opportunity to argue telephonically as the court is aware mr morgan was convicted of an assault with a deadly weapon a bat his conviction was affirmed on appeal and he filed a twenty two fifty five petition which was s mind when i studied the this case great book with the jets kleinfeld it looked to me as though the prosecution put on a really really weak case they didn't put on the victim they put on the little girl who basically said that the defendant didn't do it and with that weak a prosecution case a lot of good defense lawyers would have just rested and decided to take their chances on that on the old he already as we've been calling in defense work and in addition as for putting on the wife's testimony that the defendant i don't remember wife common law wife all right i want to pick up on something that you just said to me because it's very true as defense counsel many times we are faced with a case where we really have no witnesses we have really nothing substantive to present our case basically based upon cross examination to poke holes in the state's case and rely upon some good argument and that's what we rely upon in an a in a case to show that in fact there is reasonable doubt your honor this really isn't that case not at all now i have filed a very lengthy brief here i hope it's not one that was filed nazia i'm it was filed to show you that to try to help the court assist the court to show you why it is there is  ineffective assistance here and let me be specific i'm not going to go through all the details of all the witnesses because that's been set forth and i know the court's read and aware of all of it there is one issue if nothing else this morning that i would like to stress it in its importan because i think the council failed to present this and it segues into the importance of snuff testimony and washington's testimony in that tiny tiny was an extremely important in this case and here's why there is no doubt in this case that there were two nine one one calls made from oboes residence the first one was made undisputed about four thirty in the morning the second one was made at seven fifty five in the morning the dispatchers testified as to this and when it comes to deputy kennedy and deputy candidate he was the first was the officer that talked to ogle what about four forty six in the morning there's no doubt that the person who was us to decide when this assault if it happened occurred and that's why it's important because we know that he was there at that time in the morning that we we understand the significance of the testimony of men and washington because we know when deputy cannady got there and we know she says she got there for forty six in the morning to fifteen minutes after lonnie's on the phone at that from that resident talking to the dispatcher we know he's not there anymore he has left when deputy cannady arrives deputy kenedy talks to this woman and she's not injured she's not complaining about any threats nothing has happened but what does that mean why  important that's important and in terms of the timing of these events for these reasons we know from this testimony that he says he took blondie more than over there at about four fifteen four thirty in the morning we know from the sister washington that she's of wanting to arrive at her place at about four fifty four fifty am in the morning so what you may say to me well i w attention to an excerpt of record it's at two twelve through a bit think on the number but i believe it's two twelve and what this is is this is the police report a deputy is the police officer who talked to this woman and and spoke to her later on in the morning and about after the seven fifty five am phone call is made and there's the complaint in and she is an interview of all though and she's talking on the day this happened right after that the nine one one call at seven fifty five she's telling deputy act in it for a four o'clock hour and a friend dropped morgan off at the residence she then says i was assaulted and she goes into details of what happened so she in essence is telling deputy acton shortly after this bren drops this person off this assault takes place now remember aren't going to testify she's going to testify ever the woman says anything exonerating about the man the woman is covering up for and where anything that implicates man in a crime that's the truth and even if she calls at about two she's got two am and four and in her mind when she has indicated that these two phone calls were two and four we know that's wrong we have to pin upon her word for that we don't have to bend upon my client's word for that we know that those calls in fact were made when i said earlier proximately four three to four thirty in the morning and seven fifty five but i want to get back to to the first judge's comments to me because i think it's key to this case i'm hearing from your them bleed over on the line but in any event or what this is my point this is on this is on the date of ten twenty seven ninety six when she's mad at this client and she's reporting to the police that that she's just been horribly assaulted by him she's angry at him she's mad at him she wants him prosecuted she wasn't trying to recant protect him at that point this is it this is it's seven in the morning on the day this happened this is before she decided to recant much later at the detention hearing when for the reasons that ferraro would state all the psychological factors kicked in and she's decided now that she wants to protect them so when you say to me that you know that this is on times and i think that's really irrelevant i think i think but let's face it none of us what we look at you know if you're in a in a in a situation like this you may not be looking at the clock i'm not holding it against the lady or think she's a liar because she says two and four she's made a mistake on the time it stead of getting it to two and four we know the exact times we know there's two instances so it's at four thirty and if it's seven fifty five but everybody in the else in this case the deputies snap or shinton are talking about it in terms of the first thought phone call and the second phone call and so that's why i mean what happened at four thirty though many tell you why perhaps more than focusing on the exact time the sequence because she's saying the assault occurred right after the friend dropped the friend dropped him off and what i'm saying to you is that smith says he dropped him off at four thirty and she also told at a later time she told williams now this is later in time but she mentioned to williams who was an investigator i think for the defense i'm not sure of regardless of whether we pan it down it too or it for this is a situation where the significance is the timing of it in terms of the assault is occurring soon after the friend drops this person off and we know that smith says that he dropped this person at the drop my client off at approximately four o'clock or excuse me four fifteen four thirty in the morning we know a nine one one calls come it comes in at that time we know that for sure we also know for sure that one is on the line we also know for sure that he's gone by the time the officer gets there th daughter's testimony that in his twenty six years on the bench he had never before seen direct evidence or nation of perjury perjury permeated the victim's testimony furthermore the thrust of the victim's testimony was going to be my bad i was on alcohol i was on cocaine that was going to be nearly a ridiculous comment to put forth in light of the fact that deputy sheriff kennedy at four thirty said she showed no signs of alcohol and no signs of cocaine later at seven fifty firefighter esthetics who had medical training said that there was and this is at page one forty objective witness who saw this victim said no she was not under the test under the influence of alcohol or cocaine for the mother victim to then get on the stand and say yes i was in light of her recant problems with perjury at trial the district court upon inquiry because nicole the daughter had to testify twice because the first time she had problems why did she have problems because i talked to my mom and that's when george broomfield said he'd never suggested here that she was unavailable or she was unavailable because the lawyer appointed for her made the representation that she would assert her fifth amendment rights and therefore she was not available because she was in a trap the victim mother said to deputy act and was morgan the defendant had returned to the house there's no mystery how he got back to the house because when he left in the first time and that's deputy kennedy at four thirty  no way there was either deficient performance or prejudiced and let me just quickly run through the specific allegations take take mr smith that he shouldn't call this a witness in washington ok let me go to washington because that's even quicker washington says that she goes to sleep at six fifteen and she doesn't see the defendant there after well if the assault is roughly at seven fifty eight because that's when nine one one is called then washington has nothing that is helpful in any way now saying that he didn't remember anything else about that night and that he didn't he didn't see anything didn't see loni with a back to two years after the trial and almost three years after the incident we get a long affidavit f it's memorialized as the interview by the bureau of indian affairs investigator so mr smith as of the time of trial didn't have anything helpful to the defense that's mr smith now we have also done judges are concerned dr scott's statement about he would have expected the injuries to be more severe would have been relevant and very important if the crime had been assault resulting in serious bodily injury but that wasn't  pointed out earlier it actually benefited the defense not to have the doctors there because it enabled the defense to argue that the government simply hadn't met its burden that we didn't have a doctor testifying we didn't have a victim trying the case the decisions were reasonable dealing lastly i guess with time frames again nicole said it was a light out with her when mommy got hurt that's a page ninety one of april ninth it's not like at four thirty nicole said that the deputy kennedy testified that it was dark at four forty six when he went there  acting and firefighter essex were there at seven fifty or eight o'clock when it would be light out and that's how you show that actually it is the second assault when it's light out that this occurred and there is no time frame and then there is no