attorney mr tank was going to proceed on with regards to this trial if in from in let's assume that that was a valid strategic defense for this case and therefore we would lose on that issue of severance if that's the case and that then then as the finding that both the state appellate court in the u s district court made that being the case it was inexcusable of counsel to not last name the defendant which aired last name of veronica which was moxley and although he said he didn't have a phone number for her and didn't have a particular address from her he knew how to get to her place and therefore could have provided instructions to defense counsel as to how to get to a place of the she could have been investigated that counsel at some point or anybody ever get an affidavit from baranik a moxley and put it in the record so we could know exactly what early on in this is this is at the very beginning this is before before he even had counsel he told the officers that the reason that he was in detroit or in the in the michigan area was that he was visiting with veronica so we know that and this  before he ever speaks to counsel he's from the california area he also informed his council that not only had he bend did he traveled to michigan to see veronica that time but he'd bend michigan to see her five or six other times prior to that time in that fund armed that was the only the only formation of a mere presence argument that defense counsel could have made because defense counsel didn't argue that he was here to see his friends he didn't argue that he was here to see someone else who was a relative the only basis that he had for mr lott to be in michigan at this time was to see veronica  there in in so regardless of we again we don't know what veronica would say but we haven't lisa know vermin had she been investigated she could've either confirmed or denied that story if if she would have yes  know that what she'd say was anything but the problem in this case is that the the state court in the u s district will ultimately found that it wasn't ineffective for failure to even investigate this this not not that there was inadequate performance ok let's say that was inadequate we would still have to find that it was prejudicial and if we don't know what she was go say and you you concede we don't know what she was going to say then how do we find the prejudice the only thing the only way we would be able to evaluate prejudice is to be able to rely on what mr lott indicated that a she was going to say had she been called because he did testify that she would have been able to verify that he was with her but more than that we have the fact that at the time he was arrested he provided her name to the officers almost immediately which would have been a which would have been a verification point all of which goes to probably that was inadequate on the part of counsel but he he says she could have said that he had come to visit her and maybe even done that before he doesn't say that she would have testified that that was the sole reason he was ever there i agree i agree but he but actually the mr lott says that mr lott testified to that that that was the reason that he was there so i can't tell us that she would testify that i grade but the problem is that neither the state court of appeals nor the district court ever got to the issue of prejudice on this issue because they held that it was a strategic basis not to go out and even investigate this particular under some of the more recent supreme court precedent we can look and see whether prejudice could have been shown absolutely absolutely wouldn't well if the the i disagree that it couldn't have been shown because had it had had the state court decided to give effect to mr lats testimony that this is what veronica would have testified to if the court would have done that which the court never got to because of the first part prong of of strickland then there could be evidence on the record to at least support that the court's ultimate finding on this issue but i agree without without the affidavit from veronica from veronica it does make it a much more difficult issue but we the other one of the other ineffective assistance of claims that we have that we raised before the court was the failure to address the issue of consent and in this case consent was whether or not consent was given  critical to the outcome of the case as a matter of fact i believe that their original defense counsel even admitted that without the evidence that was in the car they wouldn't have a case against mr lott if they had his lawyer testify  it would be a violation it would be a problem if you put a lot on the witness stand to make that argument but that doesn't prevent you from from raising a motion to suppress on that issue because on the issue of consent well there was no it or whoever it was a magistrate there was never a motion to suppress so that the whole issue of consent was never fleshed out in the state court record what the it to get their hearing after they get their hearing what was found was that because mr lott told his council that he'd given consent that they that the court did that the council didn't need to go any further at that point but there are two problems with that number one consent is not an issue of fact necessarily it's an issue of law because you can give consent and that consent cannot be voluntary under the law so it was still even if even if mr lott said that which by the way mr lot actually denied that he told his council that but even if mr lott said that it wouldn't have prevented council from at least taking a look in seeing whether or not the legal basis for consent was given in that case  d in this case there are facts that support that if i can bleed into one minute of my rebuttal time to kind of flesh this out that there was no written consent form that was signed in this case there was that the evidence at trial showed that there was kind of a that the officer himself kind of went back and forth as to the facts that revolved around consent because at one point he had stated that mr law provided him with the keys to the vehicle and then at another point he said that lott was actually being detained at the time that he was that this all occurred and mr lott there's no indication that mr lott was told that he couldn't consent there was no indication that mr watt was knew about his rights to be able to to make an informed decision as to whether consent in this case it simply could have been a submission to authority by saying the there the keys if they asked were you know where is your car and there  cases from this court that talk about the the the inevitable submission to authority so given all those facts and i see my my extra minute is up counsel should have pursued the consent as a motion  morning your honour's loser of art appearing on behalf of warden mclaren this is a relatively simple case and not a case involving a calamity of errors when you peel back the layers of each claim you see that trial counsel did provide reasonable trial strategy to his case no prejudice exists and the state court's decisions were not objective million reasonable determinations of the fact and getting to a quick point i'd like to mention that i did not quite articulate very well in my brief the deficient performance prong is measured based on what counsel knew at the time he made the decision and when we look at the severance claim  nobody had testified yet so we can't look at his sole basis for relying on severance deficient performance for severance which he relies only on the statement that the officer testified regarding mr rhodes as a basis to grant habeas relief that's under cameraman which cites strickland with regard to the witnesses it's clear that he cannot prejudice as chief judge has pointed out he's offered nothing as to what she would testify and the fact remains that he wasn't with this particular he's now alleging he was with this woman at the time he was caught with his friends and eleven kilos of cocaine regarding the consent issue that's going to require us to delve into whether or not essentially the intersection of a one indeed to our surprise ition as that he's going to have to show by clear and convincing evidence under  won that the state trial court's determination of credibility was inappropriate he can't meet that burden the what the trial court said is that yes and he made a couple of statements that later on he is at the get the hearing he says that yes he told me before the hearing that he consented he clarified and says that after he finished cross examining the officer about what occurred regarding the consent he went back to counsel table and asked his client is that what happened and his client said yes just as the officer indicated at that wedding was this that there was consent and whether or not he was going to delve into that further was rendered moot by his client saying it at the policeman or exam that it happened exactly as the officers and dictated and had testified about plus the consent was you know in the police report and as chief judge noted that essentially the fact that he gave the keys to him it was clarified he gave them the keys indicating that they were on the dress and any analysis under lucas can still be in that lucas has says that a statement by the officers that they can deny consent is not dispositive  and looking at his you know he's thirty years old thirty year old man doesn't unless he's an intelligent doesn't allege that he's an educated doesn't allege that he didn't understand his miranda warnings which the officers indicated were given at that time at the hotel he was you know at the circumstances he was in a hotel with even fewer officers that were present and look at his case and  regarding his the course of conduct he's just making conclusory assertions and that he offers nothing about the officers threatening him in any way so even if we did dive into lucas we can still show that  exists and you know other than that i mean unless a square has any questions i you know i feel he can show prejudice under any of these issues and i would be happy to address any concerns it's currently have w door handle so that's two alerts that's what they are in short he's liable because he just found cocaine in the other car at the blazer previously that was driven by turned teen in the trunk based on the dog sniff  which you could go to florida v harris which just came out this last year you know is is gives probable cause for a search for a warrantless search but in the trunk they find  baggies similar to what was yours not exactly was similar and that's what the prosecutor here zip ties clothing smell of gasoline and tools that resemble the tools that were just used to disassemble the gas tank and the blazer that they found the eleven kilos of cocaine with then it tying all this together him saying he was there to meet his friend turned eighteen they were found in the hallway together where he was found in the hallway together with roads drug dog alerts to narcotics on his car they found these these items and his trunk he can show prejudice regarding the witnesses regarding closing statement and regarding this other claims so unless this court has drug paraphernalia but there was no really drugs found in there possibly but child counsels argument and this was his strategy is to he was just an innocent bystander trial councils argument was he had no idea this stuff was even in there why would he not consent if he didn't know this stuff was in there and trial counsel argued at closing that you know there's no evidence to show and the prosecutor offered no evidence to show that the vehicle was exclusively exclusively control throughout the entire duration of the moment he rented the car until they conducted the search that was the arguments made and that was reasonable trial strategy thank you you thank  just one comment on the last thing if it could have been reasonable trial strategy to to make this argument in its it was the only strategy in light of the fact that no motion to suppress was made because all that evidence was in the record by the time of closing argument therefore the council had to do something with all of that evidence that was in in the in the taurus but the had obviously there are many motion to suppress filed  granted then he would have had to deal with that a closing argument but more importantly than that as you just heard that there was no indication that anybody other than this defendant had control and custody over that taurus at the time and that evidence was it was inculpatory evidence it was the pope tory evidence as defense counsel admitted without that evidence they don't get a conviction on mr lott therefore what sense did it make to not challenge that evidence and what it make to try to argue that he didn't know anything about it given the rest of the facts in the case that's not reasonable trial strategy in hindsight you know i hear you but what is particularly troubling to me about the the argument that you're making is that you're saying that it isn't it can't be a reason and as i understand you you're saying that it can't be a reasonable trial strategy to believe your client that he gave consent and if even if so your position is yeah you can believe him but you still have to file the motion to suppress because if you don't put him on the stand then the government isn't going to be able to carry its burden but are we really going to say that that's it that it is unreasonable on the part of counsel knowing what he knew not to file a motion to suppress just on the chance that the government might not be able to prove that the consent was actually given but two things on that number one being a defense attorney for years i've always learned never to believe my client the first thing that they tell me but more than that given they consented though that's to the contrary but the way you they didn't do it didn't commit the crime you can disbelieve them but if they say absolutely and you see it generally the first story is always wrong i'll give you that you know but but more than that let's taking out that issue of whether mr lott believed that he can senator not a reasonable attorney taking a look at the objective facts otherwise would have filed a motion to suppress in this case because of the issues with regards to concern thank you thank you the case will be submitted