without the legal information that she needed to make the strategic choice first she ignored fairly basic case law on how and when witnesses can claim th i'd like to start with what appears to have been her main reason that calling mr coral the witness quote would have put cocaine in mr smith's hands and both that might have been a legitimate concern if that was the book calling mr karl would have done but it wasn't a concern because it wasn't what calling mr karr would have done there are two basic legal rules that lead to that conclusion first witnesses can and in fact have to claim the privilege on a question  extreme sanction unquote and only gets used as a last resort and i think your honor just to seem to make the point accurately when he said the question is whether it's going to prostrate cross examination and here i submit there would have been extremely strong argument that if all mr kroll got up there and did was testified i went up to mr smith i asked where i could get drugs he told me getting down the street that's where i went and got the drugs they don't need to then ask what he did with the drugs that have affected cross examination what really matters is cross examination about that initial conversation with mr smith cross examination about what he did afterwards when he went to get the drugs and that kind of thing i think a state court judge a trial judge would have been very hard pressed to say that cross examination was truly frustrated by the not letting them out of those additional questions i think it's somewhat similar to the lord's case in they grab say gonzalez case on their facts they said it was improper to strike the testimony when they w lost the concern about aiding and abetting liability your honor i dressed in my briefs there's really just i mean it's almost like someone walks up to me and says we're sort of misty and i said it's down the hall they go buy a soda i'm not aiding and abetting the purchase of a soda  there's cases from other circuits that squarely hold that on these facts and the general standard for aiding and abetting under california law is the same as under federal law it requires a strong intents and purposes a defendant has to quot himself with a venture he has to quote participated in this in it is something that he wishes to bring about unquote just telling someone where they can get cocaine or rock cocaine if they want to it's not fair to say being in the selling of whoever ends up selling it to him down the street wouldn't find the evidence insufficient as a matter of law and third you have to pray that a jury would buy it if the track court let it go to the jury so i would simply submit that that first of all wasn't based on a reasonable investigation of aiding a there the attorney didn't put in some evidence because he was afraid it would open the door to more damaging evidence but he never researched carefully whether it would open the door to that evidence the way he thought and it turned out in fact he was probably wrong here you have a similar situation the attorney that if he put karl on the witness to testify about not getting the drugs from mr smith and then on from somewhere else that he had to testify about what he did with them and it appears that pretty clearly was incorrect the state does make some procedural arguments and i could briefly address those and i think it's interesting that they spent probably three quarters of their brief on those arguments rather than the substance first of all they complained that mr smith never asked for an eviden and if you follow the americas the california case through it's pretty clear to i think what you do when you look at the petition if you look at the allegations on their face and the allegations on the face here one of the allegations is quote a lawyer who fails adequately to work the question here was whether of course in fact that was true and in fact what we end up finding out from the evidence that was developed to the declaration hearing is there was an inadequate investigation created it turns out that the inadequate investigation was inadequate investigation of the law as opposed inadequate i guess investigation of the facts but it was inadequate investigation you have an attorney here who made the seasons based on please the court what the defense lawyer had in front of her was a defense that she planned on putting on where she was going to she was going to challenge the police officers ability to see whether or not a race or sized piece of rock or really had been exchanged she has some evidence from the quinary hearing that arguably could be portrayed as the police officer going sideways on that issue and she also had a defendant who didn't buy appearances he's somebody who would be likely to be engaged in cocaine transactions the alternative that's press now is that she should be put on evidence from the  codefendant as the defense attorney explains that are out there that that's going to result in at least one or two scenarios it's going to result either in portraying the defendant not as an innocent person but as somebody who's in gauged at risk here the downside risk is that regardless of how pearl testifies under either of the scenarios he's either going to place the cocaine in the defendant's hand which is a worst case scenario worse or case then what you have going  in or she's going to associate the defendant either as an aider and abettor in other words either subjecting him to aiding and abetting live military or at least associated him in the eyes of the jury with aiding and abetting conduct either way the defendant is reduced from being an innocent to being a participant under strickland you can't have hindsight second guessing and under jackson you can spec and yes a if a lawyer had done what it is now alleged she should have done and the defendant had gotten convicted we would be here again today and the arguing would be why the lawyer defendant or this unsavory character but the main argument is simply an exhaustion argument what happened here was that the petitioner went into the state supreme court and made an allegation that the lawyer the allegation specifically as far as i understand it is that the lawyer asked the defendant asked the lawyer to interview a witness allegation was there for in court the allegation in the california supreme court i think i think it's kind of hard to figure out exactly what it is given the pro dure of the petition but i think i think what it literally is is an allegation that the defendant asked the lawyer to interview colonel an assertion which is really more of a legal search and that an even if even if pro se i think you still have to make an allegation as the california supreme court requires reasonably that the allegation has to set forth with particularity the underlying historical facts that make the claim you can't  the factual allegations that were before the california supreme court were a lot like the allegations that the ninth circuit might see in a regular appeal where you don't have any kind of indication at all about what the lawyer did why the lawyer did it and how it might have made a difference you don't have any information about what about what the foregone testimony might have been or you really have something that can't be distinguished in any in any principled way from just mere speculation that could arise acknowledged throughout the my phone's brief that this entire case rests on the factual allegations that were alleged for the first time in federal court none of this information about the lawyers thought process to you know see just one problem well no because under in ray robinson i think it's pretty clear that you can make an argument that if he didn't have reasonably the wherewithal to locate the the the evidence that made up his claim that that is an excuse for bringing a claim in a man's family life so there's nothing that would have prevented this defendant who i think could have presented these allegations probably in the first place but if he couldn't there's nothing that prevents him from going back to the state court on the you little federal your honor first of all for the dress the last procedural points for i think your honor just as has a very good point how was he supposed to know what this witness was going to say and what the witness would tell the attorney certainly the latter is sufficient to if there was in fact no follow up investigation and if you were an inadequate investigation no defense attorney in his right mind would get a letter like that from a potential witness and then not check it out not investigate both what the witness would say and investigate the legal underpinnings that would affect the admissibility of that and so on i respectfully disagree that in the circumstances of this case with the frosty petition r mr smith was somehow of life to make some additional factual proffer before he even got to the evidentiary hearing in state court mr carle the witness and this is in the record was that m scott a probation violation may have everything he could produce and made the allegations he could make the allegation is a little broader than just he didn't interview mr karr the with that attorney didn't interview mr cross that there wasn't an adequate investigation and i think especially given a pro se invent pro se plain at that includes both legal and factual investigation as allegation that it witness wasn't called as witnesses and it was an allegation that there wasn't any good strategic reason for not doing so i think that's fairly encompasses the claims that are that are being made here the fundamental premise is that there was an x twelve authority witness the trial attorney didn't call the witness and this was because the trial attorney didn't check it adequately and now we find out that the trial attorney did factually interview the witness but made a mistake about the law to control their decision whether or not all the witness but i think that's well accomplished within the claims of an initial pro se petition in state court  unquote cocaine in mr smith's hands and quote and that was simply incorrect it would not have done that because one mr carl as he told me and it was proffered would not have testified to that he would claim privilege and to it was extremely likely if not certain that that testimony the testimony he did give would not going to been stricken and even if it was it wouldn't have been any and if they are i say the problem here is that she based her decision i think correct law not