lesser included offenses in pursuit total acquittal was a reasonable one under strickland there's a tendency i believe to focus solely on that decision and i don't think that that's appropriate in this case because when we talk about strategic decisions of counsel we're talking we give a great deal of deference to that but i think you have to look at the totality of the trial lawyers decisions if he is making wildly unreasonable strategic decisions in other aspects of the case i think it that the deference that is ordinarily do begins to erode i think that it undermines our confidence that his decision in this particular case was a result of careful and studied analysis that's what we have here we have a pattern of wildly unreasonable professional judgments the first one being the decision to give this case the appeal of this case to his wife one of the ways of winning an appeal in a criminal case is the show that counsel was ineffective that that is off i mean i recognize the difficulties with that decision but i i thought you started out exactly where i was reading your statement of issues it's got to have been an unreasonable decision to start with if it wasn't then there's no ineffectiveness of the public council for not raising it and i agree with that your honor what i'm suggesting here is simply that the other judgments made by this attorney reflect on his overall decision making ability and if he's making untrue faces that would hold that i mean because that sounds like you say you know the guy gets drunk and gambles wildly the same time he's a you know stone sober doing all of his legal duties they well he's a bad guy he makes bad decisions are there any cases that would really support and i think it's supported by logic iranian not talking about a situation where this guy made decisions professional decisions other than in his professional capacity it's not that he went out and gambled wildly and lost a lot of money these are decisions that he made as a lawyer or wife ok well you happen to be going through a divorce at the time so that that well but let's let's focus at least for me let's let's focus on why do you say that it's unreasonable strickland and reasonable to take what is a mean this is a the decision to go for an all or nothing strategy obviously it's a risky one but if you win it's a high value you say well you know he could have gotten a much lesser sentence that's right but if you had any reasonable belief that he could walk and take it this was what the defendant wanted to do as well he's not bound by it but it's you know if the guy says i'm going to be a terrible witness don't put me on as opposed to hey i could talk my way out of this well i think it's far into the defendant's decision with regard to this there is nothing in the record which would indicate that the defendant participated in the decision and plus you're talking about a twenty year old kid who had no experience whatsoever with the criminal justice system so the idea that he's calling the shots here i don't think there's any support in the record for that he's dealing with an experienced attorney and i think that he would have gone anyway that the attorney chose to go i don't think it was the the defendant's choice to go with an all or nothing strategy that was the decision of the the attorney and i think that it's defective for the following reasons first of all this isn't its decision that's made in the heat of the moment we give great been convicted of in the original trial but that would indicate that probably care they were have been too well i don't think so because there is one important there's several important differences between the two cases and that's what i'm getting into as far as  why the decision was unreasonable this as i said is not a decision that was made in the heat of the moment he had ample time to consider this is a decision that's made by trial counsel in any case in which there are lesser included offenses available so you look at what he knew before going into that trial this is what he knew first of all he knew what the lesser included offenses were and the great benefit they would have conferred upon the defendant yes a total acquittal strategy does have a benefit but there is a substantial benefit in getting a three year sentence instead of a fifteen year sentence and that was the the difference between the penalty to second of all he knew that he had no evidence to support his client's testimony there were no witnesses who could corroborate his client's testimony as to what happened that night that's what his client said well that's what his client said but he knew that he had no other evidence to support that you don't make a decision just well if the client tells me this then it must be true when the jury's going to believe it but why it why isn't it a others in there i believe were ten witnesses total who testified against him all of them were independent witnesses none of them had anything any connection to him prior to this point and what's more important  college students or college students yes yes yes they may not have been involved in the fight but they're kind of around they weren't involved in the fight but they were this took place in a heavily traveled street so there were ample number of witness other bunch of churchgoing ladies in rural iowa to buy bill's lawyer i think i could make him look better than these other folks well that there is one problem with that your honor and i agree with you ohio has opened discovery he would have had all the witness statement but he could have very easily said it's common knowledge that some witnesses write a great statement and they fold on the stand but here's the thing barker's trial was tried to be for his a month before his he knew that the same witnesses had testified in barker's case as would testify in his and he knew that the jury believed that testimony so this isn't a situation where he goes into it with the idea of well they're not going to believe these witnesses they didn't barker's case and got convicted of murder yes of murder and notably he got convicted not only a felony murder as did kelly he got convicted of intentional murder twenty nine twenty three zero to a purposeful killing  lesser included offense in those in the other case no he did not have it in the first trial he did have it in the second trial but the jury convicted got the same verdict exactly and there is one critical issue in this case one critical fact in this case one critical distinction between barker's case and kelly and that's the pop the testimony was that barker ran up at a full sprint behind the victim and sucker punched him in the back of the head and knocked him to the crack his head on the pavement twenty fell down and i think that was the basis of the jury deciding on intentional murder as opposed to just felony murder so you don't have a  situation basically what you're presented with is a situation where you have to convince a jury that your client did not do anything in pursuing a total acquittal strategy when you have all these witnesses a raid against him you have no corroboration on his part or you have the alternative of convincing the jury that your client didn't kill the victim what about the lack of mr opportunity for the defense to argue that yes he might have done something and you know i understand the district court judge put in that well it was unreasonable for him to go with an all or not to ask for lesser included instructions because  would have required him to call his client a liar and that's not necessary in this case we argue in the alternative all the time and there was a very easy alternative argument to make in this case you just tell the jury ok you've heard the testimony from the various witnesses it's to what happened that night and you have to decide who to believe but i'm going to submit to you that regardless of those witnesses testimony nor and all the contradictions in their testimony and assuming they're telling the truth mr parker is not guilty of the crime so with that with the with which he is charged and then you go on with the lesser included offenses so i think that in this case given all the information before the the attorney all the information he had in his possession the pursuit of an all or nothing strategy of total acquittal was unreasonable under strickland because there was no possibility of that strategy succeeding it didn't succeed for barker and it wasn't going to succeed for kelly there was just too much evidence contradicting his story he had no evidence supporting that story the charge on lesser included offenses what if resulted in a revers we don't know what will it that that's sufficient to show prejudice in this case and the decision to proceed with an all or nothing strategy was simply a reasonable under strickland given the great benefit that he would have received from the lesser included  s let me just go back to the d n a statement in response to judge cole's reserve distinction between the shoes in the pants because i thought that the that they were if the introduced evidence there was no d n a on the shoes there was no d n a on the shoes there was some d n a on his pants like ok which but that is evidence in his favor in the sense that his argument is hey they're saying i kicked the guy i'm not denying i was surrounded in the the lack of d on the shoes you know means if you kick the guy in the head you would think you'd transfer some well judge i would from water i've tribes a lot of cases in my time and i certainly wouldn't like that the argument to a jury that well my guy didn't said but as i said i in this case and i understand that these decisions are entitle to a great deal of deference ok i understand that that happens they are made oftentimes in the heat of the moment i can assure you that the oral argument that i give on the ride back to cleveland is going to be far more effective than the one i'm giving you know it's the nature of the beast but your time is expired thank you you're in a  good morning may it please the court i'm stephanie watson on behalf of the warden and we request of the district court decision be affirmed in this case i almost don't know where to start because of of all the corrections and the record that i need to make the first one i i think i'll just start with is that the issue that mr kelly raised in the court below and in his petition before the district court was not any pretrial strategic decision about what kind of defense to race it was never a complaint that his counsel was an effective for choosing the particular trial strategy that was raised making that decision prior to trial the claim that he raised was the entirely separate post trial post evidentiary portion of the trial claim that his counsel did not request a lesser included offense instruction after the evidence that was actually portrayed during the trial the district court correctly noted that is an entirely separate claim of ineffective trial counsel that was a never presented to the state courts and fact was only presented for the first time in history verse in the district court so setting aside that claim that claim is clearly defaulted decision and edward to be carpenter if you can prove an effective assistance of appellate counsel but you can't do that here the reason why this is the trial strategy was sound is because not just because mr yes mr berger case was before mr kelly's and the two theories of defense were entirely different mr barker testified yeah i did kick the guy just didn't kick him hard enough to kill him and his attorney did request the lesser included offense destruction instruction because that's the theory of defense and that's the evidence that was part of our trade at trial however mr kelly chose in a time the exact opposite theory of defense he said i never touched the guy i never touch of that guy i touched this guy over here and it was his blood that was found on my pants but i never touched carnage i never i never kicked punched nothing and that testimony that theory of that pretrial strategic theory of his case was not just supported by mr testimony at trial it was supported by the testimony that mr my posing counsel mentioned here there was additional eyewitness testimony that saw mr barker his codefendant run and strike the victim in the head blindsiding him knocking him to the ground and cracking his call on the ground that was testimony that was also supported by the coroner's cause of death which was a blunt force trauma to the head which the witnesses testified they saw the other guy do and the other guy said yeah i did i just didn't mean to kill him and finally the blood evidence that was found on mr kelly was not the victim mr ker niches it was another person a mr chalco who he admitted that he can't so there was plenty of evidence to support a very sound reasonable trial strategy of all or nothing not just his own testimony additional witness testimony seeing some other guy strike the fatal blow the coroner's report was supported the cause of death was that because say that mr kelly did touched the victim but he chose to go with the forensic evidence and if he was a fan of the c s i age or what but he made this decision to testify was it me was him he's already been convicted of it a witness saw him strike the fatal blow the coroner said that was the fatal blow and i didn't have any blood on me it was a gamble yes it was a gamble but it is any of his blood that's right any of  victim's blood on him it was a gamble yes but it would have reaped extensive great rewards because he would have been completely scot free and the constitution does not require a successful defense the constitution only requires a competent defense and in this particular case this defense was sound and reasonable and under the double deference deepest standard of strickland and harrington it's not whether it's not even whether a strict stric analysis it's whether or not the state courts determination whether there's any reasonable arguments supporting the state courts determination and there are plenty of ample reasonable arguments in this case that would support  a complete no appellate counsel as appellate counsel cannot be ineffective when they do not when they choose to not raise a claim that has no merit but if the crime does have merit you're admitting it would be ineffective if the claim does have  it can be if it would if they can demonstrate prejudice it would have changed the outcome of the result of the case of the case court suggested that they need to bring it up in a in a post conviction direct to the ohio court you know the facts of case the only in my opinion the only snafu in this case that turned this case from a run of the mill this is a davey vs mitchell garner versus mitchell white versus mitchell you can't preserve the underlying claim and a twenty six b action it's defaulted period the only snafu in this case and in my opinion must be the fact that there was a husband and wife team here that was the trial and appellate counsel for this appellate lawyer did not feel any conflict because she indeed did raise several instances of her husband's ineffectiveness as a trial attorney in the direct appeal so she didn't feel conflict and as i stated  and i think it was footnote four of my brief the ohio law is not the only part of the ohio law that is clear from the house supreme court is that a lawyer is not required to graze their own ineffectiveness and that by not raising their own ineffectiveness that claim is not foreclosed by rest judicata they can bring it in a post conviction petition here she didn't feel that she was suffering and under any con and yet the court of appeals said we're not going to look at these claims we think it's a best case practices for this claim to be raised in a post conviction petition she chose not to do it in the post conviction petition because it's not a valid claim it wasn't a valid claim and you can't be ineffective for failing to raise one mr kelly did have a timely post conviction petition with counsel that post conviction petition did not raise any and effective a trial counsel claims ultimately decided by the the trial court so once they were on notice hey you can't raise any were and i'm going to let you raise any ineffective trial counsel claims here because we think you know that there's a conflict because you're married go to post conviction there these counsel were retained these weren't appointed counsel they could she could kelly could have retained additional counsel if you wanted to raise this claim that which wasn't even a claim until this traverse and a b s he could have f a petition on his own none of these things happened and even if that claim had been raised in post conviction properly it still defaulted because he never appealed his post conviction decision and he can't now under ohio law s even if the claim had been raised in post conviction it still devolved it i guess if the court doesn't have any other questions i'm happy to stand up here and pound the podium but i believe that and under no circumstances may mr kelly succeed on his current claims of ineffective trial counsel it's defaulted under whichever theory you look at it and his ineffective appellate counsel claim is meritless entitled to a deeper deference and i thank you for your time thank you let's clarify for the moment this bit about not presenting this claim until later versus this claim was presented in the twenty six a b because of this claim the failure to request lesser included instructions and the pursuit of total equal are part and parcel of the same strategy you can't pursue one without the other that was the claim made in the twenty six b that's the claim that i made that the pursuit of the all or nothing strategy and the failure to request lower lesser included instructions was part of the same strategic decision there was a merits decision on this case so i don't see how we talk about procedural default the whole purpose for the procedural default doctrine for the exhaustion and fair presentation doctrines is comedy we want the co of the state courts to be allowed to clean up their own mess to put it in there for nakheel or the state court had that you have a merits decision in this case i think it's i don't think it's appropriate to sit here and claim well they procedurally defaulted something when they gave the state court the opportunity to pass on the precise question that i'm addressing here today and that was appealed to the highest state court so i don't think we have a procedural that yeah we are we are but the idea that this gave some benefit to barker in the in the fact that i'm sorry to kelly in the fact that barker was had the one punch thing i think that argues to the contrary i think that points out the unreasonable ness of the trial strategy of the defendant's attorney because yes the jury found that he did that punch and that lends itself to the argument that well yes i may have kicked him i tim it may have been reckless homicide but it wasn't murder barker's the one that killed him and that's the strategy that you have to pursue in this case in light of the evidence against him there is no way the jury's going to disbelieve ten people that say they saw your client kid can hit the victim there's no way that's going to happen and there is no way that you can walk away from a three year potential sentence and put your client in prison i you know again yes that's in his favor but you still have these ten witnesses who absolutely contradict him on every single point the jury could easily believe yes he didn't pick him to the point where he'd wind up with blood on his pants or is shoes but he didn't kick and that's what these witnesses said and so i just again i don't believe that this was a reasonable trial strategy under strickland and i would ask you to reverse course thank