experience of the district attorney and in his opinion jason clare to the best case to avoid transfer that he had seen in twenty eight years of practice the family hired a different lawyer and that were made a serious mistake of the transfer hearing he you know partway through the hearing probably about eighty percent of way through the hearing he waived transfer agreeing to do something or else trial in adult court is a reasonable probability that jason clarke could have avoided transfer had they fought the issue out now my brief lays out there are two very strong reasons to think that you could have had at least a reasonable probability of aborting transfer one is obviously is extreme youth was fourteen until about one thousand nine hundred four tennessee had prohibited the transfer of someone so young th but there's a widespread belief that transferring people so young is is not right and the a b a guidelines continue to advise against allowing the transfer of summons to me and i've statistics showing the transfer of people the age even for violent crimes is very very low you know do they look at the age at which it was committed to the court or the age at which the transfer takes place your honor for that question eligibility for transfer i believe that look at the age of the juvenile when the offense was committed now you know it is tied in ages tied in with the hope of rehabilitation of course and so that point i suppose you actually look at you know where the person is today and how old they are for example jayson blair was fifteen by the time it was transfer hearing but still loud for roughly four full years the state could try to rehabilitate him before you would be released and that is the other point i mean all the evidence of the transfer hearing at least all the scientifically sound opens pointed in favor of rehabilitation record is that he would be released when he turned nineteen i believe but the state may know better than that what gets us beyond the realm of speculation as to what the judge beyond the realm of speculation as to what might have transpired into the realm of reasonable probability various around and you know that is the position of the court isn't in any strickland or brady we're looking american thing is a reasonable probability that the outcome would have been different and i think i think what we have here is you know we know that the judge was not convinced by the crime alone that the juvenile had to be transferred favored retaining him in juvenile court because you could be readable for the major depressive disorder that he was diagnosed with you know you know as soon as he was arrested he was sent to the state facility for the very purpose of said we we don't know when you didn't give us any more information right in you more information are on what the hearing what the evidence would have been the had the hearing continued to state court faulted your client for not presenting more testimony to convince the court that he did have a reasonable probability it didn't park fault him for that but then of course burnett what do you do with the trial judges statement about there being overwhelming evidence and i wanted to see what the defendants would put in yes your honor you know the that juvenile record judge was testifying about the record he had seen six years previously and you know in passing he mentions a year and see no evidence for example on you know was the gun loaded or unloaded how do they board the bus now the reality is he had heard that testimony when you look back and the same for rates of rates of recovery rates of successful treatment dr burnett had to us to find that the rate of successful treatment of depression is eighty to eighty five percent he had heard those numbers even though six years later he was kind of thinking well i was still waiting to hear some of this this testimony so we had in fact heard that testimony and that's what really makes sense to go if the first lawyer had conducted the hearing what more would have come your and he did testify to what the old you were brought he said he would have brought more people from the middle tennessee a mental health institution which of course is the state institution the the doctors who would come and talk more about the facilities and so forth but you know i mean any state is going to have the facilities to treat depression and those what dr burnett said he did testify that the state has a facility where you c one that most courts have followed and this court in white versus souders followed is to send it back to the federal district judge to hold it to hold a transfer hearing and decide if the transfer would have been appropriate really that the remedy in the industry for a strictly violation has to be to put the person where they would have been absent the violation and  because this juvenile was in a mental facility because he'd been found not guilty by reason of insanity and some other charges so they can court didn't want to do that in that case i think that is a possibility but otherwise is the son back to the district court for a juvenile hearing there it wouldn't nother layer here though isn't there in that this is not the appeal the state of the post convention proceeding you've got to meet the hey b standard and that's that makes the hill a little steeper decline doesn't it it doesn't generally are in this case i don't believe it does and we've laid out arguments on those points once and state is completely declined to you know would the outcome be different you have to prove it would have been different and those are clear error in describing the standard in boston as this court said that there is enough to set the they left out very important facts which is dr drew's o pinion on rehabilitation both mentioned dr cruz reports but then pretended like it was irrelevant by saying well dr silicon which is a totally different question or totally different statutory prong so they acknowledge it's in the record but then they missed describe it to make it irrelevant when in fact it was probably the most relevant opinion out just dust and to be of violent killer for the rest of the life and what was wrong with her her opinion in that regard you are that it was not the genetic theory of the the genetic theory  was his gene makes him more so susceptible to depression because it's not a taking certain improperly which is precisely the kind of thing that medication can treat so in subject to depression but those treatable and sixty four the transcript i believe is that she describes how she was hired and what her role was it looks like it was initially just going to be to review records and then the day before they called her an asteroid come in and talk about the miranda issue and she came in and gave  morning may please the court next by norm have the state of tennessee in the respondent morton i want to lead off by dressing the standard overview issue and as the court probably knows maybe one of the most confounding aspects of twenty to fifty four cases is all the sort of layers of review standards that we have interviewing the state courts determination and as i understand it at least as far as the depth of standard is concerned it counsels argument is that the state court essentially misstated the strickland search for prejudice  and i want to address that in a context of the basket opinion and lead off by saying that first of all the baskets opinion is not a published decision is there and is therefore not binding on this court but more importantly if you study the vazquez opinion it's interesting because the court's  misstatement of the strickland prejudice prong in that case in fact had both the trial court level order in other words the post conviction court level and the state appellate court level opinion in other words that restatement occurred in both of those levels of opinions here we have is a trial court level opinion in other words the post conviction or level opinion which repeatedly correctly stated the strickland prejudice prong and then you have a tate appellate court opinion that also correctly restated the strickland prejudice prong i produced prejudice prong and then we have this one road misstatement of the prejudiced the stricken prejudiced prong it's sort of the court's last concluding statement in c c s opinion would suggest that that's totally sort of not on all fours with with vasquez at all it is sort of one road misstatement and it's sort of calcutta or insulated by multiple correct three statements that purchase prong so in light of that would submit that the ordinary twenty to fifty to the supreme court by holding that in the absence of exculpatory witnesses does not demonstrate that counsel was ineffective and that they'll come of the trial would have been different had they been witnesses main problem with this case insofar as the previous concern is this total absence of proof during the post conviction proceedings to support this idea that had counsel put up put on this proved during the juvenile counsel transfer hearing it would have made a difference we just don't have that proof witnesses that he had lined up and the strength the big case i mean it's just opinion but he did have he did have people lined and he did have the judge i guess i'm not sure what more i mean it it's not a but for standard and when you have a judge who says i haven't decided yet and then there's more that could have been a mean it almost seems like you're making the defendant prove that the outcome would have been different as opposed to that you know there was a reasonable probability given that the judge hadn't decided it certainly is the petitioners burden to prove a reasonable probability that the outcome would be different and yes your honor there certainly was proof that was put on during the post conviction hearing the problem is is that proved didn't take the form of those witnesses an interesting lead the proof that was put on about counsel testifying about the witnesses that he had line up actually was it was the proof that actual transfer  put on it was dr burnett it was some additional witnesses from from care providers that won't put on during the transfer hearing but there weren't very many specifics discussed about what those people would have testified to that you know was going to be testimony he suggested that they would have been treatable at these these facilities but that's no different than what dr burnett actually testified about during the transfer hearing and that leads to another point that the state wants to make about this and that is sort of this misperception that the juvenile court judge did not make a determination here to be clear the juvenile court signed or written transfer order that made factual findings and legal findings that were based upon the record that had been developed during the transfer hearing up to that point it certainly reference this agreement that counsel had made or this you know this waiver of the transfer if it had knowledge that counsel said we reached this transfer but notwithstanding that the juvenile court judge testified at the post conviction hearing that he would not have signed that order but for sufficient evidence to support those requisite findings and interestingly the transfer statute in tennessee makes that mandatory it says you know it doesn't say we're going to transfer but it says the court's bound to make these findings based on the evidence and you can sort of read that to  additional wherever he did your honor and what we argue is that there are sort of a space between the point at which this in chambers meeting happens where he surprised the council's coming up and saying we agree to this transfer when he said that he had made a decision up to that point that's reasonable because he's not been called on to make a decision but after counsel says i'm agreeing to this transfer and the court goes back in chambers and it's bound to fall the statute that requires him to make a transfer determination based on the evidence and based on the statutory factors involved he has to go back there and apply that evidence to the law and make those requisite findings so that's what we argue is that there are sort of the space yes he had made that determination at the point this in chambers meeting happened but it at the point at which he was obliged to sign this transfer order make these findings he had made up his mind and again he did testify at the post conviction here and that he would not have signed that order but for the evidence to support the rather than the question because what more would have been put on had they continue would that have tipped the scales back exact your honor and it's far as that's concerned we have a really complete devoid of any proof of life and there are ineffective assistance of those that may that may well be the proceeding was the same lawyer that did the post conviction is the study or that was a different lawyer ok we had initially appointed counsel who was the public defender another retained counsel who handled the transfer proceedings and agreed to the transfer and then a later i'm not sure if they were probably appointed counsel who handled the post conviction proceedings but given that we do have this transfer order with all these findings based on the evidence that was developed during the transfer hearing the petitioner was obliged present evidence the post conviction hearing to establish a reasonable probability of a different outcome by the juvenile transfer judge but for counsel's sort of an agreement to waive that contest but in your position is that your position  court disagreed with us as to the deficiency prong sent up here today i would submit that we still take issue with the finding of deficiency because again without calling counsel we have this presumption that operates in strickland that says without counsel being c asked about his alleged deficiency there's a presumption that any action or inaction is supported by a strategic decision making that language is in strickland itself and so without calling counsel to confront him about these alleged deficiencies thought that he would do better if he the greed to be waged but the problem is they don't have any insight as to actual counsel specific decision making process and not just submit sort of a hypothetical here and one that i noticed in the record that wasn't flushed out because counsel wasn't called and that is that ultimately and opposing counsel acknowledges ultimately petitioner here was not sentenced to life without the possibility of parole which was an option that was on the table he was alternately sentenced to life with the possibility of transfer and the problem is we never had counsel to get up there and testify about that and even though even the juvenile court judge acknowledged that there may have been additional reasons or some reasons that counsel waive this transfer and he just couldn't recall and even opposing counsel acknowledges that you know his memory of this was a little bit wishy washy on one hand he says oh i didn't make a decision yet we have a signed written order that he did make a decision and then he would have signed that order but for proof to support that so there is some something in the record that says could suggest strategic action on counsel's part we're not contesting that means proceedings again because we're sort of stuck with the state courts determination that there was a deficiency so we're here today to defend solely on the prejudice prong but that is out there that without calling counsel that doesn't just on the deficiency prong it can also weigh on the prejudice problem because had counsel got up there and said i waive this because the state was going to agree to life with the with the possibility of parole that would weigh on the prejudice wrong but again petitioner the situation like that i mean it's it's so discretionary i mean there are guidelines but it's so discretionary and you know that going in and it's really just a matter of what that judge on that day leans from the testimony in the case like this where there is real testimony about rehabilitation and you know you can talk about a reasonable probability but in the state court said there wasn't one but i don't know how you argue that there wasn't one if you have a judge who was engraved with the testimony and wasn't ruling it out the problem that this court faces though is the question the question that this court is bound to answer is whether there's record support to support the state courts determination and yes there are some testimony from the senate side that he could have been rehabilitated the problem is there's there's also testimony from the state side that he also unfavorable testimony from the defense experts as well in terms of defendants you know history of violence in the i mean the history of anger problems in a way that manifested itself in violence so there's not sort of a complete devoid of record support for the state courts determination that the juvenile court made the right call as far as the interest of the community and the need to have this person in archery did but that's that is that the question whether it was the right call i mean  is that what they decided that the juvenile judge made the right call now what they decided was that that the petition had failed to prove a reasonable probability of a different but we know what he would have decided no i think that the judge the trial the transfer judge sure did make a decision and that's reflected in his written order which reflects the agreement of counsel but also reflects the evidence that was submitted at the transfer hearing up to that point and you compare that evidence which there is certainly record support to support the transfer decision and then you compare the evidence that was submitted during the post conviction proceedings which is essentially the hearsay testimony of previously appointed counsel who didn't even represent the petitioner in the context of these transfer proceedings it's sort of speculating reflecting or recounting about witnesses that he would have called to testify and not even being specific about what that testimony would have been and other was largely being cumulative to what transfer counsel actually put on during the hearing and that's all we have in the post conviction hearing to sort of confront the transfer judge's decision and in light of that would submit that the state quirk reasonably concluded that the petitioner failed to put prove a reasonable of a different outcome for counsel's agreement i do have a question if the judge initially had denied the request to transfer what actually would is correct your honor and then he would be totally unsupervised only unsupervised and that was the court's concern is as to whether or not there had been proof of stablish ing that either keeping this juvenile out of custody or even just keeping him in custody until age nineteen would keep the community safe given the violent actions involved in you know we sort of get lost in these hideous cases to get away from the facts but again this is a situation where the bus driver got out of this petitioner for chewing tobacco on the bus for depression and he got mad about it brought up by god and shot her multiple times at which point the but the bus still in drive flew down the road and almost impacted like a telephone pole or a tree and another student had to intervene by going in the brakes so the  was certainly in just the concern and even even a point to initially appointed counsel acknowledged he didn't you know he said i had all this proof but to be honest i thought it was unlikely the trend of the transfer was going to be denied worse treatment  saying the government just admitted that it was already in the record that the ready was the testimony about rehabilitation was already in the record that was already in the record through dr burnett and of course their doctor tr curry's report the extra evidence the other doctors would have been like icing on the cake what was really last year was the opportunity to make the judge make up his mind to make the decision based on the evidence that was there and you know they passed up the right to argue to resign in a persuasive manner in organized manner and try and get the best ruling they could and that's what was really lost  the judge did testify his last word on the issue was that i did not make the decision that's what he said that perhaps he felt he could sign the order because it wasn't beyond the pale to to smith versus you that this is just because the judge signs or agreed or you can't assume that he made all the findings in it if there's any reason to cast doubt on that fact and you know i mean that's the case here i mean the court the judge himsel has testified that he did not make those findings that himself so it is right to look when looking at a reasonable probability to look at the record of an event and then imagine it presented by a capable lawyer pushing for a favorable outcome for his client and i think it's you know the reasonable probability standard is kind of mushy and doesn't mean you're more likely than not to win means of there's a chance and  the fact that the judge was still open to it after hearing about the crime and so forth really goes a long ways to proving that you mentioned in response to a question that one really one method of really would be would go back to the court in the court were in effect re conduct the transfer hearing in my stating what you said correctly or the and this question you may not know the answer to and i certainly dog but would  the defendant's current mental state be relevant in that hearing or does the judge have to go back in time because he's reviewing the correctness of a state court decision the six point  honor i i would guess that you would look back at that point in time although i suspect that we were thrown dry and bring in proof showing how things have really turned out