorney was deficient that the state court simply said even assuming he could show deficiency there was no prejudice ok so we should not give any deference on the deficiency aspect then right under under rainer this this court need not give deference to him but the state's position is that irrespective of deficiency a petitioner hasn't shown prejudice and he has to show both in order to show a strickland violation my plan today is to focus on the merits of the state court ruling with respect to the improper admission of the statements made by a victim to the police officer in talk about how the district court erred i do briefly note that the confrontation the underlying confrontation clause is defaulted now rely on my answer for that the state court in this case found that the admission of the statements by the victim to the officer were not so prejudicial or harmful so as to affect the jury's verdict and were really for the state court primarily focused on the strength of the evidence against the petitioner and it rejected the petitioners claim that the main witness there was an eye witness in this case the main witness is reliability was questionable was so questionable that relief was warranted but rather than look to the adequacy of that state court ruling and gave deference to the findings that the state court made that the inconsistency or any inconsistency is were not consequential the district court completely disregarded those fact endings and it went on to explain why it found curry who was the main eyewitness not credible based on a very and maybe it turns out to be irrelevant in the end but there were these jail phone calls that that i couldn't see that the state court of appeals took into consideration i mean it isn't mentioned in the opinion in my correct well what happened to those and why didn't those i mean there was something about those calls that sounded incriminating self incriminating if you will goes on those were very incriminating in the prosecutor's  great deal a closing argument detailing how incriminating those calls were the state court didn't expressly mention those calls but did talk about other evidence and those calls were referenced in the briefing on direct appeal and state courts are presumed to have considered the record they were before the record the state of they they were actually before that the court of appeals even if the court of appeals didn't end up mentioning they were before the court of appeals and they were they were quite damaging and that is something that the district court in this case entirely ignored didn't mention it at all in the opinion and that was part of the strength of the evidence against petitioner in this case those damages were they in our record where are the transcripts of these  calls i'm struggling with i mean they were there argued they were discussed in the briefs have i missed them in the record before this court i mean i'm assuming we filed them as part of the rule five material in the district court  and they were filed but i am not exactly sure that i mean typically we file material as part of the rule five before the district court and i should be in the district courts record they should be in the in the district courts record or they transcripts or actually they were transcripts they were excerpts of calls and eleven transcripts were admitted at trial and the prosecutor as i indicated spent a great deal of time discussing how how criminy ting how criminalising they were again the district court made no mention of those and that is part of the strength of the evidence against petitioner i have struggled a little bit with them because what i find find in the record i'm not sure how strong it is problematic for for this defendant because isn't what the call said not just how pay you not to come but i'll pay you to come and tell the truth well that's the way trial counsel said that that was his version of what they s transcript say well the transcripts if they are in the district court record they are are they ok the transcripts should be looked at and the transcripts they don't indicate out right i mean they're very suggestive that the right wanted to pay curry to not come to court to testify but are they not also suggests that what he was saying was  words the close there were eleven number of levon of them they they talked about getting to curry about this is petitioner talking to her father about finding him about giving him money about paying him  they giving him a thousand he also implicated himself as being a stay at the scene right did he said her was out there too when the victim was shot so it also shows that he admitted that he was at the scene he says but i didn't have a gun though which was the prosecutor's theory all along that he didn't have that he didn't have a guy he was just the driver and i would like to get to that particular l of what was said about the painting because the quoted material that i did i understood to say i will pay him not to come or i will pay him to come and tell the truth well i think that the court does need to look at the language of those calls do you have that language before you and i i have a summary of it i don't have the actual do you dispute that he said i will pay him to come and tell the i think that that's one inference i don't know that it was that direct that he said that but i think that that's an inference that the jury could have me but i want to say that even even without these calls let's assume that the court to use these calls has in that way we have an eyewitness in this case we have an eyewitness trained curry who has consistently identified petitioner as if he had been a happen or on the first conversation he did not identify any of the suspects the first day it happened it was four in the morning and gave a statement to the police he dropped he described the shooting but he did not identify names and that's because he said later he he was afraid for his safety he lived in the neighborhood with a six year old daughter that night of the incident there were people people around and understandably he he was afraid to name names he wasn't afraid when he was called in a month later and going to be charged with his own crimes and then decided to volunteer this information well he was he was never told it was a suspect in the murder but he i don't think it was unreasonable for him to not want to be blamed for the murder or any involvement in this he didn't do it but he he admitted that his first statement was less than complete and then he went in and identified the shooters and petitioner and after that he consistently identified him he identified him in the investigative subpoena he identified him at the preliminary exam he and he identified petitioner and he's only identified petitioner as the driver repeatedly in this case he's never identified anyone else and he was he was subjected to a very thorough cross cross examination at trial and trial counsel tried to get him to back down about his identification and he didn't he said i knew it was him and he had known  petitioner for a number of years most of his adult life he knew the shooters he lived in that this is one of this wasn't a stranger identification the getaway driver petitioner he saw him he knew the car he drove he knew his hair style he he knew who the titian are was so he's been consistent on the most important issue which was identity all along he's been very consistent on that one of the things that i wondered about in looking at the state court of appeals opinion is that in several places it seems like the test that's being applied on the prejudice prong is whether there was an effect on the outcome as opposed to a reasonable probability of an effect should that mean that we don't need to give the deference that you were suggesting at the beginning to the michigan court of appeals opinion no the court of appeals did suffer if the proper time the proper test a little bit earlier in its opinion i think the references that you're making to were shorthand references to the prejudiced standard and they were in this core it has found that such short hand references where they had previously set forth the proper standard don't mean that there was contrary to application strickland can outcome determinative line guage be shorthand for reasonable probability of outcome determinative not understand there are shorthand versions i'm struggling with have missed one qualify as for well i think under  this the state court was reviewing the standard under state law and that was that some of the language that is is used by the state courts but several sentences before that it it accurately strickland it didn't mention strickland but it was the strickland standard for prejudice which was a reasonable probability that the outcome of the result would have been different i i think that that reference that it use morning your honor spent martin of the federal defender office in detroit on behalf of nine to right the district court correctly determined that mr wright's trial attorney rendered ineffective assistance of counsel and failing to object to what the court called an obvious confrontation clause violation that the state deficient or did they just say we'll assume it was deficient that's correct your honor and i think in in turn this case turns on prejudice which under strickland the petitioner must show a  reasonable probability that part the proceeding would be different without counsel there the respondents tried to paint the district court's analysis as making an improper de novo determination of the credibility of the state's key witness doing curry  but what the strickland analysis requires and what the district court did was an assessment of the strength of the prosecution's case absent counsel there in doing that the district court here explained that the evidence implicating mr wright was far from overwhelming and it rested almost entirely on the testimony of mr curry the evidence at issue here these testimonial statements from the victim made to a police officer before his death played a critical and unconstitutional role in establishing motive and in missile impermissibly bolstering mr curry's testimony the district court correctly noted that mr curry says money suffered numerous credibility problems he didn't identified mr wright the driver of the vehicle until nearly a month later after being arrested in believing himself to be a suspect in the murder he was at the scene immediately after and did have a chance to tell police officers there he  trial that he believed that the victim would survive but even so he waited until well to leave the victim would survive and was going to be capable of saying you shot him he may have been a little any of his prior statements to the police they just became more robust in a sense he did not identify anyone other than right as the driver that's correct i would note though that he waited until two weeks after the death of mr goodwin to say anything to police it was only after he was arrested so it wasn't just right after the doubt that he came forward also he had an investigative subpoena in this case where he told the prosecutor that he did have doubts that it was right who he saw and then fact he didn't see he only saw braided hair what about what about the calls from the  let let's put aside the one about payin somebody to come and tell the truth and think about this is the defendant admitting that he set the scene of the crime i think there was the tapes can be read in many on in the neighborhood he's worried that mr curry has been told by someone else to testify against him he's asserting his innocence in fact in the tapes but he said mending that he was there i think the thing that we need to get a grip on this morning is that the jury heard all of that and made those determinations made credibility determinations they made they must have decided what those phone calls meant if in fact the phone calls were in front of the jury and there's not much we can do about all that the jury found the jury found your client guilty that's correct i believe that these statements from the grave though from mr goodwin were allowed to unfairly prejudice the case in particular showing motive for why this mr wright would have been involved in this at all and i would note that the statements were that he had specs and had received threats from had received threats from wright and that he had expressed fear that these people from these people as to something happening to him and that these were played up in closing arguments as as that good one had said that someone's going to hurt me and that dying men speak the truth and that mr goh and maybe had a sense of what was coming to him well certainly somebody did already dying then he wasn't dying when a question that comes to mind that i don't think the briefs dealt with is the question about forfeiture by wrongdoing and whether that should be an exception to the confrontation cla e violation here in other words if your client procured the absence of goodwin by killing him he would not be able to object to confrontation to raise a confrontation clause claim with respect to this testimony wouldn't that be a reason why the defense counsel didn't raise the confrontation because claim at the trial at that point there it hadn't been established in it that mr wright had taken any part in killing mr right it when it was the criminal trial so the government would not be able to object on that basis until it was established is that your point well and also i think that these statements came these statements were made it's actually unclear how long before the murder it was just in the months before the murder that  goodwin made these statements to officer thomas i think that's another reason it's not clear that he was a murder because of this making these statements about threats in any way or because he was alerting authorities about threats being made to him so you're saying there would have to be a causal relationship in order for the forfeiture by wrongdoing to apply i don't think that the forfeiture by wrongdoing was race in any way that would be something it wasn't because because the whole confrontation clause was really it wasn't raised right and the question is why did the defense counsel not raise the confrontation clause claim and if it if it wasn't deficient performance fail to raise it because it was going to be a loser of an argument then your whole case falls apart i don't think it would have been a loser of the of an argument i think that they he had no ability to cross examine mr goodwin i do think that they right because he's done a wedge to have killed him that's why he can't cross examine goodwin because he is and then convicted of killing him sorry but i  that yeah i think it would be good for our ask your opponent what her thoughts are on that but unless there's some obvious answer from her i think both sides should brief it and the judges improperly admitted evidence isn't the case law fairly clear that it's merely cumulative evidence and doesn't and something that is definitively know that there's not a problem i think i would have to response is that one is i think that this court has repeatedly referred to reinforcing our cooperating test testimony as being something that can produce a non harmless error from prejudice someone's case and i would argue that this was allowed to to reinforce and cooperate mr kerry's testimony and second i do think it added something new i don't think that there was anything clear from the other comments in the record the responder's made the argument about  alice smiley mr goodwin's mother making a comment that goodwin and wright were enemies but i do think that's a far cry from the specific threats that officer thomas mentioned about goodwin receiving threats and expressing fear that something was going to happen to him i think that that's a that that's a big difference or did add something new that was allowed to prejudice the i'd like to know the the mention of the state court applying the wrong standard for ineffective assistance they do mention the reasonable probability analysis case followed i think that this is further support for affirming the district court's decision but would we be saying it was a contrary interpretation of strickland as opposed to an unreasonable application of that's contrary to strickland and also i think it plays into the factor that they were on reasonably applying strickland in looking at this set of facts what credence do we have to give to the findings of the court below and the determination of credibility and evaluation of the evidence by the jury as to the state courts to citizen under twenty two fifty four just we have to look at whether there was an unreasonable application of strickland to the facts as they've stated and i think that's exactly what the district court's analysis here did was run through and look at all of these these facts and see if this really amounted to a reasonable probability that the case would be different if these statements one had been allowed to be portrayed to t he jury and then emphasized in these in the closing arguments but isn't that a really hard thing for a federal court on hate me it's to say that the state court was unreasonable in its weighing of how the jury would decide if it didn't have this information i think that that's why the standard is only a reasonable probability it doesn't have to be one hundred percent doesn't have to be outcome determinative that this would have been the difference for the jury it just has to be a there's a reasonable probability that if the statements hadn't been played or hadn't been told to the jury that the case would be different i know that it's actually was bookended the closing arguments in this case a prosecutor listed as one of the first things and starting the closing arguments and as one of the last things at the end of the closing arguments i think that also adds that there is a reasonable probability that if this hadn't emphasized so heavily and i know that that's one of the things again that this court has noted in its other decisions applying the standards that if something isn't for size and closing argument that it can make it harmless  not harmless error there are an analogous case at the supreme court from the supreme court where the supreme court has upheld the grant of him b s or has has in fact granted hey  know strickland and reasonable application prong situation the cases cited in our brief are not i didn't there's not a case that is so closely tied to these facts and respondents pointed that out in their brief that there's many circuit decision cited in our brief but i would note that all of those decisions are interpreted supreme court law regarding ineffective assistance of counsel and strickland and harm harmless error standard from brockton ban arsdale and that under marshall's b rogers this court is entitle to look to circuit president in determining the proper application and the court this court recognized that very important distinction between an overview and between review under add in the daniels decision which i did cite in my brief and i think that case is really important because it's much like this one where this same district court judge granted habeas relief and that would involve an ineffective assistance claim finding prejudice but this core reversed the district court finding that the district court failed to a court the state court the proper deference and i think that case is very much like this one in this court also noted that the evidence in that case was weak and in several respects but yet found that under add it couldn't find that the state court ruling was unreasonable opposing counsel mentions the investigative subpoena and there was doubt at the investigative subpoena i think it's important for the court to look at the investigative subpoena as a whole  i think it's reasonable to view any any doubt that curry the eyewitness expressed as as more of a confusion about a question then then then hedging about the identity of the  shooter and at least three times and then test again a subpoena he identifies petitioner as the shooter and he does that consistently after that and especially at trial too many of the district courts questionable evidence so the jury could have been influenced very much by this evidence the evidence that was improperly admitted was marginal evidence i think the district court completely overstated any value of the challenge statements the statements were vague they lack detail there weren't any concrete threats that were that were told to the prosecutor and the victim also had named others in the statements that he made to the police officer  just petitioner that may have helped petitioner in this case that there were others there is named the statements were certainly matters that were named were not the two guys who killed the victim one of them he did name one of them but there were two others that were  different altogether and it was only it certainly was not the central to the prosecution's case in it was a very small part of the prosecution's closing i counted two and a half three pages of a fifty five page closing my math is correct that was five percent roughly five percent the prosecutor spot much more time talking about curry's identification how consistent it was when the enemy ask you this there was something about  was it curry burning down the drug house curry was involved in the burning and admitted to the police at some point that he had did that have anything to do with the statement that godwin made to the police no currie testified that petitioner had set in motion a few weeks before the burning of a nearby drug house right and knowing that he was going to blame the victim for it that was very damaging testimony that the jury heard which shows that petitioner had some kind of hatred for this victim that the jury heard that testimony and that was far more damaging than some general statements that the victim made to the police officer about having some beef with petitioner and several others statements which the police officer didn't even put in the report didn't investigate the other day and the other evidence against petitioner was far more damaging than the it's in these statements did you have any reaction to the for future by wrongdoing issue that may have affected councils early whether or not council was was deficient and i'd be happy to brief that the state's position though is that regardless of deficiency he absolutely cannot show prejudice in any event so i think if you both would send a letter briefs not to exceed ten pages on the impact of that doctrine and have it in two weeks from today that would be most helpful thank you i will a hundred thank you thank you both for your argument the case will be submitted with the clerk call the next case