good morning your honor is anthony bornstein assistant federal defender on behalf of mr gonzales i'd like to save two minutes for rebuttal please your honour's this habeas corpus case comes before you in the strickland ineffective assistance of coun context but it is also very much about the right to a fair sentencing and the sentence imposed by a fair tribunals and also raises counsels obligation when faced with a sentence is imposed by a biased tribunals one that is unfair and which relies on unsourced suppose that expertise comes in kind of a secret bubble of definitive expert expert opinion your honors i relied on two cases among others in my brief strickland itself and townsend versus burke on the right to a sentence based on that is not based on misinformation but there's a couple of passages in those opinions that i think warranted more emphasis than i place to my briefing which i'd like to just take a couple of minutes to underscore for the court because they bear so directly on the resolution  sundin was a pretty good in case where counsel was on represented and the sentencing court relied in imposing the sentence and what he thought were three prior convictions turns out two of them were the subject of acquittals the third one had actually been dismissed yet the court relied on them as thinking they were valid prior convictions in discussing counsel's duty when made aware or one counsel should have been aware of those  defects in the convictions the court at page seven fourteen of townson wrote that counsel had any been present would have been under a duty to prevent the court from proceeding on such false assumptions and perhaps under a duty to seek a remedy elsewhere if they persisted and that is exactly our claim on the performance prong that when the judge announced out of the blue this supposed opinion from actually imposed on the sentence what happened was that was that in a sentence that the parties agreed to recommend to the judge well that the court did follow the d a s recommendation there's no question about that that trial counsel was seeking and defense counsel  seeking a sentence below that and under oregon law could have imposed a sentence less than that ultimately selected by the judge could have imposed for example partially consecutive or potion the concurrent sentences and as we know from glow for any amount of additional jail time has sixth amendment significance and that's what are the heart of our argument is that had mr gonzales been sentenced by a fair trade no one who was not tainted by this i mean the judge was basically say i know certain things i might believe certain things left to my own devices he wouldn't be getting this lower sentence and he actually said that he said some to the effect my own inclination would be to go against the prosecutor's recommendation so it's hard to say that there's a this probability that but for what they think you know counsel didn't jump up an object that you would have had a different reason oh well i'd like to answer that this way honor this was a judge who began the proceeding who was who was heavily influenced we know from pages particularly e r seventy three and seventy four where the judge thrice relies on expertise or supposed that expertise very influenced by this expertise that is brought into the courtroom without advance knowledge without advance warning so we start with that understanding and that's where the second passage that i would like to relay to the court comes into play it's in strickland itself at pages six ninety five and what the court there said is that the assessment of prejudice should proceed on the assumption that the decision maker is reasonably conscientiously and impartially applying the standards that govern the decision these and that it should not depend on the idiosyncrasies of the particular decision maker such as unusual person propensity which is what we have here toward harshness or loony and see these factors are relevant to the prejudice in or those factors are all that but still i think the state court and the district court here you know went through all the factors that were on the record that were considered by the drug judge and was deserved he still went with the government recommendation now so because of all that the district court came to the conclusion that it was a reasonable interpretation of strickland does not to be correct just have to be reasonable now why isn't it reasonable it is on a reasonable because one i think the court applied the standard kind of came at it as well he got a good deal so there is no prejudice that's not the inquiry the inquiry is had this misinformation or unknown undisclosed information not been before the court not influenced the court or not likely influenced the court is there a reasonable probability of a lesser sentence it's not whether he got a good deal from the plea bargaining stage we know that representation may have satisfied strickland in securing the plea bargain that he did that may have been reasonable that does not end the inquiry in it doesn't and countless obligation it's what's council's obligation i'm just addressing your honour's question regarding prejudice that well he got kind of the deal that was presented he the judge was inclined to go higher again we know that this judg i submit that that is contained any more than a reasonable inference from either our seventy three seventy four which is the sentencing judge remarks where he twice refers to this suppose that opinion as an expert and then discusses unknown other experts that he's either spoken to or heard from or somehow become aware of so he's very influenced by expert opinions and that's clear from the transcript of his sentence of the sentencing proceeding and i just i'm running out of time here but again i'd just like to point out thomson seven forty of the u s reports the court there said we are not at liberty to assume that items given such emphasis by the sentencing court did not influence the sentence which the prisoner is now serving thank your honor thank you good morning in may please the court counsel greg rios for superintendent mark new this court should affirm the district court's denial of hay vs relief because petitioner has not established that the state post conviction court and reasonably  applied strickland and at the outset i think it's important to kind of pinpoint exactly what claims that petitioner raised in the state post conviction in court because that's really the proper focus and not what other claims may have come up later on in the course of behaviors briefing and on appeal and the claim that was presented to the post conviction court was that counsel should have objected to these unidentifi experts opinion the reading of it and should have produced a rebuttal expert to address that testimony nothing was mentioned about recusal in the post conviction petition petition or submitted a pro se trial memorandum and tried to introduce the issue at that point but settled oregon laws that you have to plead the claim in the post conviction petition so the court found that he didn't the state post conviction court the district court noted that so that claim is procedurally defaulted and off the table and perhaps that may have been i for reasons argued in the brief don't think that's a winning claim but perhaps that moat may have been the most appropriate claim under the circumstances and that is not before this court so the question is whether some other evidence should have been presented whether counsel's ineffective for not doing that and whether the lack of that evidence changed the outcome or a reasonable probability that a different sentence would have issue as an initial matter at you have to do if you say that an expert's opinion should have been introduced you have to introduce the contents of that petition in the collateral proceedings so that was never done here that is an easy way for this court to conclude that there was no strickland prejudice or that the determination of strickland prejudice was not lack of strickland prejudice was not unreasonable on the part of the state  conviction court but going further and even assuming that the more traditional prejudice analysis which is it but for the purported ineffectiveness there would have been a different sentence would have resulted here we have a trial court who was quite upset about the number of victims that petitioner had within his own family that came out as a result of the psycho sexual evaluation and the egregious nature of the abuse to this particular victim petitioners twelve year old granddaughter and that is what the court started with the court did not start with this opinion the first comment out of the court's mouth is look you've abused five members of your family and you've touched your granddaughter up to twenty times and then the report was referred to and i believe the report was most likely referred to because a lot of the a lot of family members of petitioner came up and said that he could do well with treatment the judge was obviously the trial court was obviously skeptical of that proposition and so this was one of the things the court mentioned in support of that skepticism the court didn't just mention that there would also mentioned it's years hearing prosecution and defense experts testify about sex offenders and there are many ability to treatment so that report wasn't even the sole basis for the trial court's skepticism about the potential of petitioner to be successful in treatment with discretion to the judge happened in the sentencing the discretion the court had and i think it's i'm going to correct my brief a little bit i think in the brief i said it was only seventy five one fifty or to twenty five it is true that there could have been a partially entirely consecutive sentence was two hundred twenty five months and there are seventy five months for a single touch of sex abuse one yes and they were all and this is an undisputed fact that they were all separate so the way our consecutive sentencing statute works is the presumption is that there are going to be concurrent however if certain circumstances are present such as separate incidents the trial court has essentially unfettered discretion of subject to you know constitution const imposed a seventy five month sentence unlawful them to five months and thunder oregon law yes he could have because i believe that the police petition was such that the recommended cap on the states and was going to be one hundred fifty months and the defendant was free to argue for a fully concurrent sentence which would be seventy five months now at no time i know there's a lot of talk about treatment but at no time would treatment be an option and it did press at a argument that it was unconstitutionally disproportionate in a sentence seen memo but did not really pursue that at sentencing basically said i'm just putting it out there to preserve the record for appeal so that would be the only way they could get to a treatment sentence or not gentle probation sentence was if the judge would have considered the sentence unconstitutional and then gone to the state sentencing guidelines experts article that the trial court would not have reached that same sentence and that state post conviction more correctly found that there was no prejudice because the trial court was concerned with much more then the  r over the minor victim and unless the court has any further questions which is it we just ask that you are from the district court thank you think you have time but i'd like to give you another minute for rebuttal i  think there's an implication from counsel's argument that the only aspect of the sentence that the expert influenced or had impact on was a minute ability to treatment and that is just not correct the expert if we if he isn't is that and we do not know they call it an f b i our article they call it an f b i opinion we don't even know that we don't know the actual source of this and what the qualifications were but be that as it may that x hurt or supposedly expert talks about the in corage ability the inherent evil of people who commit this crime and that impacts the duration of sentence it's not either or it didn't have to be one hundred fifty months or twenty five or seventy five it could have been somewhere under the sentence that he received and over the minimum which was seventy five again under clover any amount of additional jail time has sixth amendment significance and if he had a fair judge an impartial judge there is a reasonable probability it would have been less and your honor mentioned what remedies we had in our brief or just close with this we said there were various remedies that counsel corrective actions the council should have sought their own pages in our summary up let me just ask you one question do you disagree with your colleague statement which was also echoed i think in the district court in the p c r court that this issue of impartial judge was not actually raised in the prior petitions i disagree in the kitchen ok well can you give me