based on his coerced confession and after the prosecutor made an improper invitation to the jury to convict mr hicks because he had not been sufficiently punished for separate unrelated misconduct trial counsel's failure to object to admission of the coerced confession or the prosecutor's remarks amounts to ineffective assistance of counsel under strickland as the district court correctly found the coerced confession came into evidence because trial counsel acted efficiently under strickland's first problem and failed to move to suppress mr hicks's inculpatory statements not only to the state challenge that finding but now for the first time on appeal it contend the state put on no physical evidence and the trial essentially came down to a credibility determination between mr hicks and the alleged victim e j as the trial court recognized now you agree though that his son petitioned before them wisconsin supreme court didn't contain any substantive argument regarding either ineffective assistance and doesn't even mention stricklin of the sixth amendment it does not mentioned strickland or the sixth amendment that's true your honor however it does frame an argument for ineffective assistance of counsel which is well established as a violation of the sixth amendment and analyzed under strickland standards and although the argumentation on the on ineffective assistance of counsel was brief the counsel of the petition for discretionary review by the wisconsin supreme court clearly framed two claims of ineffective or two arguments and in support of an of a claim of ineffective assistance of counsel one based on the failure to move to suppress the co confession and one based on the failure to object to the prosecutor's closing remarks when you say framed by that you mean the subheadings basically the issues presented your honor and then the issues presented went on to describe how the lower courts treated how the wisconsin state courts treated those claims but when they were before them i went on to describe the factual basis for those claims describing the entirety of the it with respect to particular with respect to the prosecutor's closing argument  went on to describe what the prosecutor argued in closing that trial counsel failed to object and that the lower courts had determined this was a reasonable trial strategy the brief then went on to argue that in fact this was not a reasonable trial strategy so in essence undermined the entire basis for the state courts determination i suppose turning back to the first of the two ineffective assistance of our in effect second ineffective assistance of counsel arguments that relating to the co confession let's start first with the prejudice problem here it is undoubted it well first this is an issue that this court refused to know because the wisconsin state courts never reached whether counsel's failure to move to suppress the co confession was prejudicial second i think it is telling that the state did not argue before the district court that there was no prejudice as a result of trial counsel's failure it's simple we argue that the statements were voluntary and so what could i ask you to find help me out on those as i understand it there was something called this goodchild hearing on the phone call confession right yes your honor and how in the be at the end of that hearing as i understand it said ok i think these it was was voluntary confession that's correct or so how would a motion to suppress have offered any reasonable prospect of changing that result honor well quite frankly that that good child hearing was the trial court decided at that good child hearing solely upon the state's presentation of evidence and in fact there's nothing in the record to reflect that the trial court actually listened to the entirety of the tape or reviewed the entire transcript of the recorded conversation it certainly was presented as an exhibit but the trial court stated in making its ruling based on the testimony before me i determine i rule that these statements were volunteers so it wasn't no was it or next party here you know your honor defense counsel was their defense counsel simply did not a did not in any way test state's argument did not test that this was  y and did not put up any defense that these statements were in fact involuntary this is some sort of recognized wisconsin state court procedure i believe so your honor i think it's essentially to decide  know that this wasn't deep credit prejudicial the so the standard for president prejudice as your honour's i'm sure we'll know is was there a reasonable probability that the outcome of the proceeding would have been different but for counsel's ineffectiveness here we know that the coerced confession was a centerpiece of the prosecution's case against mr hicks the prosecutor repeatedly returned to the course confession during closing arguments indeed the final words of the prosecutor's closing paraphrase mr hicks a statement the prosecutor said e j i'm sorry for molesting you i wish he was thank you now the fact of the property the prosecutors closing also reference mr hicks the statements a number of other ways the prosecutor repeatedly admonished the jury to judge mr hicks on his words the the prosecutor also said an innocent person would not apologize for such heinous misconduct and although we did not cite it in the brief on page one ninety four of the supplemental appendix  you can see in the closing the prosecutor says now no c s i evidence no physical evidence i'll take a confession the prosecutor was basically saying that mr hicks is apology t j was tantamount to physical evidence that he had that he had done that he committed the sexual abuse that now there was the testimony of the two other victims there was your honor but that was admitted solely for the purpose of motive and would could not be used to determine whether mr hicks had in fact on this occasion  from the lips of the defendant is incredibly damaging and powerful such that when even when there is other evidence in the record the jury is likely to convict solely on the basis of the coerced confession moreover there is there is another reason why a confession when it is coerced should must be suppressed and that is to deter police from engaging in the course of conduct if it's simply enough to put the full transcript before the jury and allow them to decide whether there was  particular instance it incentivizes police to go forward and use whatever course of conduct they may decide they may desire and then simply roll the dice before the jury does in house the principal or human for coersion as i understand i that the threat to disclose these accusations to mr hicks whose son would use what convinced him to confess right and can you direct us to particularly supreme court but analogous case is the supreme court's decision in line of the illinois and also this court's decision in sworn birder both of which are cited in the opening brief in those cases threats to prevent the defendant from accessing his or her children absent a confession the line of it was a threat to take action with the state social services agency is right to remove the children from the home it was your honor but pivotal to that to that defendant's pivotal to the court determination that that offended had been coerced was or her belief that if she went along admitted the state would take no action with respect to her children so that is really directly that that is parallel to what happened here of the source of that threat was someone in the non physical threat your honor but i think combining the thrusts of those two cases we do see that that an individual acting on behalf of state law enforcement can make coercive threats and that under under the right set of circumstances because it is always judge under the totality of the circumstances that a threat to prevent a defendant from accessing his or her children can be deemed courses i think the concern is once you can have to combine some cases in a multi factor test that you run into the deference  put that was known by the state courts that they could apply now of course the facts are individual eyes but the standard was clear from the line of cases involving coerced confessions and indeed involving stric down to the procedural issue that at least was has been preserved by the state with respect to the closing argument claim and we have the supreme court telling us in baldwin against reese  on the fair presentiment issue with respect to discretionary review and state supreme courts you know essence it has to be you can't require the state court to read anything beyond the petition i'm not sure how consistent some of our case lawyers with baldwin against reese however humane intelligent and fair minded it may have been it i wonder whether that you're asking us to take action contrary to the  baldwin against reese well i don't believe so your honor as this court has said in harrison and ellsworth and elsewhere that a claim a claim can be fairly presented if it is presented in terms so particular as to call to mind a specific constitutional right and in the petition for discretionary review mr hicks clearly put before the wisconsin supreme court a claim based on ineffective assistance of counsel that is a clearly and well understood six and claim all right we want to save the rest of your the court i'd like to begin where my friend on the other side began which is prejudice on the first strickland argument the evidence against him at trial was overwhelming the confession played a very minor role in the state case in chief the state called e j the victim who testified in graphic detail as to three sexual assaults in particular into over one hundred twenty over a three year period the state called two  other young men who were boys at the time who were sexually assaulted in similar manner the state also called that was is the petitioner in point limited to motive that ends that's right limited to motive but motive is very important in these cases because it's  not it's not every person who has this proclivity that it's such things to young people young people that that is absolutely true and that but the then they came down to credibility fight between e j and mr hicks basically no there's also the evidence from the mother who was called around the same time as this phone conversation occurred called three times in fact by the defendant and on those calls the defendant confessed to being guilty offered to help in any way that he could wanted to make i the the the argument that this wasn't important it's pretty hard to swallow well let me try to work at it with you here the other side so it's bulma not say for the proposition that confessions are powerful evidence ok the full paragraph and full amount they says that full confessions are powerful evidence when you have a confession in which the defendant explains how he committed the crime why he committed the crime etc it can be very powerful just as the detailed testimony of e j was very powerful but in a case like this where the confession is not full where it gets bits and pieces of answers to questions and indeed if you were to take hicks argument seriously then this wasn't a reliable confession in the first place and therefore the jury properly discounted the protos alue of the confession when it deliberated over the evidence scuse me that sounds a little bit circular if you've  got a prosecutor who is making a lot of hay out of this phone call right and you've got a straight swearing contest essentially the with with victim an ex wife on one side and defendant on the  other that's not the trial would have seemed awfully different if the confession had been suppressed i think you might spend more time useful on the deficient performance question with respect to that issue happy to do so your honor on official performance the key question under strickland is did this trial attorney not have a tactical reason for not bringing this motion we know from strickland cases that trial counsel does not have to bring every non frivolous motion that can be thought of so what was the downside what would have been the downside to filing a motion the downside from trial counsel's point of view at the time was that it would be better to make one motion that would be absolutely critical to the defense a motion to exclude the other x evidence the testimony from the two brothers which was damaging in this case and not to file a motion that trial counsel at the time thought would fail hindsight has vindicated that judgment trial can't counsel also knew that the state wanted to preemptively bring the voluntary in this issue before the court in the good child hearing and it's well known under wisconsin law that in a good child hearing the state bears the burden we know the state or the burden in this in this case and we know that the totality of the circumstances was cited to an applied by the state court so trial counsel no the issue is preserved no trial counsel that sounds like if he had if he had resisted in the good child hearing that's a good  but it sounds like you just roll over and that what happened he did he joined in he said i thought i think this would be a good idea idea to your honor when to have the hearing to have the hearing but did he put up any arguments against admission no he didn't but the question turned almost exclusively on the transcript of the call i don't think this is a particularly difficult kind of analysis for the state court to apply knowing the law and knowing what happened on the call but more importantly under a clearly established supreme court precedent we know that this that these quote unquote threats on the call are not were not enough to overcome the defendant's ability to resist there are two parts to the coerced confession analysis one is have the police has there been a substantial element of improper police coersion the defendant was not particularly bothered moved by the threats on the phone call that that's based on his mr wells this testimony right not only mr wells testimony the stay court said wells testimony the trial transcripts and also the transcript of the call for example to ok and so the testimony would be much more insulated from federal review how does his testimony in the post conviction proceeding square with his entire trial presentation i'm glad you asked that your honor i think i can clear this up in about a minute so at trial the question was during the course of that phone call did you feel threatened and the defendant answered yes now under the other side's theory that was suborning perjury if that was a false statement but it wasn't because it's important when reviewing the trial transcripts to keep in mind that there are threats  physical harm on the call there are threats to report to the biological son and there are threats to report to the police now we know from the post trial hearing the attorney is asked so you are are you saying specifically that hicks told you that despite these threats were these threats in context refers clearly to the threats of physical violence despite these threats that he did not feel coerced or pressured in any way answer yes i am now we know also from the other post trial testimony that the attorney had been told that hicks had been bothered by the threat to report to the sun so add that all together and what do you have you have a you have a clear conclusion that the attorney when he asked that question to trial could have thought that hicks thought that he was threatened that hicks felt threatened by the report to go to the police but not threatened as to the physical violence or the threat to go to the biological son in other words you can't prove that he knew it was false that didn't mr wells slice and dice like that in his rebuttal argument where he focused on the the threatening nature of the call it he didn't need to slice and dice because every quest in had to do with specific threats on the call it was a pretty methodical examinations and the rebuttal when he says he's arguing against the jury's consideration of the tape he called a threatening meanspirited horrible and he's not categorizing it on a threat by threat basis like you are you know i think it would it was to his strategic benefit to be general about the he happened to know that his client did not take the threats of violence seriously and  fact he testified to the trial he didn't he said i don't know that i'm particularly bothered by the x k g b agent line he also said on the call by the way after e j said the moment i think you're lying this is the p g rated version it's going to be done all right and then hicks proceeded to deny repeatedly as involvement so it's clear that he didn't consider that and that that that didn't over bear the defendants will to resist and as for the threat to report to the police he says in response to the question so did you confess to the crime to avoid having e j go to the police answer i confessed to the crime to get off the phone he said there's no fewer than eleven times i would submit that an ordinary person if a person is called and threatened and told to confess to a crime if he's asked about it eleven times after the fact why did you confess it's because i was worried that i would be hard for me because i was worried that he would go to the police or to the biological son but instead kept returning to this line again and again that another question was what is the purpose of making these repeated it missions of guilt on the phone he says to get off the phone and he said i also wanted to get with e j smothered to talk this over to see what was bothering e j at the time these are these are the statements of a person whose will has been overboard i want to i want to move on to the closing argument because i have some real concerns about that you say there that there's no prejudice from the prosecutor improper statements but doesn't the question from the jury suggest otherwise and i'm having really difficult time trying to determine why it would be a strategic decision not to object to a prosecutor implying that the jury should the evidence of the sexual assaults against the other brothers was already admitted because the defense opened the door and the question from the jury had to do specifically with why was his probation revoked there was nothing in the record about that it did come up that same day it came up it was a very elliptical part of the examination the defendant says yes my probation was revoked and then they move on to other things and i think if you're a jury you wonder why did that happen it goes to credibility for the same reason that a conviction for a crime goes to credibility so the jury did you had every right to to to wonder why why did that happen but of course wasn't in the record i think that's a far more plausible explanations of why the jury would ask that question to the press even more importantly the state and the defense counsel in the court repeatedly told this jury that they were can to consider the evidence of the a sexual assault against the other brothers to go slowly to the issue of motive they would consider the convictions to go solely to the issue of credibility i think which we generally assume the jurors follow the instructions and as to the trial counsel strategy c n n of course if there been an objection by wells the court would have probably still would have stric that statement and would have given the instruction they are because the instructions you're referring to are all at the conclusion of the case obviously since it was not object that's right your honor the trial counsel's thinking was that the juries of the jurors might not have been paying attention at that point it was sort of a vague allusion it wasn't an explicit it was and this is shocking as many improper comments can be in a closing in a closing statement and well and then what also concerns i mean it puts it right on the jury to get all in that your honor i think another reason that trial counsel would not have objected at that point is well first of all his view also if i may move briefly before i'd sit down to the procedural default question on that claim in particular since that is the basis of the district court's dismissal of that claim you had in the statement of issues one two three four in the fourth use the words ineffective assistance in reference to this closing statement under wisconsin rules the petitioner then had to provide a section for that amplified the reasons relied upon in support of that question presented there simply is no question for in this petition this is a counsel but by the way there's simply no question for there is an argument that the closing statement violated a jury trial right in section three but all the cases cited in that section go to due process or jury trial rights federal claims not having to do with strickland at all a petitioner has to fully present fully and fairly present a claim some enough to say ineffective assistance that's that's burkle that's the holding of burchell there was an argument that well say just at least in the absence of baldwin looking at this petition it seems like a sensible way to alert the wisconsin supreme court to the issue would say this really is not why we are seeking your review  i think i think burkle forecloses that line of proceeding burkle rests on the theory that the state court of last resort should be given opportunity in an opportunity to wrestle with the claim you have to fully and fairly present it can you refer to other documents to present that claim sufficiently no i think under bolton versus reese that's that's insufficient you got to you got to put it in there a tactical reason for not filing the motion he simply argued he didn't think it would win yet that flies in the face of the trial strategy that he put off at trial keep argued in closing as judge chang pointed out that the statements that e j made during that phone call were threatening menacing and caused panic in mr x he clearly was arguing coercion in fact if not legally second y excuse me and in terms of mr hicks mr hicks testifying that he confessed to get off the phone he did say that generally he wanted to end this menacing threatening phone call but the specific trigger that caused him to get off the phone was when e j proff the threats to divulge his allegations to mr hicks a son destroying his relationship with him and potentially opening him up to the entire host of of ills that he suffered when they're the partner beginning where e j they have some small talk in egypt puts the question to the hicks why did you sexually molest me and then there's some inaudible part and then and then hicks says something to the effect of can we talk about this later and the prosecutor pointed out that that's not the way an innocent person talks when confronted with why did you sexually molest me it's what are you talking about and so there's been no threats at that point right