rejected mr blankenship's ineffectiveness claim on prejudice grounds however with the court's permission and if time allows i would also like to briefly address why i think this court should certify the uncertified issue in order supplemental briefing on that issue the n a reasonably determined mr blankenship was not prejudiced by improperly characterizing the evidence against him is substantial and by also failing to consider how the improperly admitted evidence bolsters this to bolster the state case while at the same time undermining mr blankenship's there was no physical evidence connecting mr blankenship to this crime this was a he said she said case and the victim was severely impeached she was first impeached by her siblings who said she was dishonest manipulative and a liar and she had a good relationship with her siblings her sister lived with her she said she had a great relationship with her sister she said her brother was her best friend despite those good relationships both of them told the jury you shouldn't believe what she's saying the victim's mother who is divorced from mr blankenship also wasn't sure whether she should believe her she said that she didn't know who to believe it's what's cut right to what i think is the important point for you and see if you can help us on i state supreme court says it doesn't meet the second prong of strickland doesn't doesn't demonstrate prejudice doesn't strike demonstrating a probability that there would have been a different result and we're supposed to defer to that tell us why we shouldn't defer direct appeal i would find your argument incredibly persuasive tell it tell it tell us why this weekend we can find that the state supreme court was unreasonable whatever that means they be a standard certainly is a difficult one to meet as it's meant to be but in this case i think we've met it and the reason why is because what the nevada supreme court did when it rejected this claim is that essentially said notwithstanding the prior evidence there was sufficient evidence to convict but it also went on to say and i can find the exact language when i'm sure you're familiar with it we find that there's not a reasonable probability that but for the introduction of this evidence there would have been a different  result so i think its description of the evidence is substantial isn't it isn't the deciding point in the case it's rather that we think there would have been a different result how do we measure that i've never known how to measure it but you're obviously are going there would have been was sort of a critical witness so her credibility was critical she was older right she was much older than g b and she said she testified one of these incidents could not have happened so if the jury believed her then they necessarily had to disbelieve but when there's evidence now on the record that there's a suspect they suspect that mr blankenship also abused her suddenly she has incentive to lie she has incentive to lie that was not in the record anywhere before the count did prosecutor never argued any of that the point what the prosecutor did argue in the closing argument was about there was this other incident where mr blankenship indicated that he had examined breast to see if there was an abnormality and the prosecutor did bring that up in his closing argument which suggests or at least implies that there's this sort of underlying current that mr lincoln should also be used so unlike of the district courts alternative theory that this was a strategic decision to counter i think in the words of the district i'm sorry to count a right to counterpunch i think there's two answers to that and the first is the trial counsel clearly exhibit a strategy to keep that act out i'm he successfully was able to keep out prior allege incidents of sexual assault and he also mentioned at other points we don't want to talk about these we want to keep out bad acts he successfully excluded the evidence of larry a front or about the confrontation that he had with mr blank in chip at a grocery store  and the other answer is that the theory of the case here was that the victim was a willful manipulative teenager who lied who made up the story the theory of the case was not that it was a police investigation gone bad so there was really a reason to impeach the police which is what some of the the bad acts that came out were it was like oh are you you know you're just pointing at my you're home how do we know how do we know that  i mean i think there's two answers that mr blankenship was pro se both in state court and in the federal district court and that if this court does agree that they and reasonably determined to prejudice one option it has is to remain on this case to the district court for a hearing if we've come for twenty to fifty four d that it might be appropriate to take new evidence on the prejudice on the prejudice issue if this court is on shore or excuse me on the deficient performance issue well i think what the district court was saying essentially was that  a choice which which incident are you referring to trying with the chorus of cross examination i mean i would argue that at least one one of the exchanges the one that involved in the the suspected sexual abuse of d b that one was one where you see it getting worse and worse and escalating and snowballing into ultimately you know what it appears to me from the record that counsel has sort of lost his temper and he says oh is your s p working now to the victim or to excuse me to the witness so i think in that case the answer for that one at least is it doesn't appear to me that it's sort of slipped in but instead that he's escalating scummer sation he specifically asking the question and another example of that is when the the evidence of mr blankenship's criminal history comes out and then he offers well was it an armed assault or excuse me it was a domestic battery it was a domestic battery he offers that and certainly you know there is a reason and i think mr connor pointed out she tried to minimize the impact of the prior convictions when he says when prior counsel says well it wasn't a felony you're right but then at the same time he lets testimony that was a domestic battery in a case and then and then later there's the evidence of course about the  the domestic battery incident with the victim himself herself which she which involves him throwing on throwing her on the floor apparently pulling her shirt off and then he characterizes that as a as a father daughter squabble and i don't think the jury or many people would be persuaded by that character if you know in a case that you characterize i think accurately as he said she said case what effect on our prejudiced determination does it have that your client didn't the question was really her credibility not your client's credibilities and you never took the stand and this stuff seems marginalized to her credibility i understand as to d b s credit credibility but as to as to the victim's credibility well how does question i think that it impacted her her credibility by shifting the argument from this is a will for will for to willful teenager to this is a teenager who's abused by her father physically right the physical abuse there's not even a question about it at this point it's been a listen it's not it's not him it's not countered so it goes the narrative changes from one she's making this up to no this is someone who's abused in many different ways thereby bolstering her credibility a more at the same time undercutting the defense theory which is this is just a willful teenager in a strict father you know about a minute left you know on a reserve thank you do we do with the nevada supreme court's statement that there's no prejudice because the evidence was substantial that's not the test is it well your honor if you look at strickland is that the test that test under strickland is that but for the alleged deficient performance is there a reasonable probability that the outcome of the trial would have been right and the substantiality of the evidence is me a test for whether or not a case goes to the jury you surely you could have prejudicial ineffective assistance in a case where there's substantial evidence can't you i think it depends on the nature of the alleged deficient performance now let's see some substantial evidence in this case and counsel forgot to put on a perfectly believable alibi witness who could say that  pope francis was willing to testify he was with him but counsel forgot to put him on the fact that the evidence against him was substantial wouldn't mean there was no prejudice from that failure what well i mean i don't think you can say that question i can't see such a hypothetical situation like that where you you have actually have substantial evidence establishing the defendant's guilt when he you know he's got up and al exactly this is exactly the same evidence you put out and this is this case you put on exactly the same evidence the state's evidence is substantial i take that nevada supreme court's finding that to be true and yet there is a perfectly good alibi witness that defense counsel fails to put on you wouldn't find in that case there was no prejudice would  you you couldn't could you well i mean if he's got a perfectly good alibi that i mean that's that's yes i mean i think and that's i think what separates this case from the cases that the petitioner cites in the briefing  information that the jury did not receive that could have undermined the victim's credibility that didn't happen in this case what we have in this case is we have witnesses you know that the defense tries to attack her credibility but then we've also got witnesses that support her credibility we've got an end informant albeit a felon himself but from within the jail who was information about the offense itself to the investigator that he that the investigator had only discussed with the victim and so that is to me a very important point about the victim's credibility there's also you have the the the psychotherapist that testified at trial that the victim was able to give very specific peripheral details about each offense and she was  about it but i'm asking a different question so i'm asking whether or not the court made an error of law in measuring prejudice against the substantiality of the evidence as opposed to looking at whether or not the excluded evidence might reasonably have changed the code that i don't do that in this case that's that's i think that's exactly what they did is they they said if you exclude this evidence there's you know there's you know yes ok it's a he said she said case but if we say that about every case like this where you don't have physical evidence of a child sexual assault that gets reported years after the crime i mean are we just going to start i think deterrence is actually asking a different question and his question if i understand him correctly is basically did the nevada supreme court get the standard wrong for getting the evidence in this case did they get the standard wrong because the standard is not substantial evidence it's not it's not substantial evidence in the sense of jackson versus virginia right what the substance is you know sufficiency of the evidence as opposed to substantial evidence and i think if you look at the nevada supreme court's decision at  excerpts of record e o fifty four they specifically lay out the strickland standard correctly and that it's a determination of whether or not the the counsel's error rendered the jury's determination unreliable and in this case there was substantial evidence of his guilt that such that in the absence of counsel and having asked these questions the result of the trial still would have been the same they didn't say i i think i would specifically said appellant failed to show there was a reasonable probability of a different result a trial how they differ corporate clue to the testimony about opponents prior criminal record because there was substantial evidence of guilt not withstanding the prior could i just wondering if there's another way to determine whether there's a reasonable probability of a different result in a case like this is there some other way not not that i can conceive i mean that's  pacifically what strickland says is you take the record as a whole and look at it in its totality and and apply you know looking at it from the standpoint of a conscientious jury who's been properly instructed on the law applying to correct legal standard whether or not there would be a reasonable doubt as to the victim's guilt but i think that's precisely what then about a supreme court did let me try this again with the clarifications that my colleagues who put on the question see if we see if we can engage each other on it you do have to compare the evidence at trial to the evidence that either was excluded or came in to see whether or not this would this would be two seconds strickland problem normally in these cases what we see is a state court saying something right even if there's evidence had been excluded it wouldn't matter because his evidence of guilt was overwhelming the evidence of guilt was very strong all we have here is the notion that the evidence was substantial which is as you recognize sounds like a jackson standard not a not a not a strickland standard someone trying to find out is why you think the nevada supreme court applied the correct rule of law here now whether i result i disagree or i don't think substantial fits within jackson jackson is is a very different standard than what i think than about a supreme court here ok so let's assume it's somewhere in between sufficient and assume hypothetically that we thought that the got the standard wrong on that or would that leave us analytically and i know you disagree with that and you've got some good reasons to but hypothetically if the nevada supreme court applied the wrong strickland standard on prejudice where would that leave us in turmoil are and i think that kind of dovetails into also how i think you have to address the deficient performance prong in this case as harrington versus richter know it's you know there's has to be a well founded error that's beyond fair minded disagreement and there were there was no reasonable judge could reach the determination that there wasn't prejudice and one no one was defense counsel thinking i've spent a lot of time trying to figure out a good reason to do this and i can't i think and if you if you look further into the testimony here specifically into is the next cross the cross examination of the very next witness detective rai he is trying to impeach or attack the credibility not only of the victim but of law enforcement in this case and in i would disagree with opposing counsel's characterization of the theory here at trial because in the closing argument counsel did attack the thoroughness of the investigation and that's specifically what he was doing i see that i'm amount of time go ahead finish or so with respect to the deficient performance prong there was a specific objective that counsel was engaged in here he was  attacking the the detective for the the initial investigator for not having conducted a thorough investigation and part of that was attacking him for not not returning to interview the victim or excuse me the sister in the absence of of the defend it and then but then she was later interviewed in his absence and so there that's i think what was going on here do you agree nevada supreme court didn't reach this issue that if we were to reach you you wouldn't be any difference no i absolutely disagree with that's where we're using a biased person don't they assume deficient perform i don't think they assume it they just don't discuss it ok so they made no he's petitioners burden still must be met by showing there was no reasonable basis for the state court to deny really this is or does is a fully explained decision those are cases that deal with with a postcard denials that there's next sentence of harrington says this is so whether or not the state court reveals which of the elements in a multi part claim it found insufficient for twenty section twenty two fifty four d applies when a claim not a component thereof is has been adjudicated and so once the claim itself is adjudicated the state the federal courts are to give deference to the state courts judgment in denying relief and so if there is any reasonable basis upon which the state court could have denied relief the federal courts are to defer to that so thank you counting thank you for the extra time  two minutes on the clock thank you a supreme court didn't reach the deficient performance prong the correct standard of review is to novo and actually justice i cood a very explained that very nicely in her dissent and i all of the won where she explained when a court has not reached a prong right then performance and there's no statement expressly wasn't going to reach their pro that that's correct and throughout the opinion when the court wanted to say there was no deficient performance it very clearly said that and i think it may say it over thirty times there were a number of claims so throughout other claims it says he has failed to prove deficient performance or prejudice failed to prove deficient performance or prejudice is the same statement again and again and when you get to this claim the court says does discusses how the evidence was improperly admitted that's also what it said on direct appeal and then and then moves on to prejudice so i would argue the best reading of that is that there was deficient performance but alternatively there was no adjudication on the merits and we know that based on how it did other claims right when it did when it wanted to say there was no deficient performance according to his that claim deny that that component and i would say the strong evidence to the contrary here is both that when it rejected deficient performance it did so on the merits and also that it did so explicitly and that also here it discussed how this evident shouldn't have come in i see that i'm just about it out of time and i want to say one more thing about prejudice which is that if this court is unsure about prejudice it's really appropriate to remain and all these claims that were decided on that were improperly dismissed so we can cumulate prejudice