good morning good morning your hono court in this federal he is corpus case is whether mr von hall's lawyer on direct appeal violated his sixth amendment right to effective assistance of counsel now in order to decide that issue this court must review the solitary constitutional issue that counsel actually raised and determine whether he failed to present a clearly stronger issue the only issue that  raised was the feeble futile and virtually frivolous claim the mr hall sentence which was a sentence of less than twenty years two hundred thirty five months was cruel and unusual and  violated the eighth amendment now given the nature and quantity of the underlying convictions sixteen counts six counts of delivery of a controlled substance to a minor six counts of contributing to the delinquency of a minor for three assaults second  identity false identity false information to police a sentence of two hundred thirty five months under supreme court precedent that was not going to be a successful claim so i understand what you're focusing on is the double the double duty there so i want to get some clarity on your position regarding this so there was a motion to suppress filed in the trial court which last corrupt a so it was litigated at some point but you're saying it should have been it so surely should have been brought on appeal yes so i want to be clear on exactly what conduct of the officers was problematic and exactly what evidence in your view should have been excluded because you've got both all right let's assume that there was some problematic if if there was some problematic contact i'm not really sure because a lot of the convictions here have to do with the young woman that was found there that had that you know in terms of the activity that happened to her and also your client hiding in the bathroom and giving a false name and all of that so so if he was convicted of several offenses relatively little evidence it seems to me was obtained from the bedroom and the state presented other compelling evidence including the trial testimony of the victims so what was the problematic conduct what was found and how can you how can you show prejudice here your honor i think i think plainly like i say you're kind of alleging it generally and i can see that a lot of there's no way you can keep the victim from testifying here and that was a lot of the testimony so what is the problematic evidence that what did the officers do wrong and what was the problematic evidence that i don't see that much evidence correct that's going on and papa is the third party that while he he's he's the owner he answers the door right so he answers the door but again and we're looking at you know whether or not this motion should have prevailed either a trial or on direct appeal right under organ state law and i cited the court's two to three cases two of which i think are critically important the wren case state versus red state the welfare check popeye answers the door and paf says they can check the apartment to make sure everyone's ok right because someone's called that there was a ruckus going on so at what point had the officers as you put it confirm that the occupants were all right was it before or after they found the miner here passed out with fresh bruises on her face or what timing is everything here your honor so here's what happens right they come in they say can we come in and make sure everybody's ok mr papa agreed the officer testified that they could come in so they come in now they have somebody that they have and i know that's not a problem to you that's not a problem if they come in because because you could you c infer that he has that off already but the key is the ask absolutely no questions and under the organ constitution you need actual offer to ask nothing about whether or not he's got any access to control over exclusive later ask your client about permission to search what was your client's response your honor here's the problem with your client's response was you've got to ask gordon you're going to his apartment your honor that was after they had already illegally so why it is proof of of actual forty and if your client says the person was actually already is the person who gave the authority i fail to see how that's a winning argument going back to the prior argument and what in oregon law requires evidence of actual authority prior to the search we have to look at your you're right about you're not answering my question is there anything in oregon law that requires proof of actual thora to be obtained before you actually conduct the search orgon the law does not allow i information obtained after the fact to be used to establish actual author already i beg to differ well i said i did cite and the question of whether a person has actually wealth already at the time consent is given is ultimately a question of law and the consenting persons relationship to the premises or items of the search can be proven by facts established after the search judge going back to the person who gave permission judge let me explain the statement if i will at the time he was under arrest he had been taken outside and mr bond hall explained that statement to say i'm no longer in the apartment i'm not there any more i'm under arrest so when i made the statement because it's his apartment because i'm no longer in it he's there i'm not it's has apartment so the going going back to the point of author the officers do not prior to the illegal search and here that's where that's that's where counsel and the state court judge and the p c r court got this wrong there were several intrusions into that room in the apartment and it's the first one that's the problem because if the if the scope of consent was like can we come inside and make sure everybody's ok then when the officer immediately upon hearing that there's two occupants in the back goes back and enters the bedroom without a warrant without already and sees a female asleep and the testimony was that from the outset there was no distress she was not in distress they have at that point established she's ok then when he goes into the bathroom and finds mr ball standing up inside the bathroom able to speak and able to walk and takes him outside in the living room at that point again the scope of consent can we check everybody's ok that's been established that's when the search ends so if so is she ok even though she has t fresh black eyes again they don't determine that fact your honor until after mr smith after they question mr von hall after he gives the false information after they arrest him take him outside then a substantial amount of time later they go back into the park and after they've request consent finally and at that point after they take the female out of the apartment do they determine that she has freshly bruised eyes right and start asking her questions again timing here is everything and it's the first search that's the illegal search because there 's no warrant there's no actual off those no there's no apparent off already and the reason there is not is because the officers you do they ask you to hostin you say it would be unreasonable for the state court to determine there was not that there was actual authority because the state p c r court did not address that issue that's why it was an unreasonable application here the only thing when we look at the state p c r court and with a court found there was that it was determined that that issue was determined on the credibility of the officers that's all the p c r court said and it was officer ballard who offered up the testimony i pointed to and they've decided that officer ballard was credible and that establishes the necessary proof to conclude that there was actual forty how was that conclusion on reasonable your honor we have to look at the state p c r court's determination of credibility finding credibility was not be issue here it was whether or not that was  it please the court i'm david thompson representing superintendent news as the court is aware of the red brief takes the position that the actual authority question isn't even properly before this court because it wasn't raised alone it's not part of the certificate of appeal ability it rides on article one section nine of the organ constitution and unless the court has questions about that particular position that the superintendent has taken that's all that we have briefed in the red brief and i'm certainly in agreement with it was not unreasonable for the state post conviction court to conclude that there was actual authority for mr popof to have consented to the search and that's what was found by the criminal trial court and the question from the state post conviction court was was there in effect any viable issue well  article one section nine actual authority argument was never made below and that wasn't the basis for the sort of the point of the argument that it was ineffective assistance of counsel not to have made that argument the argument below your honor was that it was ineffective assistance for counsel not to have a raised and apparent authority argument in the oregon court of appeals on direct appeal and it was limited to apparent authority that's the fourth amendment standard and it was no talk about raising an issue that there was no actual authority and that's what's required by article one section nine so that's problem i see with brooke that you're complaining i take it now you're complaining about the argument that was made to the oregon court is that correct i mean or the argument that was not made to the oregon no no if and i'm and i'm saying no this argument to the district court there's there's no argument in the district court that cancel was ineffective for not raising an actual authority argument under article one section nine and that constitutes ineffective assistance of counsel under sixty minutes that argument was not made to the district court and that's our principal argument here for why this issue isn't even proper for this court for review now in answer to judge callahan's question what was going to say that if we if we don't really accept your procedural arguments or reach the merits what's your argument that mr von hall has failed to meet his burden under and can we my understanding is that oregon doesn't exactly have harmless error but they have something tantamount to it so even if let's say on the first prong we go with  test would not be met because you can't show that failing to have raised this issue on direct appeal resulted in any prejudice because what evidence actually would have been  petitioner hasn't identified for this court didn't identify it below what evidence we're actually talking about that would have been excluded there was a second search of the bedroom that produced additional evidence and apparently the second was as a result of the first search that right well the second search was a result of the first search but it it was pursuant to consent and there's no question about the validity of the second search as far as i know your specific question regarding a stele here's our position on that point the state post conviction court in our view made a legal determination that there was actual authority in mr pawpaw under article one section nine to consent to a search of the bedroom that article one section  conclusion is a sure state law conclusion because it's article one section nine actual authority and if that is the predicate for the ineffective assistance claim our view is that the state court has ruled on a pure state law question that there was actual authority under article one section nine and that is not reviewable by a federal court that's our view to explain the a still point ok in less the court has any additional questions we do not appear quote did not make a finding relating to the actual offer already of mr papa to give consent to search therefore the district court judge because the state objected that there was no finding about actual authority made to modifications the first modification was to find that papa had actual off already over the entire apartment including the bedroom judge judge simon also put in the analysis applies whether papa's authority to give consent was actual or  apparent and he drops a footnote the court makes no finding regarding the knowledge of the two officers of mr papas actual off already and then he says and therefore the second modification i'm going to grant you a certificate of appeal ability so what the state's trying to do already so you should consider this argument that we in fact objected to to get the court to make findings on and then have him grant the cia it's just plainly wrong now in terms of the evidence judge the petitioner did say what evidence was seized nine of my opening brief  several items including shoestrings a plastic bag with a crystal like substance that initially but erroneous lete tested positive for methamphetamine a syringe a pipe several items of clothing and adult pornography