matter you all checking in with her yeah there i can see they're doing something ok yes i just she had an issue on the transition into the room yesterday but i think she's coming in now yeah they're just must be a little delay on her you your honor good morning and may it please the court my name is matthew pecks and i speak on behalf of the petitioner appellant alonzo corral this case is fundamentally about whether it was ineffective for mr corrals trial counsel to fail to present to the jury evidence that he had before trial of which he was aware and that was directly supportive of the defense that he had chosen to present and in fact lobbied the court for permission to present this case is an identity case the question that trial counsel chose to put to the jury was who did the shooting was it his client corral or was it this kid named kennie when trial counsel walked into the courtroom he knew he was going to try to convince the jury to accept that kenny had done it mr mr panix can i ask a question a minute saying there's any such evidence in the record but is there any evidence in the record that you can point to that indicates any disagreement between your client and trial counsel over the strategy whether or not to put in these booking photos and the reason i asked this question is because i can imagine i read your i read trial counsel's testimony and i can imagine here that had mr corrals trial counsel put into the record the booking photos or other evidence of the similarities between your client and kenny the the state here would have come in with additional evidence to demonstrate that they don't in fact look alike or they could have looked much different at the time the crime was committed so this is i guess what i'm asking is what evidence can you point to from the record that demonstrates that this is just not a strategy decision during trial is to put something in as opposed to leave something out that now is monday morning quarterback saying boy maybe we should have done it differently and we should get a nd bite at the apple sure just thank you for that question no it's not hindsight and it's not nd guessing but to the direct question you ask do i have any evidence of a disagreement between chorale and his counsel no i don't but i think that something that is quite important that i guess i had missed until prepping for this oral argument comes out of that hearing transcript which you were just talking about judge where trial counsel admits that he himself had kenny under subpoena and it was trial counsel's purpose to call kenny as a witness to put him on the witness stand to listen elicit from him evidence in the form of  he had made it was not until the time that he was in the courtroom and pleaded the th outside the presence of the jury that corrals counsel then knew at that time that the jury would not seek any so the entirety of the time that counsel is for pepping prepping for this but couldn't he have decided well that the state decided not to put kenny on the witness stand and maybe from a strategy manner that is better for me because i get to argue in closing argument i get to make all kinds of arguments in closing are because the jury's never seen can and certainly he could have put on the evidence in his case in chief but why is this just not a strategy decision that he didn't do it and he just he didn't do it and what makes that ineffective it was his strategy thank you trial counsel has to know that the one question that any person is going to ask is being told to accept the idea that kenny did it and the witnesses misidentified him is or they look alike right that is what i'm getting at isn't dead good for you because as far as i know the state has the burden of proof beyond a reasonable doubt that's it the argument would be that the state did not meet its burden to prove beyond a reasonable doubt if the state was trying to prove that kenny did did it and corral didn't do it then sure but that's the other way around this is a circumstance in which the defense is purposely trying to convince the jurors by a pretrial motion that they filed in wisconsin to allow the defense to permission to blame somebody else so that was what the defense did and so in that regard the defense is trying to get the jury to buy something and in their reply brief i set forth judge the law on that wisconsin that shows that yours can't speculate to what the evidence might indicate the jurors can't search for a doubt the jurors are required to assess what evidence that they are given in this particular case they were given no evidence whatsoever to indicate that carolla kenny looked alike so there's that one missing piece and one trial counsel knows that that's the thing he's trying the bait that he's trying to get the jury to swallow he needs to connect those dots and without connecting them it's not going to happen and importantly even if he was concerned about their appearance and he thought well look it's great kenny's not going to testify they won't see him even if which i don't think is reasonable you had in the record documentarian evidence in terms of the content of the police reports that would have he could have elicited from the officers to show that the men were of a similar height weight and race and in this particular case under the circumstances of the shooting the people who saw him only saw people saw the shooting the witnesses only saw the shooter for seconds happen in a matter of seconds only one of them was familiar with corral you know him for fifteen years but that witness was distracted that witness was looking at a cell phone and when the other person the driver says hey who's outside the car the guy who knows corral for fifteen years looks up and doesn't even  say oh that's along so he doesn't see anybody he goes back and he's banging away the cell phone the other witness the driver only knew crowd through his brother he met him a couple times both of those witnesses were unfamiliar with kenney the driver didn't even know on the other witness the one who was distracted banging away his cell phone only has seen kinney for a couple of times so under the circumstances of this particular case and other circumstances of the facts as they came in and the defense the defense counsel chose to present it was objective lee and reasonable if this court looks at the booking photos sees the men's fiction pictures and decides that those photographs demonstrate objectively that the men looked sufficiently similar that the jurors could have a accept the proposition that the witnesses would have confused them then it was objectively unreasonable for trial counsel not to have called him as a witness it was a lot when he's appearance in front of the take a look at him thank you judge no he did not in my understanding of the law as it stands of wisconsin is that the th is to be played outside the presence of the theories or not to as indicate to them some sort of tomfoolery going on the the state before i get into the argument i do want to note i'm having a little bit of technical issue where i'm unable to see the galleries you so if i am going over my time as i'm getting close to time and i don't seem to be country two prong is getting at are state court decisions where the court completely fails to talk about the standard or is ruled differently than the supreme court a materially indistinguishable fact so really the only question here is whether the state court application strickland was unreasonable and that leads to the nd barrier here strickland provides that when an attorney articulate the strategic reason for a decision that was found at the time it was made that decision cannot support a claim of an effect  interrogation video of kenny when he sat kenny later in the courtroom a trial that only confirmed his confirmation who confirmed his observations in the beginning that the two didn't look alike  and he decided on balance that trying to present a primitive evidence of what can he look like and having the jury compared to raul would risk harming prowse defense it's a reasonable decision and that can only be undercut by operation of can go into a meeting i think everything just stops there i mean we can talk about the booking photos we can talk about the general appearance or the jury question or mistaken and occasion but ultimately counsel made a call based on the information he had available to her none of it was based on a misunderstanding of the law and none of it was based on anything anything really you know counsel talks about this court making  finding that the the corralling tenney looked object of lee similar based on the book and that is no you don't it's you know just respect as a probably as similar as corral and kenny are ever going to  love but it doesn't change the fact that at the time the council was making this decision he had no basis to go on sort of a wild goose chase for just those that might detect tenney and paralysing and he also kept in didn't look alike and he said had i had any kind of you know gut reaction of like obese to look like they could be mistaken for each other i would have stood up and had asked the jury asked the judge to bring the jury end but again that didn't video of i'm sorry what what kenny had said to police in the video but it could have present of the video i mean it still could present of the video and allow the jury is kind of that way so you know that all could have come in  and i think ultimately you know the issue here too was opposed witnesses knew chorale and you know i think counsel sort of undercutting how well they knew them but the driver knew him so ultimately presenting evidence that maybe they have a similar body type you know it still doesn't change the fact that they had one hundred percent certainty that it was it was i think also to the point of  when the jury's left with the suggestion that kraut let the county was also there and may have been dressed alike to cry out without other information they can't speculate that they didn't look like i think they ultimately it ultimately would go against the state to say state you didn't establish reasonable doubt that the shooter wasn't you know the shooter wasn't actually and you were or you know it was routh so again i think with  completely and then the court's reasoning by ignoring relevant facts on the record having to do with the deficiency analysis show that it's contrary to strickland you know harrington versus rector the u s supreme court case very clearly says that strickland must be scrupulous subjective interpretation of the evidence to be dispositive of deficiency otherwise in every case where there is some apparent in a case where there is an apparent misinterpretation of the evidence by trial counsel it would have to just say whatever that  misinterpretation was counsel acted reasonably under it even if every other person who looks at it would say that's not the case so if everybody looks at these two men and says they looked sufficiently similar that under the circumstances of this shooting witnesses could have confused them then that constitutes a holding no reasonable jurist could disagree with being deficient or not present evidence of their appearance i also quickly i want to say he didn't have to present a booking photos it's not just about the booking