conviction for murder in the washington state courts should be reversed because both as appellate and trial counsel were ineffective and because my time is short i'm going to concentrate on three main topics today  briefly mr powell was convicted of killing charles allison in the summer of one nine hundred seventy nine he presented what was essentially an alibi defense and his alibi was refuted primarily by the state who had received substantial plea bargains in exchange for testifying against mr powell the parties agree that mr powell must demonstrate that the washington state appellate court opinion was contrary to on reasonable it was not routine but the trial judge didn't follow the law either in fact the discussions took place in camera this court's precedent precedents the u s supreme court precedents and even the washington state supreme court precedents first as you have have as factual basis you have to have some showing particular to this case this defendant that demonstrate that there's a heightened need for security measures in the courtroom in fact a purported reason in this case had nothing to do with the defendant it had to do with there was no proof that mr powell had ever tried to d of the decision that she makes and why she has rejected or are adopted the factors set forth by the supreme court precedent the second part of that test is whether or not the trial  considered less restrictive alternatives to the shackling of the defendant in the courtroom in front of the jury in this case there was no discussion about less restrictive alternatives and in fact it's the issue  was threats of disruption from the outside there certainly were measures that had could have been taken at the doors of the court room that would not have been prejudicial to mr powell in front of the jury  that in fact trial counsel it had a factual objections to the claims of disruption and the rumors of disruption then after jury selection trial counsel did get up and say i'm now concerned about the mention of the shackling and the security measures and i i want any jury panel that that was denied so there's some evidence to the record that knowledge of that plot no there's nothing in this record that was proven but if there were a factual basis if mr powell had attempted to previously escape absolutely but that but even then the next measures that were taken were sha ling descent and that particular solution seems to me to be one not the least restrictive alternative and to have nothing to do with the issue of an outside attempt to break into the courtroom and hav the there was a person named teddy powell who was mentioned in testimony and who was implicated that i do not believe this is the brother because there's another brother and mr powell is mr tell you how it was actually his cousin not his brother i believe expressing a personal opinion about the credibility of the defense witnesses the washington state appellate court found this to be deficient performance and of course we accept that we of course think it's an unreasonable application of supreme court precedent to find that that deficiency was not prejudicial in this case as we've argued in our brief this case was based entirely upon or primarily upon the testimony of the two witnesses who had much to gain by testifying against mr powell who had received favorable plea bargains and had questionable had credibility problems they had been previously convicted of crimes and so it's particularly prejudicial for the prosecutor to make comments about in that particular situation i have some other issues regarding the trial counsels and effectiveness however i'd like to turn  the essentially pretrial motions hearing and from that called out a speedy trial violation and a failure to a double jeopardy problem and a failure to  problem there's no question in my mind that although there is no united states supreme court opinion directly on point that the related united states supreme court opinions compel the conclusion that the washington state supreme court's decision that this was not deficient or the one state of health court's decision that this was not deficient performance is simply unreasonable  cite in my brief where the united states supreme court has protected the right to appeal when it's granted by statute or by state constitution as well as all of the tools to complete an effective appeal including the transcript the appointment of counsel and production of the record the state here trades out the maxim that you know great appellate lawyers don't raise every issue in an appeal they w raised in a direct appeal despite the lack of objection because in washington you can overcome the lack of objection on direct appeal if the error is substantial enough as we are dressing much like an injection as you don't know why and there was no objection another word record can tell us the reasons why consulate knew something and i just wondered if the state courts would have done the same thing and you don't need a transcript if you're only trying to prove an effective assistance of counsel you needed and when the entertained these issues on direct appeal shackling the failure reversing because the prosecutor asked defendant to comment on the truthfulness of other witnesses reversing because prosecutors are out for credibility  and so i argue in my briefing that they would have been raised in the washington state courts on appeal and the real prejudice is that you get a more favorable standard of review well i suppose counsel the court should keep in mind that this case the trial occurred in one thousand nine hundred two so much of the case law that is developed since that time regarding the use of restraint simply was not available to counsel at the time of the trial the i intend to address the issues argued on appeal during oral argument but i'm certainly willing to address other parts of the claims that were not religious you stated due to the current with the the date of the trial was in substantive claim of shackling and not to whether counsel was ineffective for not objecting counsel agreed that restraints work necessary in this case there the hearing was in camera but the counsel's did say on the record and this is that excerpt the record one one three seven and one one four zero three one one four three that she agreed restraints for proffering there was a serious threat of an escape in this case explosives had been stolen from fort lewis and the police had information that those explosives might be used in an escape attempt and although counsel same location it's now that i'm i'm not sure even if counsel had objected however there's no showing that the judge would have sustain the objection of the restraints the judge said these restraints are necessary the judge would have imposed the use of the restraints there's no prejudice being shown and also there's no prejudice that this affected the outcome of the jury because there's no real evidence showing that yuri actually saw this to powell and restraints there was discussion by the judge regarding security measures to the jury and this was closing argument the court has recognized that counsel often do not object to closing arguments counsel will not object because counsel does not want to draw attention to the prosecutor's argument counsel then address the issue when counsel gets up and makes the defense argument and as your honor pointed out claims of ineffective assistance of counsel are often brought on a collateral challenge because the record doesn't show allegedly improper remarks and i would point out that the district court went through the various statements by the prosecutor and found that most of those statements although they might have at times reached the border of being improper or most of the statements were proper reference proper differences from the record and from the evidence and that district courts analysis is that excerpt the record eight hundred sixty three through eight hundred sixty six is because the trial judge instructed the jury and the prosecutor of people who repeatedly reminded the jury that the jury was the sole determiner of credibility the child judge instructed the jury that  they should carefully examine the testimony of an accomplice petitioner argues that the prosecutor's arguments were so inflammatory because the co defendants testified against mr powell well the jury was specifically instructed and this is the excerpts of record one ninety eight instruction number seven that they should carefully consider that testimony and do not base a conviction on that testimony solely on that testimony left unless they were convinced beyond a reasonable doubt that this testimony was credible and should be used against them based in light of the judge's instructions in light  of the fact that the majority of the prosecutors arguments were proper arguments any error that occurred by not objecting to them did not affect the outcome of the child therefore there is the issue of prejudice moving on to the ineffective assistance of counsel on appeal i would simply point out that if this court were to grant relief on this this court on the claim of ineffective assistance counsel on appeal for not ordering transcripts it would be in my research the first court to say the council is ineffective because they didn't order enough transcripts the proper task is worthy shoes that could have been and should have been raised so the council was in effect or performed efficiently and with those issues if they had been raised resulted in a reversal of the conviction and the fact is there are no such issues petition argues that council could have raised the restraints issue it could have raised the improper arguments by the prosecutor as an issue on direct appeal but both of those claims were waived because they were not objected to counsel have raised those on direct appeal because there was no objection and the court of appeals specifically in excerpts the record sixty seven held to that fact that the challenge to the prosecutor's arguments could not have been raised on direct appeal because there was no objection  to it and it and as your honor pointed out in questioning if this was raised as ineffective assistance of counsel for failing to object that would be a claim that would be properly brought in a state collateral challenge rather than the direct appeal and there is a washington supreme court case i believe it is state versus mcfarland which essentially says that these types of challenges are better pride any state person or a straight petition rather than a direct appeal because it requires bringing in additional evidence the counsel was not ineffective for for not raising these issues on direct appeal big because this was a reasonable application of supreme court case law the state court decision does does not rise to the level that a petitioners entitled to relief under twenty eight u s c twenty two fifty forty we would therefore us that the court affirmed the district court's judgment in this case lot of cases and so we had and they declined to grant us an evidentiary hearing in this case there are there is no testimony in this case from the jurors that trial there is some indication and i concerned about the jury viewing the security measures because that's the point at which she and asked him subjects to them and says she wanted a new jury panel let me go back to the question one because i don't think those two factors are sufficient enough because they're not sufficiently tied to mr powell i think you have to have actual evidence of would be appropriate i could see the judge having an offer of proof from the state what have you heard to happen if you have a certified copy of the escape charges those kinds of things there's no record of that number two is there's literally no record of the second problem which is just some heightened security is appropriate in the case where there are less restrictive alternatives to shackling the defendant which is prejudicial as we allege in this case not