going to argue both of the claims of ineffectiveness starting with your client and just set the context for this jerk client i think it's important to reflect on do you know the parties you know the lawyers and then in virtually every case the judge asks the lawyers to tell the members of the jury panel  prospective witnesses will be the reason our trials begin that way is because the knowledge that a jury might have of the parties the lawyer or the witnesses  relatively simple and straightforward and should require the granting of relief it is not contested that mr bishops told his attorney mr farmer that juror miers and he were quite and at this point in the argument i'm going to stop with that act alone and not get into any of the other facts because once that was of the practices changed in the last decade when this case was tried in southern oregon i'm not confident about the extent of judge questioning it's clear that knowledge juror of the defendant could be either favorable or unfavorable i don't think that there can be any dispute about that in order for the lawyer to fulfill his obligation to his client in the court your process and reflect on you know that this is the record that tells you that mr farmer is relatively seesmic bishops is a relatively an educated man first time or in the criminal justice system late in reformed i'm not did you have a business relationship as bishops says we had a falling out about our first business or yeah you know we're fine we're next door neighbors and we get along wonderfully in which case farmer would perhaps exercise is discretion in the board you're processed and maybe doesn't want to ask your myers any questions because he wants to try to slip them on to the panel on the other hand ground for a challenge because then a farmer is going to say to the judge challenge her cost but she did not act there was no obvious follow up he told that to his attorney is irrelevant and this court need not get into the question of whether there has been a credibility determination on that issue that is not don't believe that it matters in this case whether we need to show one or the other because the record shows that there was a falling out between t men and that the relationship between them was a bad relationship once that is a status all of the juror cases as i read them say that be conviction  team now when you say the record establishes we have testimony from mr bishop that the five so is there in the other conflicting testimony when i read the testimony says listen we had a falling out over the way i managed to program your horses there is no  counsel and your whether or not he could have gotten for a mission i don't know but it doesn't matter that we have record evidence on the further point that miers is was  people continue to drink or you know has a bias against the way we have that statement in the record as well don't don't take your time looking for it now you can look at the going during the on the other side track in terms of the finding if any that the post conviction cour the district court in this case concluded that there were no findings from the state court to which deference was old and we believe that that legal conclusion state law distinction between manslaughter one and manslaughter i don't think there's any question in this case but that this bishop was drunk there was an accident he acted recklessly the key piece is whether or not he also acted with extreme indifference to human life which elevates the crime and extensively increases the punishment and farmers affidavit he said looking at the eyewitness hooter as i went through his testimony i did not find any reference to mr boucher straying coming and certainly nothing about angling over the line so to the extent that the attorney farmer reconstruction expert who michael's testimony and then in the closing argument at pages five away and five ten of the x or the prosecutor since to the jury i where is the testimony in rebuttal as i'm reading the record it seems to me that there is not really a dispute about whether the failure to call an expert was in effect the question i think  and they are incredibly an expert says his ship was broken when in fact it was not the expert says the rear of the bicycle was not damaged when you look at the bicycle the rear of the submit we have demonstrated that an expert toward angle towards suggesting that he did it deliberately that he was acting with the heightened recklessness of extreme indifference to human life but he was traveling somewhere between forty and fifty miles an hour car when it started straying off the road and hit the bike the testimony from both of the eyewitnesses was that the bike was on or near the white line and there was a foot of pavement on the outside of the white line no question the man is drunk and reckless but how hard are we going to hit him how bad do we think his conduct was given the fact that the state's ban so much time and effort with its expert it seems to me that that good morning caroline alexander assistant attorney general for the state of oregon i'd like to take a moment or two to refocus the issues in this case i think we've gotten a bit far afield on both of these claims first of all as you know this is this is an a definite case the issue in the case is whether the state post conviction court decision was an unreasonable determination of the facts we need to focus back on the evidence that was before the state of the things you say when a farmer says he didn't tell me this he didn't tell me that's the only thing that armor says he didn't tell me or he didn't tell me that it was a an outspoken opponent of those who continued to drink that  credibility finding that his testimony wasn't credible is irrelevant and i guess i don't understand that position that that's one of the issues in this case and again it goes to that issue  structure i would go to the judgment should be given to the defendant there's nothing you there singularly or group together that would lead this court to conclude that number one i would in effect of assistance of counsel or number who that there was any sort of or could have submitted the transcript or for dear impulse conviction he didn't do that we actually don't know what happened on board here because that was never presented it was  me a little bit different planning actually it seems to me a very different if you take his client now on face value he didn't inquire any further and then on that rendered or dear and adequate it's confusing because he's saying i told him we had a bad business relationship and that he was a reformed alcoholic but the claim is he attorney attorney farmer somehow that i just don't understand it's such an inconsistent allegation an argument that it it's hard it's hard for me to comprehend that on one hand he's saying attorney didn't challenge him because of this information  even though i told him about all of these basis for this challenge on the other hand that he's saying he didn't investigate inquire further because all he knew was that he knew what happened and he still had a duty to inquire into the basis of their relationship i think the radically yes i think yes of the attorney would have or i did it to view that the problem as we don't know if it happened or not because on one hand the petitioner post conviction is saying that i told him person against people continued to drink and i think the argument on mr bush upside there and as well he should have asked a little further and i would have told him that too and that that's a fair question on what we have to do you know he really has a bearing on a cru conviction court who sacked there and observe the petitioner because he testified in his own trial found heroes approach for testimony was not particularly credible and he didn't limit that credibility don't know any of that because petitioner didn't put it off now there is one thing on this claim also i'd like to point out to the fourth and that's the state's argument that this high has not been properly or that only half of th in his brief his own testimony that we had the best horse training relationship that soured he never pointed to his own testimony about the reformed alcoholic outspoken opponent of things never referred of the reason it is an interesting case one on many levels and in fact i was there at the supreme court argument here that are that argument and one of the things that is highlighted in that case and applies here you know that's a very tricky question though because we're very familiar with papers cases particularly in africa cases where the nature of the federal claim is quite clear i agree and i agree that the cases that talk about the factual basis are fewer and mightier than that of the baldwin the research or the legal issue which is much more clearly developed but i thought i do think tear he was not entitled to rely on the evidence and present court he could have gotten this expert in state house conviction and he failed to do that he was obligated  to develop that at that evidence and state court and petitioners point that he developed his claim in state court just completely nuts about the rule as you have to develop a factual basis of your claim to have to develop the evidence not the claim and the law in the circuit and the u s supreme court is pretty clear on that issue on the merits however dump truck coming here's the fi circles bicyclist with this little dog and here's petitioner is clearly drug he doesn't slow down he doesn't pull over petition for review was it claimed that his attorney failed him with respect to the board here the reason i point out in my reply that the state hasn't responded to my arguments about state law