government into not testify in the federal district court judge in that case purported to make a credibility determination that he did not believe what this perspective witness had said to the witness  doing this tactical choices he asserts should be credited by this quarter any court until such time as there is an evidentiary hearing held where did he first say this was a tactical decision to pursue misinterpretation rather than  attorney made a representation as to the vice you have given to a client which was directly contrary to the representation he made in open court to the judge so issue is whether the state court what the state court did was an unreasonable application of supreme court cases now if that's true and you say it's true ultimately and i think it's true right now what supreme court case did they violate in turning down the request for an evidentiary hearing again if you first read it i've never quite perceived the issue of in my opening brief t you don't need one and why the state court denied it i don't know but in last and that record before the state court there was something that demonstrated their use every day three hearing was of record sixty eight this is the declaration and let me give you some some background here back in one nine hundred eighty seven told the police i do not believe my daughter was molested because mr salazar to whom she had been married with no longer living in the home and they had no contact ms chappell about the fact that her mother it's that it's mr salazar had no access to her at the time he asserted i didn't do that because i had received a report from my investigator that she was not going to third the investigator according to his own memo which appears in the excerpt record did not communicate with mr knapp is mother until september seventh you know perhaps were there in eviden case is very troubling because of the way that appellant is playing fast and loose with procedure here what was never presented to the state court was that ther case in which this trial lawyer allegedly performed incompetently or ineffectively never presented to the state court that's bad enough what's worse is that appellant appears to think that he can create an evidentiary record simply by asserting facts that that is the evidence on which those facts can be based his counsel or his investigator in two thousand and three long after this case was done in state court allegedly went to this mother who i will call  the mother of sally chpa and interviewed her and supposedly learned that a she was cooperative or wanted to cooperate with the fans or was willing to cooperate with the defense  a declaration from miss espinosa from two thousand and three that's not in the record nor do we have a declaration from the investigator who supposedly interviewed m she was willing to cooperate with the defense so not only is it not in the record it was never presented to the state court and of course the claim is on exhausted because now what we have is an nor is that the only instance in which this record is not nearly as well developed as it ought to be if you're going to make these assertions on the question of the lawyer saying that why he didn't call as on those the record is and judge also found this in his opinion that the call came in from the investigator after the defense had rested but before the case was closed and basically the investigator said i'm paraphrasing  so he could leave me alone and she didn't really want to talk to me so at that point defense counsel is going and it took them some time to find this nancy yes of announce that she wasn't what my investigator told me i don't know exactly how he phrased it counsel is making it seem as if he phrased it and perhaps he did phrase it in a way that suggests that the decision was made before hand it seems to me that this is stretching things to put it mildly we have defense counsel who's looking back on things and remembers that he got a call from his counsel and that's what made his decision or solidified his decision and he's getting a little confused but that's hardly or maybe getting a little confused but that's hardly shows bad faith or the or that is why what we have here is as you're honest adjusted a defendant who got a non confrontational defense and it was now that proved to be unsuccessful and is now the fore telling this court that the only competent defense we could have gotten was a confrontational defense and of course that is not logical nor is it the law the fact of the matter is that fiery defense tend to go down in flames and that is especially true when you have a child witness who is obviously vulnerable obviously scared obviously crying to then attack her as a liar who was orchestrating this whole thing and they sound good on a cold record it doesn't even sound good there but what you have to prove innocence is or you have to show in essence is that th child this eight year old child was this masterful actor who contrived all this and was this magnificent liar meanwhile having no motive whatsoever to engage in this whether he got his defense was fiery or even whether his defense was the fact that you decide whether it was reasonable and there's an added layer of deference you decide not whether counsel acted reasonably but whether the state court acted reasonably in a rule that says the only tactical justifications we can consider are those stated by counsel and no others i sense that  the attorney who defended him and initially can you tell us what was in the record to show that was purported to show the need for an evidentiary hearing and what the court did with  corpus and that included about eight exhibits some declarations including i think most prominently the declaration of counsel and what happened what it did what happened was that there were that you're holding up i just can't see it you do not have well it's in the record but it's not in the excerpts of record or in or up or in the supplemental excerpts of record in the record well i don't know the c r number for it  in the state supreme court there evidentiary showing the trial counsel is not a credible person here omits to tell you that this information did not even become available until the state court proceedings in this case over clo the time of the state proceedings so at that time he was unable to go out and interview sally chappell's mother because the state made no funds available to him for that purpose  somehow there is this claim that when my investigators are interviewed sallie chap is mother during the time of the district court proceedings this is some kind of grand new evidence there's no point in new evidence here this evidence comes from the nineteen eighty seven police report in the nine hundred eighty seven police report that mother told the police i do not believe my daughter was molested by mr sala entire assertion that somehow when my investigator talks to the mother closer in time it's somehow this is new evidence it's fairly ridiculous i'd also point out grandmother who was the child guardian had told her sister quote head there is a fucking liar defense counsel when given this information did not either personally or send an investigator in supposedly making his grand tactical choice how he's going to defend this case so is the most fundamental type of error you can have under strickland vs washington when a lawyer doesn't even bother to investigate critical facts regarding the credibility of the only witness against the defendant this case if you were the defense lawyer at that time you would have put that grandmother on the stand told grandmother's opinion about i just ask a simple question absolutely rahner absolutely you would have tried it and shot at her instead of that she was mistaken you try to prove she was a liar and anything other than that i court first because the state trial court excluded evidence in a sexually related prosecution that the complainant was not a credible person and miss court found that positive evidence that the complainant is not a credible person and that person is the only witness against the defendant it is incumbent upon defense counsel to present that evidence and again there are cases from this court one defense rather than another we had no investigation and as i pointed out he didn't even go talk to the grandmother he didn't have michael fernandez interview michael fernandez is the one who would say heather and her cousin danielle had made a false claim that he had been watching danielle to screw up and we don't even have these witnesses to talk to so if you haven't talked to the witnesses to find out what they might say and how credible they are you can even defense if you can raise a reasonable doubt as to the credibility of the complainant you've got a fighting chance if litigated there was no defense in this case counsel stood up and told the jury what the complainant had to say  was misinterpreted there was nothing to misinterpret this girl told exactly the same story from the very beginning when she was talking to her family members when the police told the same stories