courts legal determination was not a misapplication of stricklin and also determined that the factual findings of the state court were reasonably determined i think to start with  since i am arguing that the state courts factual findings were on recently made it should it would help the court i think to for me to have a brief overview of the facts of the case which are really quite simple mr skilling was charged with first degree murder under felony murder statute in arizona the underlying felony was robbery theft is a lesser included offense of robbery but it is not an underlying predicate felony notorious crime riddled area in phoenix arizona he was approached or approached a prostitute named felicia morgan she got into his truck she directed him to go to a parking lot and in that parking lot mr ball for that interview the detective made it very clear to miss morgan that she was under suspicion for first degree murder and that if she did not cooperate and give the information that the detective either directly or indirectly wanted her to give then she was at risk for first degree murder and that information was g m celing was the shooter at trial mr skilling's court appointed counsel mr hernandez attack miss morgan's being there well isn't there an inconsistency between saying hey i wasn't there b if i was there i only rob the guy after he was there well it would have been a reasonable tactic had the skilling and i think the state argued this during the trial that soon came up to the vehicle pulled a gun demand of the truck mr belford tried to get away and that's when he was shot now at the evidence three hearing on the post conviction relief proceeding mr hernandez was very candid with the trial court and said his the reason that he did not request or withdrew the jury instruction wasn't because of a tactical or strategic reason it was just that he for want of a better word just blew it because of his fatigue in the stress now if he had in fact said to the district court or excuse me to the state court that his strategy was to say suing was no where there had nothing to do with this then i think i'd have a less persuasive argument but i think my argument is persuasive because the state court blew right in the face of that very candid admission and found that mr hernandez's reason for withdrawing the theft instruction was a tactical reason when in fact it wasn't bolstering that argument  the fact that mr hernandez in his opening statement clearly stated to the jury that miss morgan the state's witness was a liar she was not to be trusted and that she was the killer he said repeatedly during the closing and opening portions of his argument that mr schilling did not commit the murder now you can take that to say mr skilling was no word of the found and had nothing to do with could also be construed to say that in fact under arizona law mr skilling didn't commit the murder murder because he didn't commit the robbery that underlies the felony murder statute so my argument in the of the state courts factual finding findings of fact and in certain circumstances and disregard those and and find that the presumption of correctness doesn't apply one of the things one of the basis for doing then and taylor was when a state court ignores portions of the record to get to a result now the state court judge in this case in his minute entry and also in the transcript of some of the discussion prior to his ruling said that in hindsight mr hernandez was saying that his that his reason for not for withdrawing the theft instruction was tactical he ignored and never cited in his order or in his oral discussion that mr or mr hernandez clearly owned up to the fact that he just did  not he forgot to ask for that jury instruction or would have been evidence to support the fact there was there was well a lot of it was circumstantial to be sure your honor and and it wasn't direct and i think any criminal defense lawyer will tell you that sometimes you have a very narrow area in which you have to thread the needle and now mr hernandez stated in both the evidence for hearing and during the trial itself that his his theory that would have supported that was what that morgan lied in order to get herself out from under the felony murder conviction and that she was the shooter and she had testified and i think it's on her cross examination but she had said and she also told the police during an interview that  someone had come up after the shooting and that the wallet was taken of mr ball for and that the gun was tossed away in in a wall that was kind of surrounding this back parking xcuse me miss avram said that miss morgan stated to her that she had shot mr ball for and that someone had come up afterwards from the shadows of that area and that had come up and taken the wallet and ran away i think her words were some guy from the alley came up after the shooting so that's the factual basis if you will for the  now you know there wasn't a lot of direct evidence the the the facts were disputed mr skilling didn't testify and and this is what the defense lawyer had to a jury looks sort of at a real serious case like this and says you know i don't know if i want to let this guy go but i'm not sure if he did it and back versus alabama has said that in those in those situations in a capital murder context so it was the factual support for the fact offense conviction was there i'm not going to stand up here and say it was overwhelming it was it just forgot to ask or or to question that theft instruction mr skilling suffered prejudice he's serving a natural life sentence plus fifteen years for the armed robbery theft offense conviction had it occurred would have been a term of years probably less than ten years the earth zona sentencing laws are rather complex when it comes to prior convictions and things like that i will prosecution's evidence here was this fellow committed the murder and the prosecution relies on the witness who testified to that if that correct ye not the shooter but the wallet was taken and given mr morgan's testimony that was you know a little a little back and forth to be charitable that a conclusion could be drawn that wise then they were necessarily placed there at the time of the shooting it could have been on that truck from some other time well your honor i think just that he's saying well they really haven't proved that he was there at all well he i think in his in his underlying defense was to cast doubt on the case there's no doubt about it and part of that could be an attempt to say well look the state has proven its case at all but that doesn't foreclose the possibility or the probability of what i'm arguing here was that you know he acknowledged the palm prints were there he had to he said that directly in the opening statement that they're not contesting that they were there but he can ask questions and still make an argument that is a defense to first degree murder but i want to have the instruction well i think you are accurate when you say he was simply trying to cas not i think the record supports that it was and certainly in his statement was that he felt he had having ok thanks for the argument from the director of corrections of this time our position is that the record absolutely does not show that biggie abrams testified to what the counsel says she said and if i could i'm just going to go to that and read it to you basically she says and as a matter of back up the key abrams was the second prostitute who was brought in to impeach the testimony of the first prostitute  morgan and she was interviewed twice or three times once by the states by by the the detective once by the the state prosecutor and then once by needed simply to impeach the testimony fullish morgan that's how it got in obviously otherwise it would be out of court statement offered to prove to prove some truth but it was offered to impeach foolish for morgan and this is this is what the question was did you tell curtis the investigator that felicia the first prostitute had informed you that she had done the shooting and by the time the gentleman had arrived to the truck the shooting was over i might have said that or he was already there at the time the alley when i said there was a black guy that was there and helped to rob the guy or something that's it there's nothing about a guy with coming up afterwards and taking a wallet in fact there's no mention of a wallet at all and try to admit this evidence for the positive aspect of supporting a lesser included theft instruction you got double hearsay actually the state would would would have  who came to her aid assisted her move removing the turks money and she indicated with felicia said they split the money that's the only part of the record where there's any indication that there might have been and i think it involved here as well and i'm saying this kind of a double hearsay would not have supported the theft instruction that's our basic position the evidence simply isn't there i find  so do i understand correctly you're not necessarily arguing that the decision not to submit this instruction or to withdraw it was a tactical decision well you honor i don't think those two things are mutually exclusive i think that the are you're saying could have been tactical but in any event the evidence didn't support it's exactly right that's exactly right and in a sense i guess going back to i guess there's two aspects here to this court's review of the trial courts the state courts findings of fact one is the state the state court said this is what the attorneys  defendant claimed that he was not present when the crimes occurred and that he did not even know ms morgan that was the basis for his defense throughout these proceedings defendant's statements that the tone for the defense strategy and because it is clear that withdrawal of the theft instruction was consistent with that strategy the court can draw no conclusion other than that defendant has failed to establish that trial counsel's representation was deficient in reading through the record and in reading through the hearing that preceded this order i think that there's simply no possibility of finding that this was an unreasonable determination of the facts you know light of the record either or either the entire record or in light of  the the record from the hearing that that preceded this or a statement to law enforcement that he wasn't there didn't know the witness came in through the court i think the state helps mr skilling's argument when mr sack him and referred to vicki abrams testimony she says  if i have it right now that i believe miss morgan said i might have said that the defense that a guy came up after the shooting and took the wallet there's the basis for the theft instruction