prosecutor's theory of the case was that ms fisher the alleged victim was bludgeoned at her place on whole road taken to hicks road temporarily dumped the and it states his position of the case he said that they were traveling from her home paul wrote to mcdonald's restaurant in town maybe ten miles in that process they were going down hicks road and she looked at him open the door a little bit he was breaking somewhat concerned shown bucholtz and he reached over to help or and then it happened again he said he doesn't know why they're having a good day and she just stepped out of the car rolled out of the car statement you're talking about he just said she buckled john buckle it open the door about one inch he looked or said what are you doing trying to reach and help or he wasn't sure if he helped or not it was a cougar it's relatively narrow car and and then she looked at him said to me i love you and she stepped out you know it was just hard to believe that one driving the car down the road could reach over and buckle the seat back but i had a cougar out so i know i mean it's just she did he said he doesn't know whether it did he assisted her not but he was breaking in and by the way that whole process there  whole process of the hundred one foot skid that they talk about that took that took one point nine six seconds from the start of that until the car came came to take on credibility or our standard of review with respect to credibility well you have to your senator you have to look at what trooper robinson he was the prosecution reconstruction expert trooper robins did not do an independent investigation he lied five times to the core five times to the core number one he said you know what you can get to that but me tell you why i asked the question i asked and you can answer that question and then make these other points with what seems difficult about your case is you have two different ways of thinking about it if you if the car is not going very fast that would explain why there weren't a lot of scrapes but it would make inexplicable the severe brain injury if  car's going faster that explains the brain injury but then it creates the problem with the lack of other injuries so that's i was thinking when you said the skid the length of the skid in the time that would suggest the theory of forty forty five miles an hour but i don't really care i think you've got to deal with the problem whether you think the car was going slowly or the car was going quickly you have to deal with that problem i think i'm trying to do that the  or said that the car was going twenty four miles an hour at the beginning of that one hundred and one foot skidded somewhere in the middle of that one hundred feet she exited the vehicle he said between ten and fifteen miles an hour that he wouldn't expect these other injuries he would expect he put scratches and what we're saying to the court and we said in our brief these scratches you could also say bruises but what happened at the at the at the hearing the the doctor and mr walsh had testified i'm sorry at the hearing dr bronnie testify sixty five hundred i'm sorry at trial he said that she had three abrasions and one bru testified that one bruise there mr duke among many other things missed reviewing the records tween the autopsy report between the  court in a b s set aside what this jury after a full trial has done because mr duke did not defend his client at all because the prosecutor example like at how do we know that i mean the evidence reading about the state's case it seems there's just a major evidentiary problem here which is that the victim could not exist in the injuries that she had in the storage of the accident that your client had testified about now you know that's the situation m got to deal with what is he supposed to have done specifically what could he have done is the result of any investigation that would have made a difference here he could have been investigated but what would he have found out testimony and most importantly probably a pretrial hearing testimony which mr due course present so that's not a failure to investigate that's a failure to use the information i think the big question is why didn't the question dr brownian even bring it out he allowed the prosecutor to say there was only one bruce and prosecutor welsh through tell me your version of what the evidence would have shown with good counsel would it have banned the theory that the car was going slowly oh yeah that's ok that's your theory the car was going slowly that explains why there weren't a lot of other abrasions and then what's the medical testimony that says with the car going ten to fifteen miles an hour you get this kind of brain injury from going out of a car where's that doctor ronnie's that that even a ten to fifteen miles an hour the irresponsibly that negligently but that it was prejudicial and to shut make it prejudicial you've got to get medical testimony that shows that a car going ten to fifteen miles an hour someone goes out of it i mean first of all at that speed why they're going to land on their head is beyond me but trial or at the preliminary hearing seems completely unhelpful to your client i mean why is it not more likely that mr d decided that he could you think the testimony helps because of this one cross examination  basically said you cannot get this kind of skull fracture fallen out of a car you can't even get it if you fall backwards the only thing it's consistent with is a blow a great force and i believe the death was a homicide that's the gist of his testimony now what's mr duke supposed to do about that that would make a difference here the whole scheme of what happened on hi road was was not investigated by mr do in a goes to dark room in a lot of other things but i mean the grabow guy we got the investigation point but the way you have what you have to do is you have to show with good investigation they would have found this and then here's the doctor that would have shown that this kind of fall was consistent with ten to fifteen miles an hour but i don't i don't see that with good investigation he would have found out the following the sp can i can i continue or not if you want or didn't you say some rebuttal time i just a minute yeah well if you if you want to take up your minute you got a minute but that's ok i didn't understand that  petitioner to prevail and most of the arguments i've heard today were as if you were like a michigan court of appeals panel as opposed to a a b s panel reviewing a district court denial of habeas really now the briefing that was filed by you know what is the theory and now this is not a sufficiency case but what was the government's theory as to what really happened she like when where and how well you know the prosecutor said i don't have to show where it happened it might not have happened on hicks so it could have happened earlier but he didn't say it did happen earlier and that was one of the things that the state trial court you know when i lying you prove you committed a murder there is a michigan court of appeals case that says if in fact you i know it's not being challenged but it might be the only thing that's interesting to me about this case is there's supreme court precedent that says that's ok i mean you can if you publish music you can now you can have a negative case of establishing the elements because so what if the person never testifies right well what happened is we had a statement that the petitioner had given to ted hall and in that statement he admitted i was with her all day and i was with her when she was injured and then he came up with a false explanation as to how she was injured and the district and the trial judge denied a motion for directed verdict saying well if you were there all the time and she was injured when she was in your presence and you've created this false explanation as to how the injury occurred a jury might reasonably conclude that you entered her in a different well the the the he and i mean certainly his statement and  certainly his credibility with that but the real stream of the prosecutor's case is i understand it came from the scientific evidence that this injury could not have happened in this wide and even more insight right and it is correct and there were several nurses and several doctors that also the there were  exposed elbows to her face there was no dirt in the wound in the back of her head her clothing wasn't torn her presentation was totally inconsistent with somebody that went out of a car while it was moving and so therefore his explanation you know is undercut in its entirety and it what's funny about the whole way of proving murder is there's lots of reasons you lie there are the one we're jumping to is the assumption you committed the murder but you might it might have been your brother or and her feet had been dragged one of her shoes was dragged through a board pool and you know they took photographs of the road and you know was there blood in the car yes there was because she was too he drove her to the hospital so that would be expected  and they did not find any blood there so now in evaluating whether or not counsel is in effect of my first point would be that the jury acquitted the defendant of first degree murder so counsel i would get some credit for i mean he has an trooper lied five times you know that's all been refused in the briefing they argue that chronic applies and not strickland well the district court the trial court all said no this is a strict one case and i went back and checked and they don't even exhaust a chronic argument in state court so that argument doesn't work then they argue in their brief that herrington be richer doesn't apply because the michigan court of appeals in michigan supreme court deference on her heritage and the roster because the michigan court of appeals michigan s me we're just issued one sentence orders but as this court knows you go back to the last reasoned opinion and here is the trial court's opinion after the motion for relief from judgment evidentiary hearing and that's a twenty four page opinion the trial judge very carefully went through everything and in fact at one point even said most of the arguments counsel were presenting were based on a misunderstanding of the state's case and then the district judge who was visiting judge she actually said this court must agree with ju lotto box observation that most of all men's arguments demonstrate a fundamental misunderstanding of the state's case against him many of his arguments also overlook the limitations imposed by statute in supreme court precedent and this court's review on federal h claims that's page already forty one sixty so a substantial defense was not on presented the jury heard evidence that this woman had been taking drugs that she was mentally unstable but the statement to try to halt the petitioner said she was doing good that day she was doing fine in that particular day so take it on the procedurally defaulted arguments you don't much care whether we look at it that way or jump to the merits assuming you win on the merits if you lose on the merits you want to address the procedural default i take it that would be correct we have jurisdiction to take either approach and sometimes these in effect of cases they sort of are dependent you know you have to find it was an effective assistance you have to find in effect of us isn't didn't occur so it gets complicated that way and then as to the condition of the road the dozens of photographs and in fact a video of the road the day after the accident were seen by the jury that the jury knew what kind of condition the road was in what how much how gravelly it was they tried to make a big deal about it was not as gravelly as people thought but when you have photos in a video shown to the jury they know exactly the condition of the road  dog did present a defense he didn't have you know and he got the defendant acquitted of first degree murder the trial judge bent over backward and allowed you know a discretionary evidentiary hearing and then a twenty four page reasonable opinion and the district court in finally denying relief so this court has rejected each of petitioners claims of ineffective assistance of counsel and firmly rejects that's what she said she firmly rejects his contention that post conviction trial court's order of fans reason so this was a reasonable decision by the state court the district court properly reviewed her opinions one hundred five pages i've never seen an opinion so she thought only consider this case and resolved it in a manner consistent with the deference that on garp indians are the better they there was going to start talking about before before the questions which i did appreciate there's a strong argument here for his actual innocence so let me pose that to the court number one this is two and then he would say he said maybe take more than a few seconds for that amount of blood to accumulate that amount of blood one of the polls was two foot by three foot hits wrote this injury to that skull fracture was consistent with the head in motion and he said specifically he said if in motion he said i t and he said it was not the chew was approached the cowardly way fashioned from behind mr mr walsh the prosecutor lied to the jury he told me it could happen either way and that's why