this court's very familiar i know with the extremely high level of deference given to the state courts and hay vs cases so i won't go over it here but given that deference and the high standard for granting he was relief the answer to that relatively simple question is no michigan court of appeals was not someone reasonable when it granted hay vs relief that petitioners deserving of it district court granted his relief as this court knows after finding ineffective assistance of counsel under strictly stricklin of course requires two shillings court said both strickland and pa and while he applied strictly and he did not appropriately apply and in other words i think our brief would call it lip service to add and so what we asked the court here today is to give the teeth that it is supposed to have  malfunction this is not one of those cases and in fact because it's strickland the supreme court has said because of the inherent deference that's in the strickland standard itself even if you were to review a direct appeal case the standards in stric two standards to review here in terms of the decision of the michigan court of appeals one as to whether there is deficient elements and another asked to whether there was prejudice because i recall on the deficient performance aspect of different claims one on the failure to call interview and call novell alast in the grandmother in the last one to in consistencies between her testimony and the police report so with respect to the inconsistency is the court of appeals addressed both prejudice and efficiency i think clear although it was more expressed in terms of its addressing prejudice on the inconsistency stricklin claim but it did in turn in addressed both i believe in that claim with respect to the failure to call an interview novella alast and it expressly decided prejudice but because they had not because defense counsel like the state did not reach they had no recollection of whether he had read and made a determination as to whether or not to call her the so turn into that one call to the grandmother can i make a note i'm sorry i'm not sure i know in our brief i think we presented an argument that there is some new supreme court precedent that may be undermining that and i just want to make a note of that so i don't waive that argument if somebody wants to make that but yes under the law and under rainer you are correct chief judge paul that there is a difference i in the review between the deficient formants and the practice performance so what you dress this issue involving the grandmother  ok the district court for if i can address prejudice and then i can just officially address deficient performance or if you have questions i can but i'd like to because time is limited and i think that's where the meat is i'd like to address the prejudice prying first just to court i think was wrong when it completely concluded contrary to the state court that petition was prejudice here's why first evidence that michelle lied about the sexual assault was already in through two different people one through her mother and two through michele herself i really don't know what's more powerful than your mother saying you lied to her and then you yourself admit in under oath to the jury that she lied to you about the sexual assaults allison else has to moni while it would have perhaps been a cooperate in third person that would have said she lied about the sexual assault had significant baggage that's clear from the police report itself and while he did not interview her that that would have come in no matter what she said that would have been used to impeach her and so she came with baggage she was obviously hostile to her granddaughter she talked in very vulgar terms about her granddaughter which i don't want to repeat here but the comment about her being like a dog and her being dropped off an early morning hours at lake a piece of me the sarcasm about her crying and putting your hand or let those are things are very very hostile not only would that have made allison look bad it would have it could have evoke sympathy for woman who obviously has has significant dysfunction her family and then you have in touch with and worked with the grandmother we don't really even get to the issue that you're right using if if he if he failed to investigate it isn't the law clear for adequate counsel that if you if you make a choice but you don't investigate to give yourself in factual basis upon which to make that choice not to call then you have failed to satisfy strickland's requirement to provide proper counsel and i'm sorry if i wasn't clear though this is all in the context of the prejudice per this is on the context of the prejudice probably although these these facts about her being able to be ok but yes the fact that she could be significantly impeached both play a role in whether or not she would be whether or not she suffered prejudice for not having called her and also whether or not it would have been reasonable not to go and talk to her and call her trial perhaps most importantly the fact that at the time of trial to me her mother was no longer with petitioner and they were in a serious custody dispute place heavily against the dr against traffic or in this case the district courts determination that alice to alison's testimony would have been much more credible than tami if you remember the district court stated that one of the reasons he was finding prejudice was because tammy was petitioners her name that was not true at the time of trial in fact it came on a trap respects and what he wanted to see what he wanted them to do how we approach them his playful kind of manner at times the victim stories were consistent with it undisputed evidence about what took place in the household he was sporadically working the mom was gone he had access to the girls there were times when he this could have been a calm says not a case in which defendant didn't have access or limited access he had on limited access to these these young women the district where depended a lot on the fact that there was no medical evidence which is curious given that this was a breast touching case given that this was a young woman who was sexually active apart from the sexual assaults that petitioner perpetrated on her there would be no physical evidence not to mention there was a delayed disclosure over a period of time there would been no medical evidence of the time that was reported and the disquiet relied in large part on the fact that there wasn't a disclosure which is curious to me in this day and age we know that victims it's very common and in fact that just common typical that victims disclose late partly because they don't do so until they reach a place of safety which is exactly what happened in this case there was almost immediate disclosure when these young women reached a place of and in particular a minor is very reluctant to disclose sexual abuse in a home in which she is under the authority of the abuser and when the mother has a relationship with the abuser so the district court realigned of factors to show that the evidence were we that are simply wrong and that is even if that weren't a no but this is an advocate and this is the prejudice prying in it's untitled and punishment court of appeals found that there was no prejudice i  i'd like to move on to the ineffective assistance of counsel claim with respect to the two consistencies just strange but i know you wanted to address only what you want to say fairly who's now on prejudice and when deficient performance doesn't matter that's right but i'm happy to address deficient performance if you like i think we know the law on failure to investigate it's deficient so i have just a minute left and i'd like to address quickly the ineffective assistance of counsel claim that regarding the two inconsistency is one relating to her reporting the abuse to the police in the one relating to the age of the abuse which was frankly so both of them so inconsistent the age at trial she said i was seventeen in the police report of the century it was sixteen it's an insignificant difference given the fact that it was a display delayed disclosure in the time of trial it was a year or two later the reporting to police she vomits she could have voluntarily reported it when they asked her after her boyfriend report it's not clear that was even inconsistent but if it was it was insignificant and certainly in significant in light of the very significant impeachment that she underwent at trial i think this is really the most important part of the just court over what this michelle was impeached on the fact that she was an alcoholic that she had repeated blackouts that she failed to disclose a conversation to police about whether he had apologized and promised he would not sexually assault her again peached with the fact that she voluntarily moved back into the home after she was out in tennessee lie to her mother about the sex being consensual she was impeached with her delayed disclosure she at impeached for some of the household facts that she talked about were people coming and going many many more bit the point is spite all of this significant impeachment the jury saw her looked at her face listened to her testimony and believed her because they up one because that's the province of the jury to look at the person testifying to children if they believe her into because it was consistent with christensen i think consistent with the household and the evidence about the household but the district court here substituted its judgment for that of the jury and didn't find her credible that's not the province of the in contact with her had he done so he would have found out that allison was prepared to testify to not just one but two instances on which and that recanted her or her testimony and the jury heard this testimony there was a reasonable probability that in the words of wiggins at least one juror would have struck a different balance or was that the case given my understanding that m's mother and also of all i would not characterize alison's testimony hadn't heard as she motive they'll be more appropriate if she was testifying about the same instance recantation it in other words if she had been there when  danzy and then later she said that she had lied about that recantation in order to to get her mother's love so in those respects alice's testimony would not have been cumulative what about the state's argument the warden's argument that  plenty of stuff in the police report that indicated that alice in one of the strong winds she was a sixty five year old grandmother of both victims she worked at the university of michigan hospital for twenty four years and furthermore it's not clear on the basis of the police report that had she been on the stand her credibility really would have been diminished because of this relationship with adam she says that she hated to see it in reference to and drug abuse prejudice so your honor the prejudice standard in strickland is whether there's a reasonable probability of dead but for counsel's unprofessional errors the result would have been different and in strickland the court to find reasonable probability as a probability sufficient to undermine confidence in the outcome so it doesn't have to be more likely than not just more more than a possibility basically so i think that there are i think the it's a wash basically  by detention is at the very least it's halfway whately that they would believe her and we don't we don't need halfway we only need a reasonable probability of here's the problem though with your argument it's not just whether they would believe the grandmother or not what other information they would take about the victim and believe about the them the concern for a council choosing whether to put the grandmother on the stain and would be that the things that she would say about her granddaughter wouldn't reflect on her they would reflect on the granddaughter and make the granddaughters testimony less believable to the jury which is the last thing counsel would need to have done in this case in isn't isn't that the problem with the analysis for you for your side search you clarify yeah when the grandmother testifies there are two credibility issues that arise first of all her own credibility is this grandmother telling the truth is she just saying things to protect the granddaughter do we think that her second not alibaba second confirmation or corroboration would make a difference to this jury that's an important consideration equally and in my mind perhaps more important is  she say about her granddaughter that will make the jury see her granddaughter in a different want if she comes in and says some of the things that were in her statement to police about her granddaughter the danger is and and the consideration for prejudice is that the jury might then say this is what her grandmother thinks of her i don't know that i'm going to believe what this put in testifies to because this is a close relative who says she loves her and she's portrayed in her as a being a type of person that might have engaged consensually with her mother's boyfriend because if to me that means that it would be a positive for the defense if it turned out that the jury on the basis of allison's testimony  credibility without a bright note not lost if if if what's going on on the stand a fix all of the credibility in the case don't you think that makes a difference maybe we're maybe we're not on the same stand the my my understanding of your what you just said is if we have the grandmother on the stand saying all these things about him the jury might  about him think that she had to so what i'm saying is there are two credibility questions and i'm struggling with whether your credibility question wins in the us and makes a wash and i may not have city this clearly as i should whether your credibility question makes a wash of the this or whether the credibility of the grand mother's statements don't work against  stretches articulation of what might have happened and that is that the grandmother gets up and you know the daughter is you know maybe maybe the kind of person who might have done these case credibility and you have one of witness who now has recanted not once but three times i think that those go to the heart of the president bush and i think there's a reasonable probability the jury would say ok now we have not just one we have three written titian's this is victim's grandmother who sixty five years old does not have a personal relationship with moss i think there is a reasonable probability at least one juror would give us struck a different balance  so i haven't spoken directly to the deficiency prong essentially strickland says castle's that you could make a reasonable investigations or maybe a reasonable decision that a particular the sufficient from a strategic standpoint i mean if if counsel looks at a police report and they seize all of this you know potential baggage lurking there from a strategic of a police report that says you know give some indication of what the substance of the testimony might be is not enough information to me but even if that that substance of the report first of all appears cumulative appears to be  potentially prejudicial to i mean the victim in that it would cast her in a battle i mean i was saying that based on our precedent there can never be a strategic decision made without going out and talking to every impact with this not when the testimony would depend on how would jury might view her credibility so i think that's the essential question here that the jury would want to know one of the term and whether i believe ballston or whether i believe them and counsel could not of me as a reasoned decision that if you put allison on the stand the jury would not believe her without you know just by looking to please support   the prosecutor did not think this case was strong enough to bring with only m's allegations he decided not to prosecute they were consolidated for trial at trial in the opening closing statement the prosecutor explicitly tie two cases together saying we're not talking about one or talking about two am just like k and finally at the end they're hearing to get their attention or hearing whether there was ineffective assistance counsel said it's not a he said she said case i said case so the whole prosecution's whole theory was predicated on there being not just one but two witnesses and those witnesses reinforcing each other's credibility so if they also had been the stand she would have undermined credibility leaving only one undermine a witness and so essentially because there would no longer be this reinforcing aspects there's a reasonable probability that the jury would  response to the question regarding this double credibility problem that supported his client's case would you respond to my responses i heard him say in in you as well say that this makes it a wash or this could cut either way it could undermine the credibility of michelle but her grandmother statements vulgar and hostile statements could undermine her credibility and i think that's true and so what that means in so not just what i think it means what the supreme court has  that means is the state wins and he vs we're talking in list context and the prejudice pronk as to what that testimony or potential testimony at trial would have done is in the prejudiced context there's no question even the district court said that that it deserves if it's a wash the state wins and so what i heard posen counsel say was he conceded it's a wash it could be it could go either way which means the state wins there's no question about that so i think the question just answer is a good one i is is kind of cleared up by judge gannett was a good one because i think that's the heart of it and that's why hevia supposed to be reserved for the most extreme not function in the state court because we don't know what that testimony would have done it's our position the testimony would  have could have evoke sympathy for michelle it could have made her look like a young women or young woman who's being sexually assaulted has no family support has no one to believe her and acts out in all kinds of sexual ways that's what the state would say but but the but the defense may put up the said this shows that even her grandmother thinks she's a liar the point being one there was a nuff impeachment about this poor woman at trial that the jury knew that she had lied in the past that she has blackouts that she drinks sexually it all the stuff the jury already knew they watched her they saw her it's the province of the jury to believe her there was no indication for her or kay that she had any motive to lie for these girls to conspire together to put themself on the stand and help them impeach like they already were so i think basically what we just heard was a concession from opposing counsel that the state wins at the very at the very least on the view i just because the other problem the distinction between corroboration and alibi says what is your position on whether the alibi cases support the defense's arguments as a distinct from an additional corroboration rather than a verification well there are a lot of alibi cases ramona as i think cling scale wigan's there are some others and first of all they're all factually to steam train they have to do with alibi they have to do with people they have personal knowledge about what went on this grandmother had no personal knowledge she's testifying to a statement made long after and it is cumulative it may have been a different time in which she made this alleged you can't but they're just simply another time michelle may have lied about the sexual  from herself she admitted freely under oath that she had lied the alibi case is one have to do with not presenting any alibi at all which is very very different than this case it also has to do with people have personal knowledge and on top of it they're all time and here's why i don't think it was deficient one this is not a case in which and i think they rely heavily on vega and the ninth circuit case one big it doesn't have any relevance at all to the prejudice probably because it's not an ad because it's not a supreme court precedent and it has to be in on these obtained the reports he just simply couldn't remember having read them and remember what he did which is reasonable when you're in these crowded trial courts you may not remember a case they had six months ago or at least what you did with it so he didn't fail to obtain them he obtained them he read them he knew allison is in there he didn't have any independent recollection but he was prepared at trial he called witnesses he cross examined all the witnesses on key points to support the defense he's the one that brought out all the significant impeachment  blackouts recantations many people in the home never having witness anything her move back in the lies she told her mother she got her to admit under oath he significantly impeached her he was prepared he knew what he was doing and he could  e in as i believe it was judge dial pointed out you don't have to investigate every witness you're not that's strickland no nor any other supreme court case says you have to investigate everybody if it's reasonable not to he already knew and we can opine on that because we don't know what he would have done but the case paul allows for us to say what he could have done that would have made it reasonable he could have looked at that known he was going to impeach or significantly in all these other ways consider the baggage too much to bring knowing what his defense was going to be and not call her and it would still have been reasonable in while he said to me the mother did call her a liar trial and so that makes her just as would have just as much baggage as the grandmother untrue there's a huge distinction between saying your daughter's a liar or is lying and having her say she would fuck a dog and she's in she's dropped off every night after like a piece of meat that is not only a negative thing to say  horrifically a vulgar thing to say about a young woman who sexually active and who may actually be sexually active because of the abuse i think there's real reasons why the defendant could read that police report which we know he did because he testified to it and say for your argument today and certainly the washington university clinic i guess it is was willing to take this matter under the criminal justice act you know that's a real