post conviction really following an evidentiary hearing in the sole issue is whether mr dorsey stride a lawyer was ineffective for failing to request a limiting instruction other evidence of their crimes  strickland versus washington as to the performance part of the trial judge held that counsel's failure to request a limiting instruction was a reasonable strategic decision and as to the prejudice prong of the trial performance prong we think the trial judge was wrong for three reasons first the judge was wrong because he ignored the law of the case doctrine which bars litigation of an issue that's already been decided  well let me quote from from the opinion the attorneys failure to oppress the limiting instruction demonstrates that his performance was deficient and as a matter of fact justice miers proper trial judge acknowledge when this case went back that this  the counsel's performance was deficient but what the judge did was he said i'm not going to follow the appellate court's opinion in this case because it's a rule twenty three which has no precedential value i'm going to follow the  opinion and people versus johnson which was a published opinion which held in that case that trial counsel's failure to request a limiting instruction was an ineffective assistance i think the i believe that what the court held was that mr dorsey had established effective assistance of counsel in the way i understood the opinion and the way the trial judge understood the opinion it was doesn't apply there are still two other reasons why the trial judge was wrong in finding that counsel's performance wasn't deficient  mainly because the trial judge's ruling that counsel made a strategic decision simply was unsupported by the evidence trial counsel testified at the remaining hearing and when he was questioned by the lawyers he said basically two things first he acknowledged that it was possible that there could be a circumstance in which he would not want the limiting instruction because it might emphasize the other crimes evidence in the case but he could not recall whether he had a tactical reason for not requesting the instruction in this case so he assumed that his failure to request the instruction was simply an oversight however when the trial judge confronted him with the transcript of the instructions conference and which the judge had offered to give the instruction and counsel refused a counsel then realized that it couldn't have been a mere oversight because the question had been raised at the instruction conference and counsel ultimately agreed with the trial judge that in failing to request the limiting instruction he must have had a reason at the time but he can't think of it now so all the goodly counsels testimony was i must of had no reason for not requesting that instruction i just can't think of what it was so based on that testimony the trial damaging so if the state will agree not to mention it in closing argument and not bring the jury's attention to it will be happy to have to ask for the instruction but if the state is going to talk about it and closing that would kind of defeat the purpose of i'm not requesti state didn't mention it because otherwise what happened was the state was free to focus on it and effect the state did the prosecutor told the jury closing argument you know him you may reasonably think that that  words were unbelievable but to twelve later it probably was incredibly persuasive because what the prosecutor said to the jurors in closing argument mr dorsey is admissions to prior dealings  cocaine were quote extremely detail the number of people he does business with the amounts he buys and sells where he gets them the vehicles these people drive the prosecutor also said and he told t in detail how he does business how he's involved in this distribution business and that's exactly what he was doing on this tape so if it was a strategy i don't think it was a reasonable strategy and as the supreme court has told us the question isn't whether it's a strategy the question is whether it's a reasonable strategy and i just don't think it was a reasonable strategy at this time and the other reason i think it was wrong for the trial judge to conclude it was a strategy is because counsel never actually testified in this case that his strategy was to avoid emphasizing the evidence it struck me that he was perhaps falling  i his lawyers testimony and i think there's a third reason that well emphasize closing as i just said just as the prosecutor did the second reason the trial judge said we had prejudice is because of the evidence against the defendant and i think that  if you look at what the other crimes evidence was which was a detailed accounting of numerous prior dealings in co pay that certainly was prejudicial and the evidence against the defendant was not overwhelming he it's true that he was in the apartment when the police raided the apartment and he was found in the kitchen where the cocaine was however he had very little ties to this apartment i think the police found a letter from powell hospital a bill from the hospital with disastrous with the address of his apartment and i believe an automobile registration with his name on it but with a different address this was his sister's apartment and if you look at the evidence that supposedly tied him to the cocaine there was almost nothing other than being in the same room he had no drugs or drug paraphernalia on his person his fingerprints were found on nothing dorsey had no involvement with this other than being in the apartment at the time the police raided it now that evidence we conceded was sufficient to sustain his conviction but it certainly wasn't sufficient to say that he didn't meet the president's problem of course the prejudice problem isn't outcome determinative he doesn't have to prove that it's more likely than not that he would have acquitted just if there's a reasonable probability that the outcome would have been different and the real prejudice here is that in the absence of a limiting instruction i think it is clear that the jurors would have relied on the other crimes ev his admission to prior possession of cocaine to find that he actually possessed the cocaine in this case and that's exactly what they should not have done the limiting instruction would have told these jerks that you you can only consider his admission to prior possession of cocaine and the question of whether he had the intent to distribute this cocaine and only if you first find it he did  i think once the jurors heard this other crimes evidence which was incredibly prejudicial i don't think that there's evidence that i can think of that's more prejudicial these days than evidence that a defendant is a major drug dealer in a community and i think once the jurors heard this other crimes evidence without giving any guidance whatsoever on how to consider it there was no chance that mr gore she was going to be acquitted in this case and i think that's prejudice now had the jurors been properly instructed and the limited way in which they could consider this incredibly prejudicial evidence i think there is a reasonable probability that he would have been acquitted and it's for that reason that i think his lawyer was ineffective for failing to request the limiting instruction again justice meyer stop it may have been a reasonable strategy for trial counsel in this case to try and avoid emphasizing the evidence but as i argued previously that strategy was doomed to fail unless counsel was assured that the state wasn't going to bring this up in closing because again it doesn't do i'm the defendant well he told the police before trial that the cocaine in the apartment was his and that he's he was a major cocaine dealer had done so on numerous occasions at trial he testified that he said that to protect his sister he didn't want his sister to go to jail he didn't want his sister's children to be taken away so he took the blame for this but a trial he said the cocaine was not his and he had made up the statement about all of his prior dealings and ok so really the question in this case for the jurors was mr dorsey's credibility if they believed his statement to the police prior to trial they were going to convict him if they believe his trial testimony they were going to acquit him and i think what probably happened here is that the jurors use the other crimes evidence his admissions to the numerous possession of cocaine in the past  to reject his trial testimony and if they did that that was an error the jury should not have considered that testimony in deciding whether or not he possessed the cocaine in the apartment but nobody told them that and i think that is a real problem in this case already said he was good enough well had he not testified at trial at all then the jurors obviously would be free to simply believe what he said before trial but there was a credibility question here prior to trial he said he was involved with the coquet at trial he said he wasn't it was on the jury both when they did and i think the problem here justice mccall is they probably use the other crimes evidence to credit his pretrial testimony rather than his trial testimony and that's an error that was wrong the jury should not have used the other crimes evidence to decide whether or not he possessed the co pay that's just simply wrong  it's not the purpose for which that evidence was admitted unfortunately nobody told the jurors that and i think that depriving mr morsi of a fair trial in this case and for that reason we've asked this court to  reverse the trial court's decision denying post convention relief of vacate mr gore says conviction and remand the case for a new trial unless the court has questions thank you very much  same position all of us as we were on direct appeal and on the first appeal we are in a position of having to give on defense counsel kissinger like what hit him up and just the defendant also told this grand wondrous story about being a big important drug dealer in several hot this which therefore it makes sense for council to decline the trial court's offer to give of i p i three point one four  still i believe are directed to protecting the penal interest of mr dorsey he may well not remember why but he is not going to say i don't remember from the truck from the stage three transcript whether he was ever asked what was your strategy trial but certainly the post conviction the judge was also times it should be giving never say it must be given it should be given to avoid prejudice johnson in two thousand and six instantly in two thousand  and fundamentally i think that's what happened here through helpful and to get reasonable or helpful to get done so in light of the very serious problems detail he was still in the apartment when with the police officer his sister was in the bedroom i believe she was being interviewed i think they were and and please i apologize i don't remember for sure i think they were in separate rooms i think he was aware that his sister was  executing the search warrant so there were at least three and i mention there were probably some more i don't recall just don't recall i  really prepare for that one certainly are there were enough to keep anybody from fleeing and to prevent the evidence from being destroyed which brings me to another police officer here however the question is very different fundamentally is whether defendant's trial counsel provided an effect of the systems when he decided to not tender it's true as counsel said that in people versus johnson in other cases this court held that the failure to give a limiting instruction may not be ineffective assistance of counsel but johnson didn't hold that the failure to give the instruction can never be ineffective assistance of counsel and in fact there are cases which we've cited in our brief which will otherwise so it's a case by case decision on in the previous conviction people in this case this court couldn't given that procedural posture grant relief grant the petition because obviously if that stage of the state had had an input at stage one of the post invasion the judge dismissed it as frivolous without any input from the state but i think if you read the court's previous of this court fell just short of granting relief and i think based on how this court viewed the record of the case it's clear that the court found that at least as to the procedural performance prong that was as i as i said in my opening argument already the court said performance was the fission and page ten which counsel mention this court said based on the limited record before us and the procedural posture of this case we believe reasonable counsel would have recognized the importance of advising the jury that it was hearing evidence of other crimes and ensuring that the jury was aware of the limited purpose for which it could consider that evidence it reasonably follows that counsel should have asked the court to give a limit instruction at the time the evidence was admitted or at the very least should have tendered an appropriate instruction at the close of the evidence absent such an instruction the evidence of other offenses may have been given fire greater weight than it deserved and unfairly skew the scales in favor of believing defendants admission rather than his testimony a trial that's the prejudice i think that i was talking about earlier just as my own it's interesting that counsel now says that mr  judge there's no question in this case in my mind that they considered for an improper person and that prejudice mr dorsey now it's true that maybe there were only ten lines out of three hundred forty in the prosecutor's closing argument in which he stressed this evidence but i think common sense tells us that a brief reference to highly prejudicial evidence may affect a jury more than whites the reference to less prejudicial so and again i can't think of any evidence that is more prejudicial than a defendant's admission to jurors that he is a major crack cocaine dealer in their community so i  think the prosecutor didn't need to make his closing argument entirely about the other crimes evidence but he certainly said enough to put in the jury's mind that this evidence is convincing as persuasive and the jurors use th improperly to find that mr dorsey in fact possessed of cocaine when they were only supposed to use it after they found that he possessed the cane without considering the evidence on the question of his intent to deliver the court has no questions i