proceed to trial on the trafficking charge because the issue in dispute was how many pills were actually taken and whether or not he could be found guilty of the trafficking amount which would then put him at risk for the twenty five year mandatory sentence that he no serving the state's theory of its case was that mister sneed had either one hundred and twelve or one hundred and fourteen pills left inside the bottle when the burglary took place however neither the pill bottles or the pills were ever recovered by law enforcement the only testimony that was offered by the state to establish the number of pills was the pharmacist to fill the prescription several days earlier and from mister sneed himself mister mckeever admitted to the jury to breaking into m sneed residence he admitted to taking the pills the bottle and whatever was left however the defense's theory was still that the state could not prove because no one knew how many pills were actually inside the bottle when they were taken by m before your honor's and the appeal before you today now these two the two claims that are powered by mister mckeever one was that counsel is ineffective for failing to investigate witness says the other was that counsel is in effect for call witness says both of them are filed separately but were considered jointly by the district court and jointly and are free and it is our position that the district court aired and denying both of those claims because the state courts application of strickland was on the reasonable in light of the facts that were present to the state court no so as to that position obviously they allege that below and it's continuing to argue that fact now and because we don't know obviously the court's review of the record is to look at it to know and to make factual you know make those determinations based on the law and it's our position testified about what these witnesses what have advised counsel he had investigated them specifically the fact that they had bought drugs from mister sneed in the past that mister sneed was involved with dealing drugs and that people had gone in and out of the house or have been by the house during the period of time before the burglary actually took place which was an issue at trial was that nobody else would about actors except for mister mckeever and mister mckeever testified to this and his testimony had been the only testimony heard at the hearing i expression and then when it came to the other witnesses that were mentioned i think it was close to the trial he could not recall what the context of the conversation was here member that they had to disclose the instance that he couldn't remember what they had discussed between himself and mister mckeever about what the substance was   so she having dealt drugs at some time in the past is is not terribly relevant for both prejudiced purposes and i'm not even sure the missions group it's for the actual question that was before the jury so i guess i go back from my perspective the question that judge bratcher act which is my question which is as i understand it we look at clinton have the state court where it can give us reasons as reasonably reach the conclusion that it did where these witnesses never came and testify why is that not a a reasonable and why is it not unreasonable for the state courts will reach that conclusion where somebody makes a claim other witnesses and those other witnesses don't show up at  know i think it's a reasonable because it's kind of goes back to what counsel said his testimony was not a fellow that happened in the past the testimony was that these drugs had been sold to other people in the neighborhood and then mister mckeever corroborated that by saying that it was not only in the past but it was in the days leading up so i think that the point of our argument is that taking those two individuals testimony together there was no testimony that was in dispute in the state never even argue at the trial court that you have not established that  that they phrased it was that the evidence of possible drug dealings with mister sneed not even just witnesses testifying but that being an alternate theory i think that is where it becomes a reasonable based on what the facts of the trial and based on what everyone knew there based on what is in the record what was the evidence established regardless of whether or not these witnesses testified the evidence established that individuals were available to testify about drug use of mister sneed involving prescription pills close to or around the time of the that's important to know as an impeachment purpose especially when the issue of credibility is so critical which it was in this case it literally was state's entire closing argument was that mister sneed versus mister mckeever who are you going to believe more a twenty year old drug addict who cannot remember what he said or did and then you have this perfect pedestal of the witness who has can tell you exactly how many pills he took on that day so i think that's a st point the nd point is unfortunately the theory that mister sneed was and again this would all kind of go cumulatively with the other issues if another theory had been presented to mister sneed priors he was somebody that was not believable and he had involved himself in pills in the past and drugs and he was not somebody that was just an innocent bystander he mister i i do understand that point in that statement however i think that even without the st few i think the nd issue is still a very important issue because it's not just about the fact that he was dealing drugs the fact that he had been a convicted felon and i think because of the criticalness of his testimony i think any impeachment in this case would have been important in the court would have found any convictions relevant to his impeachment so i say that my time has run out i will save for a bottle thank you please the core of robin compton assistant attorney general representing the secretary florida department of corrections in this case it's our position that this was an adjudication on the merits and state court and therefore  after finding that the defendant had failed to prove both prongs to strickland so the only thing left for the federal court to determine is what supported her or could have supported the last a court as court decision and it was not an and reasonable determination of strickland it's our position that a that the appellate clearly failed to demonstrate prejudice in this case he would have had to demonstrate that there was a reasonable probability that the jury could have found the quantity of the asa code down to be below twenty eight grams now in florida and th first of all we got three prescription bottles not it wasn't just the oxycodone there was also soma and methadone and taking his testimony as to what he said the witnesses would have said they don't say which drugs war were would have impacted the trafficking him out it was just a general they would testify to drug activity also th witnesses don't testify to any specific amounts of drugs taken so therefore it would be that would have been packed to what the trafficking amount was also it's all speculation post conviction relief cannot be so we have to go on the last last state court decision which was the th we do not look through to the last reason the pinion that's your position correct so i don't know if if don't have that before you or not but i filed a letter of stuff to mental authority on friday read it st the secretary and in that case the issue was ineffective assistance of counsel for failure to call a witness and produce a medical reports and the court found that the defendant had failed to establish present prejudice where he offered nothing but his own self serving speculations as to what the witnesses would testified to and the court found that his failure to obtain that testimony at the hearing reduced his claim of prejudice just speculation and that case was out of the district court for the northern district of tallahassee but there was that particular side into a lot of the case law out of the th so when i ask your question i think your stronger was stuck between a rock and a hard place because he had the appellant's testimony from the beginning that the perspiration bottle was full of medication even though he  he just it was an uphill battle he the defendant had already pled to two burglaries and the faffed of the prescriptions so you know i don't know what more defense counsel could have done when the defendant is telling him that the prescription bottles were full and the only witnesses he gave him the morning of trial well before the morning of trial was the two witnesses that just would have said that there was that they had bought pills in the past and granted i don't think they specifically said in the past but he certainly defense counsel testified he was not left with the impression that he had bought would have disappeared i mean yeah there were there was a theory that there he was his testimony at trial was that he didn't know he was so d high at the time that he broke into the house that he didn't know how many pills he was going to take and so their defense theory was reasonable doubt as to a trafficking amount and defendant agreed with that defendant agreed to that to that defense and i just i really i don't understand that there it was that he just didn't know how but he didn't know how many pills were in the bottle therefore he could not  testified that he didn't know how many pills he had taken because his testimony at trial was that all he remembered was going in and sitting back on the bed throwing back eating eating pills eating pills so you know defense counsel also had to deal with a statement that the defendant had given to law enforcement at which the long course an officer asked him did you take prescription bottles full of medicine out of that residence and he said yes so he didn't say they were half full he didn't say they were partially full he said they were he acknowledged yes they were full of medicine so  you know they he consented to the strategy and based on at the evidentiary hearing what the defendant was telling him was just this you know we only had drug activity in the past nothing current so you know i'll grant i'll acknowledge that it is it's definitely a harder road for me to prove deficient performance than it is for the prejudice but you know under strickland you got to prove boats to be able to be entitled to relate and he just i was trying to make yes yeah ok all right moving on to issue too the failure to impeach with the prior convictions it's just our position that it's not a substantial claim under ten exhibits are thirty three he was not referring to a son his son's name was john sneed also but when you read it in context it's clearly he was referring to the victim not a son when he said that he ran criminal history of johnson eat plus i think he he did take johnson needs deposition so you know talking about mister grant now right no i'm talking about trial counsel said he ran a criminal that he has to the record on the felony convictions it's from people bear a fry and it doesn't say what state they're what statute numbers he was convicted i'm sure as far as the victim goes so you know this council ordering the criminal history and then just you know for a hypothetical not looking at it on that then really improve the performance of counsel does what we don't know that he didn't look at it we just know that he didn't make any issue of it and that could be easily resolved because he because there wasn't anything there maybe they were withholds maybe they weren't even he that was the way he was going was that he wanted to submit this reputation testimony of the victim and it was just reputation testimony it would have had nothing to do with the current amount of pills that were in the bottle and i think that's what defense counsel testified to that's why he didn't bring it up because even at the point of trial the defendant was still telling him it was he took the whole bottle that the bottles were full went in had no agreed to the motion in lemony to to keep out that kind of evidence and you know we don't know that any of that stuff would have been admissible anyway judge martin can i have an indulgence for one or two questions from the of course that thank you i appreciate i'll make a quick counsel were on this issue of the prior convictions regarding the prejudice problem not necessarily the deficiencies do we know if there's a reasonable probability this would have changed the result where we do or do not know if the state court would ever have allowed in twenty five and thirty year old convictions and then related to that is there case law in the state of florida would suggest that those convictions  not necessarily come in and at least require some sort of weighing or balancing by the court before they do come in where they are that well this is the law in florida is that it's it's just a question hearing with the trial judge on whether or not conviction is that all would come in and and they do have to do a ninety four dollars a three way analysis to determine make that determination so there's no guarantee that these sort of ever ever come in is there a case law that that you even cited in your brief which your brief i thought you had maybe i did let me but you're looking it's if it's hard to remember the hundreds of cases now i don't i don't have jobs while that's what they were discussing off the record in the state court obviously agrees that mister mckeever was more credible because it ultimately chose to disagree with mister lamb bertie's allegations and whatever history t j reasons were for not opinion that did make findings a little more they were it's a little more nuanced than that so i'm going to quote from a quote from wilson versus sellers which is sort of the some of the look through chase and they're what the court said this is literally the holding it says we hold that the federal court should look through the unexplained decision to the last related state court decision that does provide a more relevant rationale so there's a few things there anyway is that fifty c is opinion unexplained where it says we find that it didn't meet its burden and secondly in other words that would in other words unlike the situation in sellers were just said affirmed or denied and secondly does the underlying opinion was there for the trial was the same trial court judge the only person as a score in all the courts have said credibility findings we obviously don't have the ability to look back on a video so we have to go back and look at those factual findings and it's our position that those are absolutely relevant to the specific issue and i see that my time is about to run out i would ask the court to reverse the district court's findings and to rule on mister mckeever saver thank you very much thank you mister recent thank you mister compton on the mysteries come thank you appreciate that thank you you know have a good day