clear error manifest injustice and third regardless of the procedural errors in this case mr brown's petition made a substantial showing that tribal councils litigation of the pretrial motion to suppress was ineffective i do intend to address all three arguments this morning paying particular attention arguments to a correct it's our position that that's no more than a technical difference though because under the post in fiction during act section one twenty two dash five particular even after the state's motion to dismiss is filed in ny there's still an avenue for the state to seek further consideration of the petitions on the ground of legal in the original group and that and that is true i suppose that brings us to argument too i guess which is that regardless of the state's litigation position it's our position that the second judge erred when he decided to sue is fine to revisit reconsider a prior order by his equal and he should not reverse simply because he disagrees with the first judge's ruling there must be some evidence that the first ruling was clearly error or was working some kind of manifest injustice and in this case  the second judge's ruling on mr brown's books conviction petition does not show careful consideration or provide us with any compelling reasons that judge plans initial decision might need to be said and we've laid out several contentions in our brief as to be errors that the second judge made when he was ruling on reconsideration of the state's motion to dismiss my reading the state's refuse if they haven't really addressed any of those errors but just briefly the second judge addressed the one act one crime issue which was not present in this or brown's post in fiction petition and which this work same procedural posture a motion to dismiss posture specifically cited the consideration of the wrong legal standard as one of the reasons that it would be error for a successor to a judge to reconsider a prior judge's prior building and then there are a couple things that i think it's important to emphasize about the proceedings under reconsideration of the state's motion to dismiss and that is that the second tried wasn't really presented with anything new in terms of facts or argument from the original hearing on the state's motion to dismiss so we've made it across in paris in the brief issue is that the second judge had already begun substantially assisting the parties in preparing for the evidentiary hearing on february twenty second two thousand and sixteen which i believe if the if my recollection the record is correct that's the first time the second judge was sitting on the call  defense counsel came to the court and explained that it was having trouble getting witnesses from harl hospital to the evidentiary hearing the doctor and two of the nurses had moved out of state and the state would not agree to have experts ten doctors and nurses who were still at our hospital come in and testify as experts about the effect of the medications that were listed in the medical doctors and possible i'd given defense counsel an estimate of sixty eight thousand dollars for bringing the doctors and nurses in from out of state and in response to that concern the we don't have affidavit from the medical personnel we do have the medical records themselves which indicate the types of medication that mr brown was prescribed which goes directly to what he testified to that suppression hearing confirms that testimony and we have the motion would have been different and that counsel performance should be in the first place so turning as a state judge does first to be the outcome of the trial the prejudice the outcome of a trial the secret really doesn't address the key element of the prejudice at the trial that is present in this case and that's that that we're not in the usual we're in an unusual circumstance where we don't have to guess about what the jury was thinking about in the jury room based on some of the questions that they sent out during their deliberations so they sent out a question the state was not so convinced by the remainder of the trial of events that it found the reported relatives and that's that's true because mr brown statement was the only direct evidence from the trial that affirmatively placed him in the relevant house at the time that the shots were injuries and there are a couple of things that are important to remember about what is not in the record about mr brown's injury so the ballistics testimony is really really unclear as to matching bullets or shell casings to injuries or bullets and shell casings to guns and that's because there were no gun ever covered and there's no testimony about the bullet and evil as that may or may not have been recovered from mr brown and any political matching showing that his injuries were caused by the specific firearms that were involved in the shooting at eleven o six west eureka and then we also know that there was a substantial amount of time without mr take mr brown statement out of it there was a substantial amount of time during which mr brown's activities were not accounted for on the night that the offense took place so we know that he was dropped off at a middle school  champagne between six and seven o'clock pm we know from lucille's testimony that the intrusion into our house occurred sometime shortly after seven fifteen and we know that the first officer was dispatched to the scene sometime around seven thirty am and when he arrived mr bro expressly commented on the lack of medical testimony about what medications the surround was on and what their effect was on of course we have those medical records now and in the record as part of his conviction decision and then the court based this finding in large part on its credibility determination so i found mr brown incredible in detective sheppard credible and one of the reasons that it found a text of shepard credible and focused in particular on his testimony that mr brown had not been taken into custody or not been hospital personnel had not been told mr brown was to be taken into custody until after the interview on october fifth and of course the medical records regardless of any medical value they may have directly contradict that testimony explaining that hospital personnel was aware at least as early as october third that mr brown was not be released into anyone's city by the police custody and so and that really segues right into the trial counsel's deficiency so the trial counsel of course attach an affidavit explaining that the reason that he did not invoke the medical records a motion to suppress hearing was because he because of his own interpretation of what it meant to be alerting oriented in the last years we suggested in our brief that a lay interpretation of that of that phrase in medical records may not be sufficient to speak to critically important aspects of what we might think of what we're thinking of interrogation the the ability of someone to make important decisions for themselves in terms of waiving legal rights by talking to the police and the ability to add adequately and accurately recall events that had recently happened and then of course never records  to answer so that the defendant's affidavit we would we want is a counter affidavit now it's not it's not doesn't have the weight of a medical expert but he did explain that the medication that he was on or making him feel groggy and sleepy and were impacting his memory tina gordon his girlfriend's affidavit also make similar explanations about what he was like when he was under those medications and so and then the second answer is that any this disparity between mr brown and his girlfriend's affidavit and defense counsel that it is exactly the kind of factual dispute that should be resolved in adventure hearing facts there was there was good reason to advance mr brown's post conviction petition to have them cherry there was a lot of evidence attached to a petition from outside the record there is substantial credibility contest that should be resolved in adverse adversarial testing and not by a because the defendant's complete inability to establish that he was even arguably prejudice but on a reasonable life based on counsel's failure to interview this medical evidence given the overwhelming of evidence of guilt the result of the trial here would have been the same even if coun commotion going on retrieve the gun and shoots both the defendant and the accomplice each twice they jump out they jump out of a window and at that point the defendant circumstantial evidence a defendant leaves a ski mask with his d n a in the bushes and unless i'm misreading the record here the defendant's girlfriend testified that she picked him up you know roughly right after the shooting right outside the window to take him to the hospital where he was then treated for multiple gunshot wounds so the defendant claims that his statement to the police was the only thing that put him at the scene of the crime but in making that assertion defend it again ignores the fact does not address the fact that the girlfriend and son picked him up just outside the victim's endo nor does he address the fact that he's that he's being treated minutes after the shooting at the hospital for multiple gunshot wounds so it seems to me that he's essentially asking this court to believe his his alibi that he's involved in this high stakes game of and i believe that both of these errors are resolved by the courts inherit authority to reconsider its own on final judgments such as interlocutory orders denying a motion to dismiss their evidence of shopping here of none of the cases the defendant cites here stands for the proposition that when the state answers after having moved to dismiss of the petition that that somehow divest the court of its inherent power to reconsider and correct its own judgments and i suspect that the lack of case law a petition that he or she may subsequently for reasons that he or she may subsequently determine is not warranted i mean for example you know when i leave here today i'm i'm going to walk i'm going to walk out of here i'm a think of a hundred things i wish i would have said right and i suspect the similar things happened in judges as well and the idea that that by virtue of nothing more than the state following established procedure of follow the filing the answer after the denial of the motion to dismiss that that would somehow  divest a trial judge from the inherent authority to to reconsider you know a prior decision i just don't see any purpose to be served by that rule  now the other thing that the that the defense takes exception to here is the fact that we do have a different judge here but it seems it seems based on the case although that doesn't really matter in this especially true as here we're dealing with a non discretionary decision and in fact the only supreme court in people versus johnson recently addressed a somewhat pushy procedurally similar case and without even address without some sort of lea addressing the fact decision the court specifically noted the general rule that the court that a that court convey haven correct its own into a locker torrie orders now i would just roll the court's attention to page twenty nine of the defendant's opening brief and page nine of his reply brief and he claims that in order for a judge to have i guess that would be in order for a successor judge to have the ability to vacate or prior judge's orders and  i'll know today he did use the word should but in the briefing if i recall correctly he uses the word must there must be clear air and there must and this order must work a manifest injustice but that's simply not true the case that the quotes there again  i don't want to suggest that the quotes take out of context but if you if you read the case itself it simply suggests that it's appropriate under those circumstances but that doesn't make it a requirement and in any event i would submit that that that really petition performance from one pressure on her suggests that i really i mean we have here we have an affidavit from the defense counsel explaining i don't forgive me i don't recall i that was that was because we when you look at the medical evidence it consistently indicated that he was alert and oriented and since we're dealing with what was basically a strategic reason here the question really is is whether this was so unsound that no reasonably effective attorney would have done it and here again the medical evidence indicates that the defendant was consistently alert and oriented that's in my opinion that is supported by the interview recording where he seems perfectly coherent and that's also separately disappear supported by the excuse me that sect of statements that you know first of all this the on the medical staff the medical staff repeatedly assure the detective that the different it was in a condition to be interview he the detective talked about him speaking very  speech not appearing sleepy or drowsy and quote he seemed very aware of what was going on around him and again this is supported by the recording itself so the fact that the that the defense attorney would not want to call in medical experts to talk about you know to testify perhaps to the fact that yes we told him that he was in a one of a reasonable condition to be interviewed or that perhaps these drugs are not you know interfering with th that's that just doesn't seem to be so on sound that no reasonably effective attorney would do that now the other thing that defendant points out here with respect to the attorney's failure to interview six medical evidence is that had he done so he would have been able to prove that the detective lied outright about how about the date at which he indicated the the defendant was to be arrested upon his discharge from the hospital the notion that this is an outright lie as i mean clearly if you look at the testimony of the officers asked the question what was the date he kind of causes speculates and then he says that it was october i may be reversing it one was october third the other was off and then even this doesn't matter but nothing suggests that the nothing suggests that the hospital staff in any way and it catered to the defendant that that he wasn't free to leave this would seemingly have no effect on on you know a custody analysis and you know he speculate the defendant speculates that possibly the staff told them well similar speculation it would make really no sense that the hospital staff would tell him hey by the way you're going to be arrested once your discharge from here i mean that would invite the possibility of escape attempt or you know possibly incite some sort of violence i mean it just makes no sense that the hospital staff would have done that and in any event we have we just have nothing on that point and as your own to point out the other thing is is that we have no affidavits from from the defendant in efficiently here he there is a perfectly valid strategic reason that he did not introduce this medical evidence because if anything it may well have supported the the the the denial of of the motion to suppress and then to that and i don't think that is even a reason that there is even a reasonable likelihood that the motion to suppress itself would have been granted even even if the defendant was indeed medicated and i apologize i as i think that if it does correctly point out i may have  misread the medical records with respect to whether he was actually medicated on those days but even if he was in those same medical records establish that the defendant being attentive to his legal matters asking to file file a crime victims application and asking the nurse to send a letter verifying his hospitalization because of an upcoming hearing i believe in a different case and by the way he was discharged literally the day he was this shirt from the hospital the day after the interview and then as noted you know the detective testifies that that that the hospital staff assured him that the defendant was in error pro create condition to be interviewed he spoke of here only no sir slurred speech did not appear sleepy or drowsy and was very aware of what was going on around him all of which again is supported by the recording itself work and he seems perfectly her perform deficient deficiency which is a physician as he did not the i just don't think that the defendant can show that there is a reasonable likelihood that the motion to suppress would have been granted and even if the motion to suppress would have been granted that that is not the only evidence that puts him at the scene of the crime we have has his girlfriend testifying that she picked him up there we have the fact that minutes after the shooting occurs he's being admitted into the hospital remaining evidence absent mr brown statement time text of the charge that he was convicted of which is home invasion it requires an entry and so there's circumstantial evidence placing mr brown near the home he was recovered by his girlfriend from the yard and there's no direct evidence absent the statement placing him inside the home which would have been an essential element to a home invasion plans and this is what we knowledge that there is circumstantial evidence in the record placing him near the offense at the time there was a shooting near the home of the time the shooting  in the home there's the circumstantial evidence the testimony the circumstantial evidence but no identification in the individuals and there is there is certainly so there's certainly direct evidence through testimony that two individuals enter committed the offense of common but there is only circumstantial evidence that mr brown was one of those people and his his his so basically placing it in a broader context his statement makes this case about a credibility contest instead of a burden issue so it puts the jury to the task of deciding whether they believe mr brown or believe the state as opposed to holding the state with burden to prove beyond a reasonable doubt that he was the person in the home at the time  with his statement to decide whether he believed he was there for some innocent purpose or whether it believed the remainder of the state's evidence that he was there for some sinister purpose without the statement it's simply the case simply becomes one of putting the state to it's going to prove beyond a reasonable doubt that he was in fact person and the remaining circumstantial evidence was not even compelling enough to convince the jury to convict him without at least considering his or his reported statement again during deliberations and just to transition briefly the argument to justice harris to address your question about evidence of shopping no there is no evidence of judge shopping there's no evidence in the record that this was transferred to the second judge for any reason other than administrative purposes but as we cited in the briefs people versus the issues makes clear that the evidence of judge shopping occurred that's correct as i read the record i would be speculating like like my colleague without going back to the record in detail but my memory of the record is that there was no there was no reason that suggested that any party affirmative