he suffered was from being shaken the medical evidence presented on this issue was so one sided that the state in its closing was able to argue to the jury that every doctor who talked about this in this case agreed and that there's only one way it could have happened the point was and contradicted both points in this appeal address the issue of how we got to this point how did this evidence come to be effectively on contradictive and i would suggest that judge language from the couch case is a political here he said what seemed to be a simple explanation for the state's theory of causation was not so simple and if the jury had believed the new evidence it was not even true ground four in the hay vs petition the one that that is indisputable exhausted relates to councils failure to consult with the radiologist about this the m r i xin the c t scans and the importance here is that dr mark jennings the treating neurologist in this case  his testimony stands out for this reason he used multiple slides from an m r i taken nine days after alex mays was admitted to the hospital he walked to the jury through what these m r eyes show he's different indicating on his own head what he was demonstrating on the screen he explained the significance of blood here or there in the brain or of swelling here or there his his discussion is a narrative discussion with virtually no interruption it goes on for eight pages of transcript after that he goes on to explain his conclusions he says first there's an injury to the left front part of the brain you're the forehead and because of an acceleration and deceleration there's an injury to the right rear portion of the brain he said there's no other nine accidental explanation besides shaking or an impact that could cause this and he testified this occurred immediately before mr mays called nine one one now when i read the testimony i thought can you really tell all of that from an m r i but i couldn't answer the question was i weren't they some evidence of a bruise to the head there's some evidence of a bruise to the ad and we tried to add to the trying to get the photograph that's referred to dr barnes cross the cross of dr barnes doesn't seem to be part of the district record maybe it just wasn't but but the critical evidence in this case we submit is is the head injury because it's the it's the injury to the head as the jury found the injury to the head that caused the death and this is a felony murder case there is some other evidence of some other injuries perhaps or perhaps they came from a bleeding disorder which is dr barnes is testimony that bruising certainly could very well have come from a coagulant with the problem oh and dr barnes explained that the bruising on the head did not correspond to the internal injuries to the brain i don't remember him saying anything about well he said that the internal scans the condition of the brain internally was not consistent with were not typical of bruising he did he as he said that it's not is not consistent with the bruising that you see on the on the outside but he didn't say that that it was had he distance say anything about the bruise  brian's forehead or you know or temple he did address it to the extent he said i see that bruise and it is not consistent with what i see inside brain dr barnes did say that he did not ever what pa jennings and there's cross examination by counsel and he doesn't go anywhere near that he doesn't touch it makes no attempt whatsoever to cross examine dr jennings about the m r i and the reason is he can't no lawyer without consultation with the radiologist could have any hope of asking intelligent questions that would get an effective favorable answer about what this m r i shows and also dr jennings used only the m r i there he said if you line them up temporarily if you look at the progression of the images that you see over time and particularly important the development of the injury here is not consistent with shaken baby syndrome and of course counsel couldn't get that testimony because he doesn't have the have and he doesn't he doesn't have ammunition to cause dr jennings to say anything of the sort because i'm sorry scans and m r i s are in the analogy i've been thinking of is it's like cross examining a professor of classics about documents written in greek if you don't have a professor of classics sitting by your side or consulting with you before trial he will get nowhere or let's say that it was below the standard of performance not to consult not to show these i don't know i don't know why hadn't shown to the pediatric radiologist that he consulted if he had a radio and i mean what do you have a radiologist for and i guess they can speak to that but let's say that it was ineffective to not give them to the experts and wasn't clear that the that defense counsel did not give it to the expert i thought he said he couldn't recall it's clear that he didn't give them to the radiologist that is that the medical examiner who testified in this case dr levy for the prosecution when he was asked did you read the m r i zur the c t scans he said no i read the radiologist reports of the m r i xin the teeth and that is that does that mean council didn't give it to so no that doesn't show that council didn't give them to the pathologist but it shows that giving him to the pathologist is not the solution here if you have a radiologist identified and you only send him the x when you don't send him the brain images but he didn't even know if he gave to th didn't know if he gave him well it's not there no way not remembering years down the road doesn't mean he didn't do it it doesn't mean he didn't do it but there's no finding that he did know and so it but i mean you have a really high standard here i mean you the state court applied the strickland standard correct mistake or correctly identified the governing law they applied and applied the governing law and the governing law requires deficient performance plus prejudice that's correct plus under epa you have to establish that after applying the correct standard and look at the evidence that there are there for their rulings on deficient performance and prejudice were on reasonable application of clearly established federal law as a stablished by the holdings of the supreme court that is all we were really talking factual issues here right in some respects that's correct your honor that the last part clearly established federal law there's no question that strickland is the clearly established federal law it's clear the state court knew it and apply it in the questions whether it was applied on reasonably iraq i agree and both the supreme court and this court in a number of cases have found in these failure to investigate situations that that is exact that standard has been met there alibi cases from this court there are mitigating evidence in capital cases from both the supreme court and this court there are scientific investigation cases from both the supreme court in th court and so that's where we think we find her said archie talking about i mean defense council investigated this but you're saying he should have investigated it better than he should have done this and this and that i mean he'd looked into whether this would be that shaken baby syndrome or not and he consulted experts and you're just saying well he was negligence he should have done a better job than not should he not that he didn't do any investigation at all and usually as i read  investigation cases where we find that the state court finding was unreasonable there was no investigation not not not that the investigation was an adequate or negligent or could have been done better well the standard is whether the needs to be based on the reasonable investigation so for example in the couch case which is in many respects similar to this case counsel had an expert and there was evidence available there was a fire department report vailable counsel didn't didn't get that reporting those client told him to go get it he didn't give it necessarily didn't give that report to his expert he got a report from his expert that was consistent with the state's view of the case and he accepted it uncritically in this court said that's not a reasonable investigation how can you know whether something is worth pursuing unless you pursue it reasonably and understand what it is you can't present a capable defense unless you know what it is that you might be able to present this doesn't mean or in that it was accepted uncritically the medical testimony of the state was i guess you would agree with that that the cross examination for example of the state's neurologist included getting him to admit that shaken baby mean the police to follow that then i just wonder if you could say that even when even in this the efforts made be happy your client in haiti is there's no definitive as among those experts there's there's a i would say there's no certainty that in any expert would have been able to say with conviction this if i may sir can i i want to ask the question i was asking five minutes ago which is let's just say we stipulate that there was an effective performance and that dr jennings presentation regarding the scans was very effective you still have to show that dr barnes would have put a substantial dent in that such that the tennessee court of appeals was just way out of bounds in saying otherwise and you how can you demonstrate that when dr barnes number one you know by his own characterization kind of puts his head in the sand with respect to the evidence or bruising and the bone fragments that are in the child's skull number one and number two he also seems to have blinders on focusing only on whether shaken baby rather than battered baby on the one point it carefully i think ultimately everyone agree there were no bone fragments there ok only suggestion that in the case but but all parties concerned agree there were no bony fragments but on the point about putting his head in the sand your honor what dr barnes said is i'm a radiologist and i need to look at this on critically without being prejudiced by other things first that's the first thing i need to do i need to look at the images and i need to see what it is that an understand from the images and then i develop a differential and anyone should develop a differential diagnosis here of the things we need to be thinking about could it be an infection could it be this could it be that and then there's some testing that needs to be done to rule it out so i don't think dr barnes put his head in the sand about those those issues all timidly i understand i mean i understand your explanation but i mean doctor isn't a jury going to be pretty influenced by yeah but how but the bruise is it just a coincidence he's got a bruise on his forehead the day he stops breathing and he's got these you know bleeding in his brain was having him once and and and ultimately if all of this evidence came in and it may be that the jury would still find it sufficient to convict but the standard is only that there's a reasonable probability of a different outcome and when you have a prominent persuasive road neural radiologist like dr barnes who whose credibility is see right by the fact that he used to testify for the prosecution and he's now saying i don't think we were doing it right that we think that hansen has credibility significantly when he testifies we think there's a reasonable probability that the jury says wait a minute now i'm sure what happened wasn't there wasn't there a problem with dr barnes that at the time of the trial he wouldn't have been quite as sure of his opinion as he was post trial your honor the state says that in their brief and it's simply not supported by the record dr barnes  barnes specifically should have shown the scans right and specifically shown him that evidence over in light of the actions trial counsel actually took the court of criminal appeals was not unreasonable in finding there was no deficiency finding must be affirmed the you're the court the state court of appeals to not find that counsel actually showed the slide to even the pathologist correct there it was unclear whether the slides were shown how i weighed well my question is whether the state court of appeals made such a find it was no finding that so they state court of appeals made no finding it's undisputed that he didn't show it to the radiologist correct yes and his testimony was he sent a bunch of material to the path ologist but he didn't know whether the slides were included in that and so you know don't we have to take it that on this record they were not sent your honor under tennessee state law it is the fission or who has the burden of proving his factual allegations by clear and convincing evidence the fact that there is an uncertainty as to whether or not trial counsel did this it goes to the petitioner to show that and his burden to demonstrate that and as this court has pointed out that didn't occur in this case that burden is not overcome in this case furthermore we know that what counsel did do we know he consulted with two doctors that he actually presented to present medical expert testimony we know he consulted with two others who reviewed the material and decided that they believed abuse had occurred so that's four doctors there he also testified he also consulted with the fifth who he attempted to have testif that the trial court would not allow so we know he consulted with five different medical experts in this case the failure to show slides to the sixth expert who might have testified in his behalf when he had shown five there's at least a reasonable argument that consulting with these five doctors who may or may not have gotten to the one slide but certainly if they didn't didn't say he didn't say he may have sent it to five no he may have he said he didn't know whether he sent it to one would you i mean let's i know you disagree with the premise but just hypothetically if if it were true that he did not show these slides to any expert would you agree that that's ineffective assistance failure to investigate and i would i would contest that in one way only that you've got a tourney who gets material sent off to an expert if there's something incomplete the should be included that isn't the expert in a better position than the attorney i was going to say don't the file show that there is the c t scan and in these a these films that counsel may or may not know he's whether he sent to the expert it's in the record that there are such things right right rhonda and you're  exactly right you hire an expert to advise you now what what do i need to give you or do i need to i mean you don't the attorney is not the medical expert here the expert is exactly wrong or that's exactly the argument t to figure out what can i help you with if it's on the record and it's important you would assume the expert would request it that's exactly the thing also the tennessee court of appeals found no prejudice right yes and they not only found no deficient performance which is got to be a reasonable application of clearly established law but they also found no prejudice and that conclusion of that ruling also has to be an unreasonable application an application of clearly established federal law right so why do you think that dr barnes why do you think there is no prejudice here i don't think dr barmes might of created some doubts with the jury there are three reasons your honor the first is that the post conviction court was conviction judge w also the problem and specifically found that dr barnes was not credible part of that was because as judge griffin mentioned earlier there was a a recent contradiction or change in position as to whether or not the combination of the three symptoms dr with a contradiction or a change in position as the court is noted there were these unexplained additional bodily injuries there was also a bloke and a broken clavicle that was not explained dr barnes didn't claim not to see it but he was unique in that position which kind of detracts from his credibility when you've got every other expert see it's broken clavicle that he's going to testify that it didn't occur was there bruising i mean there's reference to have gone and abdominal bruising was there bruising around the clavicle did any of the dot traders note that you know no i don't recall any testimony about externally visible bruising only that i believe trial counsel even testified that even to a non medical expert i looked at it and saw what appeared to be a break from even a lay person's perspective that seemed obvious that's something the dr barnes this testimony did not combat the tennessee court of criminal appeals also noted that there was no prejudice because dr bartha testimony was speculative as judge cook pointed out earlier it was no testimony to a reasonable degree of medical certainty that these injuries were caused by something other than a shaken baby or a battered baby syndrome it was just his testimony with out of the earth the possibility something else occurred and that was to be put up against i believe it was for medical experts who testified to a reasonable degree of medical certainty that this is an abuse case and therefore in light of those three factors there is no prejudice in this case and briefly let me just get to the other point the state argued in the district court found that the petitioners other claims regarding the failure to submit an amicus brief by counsel was defaulted and be carried forward  that analysis however to the to the extent the court finds that the claim is generally exhausted by the per your prior argument that counsel failed to retain a qualified medical expert i would just point out that there is no merit to the claim regardless you almost get to the same point regardless because even if the legal theory was exulted was exhausted the factual premise behind it was not to these eleven affidavits the eleven opinions in the amicus brief were not presented in state court and co holster within prevent the district court from looking at it regardless and as to the eleven experts seven of them were not heard from at all in the state court proceedings and skull and would clearly prevent or preclude their opinions from being heard two of the eleven were actually presented at trial dr washington and dr willy so the failure to present their opinions through exhibits when they actually appeared at trial is not a mere tori's claim the other two were the two doctors who points there is a mention of the credibility of dr barnes i dress that a little bit earlier effect we believe he is more credible because he can explain to a jury the way used to be the way it is now but perhaps the more fundamental point is did he explain what the way it was at the time of trial  he explained that at the time of trial and all prior times this would not meet the standard a winded his theory change i mean we wrote about this in one nine hundred ninety eight the trial was two thousand  and now he's testifying post trial thanks to me and have changed when when in this time period did he change it is a process there is no one particular date your honor but the change is important at a high level the change is not important on the facts of this case because because dr barnes said even under the old standards this is not shaken baby syndrome well he said the findings i see or are not consistent are not typical shaken baby syndrome and he explained directly to the court on a question from the post conviction court judge said what do you think happened here and he said i believe it is you're seeing hemorrhagic stroke is most likely caused by quite a lot of the that existed for some i mean did he say i would have testified to that effect in two thousand and four he said he said under the he said under the standards that were in place even before one thousand nine hundred eighty eight this is not shaken baby so you know that opinion you just you just quoted i say i would have given that opinion at trial two thousand may be mis understand why should i so i say i think you just you just answered my question that no he would not have given that opinion in two thousand and four however he would have said it was a big shaken baby syndrome i think that i think the clear implication  of the what he said was that if he had been called to testify under old standards new standards whatever he would have said this is not because i know but he wouldn't have given that opinion that you just quoted i believe he would have your honor now and i did he say that that he testified to that he did not say if i had been called ok in the south or i have answered my question is i understood his testimony and he said he would have given the same opinions any time i think that's right yes not at ninety eight it doesn't matter doesn't matter that's the in his views or ninety eight to the later articles is not germane to his testimony here i agree it's a broader issue it's not specific to this case that let me just ask you a quick question present no your red lights on  is there evidence in the record which would show that trial counsel before trial had a reason to believe that the state was going to focus on these slides as it did i believe there i believe so that counsel probably should have said i better get somebody to look at these slides i believe i believe that's correct your honor because he testified i had the transcript of the prior trial that he had reports of dr jennings and when he was going to talk about something like that i'm not sure about that but it's clear from the appellate opinion in the first trial that dr jennings testified at the first trial he's mentioned by name in the appellate opinion and counsel said he had the transcript and the first trial they focused on the slides is that what you're saying that that is not in the record the transcript of first trial is not in the record so i don't know for sure what dr jennings said i have no reason to believe that it was less compelling than it was the second time or thanks a lot thank you very much thank you can't so we'll take your case or vice