molestation the state was unable to come up with any physical or medical evidence to corroborate the girl's story i have trouble seeing why the additional things that the blue brief pointed out counsel could have done or should have done why any lawyer above the strickland floor would have done those things and i also have trouble seeing why it would have mattered to the outcome focus your attention on a couple of details that bother me like on the doctor's you've got one doctor who checks the box that seems contradictory to one another doctor says the narrative statement was my thought was you've got it into evidence that there's this contradiction between the box and the narrative statement or for the lawyer to cry the case got into evidence so the defense could take about first of all i want to point out that this is really part of the pattern of the defense counsel being unprepared and not knowing what any of the witnesses were going to say he didn't know what most of the defense witnesses were going to say when they question them let alone what most of the prosecution witnesses were going to say here we have a team of three doctors that examined the patient shortly after the alleged molestation one of them checked to know boxes on the form he checked the new  doctor put down a narrative which she said well the even there's no there's no physical or medical evidence the victim tells me that that there was penetration the problem is that the defense counsel called the wrong doctor remember the gregg it seems to me you do because the doctor could well have said well when i was talking to her she didn't mention the finger but the other doctor talked through when i was out of the room or i wasn't paying attention or i was filling out forms and she might have said finger to him i don't know and there goes your contradiction i don't know what the doctor would have said doc you might also say that i just checked the no boxes i wasn't really paying attention all kinds of possibilities you get an affidavit where the doctor that wasn't called mean we have the evidence for if you're just what her report was at the time usually there wouldn't be any need for speculation if the record was made in the heaviest court where the doctor who checked no explained what they were doing at the that might well exonerated the defendant had the jury known of it and here's the evidence but in this case it's hard for me to see where you have any evidence that might have been so on a rated the defendant except on paper and then i went kept circling it with a marker right and but there it is the jury already saw what he called doctoring he had two doctors that he could have called on an element of the offense and he called the one that favored the prosecution and she spent her entire petitioners claim that it's ineffective is somewhat speculative in the sense that you have the box checked you know what you don't have is what the doctor would have said  call and you don't know whether the doctor would have made it worse or made it better and so that's the problem i have is like if the doctor was called with the doctor has said she told me there  thinker penetration or what the doctor said that was a summary of my from my observation of her but you know maybe you know i'm sorry maybe he would have said something else and we wouldn't have to evidences for a report at the time now regardless of whether that came from the victims that i check that box off she would have said that that that was your conclusion was that there was no penetration by a finger or by a foreign object now whether that conclusion came from the victim saying there was no penetration or whether that was because of the records show that she interviewed the victim definitely was one of the poster as i am examining yes as opposed two in a physical exam does the record show whether she had a discussion with the victim i believe so i believe that she had that the two doctors were present at the time of the exam and one of them was doing the examination with the other one standing there and had nothing to you know to revive and the biggest one was the prior claim of molestation by the father of the victim which was investigated by child protective services they concluded of that nicky never went back into her room after the molestation that met mr mustafa didn't tell the wife about this part convictions and basically what he told her mother after the fact which in some cases was was the same as what she told  probably another important instances or details was not the same was contradictory and again i just want to say that if you we read the record when you read the entire record what you see is a lawyer who is young and again and again didn't know what the witnesses were going to say counsel he called when i did criminal defense i would often cried interview the victims and usually they would talk to me sometimes we have any evidence that had the little girl and the mother would have talked to defense counsel do we have an affidavit from them i would if there was no answer alex on here's what i would have told them there was no affidavit provided below there was usually the da would tell them i can't tell you not to talk to defense counsel there was no proof that there ever was a prior molestation it was good enough to get in unless the girl or the mother testified to it which they didn't and all i got is the aunt said the three year old girl was masturbating i thought that was an over sexualized way to describe the three year old discovering her body well i seem kind of funny but maybe it's cooked up to deal with a custody fight happens all the time what i would focus on your honor was the prosecutor statement to the court which is the child protective services conducted an investigation concluded that there may have been a molestation by by the father and that was the reason the father wasn't allowed anymore unsupervised  leaves that in the realm of spec speculation i think that this is something that he should have investigated and again this is part of a pattern for example she called of the defense attorney called two different character witnesses who didn't have stepfather whatever you want to call him yes she definitely didn't like riding in the wedding moved from the home she cried at the wedding she didn't want to move to africa to live in a muslim country she didn't like not having christmas anymore not known until trial like that it gosh there's so many popular songs where the man in the love relationship is referred to his daddy and the woman in a love relationship is referred to as baby it seems like an awfully thin reed for child molestation not important to whether he discovered or not well if that were the only thing that might be true but again i mean i'm saying there's a pattern here of this guy not knowing what any of the witnesses were go the confidential information that the defense counsel gave to the prosecutor i believe the news that you're issue i believe you're talking about the fact that he went through one psychologist before he decided on calling dr glover to testify that the mainstream stuff was not a pedophile i believe that's right yes he had a consultant and he disclose to the prosecutor before trial that he chose not to use that consultants and back to go on and got a psychologist and certainly that's got to make a statement to the jury that why didn't she use the first psychologist would she have said that he wasn't was and i don't have to worry about whether the fingerprint evidence is kind of scrambled it's the admits that he's the guy back well you know use that name if you want and i will tell you where the where in the excerpts of record that is but you know what actually shown the judgment he was never shown never told whose main was on that judgment of conviction that one and it was yes yes me suppose i had been convicted of an armed robbery in one nine hundred eighty one and he asked me where you convicted of armed robbery in  hundred one not much chance i'd say yes if it was a crew no matter whether i saw the judgment or used a different name at the time or not i don't know i think that what's most likely is that as he was going down that list of convictions the defendant was not going to argue with as he probably was instructed not to by his lawyer but i know that in this particular case that particular conviction he had been denying that for seven or eight years and taken it up to the court of appeals and the court there is insufficient evidence to show that this person is you he's denied it for seven or eight years before the trial he denied it the trial of the prior convictions in this case and he didn't deny all these other convictions which  neither contrary to nor unreasonable strict and standard and really the only thing that my point seems to be arguing today is that he takes exception with the conclusion reached by the state court by a opinion on some of the underlying issues on direct appeal but on the strickland issue that's correct or how do we review that exactly basically the way it is u come to the conclusion that there was no ineffective assistance of counsel that's what i understood of thought could be arguing that by counsel not investigating certain things not calling the doctor check case we have something like could any reasonable court ok that's it's i believe that it would be more correct to phrase that in iran or as whether or not i would just be afraid that if it's if you say any court that sort of crosses the line that seemed to bother justice o'connor in the williams detailer opinion and what i was struck with in her portion i believe it was part two of that opinion is that she focused on the need to have it be objective leak reasonable so you might  francisco correct and it's the court were to look at the information the way this fire was alleged in and that's found in the clerk's transcript the last amended francisco to secure your court and he says yes i do your honor and so it's really a red herring and whether or not he was shown the gaps tract of conviction it makes absolutely no difference and california law people be heris  victim and the mother again it is just pointed out under california law the district attorney can be required to produce witness to sue the defense counsel but there's no requirement that the witnesses talk to them just absolutely no proof on the record that either nicole the mother or nikki the daughter would have talked with the fence counsel much less any proof what they would have said there's no proof to the contrary the how can we say that that was not a crucial mistake by the lawyer he has the burden of proof your honor in a federal hate b s coming forth with the evidence to show that there has been some type of prejudice she said i would have said that on the stand here again your honor we still have to have a showing that she would have disclosed that information prior to trial to counsel the claim is that he was ineffective for failing to interview those particular witnesses part of the trial and unless you have some positive showing these witnesses would have not want to talk to him and number two what they would have disclosed to him during that interview he fails trial that my daughter had been molested previously even with that your honor i don't think that there's any showing of prejudice because of the mere fact that she may have been traumatized by  molestation in no way in a validates the testimony or rude or calls into question her testimony about this particular mall the station and i would submit that it's really a two edged sword in that it could very well in the eyes of a reasonable juror just as easily say that this girl obviously knows what maula station is it was a traumatizing effect and her wife and when an incident like that occurred to her a second time that she darn well knows what objection sustained how do you deal with the issue that the counsel did not call the doctor didn't i guess interview or call the doctor who checked  saying penetration first your honor i would take issue with the claim that we have any positive proof in the record that mr daly the trial counsel did not four hours at the time this examination took place and i think any of us who have visited emergency rooms know that it's quite common for somebody who's  it was considered for the three strikes certain sentencing yesterday we had some convictions not considered there when the case was sent back for sentencing but it was part of the  would submit to the court that fischer has failed to prove any of his allegations that either appellate or trial counsel were ineffective i would rest my let's is there any possibility it's a conviction of someone else with the same name and sort of a common name the the issue is that the abstract of judgment for the san francisco conviction shows the name coral tyrone matthews there is a fingerprint cord showing what council's point is you saying and i have to concede that there is no linkage between that fingerprint card and the abstract of judgment i can't put one together however it doesn't matter again your honor and the reason for that is we have admission under oath for mr mustafa that he was convicted of robbery twenty four equal one nine hundred eighty four in san francisco county superior court and that's exactly the crime that was alleged sufficient proof and i'm sure that this court has seen numerous occasions both from state as well as federal trial judges where they come to the right conclusion which is exactly what happened in this case but for the wrong reason in terms of sufficient proof to sustain the finding that's true on this prior conviction there were quest for an evidentiary hearing on this issue i'm sorry i don't recall if  was specifically on this issue i did not handle the case except at the very end in district court but i believe that there was a general request for an evidentiary hearing i'm not sure it was tied to any specific point and there were no fingerprints in the record before the trial court for carl thrown matthews and yesterday's critical that i wanted a fair inference that i mean there isn't anything in the robbery april twenty fourth one thousand nine hundred four violation and two eleven san francisco if you came up with somebody else who looks more likely to be must stop then the call tyrone and again i can only go back what i've said before which is that he was not shown that conviction and he was not told that he was being asked to admit to karl on matthew's conviction the question in the three strikes case is whether