our third case for this morning is mark against foster i'm not going to pronounce your name how do you go yes ok good morning good morning may i please the core my name is suzanne go p n and i represent the petitioner appellant john martin the issues in this case have shrunk to one and the issue is that applying the strickland prejudiced standard de novo was mr martin prejudiced by trial counsel's failure to introduce evidence of c p g's prior false accusation strickland instructs the reviewing court to consider the totality of the evidence and the evidence here consisted really of two things why why does the dyno vote the court of appeals of wisconsin reaches the prejudice issue they assume favorably to your client that there was deficient performance so you know that's true that box is checked but then the court says we don't see prejudice because the notes for this charge means the last of the four charges right he's one where the other the other three have had dropped out and they say the notes for this charger are enough so i don't see why it's not deferential review as an issue that the wisconsin court reached an address conceded and i'm reasonable application and has then stepped to the final step of the analysis which is to determine whether in fact there was prejudiced and that is determined by de novo review but they have this whole section of their brief to be martin did not occur any impermissible prejudice from trial counsel's fair how can that be waiver but then that argument is all addressing whether there was in fact prejudice what is missing from the warden sprit if it is any argument that responds to martin's contentions that there was an unreasonable application of the strickland prejudice standard i don't see that i mean it seems to me they've argued that that was consonant court addresses the prejudice issue and remember you know we have harrington against richter telling us that especially with strickland like claims even if it were straight stricklin claim through a federal conviction we give a lot of room to counsel we understand and we look at issues that a whole as a whole and so on but then they difference because the question is whether the state court behaved reasonably when it found there was no prejudice and i just am not convinced that the state has in any way forfeited or waived this argument one is that as the wisconsin court of appeals has done in two prior cases susman and redmond that in assessing whether there was harm the appe failed to consider the important value of this false accusation evidence and how it impacts the defendant's right of confrontation why is it so valuable given the notes i mean th notes are not the best i mean look the real problem with this case i think underneath it all and so unfortunately you have to argue around it is that this mandatory life sentence seems  just it's a very very severe sentence for this behavior although it does acknowledge the news note that it's he's so to do he does acknowledge in his note that he's facing that if it happens so whether you make whether that factors in or not but here you are mean you have to explain why the wisconsin courts couldn't i've looked at those notes the for the one especially that says you know my wife is gone for the next hour and a half and the federal magistrate judge says you know it doesn't take too much of a leap to to see this is an invitation come on over the coast is clear and if that's true then how does her past behavior factor in i have a couple of responses one is that returning to our unreasonable application argument our second contention is that the lower court conflated a sufficiency of the the both the state court and then the federal court below were saying our confidence in the outcome of this proceeding which i would totally grant you does not require fifty one percent or ninety eight percent or anything else it's way lower than that the courts made that clear but they're saying our confidence in this result is not shaken by the exclusion of this evidence for count four for the count that rests on the the notes and what the court of appeal said is that the notes were sufficient evidence to prove and i think they're missing the point here that under a sufficiency analysis the court has to look at the evidence in the light most favorable to the prosecution it has to accept any reasonable inference that supports the jury's verdict under our strickland prejudice tast the court is looking at the totality of the evidence and should consider was the combination of the notes plus c p choose testimony about prior oral invitations into his apartment for saks that basically sealed the deal and allowed them to find mr martin guilty beyond a reasonable doubt i think this court needs to look at how the state chose to try to prove this case yes there is a reference in the note to my wife has gone for one and a half hours there are four notes that come after that nowhere in those notes does mr martin direct c b chief c p g to go anywhere nor is there any expressed invitation to go anywhere in fact in  reasonable inference that he was trying to lure her into the apartment but this isn't a review of the sufficiency of the i know it isn't but it is a question whether the wisconsin court was unreasonable when it said  a jury could look at these notes alone and find him guilty so we don't think that the exclusion of this evidence shakes our confidence in the verdict but i would submit that they had written that i mean aren't you asking is just to tell them to write a better opinion well except that the words matter they said so little in their opinion they really matter the notes were in one of the comments the court of appeals made was that there was a reference again in that first note to not going to continue to try to be with you and that always supports this notion that these oral solicitations really did happen i would point out though that he was also on trial for an enticement at the laundromat that occurred before this incident that could well be what was referred to in the notes and the jury found him not guilty on that count ok punch you say last minute and we will hear what you have to say mr  for our mayor please the court my name is christopher wren i'm an assistant attorney general with the wisconsin department of justice and appear on behalf of warden brian foster think one of the important things here i'd be content to rest on my brief frankly but i do want to make a point here about what the purpose of this prior faulty accusation evidence was it was solely to provide a basis for challenging for explaining the motive for her to make a supposedly faulty allegation here defense counsel got it into the record without this evidence he cross examined her and she admitted that her motive was basically the same thing that had been the motive for the for the previous accusation so there was really no need for this evidence that in any event because they already got it out so that the question i guess that your opponent is trying to raise is that the one thing that you don't see in these notes is just a flat out statement come to my apartment or let's meet in the place where you're babysitting or let's go to a local motel or whatever you don't see any you know go to a place invitation and i believe that's a requirement and it was consummate law right and the evidence was sufficient and this is where the sufficiency comes in the evidence was sufficient for the jury to conclude that there were two places that they could they could have gone on this one was to his apartment and one was to the to the apartment where he was babysitting and that's based on the fact that they stipulated and the jury and the judge instructed the jury about the meaning of ciccu secluded place so basically it was all narrowed down from the whole world down to these two two particular locations and so the only inference that they could draw on that was that when he said my wife was gone for an hour and a half that what he was intending was come on over to my place and there was certainly sufficient  evidence for that as the sufficiency that links in with whether we still believe that there are that without the evidence of the prior accusation there's a there we can rely we can treat the verdict as reliable at this point which is which is basically  requirement of strickland and i don't see anything in this record that suggests that any court had any concern about whether the verdict was reliable and whether the absence of this evidence about the previous false accusation so is there any way that this evidence of the previous false accusation would have caused the jury to interpret that my wife is gone for an hour and a half notes themselves are there the proof of the guilt and her credibility as the court said as the as our state court said certainly the trial court said this was not relevant at all because her credibility was not had issue on this on this fourth count and there's a stipulation right that he did in fact write yes he said no yes you are he stipulated that he wrote those notes there's no dispute that she received the notes and in fact as i just to the motive was going to her credibility but her credibility was addition in the laundromat count not in the written notes count and she would and he was acquitted on a written note on the on the laundromat count and the point that i made a brief was any time there was no corroboration of her testimony they acquitted him when they had corroboration which came from these knows they convicted the evidence of the prior false accusation would not have made a difference here because it only went to the question of whether she was lying about whatever it was in relation to the written notes alligator complaint or chart and all that evidence was there from his notes so i don't see any anything under the reliability standard it's you know it's interesting the state maintains that c p g is credibility not in play with respect to the no writing count certainly not what the prosecutor told the jury a trial they did the prosecutor said i can see these notes don't say anything about where this is to can occur but we have heard testimony about these prior invitations into his apartment the pressure prosecution sure thought that her credibility was at play and that's why the prior false accusation really does create a reasonable probability that there may have been a different result i want to just also highlight that the the crime here child enticement required proof that mr martin did acts that demonstrate unequivocal that he intended to cause c p g to go to a particular place and unequivocally means that no other inference or conclusion can reasonably and fairly be drawn from the defendant's acts i would submit the notes that quite a lot about his interest in this fifteen year old girl they don't say a whole lot about where the desired sexual contact was to occur