sites and realize that some of us have access to the record setting up here through modern technology so please be accurate and those record sites should be anyway all right with that we will call please the court good morning your honor is my name is candace rucker and i represent the appellant mr a day g addict mr adachi was sentenced to thirty five years in prison because his trial counsel rendered constitutionally in effective representation this court granted a certificate of appeal ability on mr addict he's claimed that his trial counsel rendered ineffective assistance by failing to conduct a thorough investigation of the facts and the law three critical points demonstrate how child counsels and effective representation prejudiced mr addict his defense st trial counsel disclosed to the jury that mr adams he had previously been convicted of aggravated robbery nd child counsel retained an investigator to discharge his constitutional obligation to conduct this investigation but failed to secure the investigators report and rd child counsel failed to interview a single eye witness to the alleged crime the totality of these circumstances combined to rob m it's not in the the actual portion that nobody's ever got that's right yes your honor strickland demands the effective assistance of counsel for all criminally accused to prove any fact of assistance mr addict he must demonstrate that his trial counsel was deficient that his performance was constitutionally deficient and that this deficiency prejudiced his defense to show that his trial counsel's performance was deficient mr abbott he must demonstrate that his child counsel's representation fell below objective standards of reasonableness as measured by prevailing professional norms trial counsel failed to investigate the law prior to trial this amounts to prejudicial incompetence according to stric investigation doesn't need to be exhaustive but it must include an independent examination of quote the facts circumstances pleadings and laws involved adopting strickland this court also requires an investigation  both the law and the facts under texas law where a defendant is willing to stipulate to prior convictions as mr addict he was here admitting evidence of his prior convictions during the guilt innocence phase is irrelevant because the what would it have found do you agree with and yes your honor and that's truth and how it would change the trials outcome do you agree with that yes yes so if so what overlooked evidence did you present or specify to the district court honor we have not specified stocks of all evidence that would have changed the outcome of the trial but that does not change the fact that mr out of his trial counsel made this incompetent and prejudicial admission to the jury and so we asked the panel to find that the prejudice that is necessary under strickland here came in by way of his introducing evidence of mr atic his prior conviction that say that's prejudice that has been according to texas law and judicially determined and  no amount of the only thing that can cure that prejudice is a new trial but what about the you have an allegation that eyewitnesses were interviewed if you have any information now i mean it's been a good while and still whether for instance the other occupant of the beauty parlor saw anything or didn't see anything or could confirm or deny what but the allegation was to do you have anything showing prejudice that wasn't for granted now your honor and that's why we asked this court to remand this case of the district court for you haven't even tried to interview anyone no your honor we have not we have not interviewed anyone here to you you were selected at the appellate stage that's right he would did not have counsel at the district  team is who didn't do the investigation right and the courts grant of the cia is limited to trial counsel's investigation but this court has never handled a situation on on facts directly analogous with these this is a situation where trial counsel failed to do anything so this court has handled cases where a trial counsel failed to call witnesses or failed to investigate the scene of the crime but this is the case this is a case where trial counsel has failed to do anything while this court has handled pieces of these facts this is a case where the trial counsel's failure to investigate both the facts and the law amounted to such a gross constitutional violation that this case should be remanded to the district court for an evidentiary hearing on the issue of prejudice one of the problems as i see it is that rumpy which is probably your best case for the failure to investigate learning itself enough we did know or they did know from the record what the investigation would have her feel because it was there on the face of documents that the the attorney ignored things about his mental health things about his background were all are so it wasn't certainly could be developed further that's not the question but we weren't guessing i mean the concern i have is that we're somewhat guessing what the other person in the salon might have said or what the slim person that was never found the three of the trio of that were seeking to escape might have sent it cetera and so that's something i guess point me to the u s supreme court case or the th circuit case where we've said we can do that that we can guess at what these people might have said your honor we're not asking the court to guess or to speculate about what witnesses might have said we are relying on bryant versus scott which is twenty eight a rd one thousand four hundred and eleven where this court handled a case where i witnesses to the crime had not been interviewed or investigated and the court remanded the case for an evidentiary hearing on that issue of prejudice and this is of course in addition to yes that's a problem and yes your honor we recognize that that is an issue but there is circuit court precedent suggesting that that you can remand for an evidentiary hearing on this issue and tell me that the post and twenty to fifty four state state court conviction what case have we said we have no idea what this investigation would show but we're going to remain for an investigation your honor this court to my knowledge has not dealt with an issue like this sense then where the totality of the circumstances the totality of trial with an incomplete investigation but in this case the court is dealing with no investigation whatsoever this court has already stated previously stated that the failure to conduct an independent investigation is produce a constitutionally deficient so what happened here and i have trouble agreeing that this person was deficient to all my concern is you still got the prejudice prong and i'm struggling to find the hook you seem to think you have that gets you there right your honor the investigation that he was constitutionally responsible for conducting is an investigation into both the facts and the law let's talk about that facts in the law so i'm looking at the order granting this to get appeal ability and we said and a key argues that the evidence was insufficient trial counsel was ineffective for failing to investigate his case adequately prevent jurors from learning rar a prior opposite can do conviction and request a limiting instruction we then granted it on just the investigators case adequately so even though you see that as including law and facts we had it as a b c and we granted only on we did not grant on the preventing jurors from learning a prior robbery conviction which is the argument you're making and i was a spree shit you're a lawyer you're doing your best to slide it in you're trying to slide it in as an investigation of the law but i don't think we granted a c e o way on that how did we do that yes your honor i think it's important that the judge does did not limit the grant of the cia to just an investigation of the facts he mentioned only the adequate investigation into the case and also when you look at judge rosenthal's decision in the district court the issues that were raised were failure to move the court to prevent jurors from hearing this and also failure to request that limiting instruction and so the issue that was raised in the district court is a failure of trial counsel to do something that he should have done which is what we're asking the corps to recognize the trial counsel affirmatively did something affirmatively prejudiced his client by introducing this evidence in his opening statement so it's not that he didn't move the court to prevent the jurors from hearing this he told the jury he told the jury without instruction and contrary to the stipulation that he had previously been convicted of aggravated robbery which is prejudicial under texas law in addition your honors to failing to investigate the law as i previously noted he failed to investigate the facts of this case and so instead of conducting an independent investigation into potential in consistencies or avenues of impeachment trial counsel simply investigated the evidence that the state provided him that's all he did and the court as i noted has previously established that that's constitutionally in effective before moving on to prejudice and really really hammering that i'd like to remind the court that he failed to i failed to interview and identify eyewitnesses to the alleged crime he never visited the scene of the crime never took photos of the ted windows at the salon and in the vehicle never requested never obtained a copy of the nine hundred and eleven recording and never obtained a copy of the investigators report all of which combine to increase the probability to judge well it's question that this defendant would be convicted to prove prejudice your honour's the supreme court has required a reasonable probability that but for counsel's unprofessional errors the result of the proceeding would have been different but it's important to note that that reasonable probability is not a probability beyond certainty it's not absolute certainty that the result of the proceeding would have been different it's simply a probability on of a more likely than not standard yes your honor it's a probability how do i mean here we just don't know it could be the people the salon said i didn't see anything and the slim person is never found so then one your honor the supreme court only requires a probability sufficient to undermine the confidence in the outcome of these proceedings and that's what we have here when you combine the egregious failure to conduct any investigation whatsoever and to come into court without knowing the controlling law with the weakness of the state's case the see it's not that weak i mean we do have the witness from the salon is very clear and then we have this chase and this departure in this dropping things along the way in and finding your client in the field or wherever it was i mean that seems like pretty good evidence and so i and i'm struggling to see what it is this isn't something where the your client is saying they have an alibi and here is jane doe that would say i was three hundred miles away at that time and so on where you can say wow and if that have been don't  back and really change things you're just saying you never know what you'll find in an investigation and i'm agree with you and i think this lawyer should have done the investigation but how is that enough to be more likely than not well you honor i think the panel should look to justice brown's to sent in the state court decision for to further bolster the notion that the state's case is weak the evidence that was presented at trial is at variance with the indictment the indictment says that mr out a key attempted to enter this business but we have no evidence beyond the fact that he attempted to exit a vehicle the indictment says he had the specific intent to rob this eyewitness whose testimony is the cornerstone of the state's case and it's i might add a very suggestive identification but there's no evidence that he had the specific intent to rob this person he could have intended to rob anyone else or not rob anyone at all and then the indictment says that he was wearing a mask but miss mendez later testified that it supported by the evidence then trial counsel is constitutionally obligated to do more so the investigation or the lack of investigation is made more palpable by the fact that the state's case is weak as i noted earlier trial coun errors in this case combined to just to deprive mr adequate of a fair trial so this is not a case about uncalled witnesses where you know mr addict he should be required to put in evidence of what the witnesses would have said because for one he's incarcerated and has retained this attorney to investigate this case for him in the council has completely dropped the ball has completely abdicated his constitutional responsibility to add to access this evidence or to investigate this evidence counsels as i noted failure to locate and interview eyewitnesses to the alleged crime is only compound it by his failure to inspect the physical evidence or to request the written statements of the nine hundred and eleven calls or to visit the scene of the crime state's case which i've already noted is weak unravels if any of these errors are patched so jurors likely would have been more circumspect of trial counsel had not disclosed that mr adequate had a previous conviction for armed robbery the investigators report would have uncovered evidence or witnesses and a skilled trial lawyer could have used that evidence in mitigation of the state's affirmative case and any number of witnesses from the other stores could have created a reasonable doubt and could have undermined ms mendez eyewitness testimony by calling into question her identification of mr attic in the absence of specific evidence of proof in this case is not a fatal deficit no offense to that case of note it has addressed the given set of facts cases only address pieces of these facts this court should not allow precedent under which a trial attorney can do nothing and have his client remain in jail for the rest of his life we  different result rests on unfounded speculation of what that investigation might have uncovered and it does so in a case with overwhelming evidence of his guilt and you address the issue of whether the certificate of appeal ability compas is the failure to investigate the law when you can admit a criminal prior criminal conviction our position is that the order from judge dennis just deals with a fact investigation if you look at the application for a c e o a i mean that this came up just a few minutes ago but there is a sufficiency of the evidence argument raised and then three different ineffective assistance of counsel claims and one was labeled eight failure to investigate that dealt only with a fact investigation another one i believe was labeled something like fail to have a firm command of the governing law that is that in compas is the trial counsel's failure to prevent jurors from learning about the prior robbery conviction that has come up now and then a rd one talking about failure to request a limiting instruction about prior criminal history what it looks like happened is in the order granting the sea away just on one particular part arguments made labeled a failure to to conduct a sufficient fact investigation in the c e o application and the argument the argument about a failure to to brush up on the law that deals with the preventing the as from learning about the prior robbery conviction so we think it is if you put those two documents side by side we think it's clear that what was granted here is just about failure to we would not be before us that yes that is true and if you look at that the cases about this to the extent that we credit the testimony of because retained counsel at the state evidentiary hearing about the scope of his pretrial investigation i don't think anyone would say that he did a great job but this is not a case  i don't want to go out of my way to defend everything that was done here but this is not a case where trial counsel did not attempt to do anything like for instance the bryant case i mean here trial counsel did take advantage of the d a s open file policy and there were six or so pretrial conferences and he would go over and take notes from that file this informs him of what the sort of the chief eye witness the state was going to use had told prosecutors and he used that to some mix of fact in  cross examining her in the trial and he also did hire an investigator to go out and conduct sort of further fact investigation now we know from the record at least he says in the record that he never actually got that report the reports not in the record but because addict and his family did not pay for the investigative report and you know there's there's no this is a twenty to fifty four d case and there is no case directly on point about what a trial counsel's obligations are to do in a case where he's not being whether he had an obligation to pay the investigator himself or what he was supposed to do right before the trial i'm supposed to ask the court for money and that all the time well i mean one of the things that we talk about this a bit in the brief of the under texas state law i mean generally speaking funds for investigative services are reserved to people who are working with counsel that was given to them by the state here addict and his family agreed to pay ten thousand dollars to hire this guy so i don't think it's clear i mean this maybe gets more prejudice i don't think under texas law we can be certain that if he had requested if he had done that and requested the money he would have been entitle to get adequate i mean this is somewhat unusual here an addict if this is the record have had a job he was making ten dollars an hour he had his own apartment that he was paying the bills person tends to find it doesn't appear to if this comes up at that at the evidentiary hearing on the motion for a new trial it's talked about about the whereabouts of her and it's mentioned at one point that she's bond forfeited i took that to mean so i think that she she was arrested and they were going to charge her and then she skipped town and so there's nothing in the record that says she was interviewed nothing there's nothing really really there on that and the same with the other passenger in the car so with all that being said there's no need to delineate the precise contours of what trial counsel did or did not do or should have done better because as every court that has examine this has concluded  investigation he's calling for here might have uncovered he does not present evidence that such an investigation would have made a meaningful difference in the outcome of his trial it is not nearly enough to say what some witness may or may not have said attic high points to no case where he is petitioner has been able to satisfy strickland prejudice for an insufficient investigation claim based only on his own bare assertion it's the standard that this court is or take elated and this is in the green case and the gregory case which dealt with insufficient investigations is that a defendant who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial he must present competent summary judgment evidence now what does that look like it might vary based on the different arguments going on here but we know from case law and much of added claim rests on the failure to interview these other potential witnesses that you have to name the witness show that the witness would have testified set out the content of the witnesses proposed testimony and show that that testimony would have been favorable addict high argues that he should be exempt from doing this because he counted on his trial counsel to conduct this investigation and he's in prison but these cases the gregory case for instance is good on this this is a pro se this is this is  raise this issue in the motion for a new trial there's nothing in the record to suggest why that counsel couldn't have conducted this investigation to the extent that he needed a lawyers help in conducting the investigation  and that counsel for it is very i got this is this is we talk about a seven circuit case in our brief that you know that this court hasn't addressed that argument head on but it certainly is held by implication that the fact that you didn't have counsel helping you  your the need to satisfy strickland prejudice that's again that the gregory case and i believe also that the green case for the th circuit dealt with that argument and they said yes it is hard to do this sort of stuff in prison but you still must demonstrate with some precision the content of the testimony the potential witnesses would have given a trial and you do that by presenting affidavits from these witnesses and there's just been no attempt to do that here and get me this is a twenty to fifty four d case you're looking at this on the the factual record that was before the state courts and there's just there's a there's a lot of speculation as to what various people some name some unnamed white have said but nobody's coming forward like in bryant to say that hey this guy was in california and texas on the day of the crime or you know a bunch of witnesses who saw an assault happen after the fact like in richard's that is more likely or to to have caused the death of the person there i mean it is this this case sort of starkly removed from the facts of anderson and richards and bryant and the other the indictment allegations very not that that's a separate point but that the indictment allegations vary from the evidence which shows that evidence was not that amazing well i don't think that that's that's that's not at issue here and i think that was resolved by the state court of appeals that the case against him was not that strong such that the prejudice analysis seems more robust no i don't think so i mean you have a lot of these other cases they go out of their way to point out how weak the case was here it's the exact opposite that the state court of appeals looking at this said that there was overwhelming evidence of his guilt and said that the state put on a strong case i mean that's the that's the thing that that's sort of the the nd issue here is  brandishing a gun when the cops show started to come in the you could hear the sirens the car took off police chased the getaway car washed out of high flee and then tracked him down you had an officer testify to addict jumping from that car and then pursuing him on foot you're an officer testified to recovering a mask and gloves a gun loaded with hollow point bullets all piled in the middle of an empty road were adequate flood and you had officer testify to finding out of hiding in a dump truck claiming that he was asleep but breathing heavily and sweating as if he had just been running and then you have the identification from the salon owner herself that that you know this is there was a woman at a kind of girlfriend in the driver's seat of the car there are two men in the car one of whom is described as a large man very wearing a bright shirt who's bald and then you have a skinny guy wearing all black who had dreadlocks so this is it's hard to see how this is a case of mistaken  identity the driver and addict are recovered taken back to immediately after they're apprehended and she identifies as the man that she saw brandishing the gun just just a few hours earlier this is the standard  this is talked about in you know gregory and green is that you cannot show stricklin prejudice for a failure to investigate claims when there is quote ample evidence supporting the conviction here if there was more than ample basis for the state court determining the state court and the federal district court determining that whatever investigation maybe should have been conducted that would just would not have made a difference here  real possibility of adequate adequate being acquitted by a more thorough fact investigation was more than eclipsed by the remaining strong evidence of his guilt if there are no questions ideal b brief please the court your honors i have two very brief points on rebuttal at st light switch for us the scope of the certificate of appeal ability judge dennis cited brian for the proposition that jurists of reason would debate whether counsel with an active in failing to conduct an adequate investigation bryant relies on strickland which clearly prescribes both a factual and legal investigation the possibility that the certificate of appeal ability could have been more clear does not make it unclear that he was referring to a strickland investigation and any of the failure to conduct a factual investigation must be viewed through the lens that mr adams he was prejudiced by his trial counsel's incompetent disclosure to the jury of his prior conviction and then nd my nd point on the issue of prejudice your honour's mr abbott he was prejudiced by this incompetent disclosure to the jury and no one contests that the question  through that lens really then becomes whether councils factual investigation was sufficient to overcome the prejudice that he created and it wasn't he outsourced the investigation and failed to obtain the investigators report he failed to interview any argued case and reshape both sides representation of their clients mr rocker we want to thank you for taking the pro bono appointment and discharging your obligations very carefully and thoroughly and we appreciate that very much of course we appreciate your service as well mr white so with that the case is under submission and we will call up