the next matter on our calendar is mom place there versus capra trial i would just like to make sure i understand correctly which three issues you're a z t i think it is just three am i right for ineffective assistance of counsel yes it's got that's correct and one is a failure and last as i understand it is the failure to investigate both additional witnesses about the romantic relationship between the victim and your client and specifically two categories of witnesses family members of the victim and the defendant's neighbors that's correct thank you thank you for that clarification  proceeding with respect to that first issue idea you identified the failure to call an expert with respect to the defendant's d n a on the boxer shorts is not as clear and as loose it is it is it could have been but the essential factual legal premises of the argument i think were fairly presented there and i think that is well it's the call record to twenty seven to twenty eight essentially the same factual and legal premises were put forward at that point so i think that the d n a claim was fairly presented to the state court if we find it was not and you don't address this in your brief could you make an argument with respect to cause or prejudice well you're i mean there there are a couple different avenues for causing pressures one is that under in your right we did not address this in every if what we addressed was potentially  amendment of the a v s petition which is permissible under ryan's and rose recently but there could be potential argument under the martinez intervene a lot of cases in the supreme court which again we didn't brief and so i don't want to produce my friend the other side but there are circumstances in which state courts or state law effectively make it impossible for ineffective assistance claims to be product appeal and so it means that they must be brought on in a collateral proceeding a state court and so  absence of counsel or ineffective counsel on direct appeal in raising those claims would be taken as cause of prejudice you know ok i'm i'm saying if we find it wasn't raised in the four  forty you have not argued cause and prejudice with respect again to the d n a on the boxer shorts let me let me just one last question on this line and then i'll i th effective wouldn't you agree i've i'm not sure that i would agree but even if it were effective i think the wins that line of cases makes clear that even effective cross examination cannot ameliorate the prejudice of the absence of  expert when the state is relying on friends who can scientific information and so the given can see even assuming are you and it was effective i don't think that would change the analysis in this case he had didn't didn't counsel at one point have an expert but then not might not pursue that did he speak to the court about about producing an expert i'm not sure these spoke to the court in the trial record about it there are two letters the state has offered i guess that's what i'm thinking yes yes judge walker there are two letters the state has offered it's a supplement the record they were before the trial court not the state court they were not before the district court in this case i think the i think that those two letters actually confirm the absence of a procedural default and confirm the need for an evidentiary hearing this case i think the state's reliance on those those letters which were outside the trial record confirms the trial record was not adequate to review these claims and direct appeal and i think that the letters raise more questions than the answer in the sense that we don't know whether this individual is a bona fide expert we don't know the scope of the consultation and we don't know why this person was not called to testify a  and i see that i'm i mean i guess i guess the essential question is were her injuries possibly cause that on the second point her or her injuries possibly caused by some other event and not the not the alleged incident here yes you are that's correct and that really goes right in line with the lives that interest in lot of cases which also many of those cases also involve medical records that see involve the medical records of a child sex abuse victim bell involve the medical records of a robbery a evidence is best illustrated by looking at the state's summation of what the state did with that evidence in his closing argument with the state did as in this is it for seven forty four seven six of the trial record simply argued that you know what is the significance of the d n a evidence wh we submit that there was sufficient evidence within the court record for the appellate division on direct appeal to determine that there was no ineffective assistance in this case the relationship evidence the relationship the the evidence that there was a romantic relationships there was the evidence was very limited on that score that there was a romantic relationship or that that he was able to argue or abandon a romantic relationship one person was called from the hotel to indicate that they were friendly at one point but that's that's not yes i think he asked his lawyer to produce family members and to investigate further with friends and family whether whether there was other evidence that showed more intimacy yes your honor this was we have to remember that there was one witness that showed some intimacy is not as it is not you know that not the same thing as multiple witnesses which remember what this evidence was relevant for this was impeachment evidence your honor this was evidence that only became relevant launched once the victim got on the stand and testified that there was no romantic relationship that it was and in his defense he was his defense was you cannot believe this victim she is not worthy of believe believe and he cross examined her vigorously about why she was not worthy of belief because of her thirty year history of drug issue common sense tells you that the issue in most of these cases is was the sexual encounters or was the intercourse consensual or not present and that's that's what rape cases are all about it is and one thing the petitioner did say in his four forty that the other reason why he wanted these relationships these witnesses about the relationship was two that it's harder to prove rape if they had had a prior sexual relationship whether or not that would have been something reasonable for a defense counsel to have argued this wasn't rape because they had a prior sex sexual relationship that's another question but that's not what the defense was a trial the defense was this victim was not credible and she was not credible for a number of reasons and once it became clear that she was going to deny this relationship defense counsel went out and got a witness and got a good witness it wasn't just thinking about the witness from the hotel the hotel she was somebody who was unbiased on a salable somebody who testified that victim visited petitioner every single day they held hands victim sat on petitioners lap she saw them hugging she saw them out in the neighborhood together this gave the the defense more than ample ammunition to argue that they had a romantic relationship and she was not credible  non romantic relationship and we know that there was one right that they used to get together and get high together and that kind of thing and that was were it was the nature of a relationship the purpose of this testimony was impeachment government's position trial was that it all changed on one occasion when you raped her that's correct that that that that of so you know they but but the extent of the intimacy it seems to me is important the extent of the intimacy was was perhaps important book but perhaps not there in the contents of a sexual relationship there certainly can be non consensual sexual activity so if  argument with respect to ineffectiveness and the failure to investigate these other witnesses adequately who could testify as to a romantic relationship is preserved and and there is a request for a hearing what is the state's position with respect to what the petitioner must show in order to get a hearing that claim he must show that there was certainly a reasonable that the council was deficient in not calling the victim's mother and the victim's sister to testify about this relationship in addition to his own must he make that showing to get the hearing below for instance of  if we manned the district court people hearing on that issue is there a threshold issue of what the petitioner must show in order to get a hearing on that plane yes you're on a petition must have shown that he diligently tried to develop the record in state court in order to get a hearing in federal court in district court on this issue and our position is that in federal court he did not make the required showing because under four forty ten thirty because everything that he said was based upon his own word his own claim that the victim's sister would come in and testify about on his behalf about this relationship in my new this was somebody that he had broken up with the seven years before and the victim's mother mother would have come in in addition he would testified that these numerous witnesses who were friends of his who lived in this single room occupancy hotel they who would have would have come in and testified on his behalf when in state court petitioner did not file any affidavits from any of these witnesses who are apparently willing and able to testify about this relationship so he has not we submit provided claims he told his attorney certainly claimed that the essence of the in effect to be yes he claimed he told his attorney but we also have evidence in the direct appeal record in his own pro se supplemental brief where he said that s r one zero six one zero five two one zero six that i essentially i understand why my attorney wouldn't have been able to get these witnesses in because they were steeped in the culture the street culture of drugs and prostitution and he made this statement in the context of saying why he had wanted to be out pending trial because his attorney could not find these witnesses so just of course i understand what you're arguing now but that's all extra record that's all outside the record all of those efforts to investigate or not investigate whether it would have been successful or not successful is i t cuts against or give it that this could have been decided on the record yes your honor but what we have in the record is we have the testimony of the desk clerk what she had and and she convincingly defense counsel was able to argue based upon that testimony that victim had lied about her testimony about the relationship so what petitioner wanted to be able to  certainly and because this was a the convincing part they certainly the council was in a strong position to argue it however he was basis on that test what if you'd had petitioners witnesses petitioners friends who had come in and said this petitioners friends who we submit may not have been the most credible witnesses on this score because they for one thing they were by could have been biased because they were his friends and would have said what he wanted them to say about the relationship perhaps if they were in the room with them at the time there might have been fifth amendment issues because as we know from the victim's testimony whenever they got together petitioner and victim they were smoking crack they were using alcohol so there may have been perception issues that not pretrial paulo is that's on the record he's made a statement in court on the record that the reviewing court could have looked to determine why you didn't subpoena a witness to testify about the relationship prior to trial so that was on the record in addition to that the court could review whether or not given her testimony given that the testimony whether or not the eye reviewing court could have determined whether another is any any prejudiced by not having of witnesses the petitioner says he wanted to call there are three issues there not just that one yes your on the other about the failure to to put on an expert and you know a case in which the d n a evidence is critical and either to challenge the d n a findings or to determine whether or not there was other it could be interpreted differently the events could be interpreted from the d n a differently from the record the trial record in this case the appellate division could clearly have found the defense counsel made a reasonable tactical decision to attack the d n a in the way he did to address that in the way he did so what these were his boxer shorts a on those boxer shorts because he wore them it was unreasonable for counsel to have address that particular issue in any other way these were his boxer shorts said the reviewing court is i mean it's clear clear and as the as the court court noted that the cross examination of of the d n a expert clearly showed that he elicited that information that this was these were his shorts and it was not unusual but it did not prove rape that he that that she borrowed his shorts and his d n a was on them with respect to the the medical expert the supposedly medical expert there is a on the colloquy with the court and counsel regarding the medical records in the boxes sure it was used by the state to establish that there was that there was rape or that discharge on the shorts could that explained it so yes they tried to turn that to their best advantage but it didn't matter it didn't prove rape it was his boxer shorts for a very good reason and mind you this is a reason the petition himself was arguing that in his hey vs reply he said these were my shorts of course and they were unwashed though of course my d n a was going to be on them that didn't parade thank you count remain and on the third issue which is the failure to investigate adequately the witnesses about the romantic relationship either the victim's relatives are the defendant stampers or petitioners slash defendants neighbors what must the petitioner show in order to trigger the right to a hearing on that issue so you are under federal law the the petitioner will have to present specific factual allegations that if proven would establish an entitlement to relief and that standard taken from the grace of vs gramley decision which this court confirmed in the drake opinion which we cited in our opening brief and so now for purposes of the state law component and whether or not twenty to fifty four would apply there's a diligence question and so the state has made a number of arguments that mr failed to comply with new york state procedural rules specific factual allegations are enough and in breezy france for instance a lot of the supreme court acknowledged a lot of the the petitioners allegations were essentially theory at that point and there was no solid support for them and a drink it was enough that the the individual presented suggestive evidence to support his claims thank you thank you thank you thank you both lively argument will reserve decision