that mandated that the jury ignore the defense's evidence and leave it at the prosecution's burden of proving every element beyond a reasonable doubt this trial resulted in the grossly disproportionate sentence of ten to twenty years for a nonviolent crime this these areas are alexander nation that after mr powell had been arrested and after being accepted to express questioning that he allegedly stated that he was just removing scrap from the house trial counsel recognize the air objected the pretrial examination however failed to develop the record us that point feel to move to suppress the statement and fail to object a trial when officer would testified i went sorry as officer would testified as to that alleged statement this statement intent to commit larceny that this was the crucial piece of evidence and that all of the other evidence was frankly irrelevant as the point to the intent to commit larceny and the deficiency in mr powers trial counsel was in failing to recognize th and pursue it further prior to trial as well as during trial trial counsel's second feeler was in failing to pursue the erroneous jury instruction issue in that the trial counsel recognized that the habitability of the home was a relevant factor however did not object to the jury instruction did not provide competing jury instructions did not provide relevant case law the case law that was have come am if your client was in the ample direct and circumstantial evidence that your client likely would have been convicted in the event he's found  statement within the spectrum of the other evidence that was presented and the other evidence was weaker circumstantial evidence and so the prejudice cause mr powell was at the prosecution relied almost entirely on this the question of whether it was harmless you say the court heard in its definition of a habitable dwelling what we're saying that the test was the owner intended to return what would you say the correct instruction should have been that there are a myriad of factors that are considered when determining whether the dwelling element of the home invasion statute is met one of which is the intent for the homeowner to return another which is whether the home is happy will or not in their circumstance the jury was manti to ignore all the defense's evidence that the home was burned down that considered and so trial counsel fails to provide competing jury instructions and also relevant case law the case law that was presented by trial counsel as to the us to the dwelling element but is on what the people the trailer case focused on which  prosecution provided which was a distinction between an occupied dwelling and an occupied dwelling which is relevant under the breaking and entering statute but not under the home invasion statute one thing you haven't discussed really is how the a d p a impacts some of the arguments you're making these are not arguments obviously and direct appeal these are arguments to come to us federal appeal and issues of procedural default and deference predominate when we're dealing with these kinds of issues and why or at least some of these issues defaulted  to i guess the failure to object to the improper jury instruction and then asked to ineffective assistance of trial counsel there's really double efforts as the courts have described it in terms of  the does apply then none of the claims that are being raised at this point are procedurally defaulted as to the ineffective assistance of trial counsel claim the michigan court of appeals did not make a procedural decision as to the ineffective since a trial counsel claim these issues in the best way he knew how in general terms which allow the machine court of appeals to deny his claims in a cursory opinion this was not a winnowing down of arguments the ineffective assistance of counsel claim was stronger than the claims that record given the fact that trial counsel did object but failed to pursue that objection and as to the erroneous jury instruction it was evident on the record that all the defense counsel's evidence was made irrelevant by this jury instruction that mandated that they ignore the the statement that he had never made the statement so maybe there's a good reason for the attorney strategic thinking not to raise that isn't as an issue in court if this client has got contradictory statements if i'm correct in terms of my assessment there's no evidence on the record that this was a strategic decision given the information that was available to the trial attorney at the pretrial examination knowing that mr powell was under arrest subject to express questioning yes but under it looking to the tice case the fourth circuit there were there was a case that was similar where there was it was apparent on the record that there was a miranda violation that took place and there was no reason to not move to suppress the statement in this in this case the jury heard the statements so it's irrelevant whether the statement was actually allegedly made or not made is that the jury heard officer would testify as to that fact and officer was testimony was the only testimony  miranda violation were clear and the ineffective since of trial counsel claim would have also strengthen the claims that were made on appeal appellate counsel focused on the factual determinations that the jury had deliberated on especially as to the  miranda violation question focused on the weaker evidence on the availability of other evidence and put the inculpatory statement in the same platform as the other such as the other evidence when in fact if you would have focused on the court jennifer clarke assistant attorney general on behalf of the respondent aptly i would like to focus on a few issues this morning and particularly the sophist in particular the sufficiency therefore two levels of deference apply first under jackson vs mage and virginia and second under ad itself to the extent this claim asserts that the state court in tape or interpretation of its law here the second degree home invasion statute and its definition of dwelling was incorrect it does not present a claim that is cognize the ball and he b s review therefore the district court correctly remarked that the intent or interpretation of the stand is not subject to challenge and he b s review further the jury instruction claim that has been presented to this court was not clearly presented to the state courts or for that matter the district court and proposed jury instruction does not comport with state law as the michigan court of appeals determined and direct review of the habitability of the structure at the time of the breaking and entering is not germane to this michigan court of appeal stated in light of the definition of a dwelling in the statute and in light of the guidance derived from this court's decision in trailer we conclude that the intent of the inhabitant to use the structure as a place of abode is the primary factor in determining whether it constitutes a dwelling neither the owners temporary absence the duration of the absence nor the structures habitability manically prudent structure from being considered a dwelling for purposes of the home invasion statu further the prosecution does not have to rule out every argument except for guilt here petitioner was caught hiding in the house where pipes had recently been removed and he said yes that he was collecting scrap from the house however just circumstantial evidence surrounding him was very compelling and strong therefore as this court has observed even taking away the statement that he made which was admissible and  voluntary there was sufficient evidence supporting his conviction in relation to his claim of ineffective assistance of counsel at trial it should be noted that before trial counsel argued against the instruction that the prosecution proposed for the court to read to the jury therefore a further objection later on would have been futile and counsel is not required to make futile argument this court must indulge every presumption in favor of trial strategy which counsel should be presumed to have been acting further he can the petitioner cannot show prejudice in light of the strong evidence against him he cannot show reasonable probability that but for counsel's error even if there were one which we contend there was not through fault of the proceeding would have been different that cannot be said in this case in short the court's decision below should be given at the deference to the district court correctly determined that habeas relief was not appropriate under these circumstances and therefore i would ask that the court affirmed the district court's decision and if there are any questions i'd be happy to address them at this time few points yours the substance of the jury instruction has been raised at every point of the litigation it is part and parcel of the sufficiency of the evidence claim that was raised on direct appeal and secondly irrelevant and that this court does not have to make assumptions on the record like in the recently decided to locate supreme court recently reviewed the record is clear that there was a miranda violation when mr probably is under arrest and subject to express custody and even if this court does not review this this case the noble under under the machine court decisions were objective unreasonable applications of federal law  appreciate you taking the case on that basis it's a service obviously to mr powell and to the system at large and we appreciate that and miss gordon we appreciate your argument today that law schools that you're extremely well prepared probably have had multiple courts and mock arguments things of that nature and so i you know to speaking for myself i thought you did a very thorough job in preparation and presenting arguments on behalf of your clients so thank you for coming and hopefully when you graduate you'll you'll argue before us in this park you did a great job and behalf of the wharton government so we thank you as well so very well argued  y both sides we appreciate the arguments and the case will be some minutes i thank you