your honour's if i could reserve two minutes for a bottle let me start by what i think is the key to the trial defense that counsel put on back in two thousand fo that time in his closing argument mr jesse i said i firmly believe that mr levy was indicted because he was a black male with an escalator and he had a thirty five dollar drug sale when he was eighteen years old defense tried to do to convince this jury that that mr love which was not guilty of the conspiracy clearly the issue recognized by the district court by defense counsel even denture hearing that we had on the twenty two fifty five was an issue of credibility it was what the entire case was about it was credibility involving travis love who was the defended against the credibility of george door and eric sarna who were the two government witnesses that basically constituted ninety eight percent of the government approved during the course of that trial against mr love but he had the drug ledger he had the drug ledger and name it certainly looks a whole lot like it his ex girlfriend or girlfriend referenced him in the hearing with that name and it was his business cellphone he also had a personal cell phone number that you would expect that if someone all behaved in drug trafficking the problem that i see from defense perspective which they obviously tried to work around as best they could get it seems to me was you have this you know physical proof of an apparent connection in a drug ledger it wasn't that his his work phone number was on the business card or you had a pen register met showing the kind of flow that one normally sees between suppliers and dealers a ledger and it's got that long well and in order to get to that point in to accept the fact that it was ledger again it came down to the credibility of george door to say it was his ledger i've looked at the ledger it was a crude ledger that simply had names and numbers which gets to the point that mr any series of cars of mr doherty and mr sarna had purchased from mr love against they it is your honor his just say it was the government's position that these were cocaine deals these were multi cocaine deals  there were evidence by those turner and do are testified as as they both testified and i think that's critical because again it came down to who do you believe do you believe mr and their explanation or do you believe or do you believe mr love and my focus to doug is really on two things i raised in the brig first it's the first issue and that's the failure of the defense to support the testimony of mr leavitt trial and then secondly i'd like to mention before i finish the alley an issue which which may be applicable to this case depending on ultimately what the supreme court decides to do and how far the supreme court is willing to take they're holding earlier this year the thing that's important to remember is that the trial of this case occurred back in two thousand four that was nine years ago the evidence you're hearing itself on the twenty two fifty five occurred in march of two thousand and twelve they district court issues a certificate of appeal ability on the issue i'm going to talk about and that failure to sit to support the defense that mr love testified about and then this court issued a certificate of appeal ability also on the failure of the defense lawyers to s on for the court to consider it's an issue at some point this court ought to consider but but you're right factually it's not here in in that sense and it does seem to me that i do i'm inclined to agree with the government the handwriting issue because it wasn't part of the hearing to say that that's neither do art nor cerner wrote those records well but that's not part of the point to fifty five walk right and part of part of the problem is is that the handwriting expert which burden is on the petitioner twenty to fifty five to bring in a handwriting expert to get the comparative samples and say no i had my professional judgment day had this been examined before trial it would have substantial undercut bellmawr or do our concern is testimony that was very in writing which would have blown a big hole in everything but that's not part of the point of fifty five so my point is i think the handwriting as presented now is not what you want to talk with the witnesses so i should talk about that well but let me let me finish with ed because i do think that the record and the problem is the handwriting issues that came up that a handwriting expert would have helped came up in the earlier companion trial involving mr music and those defendants and it was during that time that mr love recognized that mr gore today had testified to certain things that he had written that mr had not written that could have affected his credibility as a witness mr lodge trial the problem was mr love went to counsel trial counsel explained that to him and they never even contacted a handwriting expert really jumps out here that makes credibility even more critical i think that it was is that this is what we call the no dope conspiracy and let me just say that i was in the u s attorney's office for thirty years and retired six years ago try to number of these cases and from firsthand knowledge know what a normal drug conspiracy case is going to involve and let me just take a second in take off what this case does not have we know it's a talked about that delivered the cocaine but the government never identified who he was and he didn't testify at trial there were no sales by mr left to anyone the government didn't bring in any customers or anybody to say that he was selling cocaine there were no travis love customers even identified there were no confidential sources there were no informants there were no undercover officers there was no title to there were no cell phone records  in the sense to establish that mr lab was having phone conversations even on his business or private phone with any no drug users or drug dealers there were no surveillance is there were conducted there were no records that mr love sold to anybody or deposited sums of money into his a bank account that the government could have alleged were the result of drug transactions there were no searches that were  conducted particularly the restaurant on hard have a knew where allegedly all this happened there were no vehicle searches now there were no forensics involved at all and let me ask you and it and it goes on and on up talk about the witnesses i mean by going to find the stand the case correctly that the district court found that the overall theory that the two lawyers presented was quote a reasonable theory and  your contention about the field to call witnesses of they have a reasonable theory you want to stay as far away from those guys you know it would be contrary to that theory to call some or all of these witnesses well i  would suggest your honor that that would be a mix question of law in fact and i think it's based on an incorrect premise by the district court in reaching that conclusion and i suggest that for two reasons  first reason is that the district court as did the government as did the defense at trial took the position that these witnesses and we're not talking one or two or three witnesses we're talkin you know at least ten to twelve witnesses that would have corroborated different aspects of what actually happened that in a lot of cases saw what happened or were present when non hearsay statements were made by mr love that the district court and the trial counsel tried to say well we didn't call those because we believed that one or some may have had criminal histories and that would have negatively affected their credibility well at the time this case went to trial two thousand and four none of the perspective defense witnesses that are set out in my brief that would have supported the transactions of mr love explained and had any criminal history at all  criminal history delman davis did he was the only one that did want a pretty significant when he did but you can take delman davis apart and understand the district court's concern with mr davis because he also had a pending twenty two fifty five in the district and i understand that but that mr davis assad and his lovely can i guess the problem for me is i think we would all agree it's a troubling record it is troubling for what he's not in it but the problem is the standard here we have prison propriety of counsel and all of us who have tried cases have been in the situation where you thought your witness did such a good job what you want to do is not mess it up that that's of concern is it an appropriate strategy as the court below fail and to say you know your witnesses testified so well he's had other two other witnesses that are upstanding citizens to testify also and now the question is do you put on anybody else to corroborate things each separate little component with the danger that us one question too many or you put in somebody else who has a criminal history and appeared to make your defendant who's done well look like he was consorting with known drug dealers i mean isn't that where we are that balance that is generally the right of defense counsel to mike it is but the difference areas as i say it is that none of except for mr davis not of these other witnesses had criminal histories this was a black and white case in the sense that either drug transactions were current in front of them or legitimate business transactions work or the other witnesses ten or so what have been able to substantiate what mr love said to establish the legitimacy of those transactions but no matter what the extent of their criminal history was some of what they would be testifying to would be things such as exchanging fat out tens of thousands of dollars inside cereal boxes do you not see that a at a is something that defense counsel would have to have considered before putting those people on even if they affirmed this when the money passed hands the fact that we're passing back and forth huge amounts of cash and things like cereal boxes is that not a reasonable consideration for a defense counsel to mike it is but i think at that point in time that was already in the record which would increase the need i would suggest to to put on those witnesses to establish the legitimacy of those transfers mr love as i recall testified that some of those payments were made to him in a cereal box now it that's going to create a a sense of question i think in a jury's mind unless it can be established by by separate witnesses to corroborate what mr love said that they had in fact happened as it related to mr door to your mr sarna purchasing the automobile i would also point out to the court and i think this is important is is that trial counsel mr jesse was allowed to sit in the courtroom during the evidence you're hearing and it was a reason for that he also was able to review all were away or at the time the case went to trial that these witnesses would have testified to these facts and would have supported mr love's defense and i think that's critical in judge car to get back to your earlier point the other point i wanted to fifty five is a civil proceeding and under the statute as long as you comply with the statute and have the the language that is presented under penalty of perjury that is as acceptable as an affidavit what is your answer to his contention about the viability of the witnesses their ability was to cross examination him are cast a shadow over brennan for the united states i think our best evidence about what value or limited value will have a value that these witnesses could have offered was provided by petitioners own testimony during the evidence you're hearing when he admitted that many of these people me said had witness transactions hadn't actually witnessed transactions thinking page id number on twenty twenty nine and thirty page id number twenty fifty one and following the that's fine but had testified at trial that all three or four of these individuals had witnessed the allegedly legitimate transactions with duarte and player five during the evidence or hearing that in fact they didn't witness the transactions they didn't hear the word they say with the money was for in some occasions they knew that doherty was on the property but their information came from defending himself they saw defendant counting money at the table and heard him say that it came from door day for a truck that in itself someone who overheard a phone call discussing a bribe while alleging that a bribe had been offered was not itself evidence that a bribe had been offered it's merely an assertion that something happened and that's the way most of these witnesses testimony played out that's even borne out affidavits if we want to call them that from two thousand and nine many of them said travis love told me that he was selling his truck and that he got the money from doherty or i saw him counting money he said it was from what so some of that there is not there is the defendant can't show any value from these witnesses and if you can't show that these witnesses would have actually it is case he can't show either that counsel's performance was deficient and calling them or that he was prejudiced convictions they were going to attack the credibility of star and the government's primary witnesses they were going to void testimony about suspicious transactions large exchanges of cash cereal boxes especially way from home pause that you have a convincing witness the judge says he's convincing howard k outs he's convincing and yet the defense counsel fails to put on anybody to corroborate why is there within the range of reasonableness i don't think we have any witnesses who can corroborate these facts well they could but nobody could step out there  love and i'm going to say everything he said is correct and i would agree with you it would have been a little bit scattershot but what if he had put on six of those people and the first one had said transaction yes i was there and that's what happened the next one transaction be yes what mr love said see i don't think we have people for those transactions because the people that petitioner said witness those transactions people like davis and fitz and bowens and harris for the transactions that happened at billings house the forty five thousand dollars allegedly for the concert promotion which petitioner testified came in three installments fifteen thousand each  he did testify at trial he said he'd seen door to there once and it involved a truck you know if we use these three incidents regarding the forty five thousand for the concert promotion the navigator purchase the escalator purchase all of those would be at least five occasions when dorothy was at the in the house but when she went out of his way to say i'm in charge of the house nobody gets in if i'm not there in part to argue that no cocaine had been delivered there which was not the government's argument in the first place because i told them the money was for the sale of the navigator that's not proper evidence that counsel could have presented it would have been ruled in and as it is missable hearsay defendant can't bolster his testimony by telling his friends what to say and then calling his friends to testify to those facts and i submit that we don't have any credible evidence that counsel could or should have presented i agree with mr black all this was not a case with overwhelming evidence our best evidence  re the drug ledgers with defendants name and phone number and the testimony of these two cooperating co defendants the jury heard all the evidence they heard the testimony of  petitioners very convincing testimony they heard all of his explanations for why he was actually a legitimate businessman and the jury rejected those the district court made factual findings again the evidence you're hearing presided over trial also over the evidence we're hearing set up the witnesses who testified at the evidence you're hearing in two thousand and twelve that was almost ten years after the fact the allegations were these things occurred in two thousand and three two thousand and four so you've got ten years that it took from the time he was convicted until the time we had the evidence you're hearing i stand on the record and i stand on what these witnesses said as the reflected in their affidavits and has reflected in their testimony they say they are not totally consistent they don't overlap each other but i suggest to the court that it creates a certain in disha of credibility because if they did then the government would be standing here arguing to your honor that these the other thing that counsel has said that i would take issue with it is that it was hearsay what what they what mr love said to him well obviously obviously in accepting the hearsay rule is is the exception and if you look at these affidavits in the way these transactions occurred mr harris was present each one of them the statement that mr love may or may not have made in each of the transactions occurred as that transaction was was occurring and they were able to witnesses raible to see what was occurring they saw transfers of documents a car they saw mr gore to in particular give mr levy money then get in the car and drive off and my experience your honor in drug cases has always been that it's the person who is the middleman like mr love who would be paying the drug supplier mr gore to instead we've got a case where the flow of money is just the opposite way which i suggest to the court the witnesses could have cooperated and what has supported the testimony of mr love and would have created a reasonable possibility rock correct i'm her stand your honor but i've got a clown who was really involved in this whole process all the way through and agreed with him that this was an issue we would raise that way and i thank you for your time and the extra time