all really indisputable evidence to support mr lee's defense on that issue and there were also numerous ways to attack the state's counter argument regarding housekeepers the problem is the jury heard none of that evidence because of mr lee's counsel's deficiencies and so when you're faced with that problem the failure to put on a defense on the only issue only on the only issue that was disputed at trial while counsel did put on a defense that is to run it himself testified about this moving theory which was keep to the idea that there was an eviction as an all time and alternative explanation for his presence in the drug house and his brother's testified so there was a defense put on it perhaps could have been stronger but the court of appeals court of appeals said the additional evidence wouldn't have mattered there was no prejudice even if it was deficient performance not to chase down the fact that there was an eviction going and actually put in that information that it was not a prejudicial error on the part of counsel because the officers testimony completely decimated the alternative explanation that's how i've read this court of appeals decision so judge takes there a couple of a couple of separate pieces there two to what you're saying first you're absolutely correct that there was a defense of some sort put on and for that point i would point the court to montgomery versus peterson cited in our brief a page thirty five which describes the rule of law that if the issue is not whether you put on the defense the issue is whether you conducted the additional and obvious investigation necessary to put on an effective defense so when you are faced with putting on a defense as counsel promised that she would for mr leask saying i was only present because there was even action and when you then fail to take the obvious additional step of picking up the telephone and calling in the walking county sheriffs on the right right but we're not here on plenary review or here on twenty two fifty four d and the court of appeals made no prejudice finding and you have to demonstrate that that's unreasonable that it has as and completely outside the bounds of what a reasonable jurist would conclude that is that is correct judge sykes and the reason that prejudice was decided unreasonably by the wisconsin we're going to peel's goes to one of the second things that you referenced which was officer harms testimony from the from the trial the problem there is that when you are conducting the balancing analysis that a prejudice determination requires to see whether under strickland there is a reasonable probability of prejudice what you need to do is you need to first start with an accurate perception of what officer harm said for the reasons described in our briefing that wisconsin court of appeals simply overstates by a dramatic amount what officer harm says the correct interpretation of our officer harms testimony is at best that he did not remember and did not know what was down in the basement terms of material moved to move by mr lee and his and his brother jimmy but there was follow up though from the prosecutor on that and he bolstered that statement by saying there wasn't anything that would have been consistent with somebody moving box springs and dressers and that frames and all the rest of the glass table tops etc that's what the defendant's testimony was along with the brothers and that wasn't in itself conflicting they couldn't get their story straight about what was being moved and and that was clear from the trial court's ruling judge judge sykes with regards to the what was being moved point i don't think that that is an inconsistency as much as it's if you're moving if you're helping somebody move and it's not your stuff it's very understandable that you're not going to remember precisely what was moved on the point of what officer harms says i'm very comfortable resting on our briefing where we describe and would also point the court to you separate appendix to twenty four to twenty six and twenty seven where the relevant portions of officer harms testimony are when you look at that what officer harms actually says when he's asked what did you see in the basement if he says i don't recall that's his first statement his second statement is i wasn't paying attention because i didn't search the basement his third statement is i was just down there to look to look for the drugs that someone else found i went down looked at him and didn't look at anything else and then finally he makes the statement to which you reference which is if there were any more of those sorts of things i didn't see that first of those sorts of things is unclear as to what that is in the first place but even taking even even taking that statement right and the court of appeals said that if the defendant's story were true those kinds of items would not have escaped the officers notice the large items so if they were telling the truth that this was really just moving day and they happened to be moving all this stuff into the basement of a drug house the officer didn't see any evidence of that so there are two problems with that characterization by the wisconsin court of appeals that makes what they said on reasonable the first is the first problem with that is that it's really an argument from complete absence of evidence which is a logical fallacy in and of its own right because officer harms was never asked did you see anything else that inference is what the court of appeals draws that if he had been asked that question well he must said that that's not what actually occurred because frankly the state prosecutor did a poor job questioning officer harms that's not something that should be counted against mr elite that is officer harms the wisconsin court of appeals decision reads on that would have sue a spontaneous offered the statement that well i didn't see the various items that the leiber others testified that they moved out of the basement and that is perhaps the height of an unreasonable statement i want to also move briefly to the complete failure to cross examine officer birch regarding keys because when you're assessing prejudice and  have should have and even admitted that she should have cross examined officer birch on the only evidence tying mr lee to actual keeping or maintaining of the home the keys and did not she did not question him on the fact he wrote in a report that he was testifying from memory ten months later right all that should have been done the court of appeals said you know prejudice again because you know once the  moving day his story was so thoroughly decimated and it was clear that the keys to the drug house were found in the defendant's pocket on the issue of you know whether they were on a single key ring around two killings didn't really much matter what's unreasonable about that on this record so what's unreasonable about that is the exclusive basis for that conclusion once again is officer harmes testimony so the wisconsin court of appeals is using an ambiguous statement from officer harms testimony as a as a prejudiced panacea for everything the council did incorrectly what should have happened is now asked you're balancing an ambiguous statement against repeated numerous deficiencies that completely failed to go to the only point at issue which was why was mr levy there you need that point to meet one of the elements of the crime for peeping or maintain a presence isn't enough and when you are making that balancing analysis what the wisconsin court of appeals did incorrectly was it effectively said we just don't care about all of this prejudice on one side we're going to rely on a single ambiguous statement from one officer instead of one of the dimensions of the basement you know i don't believe that is in the record anywhere judge posner and that is in large part because the state did not put on that evidence as well as the fact that the original trial counsel did not investigate that information either i'd like to start with and i was going to reserve the rest of my time but right now i anything there harm's would have seen it if it's a large basement it's dark if it's tall it's possible to see how they mention the other thing is why did the other officer the one who went down to the basement first why wasn't it why didn't he test by i want to sponsor the basement question because i think that is important it's possible that the basement was a small square and it would have been obvious that harms would have seen a well anything is possible well so what it says we don't have the dimension of the basement we don't know whether it was small or large that's true but that's a what's important is that it's lee's burden to prove prejudice he could have put on evidence about the dimensions the basement and the reason he didn't could that the that the basement was a simple square and it would have actually hurt his case to put on evidence of the dimensions of the basement because it would have shown that officer harms clearly would have seen a large pile of furniture so the fact that it's not a record doesn't hurt the state's case if anything  it shows that lee didn't step didn't meet his burden to prove prejudice the wisconsin court of appeals specifically made that point it said lee gives us no reason to believe that harms wouldn't have seemed furniture in the basement if it was l shaped or if there was multiple rooms or so on and so forth so he just so you're saying the government can pick and put on a very crummy case and as long as the defendant has a prominent lawyer the defendant has has no has no chance there's no that's what with all due respect i don't think the case was crummy yes it was just because i didn't mention it to the bench near miss and the other thing is why didn't the other officers i want to went down there looking for the boxes why don't need testified i don't know why he didn't testify but i think that it seems like a big hole in the government's case not to have the other since farm testimony was they and the other officer kindly was the one of its supposed to be searching for the boxes i don't understand the evidence against to actually handle the evidence and the evidence against  was very strong i don't think it will strong have a can i survey it briefly lee was found alone in a drug house with the keys in his pocket he had five hundred eighty two dollars in cash in his pocket in small the nominations consistent with drug trafficking his only excuse that he wanted a casino doesn't explain why he had thirty seven one dollar bills twenty three five dollar bills etc cocaine on the table looked like it was in the middle of being packaged it was in the cut off corner of a sandwich bag and there's an open pair of scissors on the ground as if lee had just snipped the bag and dropped the scissors when he was startled by the police and it doesn't make sense that somebody else would leave seven hundred fifty dollars worth of cash and cocaine out in the open on a table in the fact that he's sitting in the room alone with drugs and a drug packaging is itself extremely powerful evidence the need a really good explanation for why he was there and he didn't have one his story had at least six different holes to it that he couldn't explain why he had a story yet he had a story and it was not a believable story was not a credible story and so there's no reasonable probability that even if we as counsel had performed perfectly that the jury would have believed his story he doesn't explain the cash in his pocket and explain the scissors on the floor he doesn't explain why somebody else would leave cocaine around he doesn't have a good answer to officer harms testimony and his story itself is highly implausible putting aside everything else his story on its own terms sounds like an obvious made up excuse so theoretically possible sure but highly unlikely is there anything to suggest that the prosecutor knew in advance of trial what the defendant and his brothers would say about the items the specific items they were moving into the basement there's nothing in the record that i found about that indicating that i mean that's it that's the sort of thing that just evolves at trial that a prosecutor doesn't have any advance notice about and so who would she would not come prepared with the dimensions of the basement to respond to an argument that she's unaware is coming and that's if anything you'd expect if that were an important issue the post conviction motion hearing the mocker hearing which wasn't ev and the defendant could have put that information on the record if it were indeed important to resolution of the strickland claim that's exactly right now officer arms testified before the brothers and so he didn't hear their testimony advance about exactly what they moved into the basement so the prosecutors questions to officer harms were sort of gent generic did you see anything past him with someone moving and he said no and remember collectively the brother said that they moved a glass table couple of end tables a couple  respond to that mistake but we think it's not prejudicial because there were so many holes in least story as i've said harmes testimony the cash in his pocket the scissors on the floor the implausibility of the story the lack of any x well they shouldn't you should or shouldn't the prejudice here now the wisconsin court of appeals picks the simplest route that it could to resolving this case it's picks the one thing that thought most thoroughly undermined at least story harms testimony but it could have relied on one of the other five things that i've mentioned so the simplest way for this work to resolve the case as well is to hold life the wisconsin court of appeals didn't that officer harms testimony totally undermines lee's reason for being in the house there are no further i just like to briefly point out why there is reason that the defense was not believable and the reason for that is prejudice plaintiff's counsel i'm sorry mr lee's counsel fell down every single time she had an  were compelling evidence that the defendant was involved in the drug trade and was not just there to move stuff through his brother judge posner the biggest problem with all of those facts that the state is discussing is that they don't answer whether he was keeping or maintain him which is what he was actually convicted of and in order to have keeping or maintaining one of the elements of that is that he had to control the premises and that means under which not some are that he had to have the ability to deny people access to it the trouble is that that was the defense right the defense that his counsel promised the jury in opening statements that she would present was hey i don't keep or maintain this location because i'm here to help my brother move and when you walk down the deficiencies that she did and never found because she never found the evidence from the sheriff's department she never found the witness that the sheriff's department put on in the mocker hearing showing that definitively that eviction occurred that was the only objective piece of evidence that any either side could have presented as to what was actually going on their morning completely dropped the ball on that completely dropped the ball with regard to keys and cross examining officer harms the state is correct in conceding that that was completely deficient and the problem is all of the other i'm going to take the fifth on that it's the point is the amount of cash you have in your pocket says nothing about whether you exercise control or whether you are keeping your maintaining the location where you uncontested testimony that he had gotten that cash from the pottawattamie casino and i think as this court takes the case because there was no contrary evidence presented you probably have to take that fact as a given well regardless judge cites to your earlier point the reason that the prosecution's case looks the way that it does not conceding that it's a strong case for the reasons that we that we have described the reason it i don't have i don't have any other lives over there question that the defense lawyer checked with the casino i suppose that if you wanted to think of that as an additional deficient efficiency of defense counsel it would be it would be procedur waived but that could certainly have been an additional thing that some defense counsel could have done but did not do at least as far as the record indicates procedurally way because the as i understand twenty two fifty four review the defense counsel's failure to treat because see no to look for additional evidence that would have supported the defense that could have been an additional ground for challenging the conviction that was not raised in the state courts oh yes you know as i say but as i say your honor that would certainly have been an additional thing that could have been dyed in the overarching point his council here did very little and that is why we would ask that the district court's decision be reversed thank you