beating your seat how quickly fifteen minutes went so but so mr murdstone you've got thirty minutes to argue the case and you may proceed thank you very much your honor may please the court again standards that govern this question are well established air derived directly from the language of the statute itself a section two thousand two hundred and fifty five they've been reiterated many times by this court the two s tandards are two key factors to consider number one that mr best allegations in the motion must be accepted unless they are clearly for a list indeed the supreme court has said even if they are improbable as are the supreme court's words even if they are improbable they still must be accepted as true at this stage we're not talking about to be perfectly clear whether or not mr best isn't title to the ultimate relief of the new trial this point the only question is whether he should have been entitle to hear in for that evaluation is allegations are accepted as true unless clearly for glisten nd that ultimately in deciding whether or not to grant hearing the motion should not be denied without hearing in less tha hearing not to get the ultimate relief that he's seeking but to get a hearing and so it's a very high threshold for the trial court to dismiss the motion without hearing that given the circumstances here the trial court did air and not granting mr best here us those circumstances are very basic mr best alleged in his motion that he saw mr levinson this trial counsel sleep on several occasions he said that a preliminary investigation had shown and of course if a hearing was noticed that we talked about it joked about it we laughed about it so there is a least ed those allegations which are not by any stretch clearly frivolous that should have been accepted as true and moral for at least for the five in the rules governing two thousand two hundred and fifty five such as well to which governs the contents of motion rules four and seven which govern what happens after the motion in response is filed that mr best was not required to support his allegations with actual court had the same concern that dryness just expressed what the court could have done it should have done under the standards is given mr best an opportunity to present those affidavits to expand the record perhaps take discovery but a minimum to do exactly what you honor just asked about and then evaluated the expanded record under those standards that i outlined earlier is it still clearly is it clearly frivolous the allegations is it conclusively shown that he's not entitled to relief in the court may have concluded that at that time i'm not suggesting that would have been correct or not correct but we never got there he wasn't given an opportunity in the in again the rolls make clear that that's a possible interim step between dismissal ringback of the pleading stage in a natural here but mr best he he is being honest in a statement that is being you know presented and verified under penalty of perjury that this is his recollection that he can put into this motion at this time which is that he saw on sleep on several occasions that the judge some jersey also saw that  commented on the one that he can remember specifically at that point was that particular witness but that's not the only one i mean it's clear that his motion does not say i saw him sleep once it was during the what would be the cross examination of this witness and he didn't requirements for really but that's not the only allegations there the allegations that he saw him sleeping on several occasions there are other observers but if you look at the other cases the similar cases from other circuits what usually what happens in those cases hearing the petition or the motion were different than the trial judge then that judge has nothing to offer but this is one of those cases that i think is more common where the judge presiding over the motion look at for example the most recent supreme court case that the government sites and it's you know as you know the government has a lot of weight on the trial courts observation if you look at it necessarily case what the court said there was that trial court it's the same judge who over w the original trial the trial courts you know personal experience observations are relevant in a balanced way to the evidence presented at the evidentiary here and i think that that's you know that's not something we take issue with i think that if the same judge who oversaw the original think at that stage to the extent it's relevant to the issues and in the motion the judge can take into account is or her recollection of what happened at the original trial that's very good so you're not you're not see so you're not suggesting that at that evidentiary hearing that the judge needs to go on the witness stand and give testimony the way you know any other witness in the evidence you're hearing would know and i'm not suggesting that and i'm not suggesting that if if the judge if the judge at the evidence you're hearing is empowered to just sort of from on high without being sworn in without being put in the witness box to just say look i presided over this trial and i disagree i didn't see i had good sight lines and i didn't see anybody sleeping if the judge you've conceded is entitle to do that at the evidentiary hearing why isn't that judge entitle to do that prior to the correct you tell me what the rd or th are the two possibilities are that the judge is sworn in as a formal witness and takes the witness stand is subjected to direct and cross examination or the judge sits on high on the bench and just puts on the record what he or she observed at the trial are there any other options i do think is another option is i think i think it's exactly what the supreme court i think approved in passing in the sera which is the court recollection observations which is different than saying that the judge can put it into the record which i think is what happened here you know i think that's different than saying the judge can put into the record without getting on the stand without testifying here is what happened at the original trial i think to the extent it's not in the black and white record in the transcript he didn't say it's not in there i think the judge is allowed to again consider that the judge doesn't have to pretend that he or she wasn't there the virtual trial when evaluating what the judge is hearing from the witnesses in valuating the evidence presented here so that's number one but number two whatever the judge permitted to do after the hearing i think it's very different at the pleading stage where the question is whether or not the allegations are clearly fruitless and you know to take on a slightly different can or a very different case where all the defendant does is say i saw that mike by counsel sleeping a substantial amount of time period no details nothing about anybody else no other evidence there's not another case as there is here with the same counsel have been found to be sleeping a substantial amount of nothing but that and the trial judge at the pleading state says you know that's not my recollection at that point i think you've got a close case because all you have is a bald you sir you certainly do have a closer case i think that's an excellent point you make our ever we did say in the nicholas case i know it was some years ago back in eighty five but we said in the nicholas case if the record supplemented by the trial judge's personal knowledge conclusively negates the factual predicates asserted by the defendant in support of his motion it cetera and then we reaffirm that that same principle in the donaghue case which is not presidential pinion you're probably familiar with just from last year so you know how do you get how do you get around that if you know if the judge is able to supplement the record with his own personal knowledge as occurred here how do you get around that being how do you say that's an abuse of discretion particularly white of judge to garrus is question that your client hardly proffered compelling evidence there were twenty six witnesses felt there was twenty five out of twenty six she was in significance she talked about that's the what the pharmacy look like after the burglary and your client had admitted to the burg not a jerk essentially impeach the verdict and that really was the focus i believe of the majority opinion but even accepting that nicholas says that a trial judge can consider his or her personal knowledge of what happened at the original trial at the pleading stage again i don't think that's this case i think it's very different than the hypo that i had just presented where there's nothing but a bald statement that my lawyer slept there a substantial part of the trial period here again you have some details you have the that there was sufficient evidence not just for a hearing but for a new trial and when i came close to that yet the question here is just whether mr best to a hearing you look at in those cases it's no greater than many of the cases then his  allowing mr best to expand the record with affidavits and at that point again all he had was you know say that that testimony feltner and that was it perhaps then you've got a much closer case but at the pleading stage he's got more than that and that should be sufficient under the standards undergoing the low standard low threshold for getting a hearing or at a minimum for being allowed to expand the record under rule seven to be able to include introduce the af so he saw all of that his motion the government responded in the trial court dismissed it without hearing or or allowing for further development so i don't think he had the right to do that in less the court granted it which it did then so i again i think that at a minimum that's your error my point denied mr best an evidentiary hearing and our position stems from three things that happened in this case two of which relate to the affidavit and one of which relates to the motion the affidavit suffered from a lack of specificity while it's true that he did identify one instance it's important to remember that he devoted one paragraph in his affidavit to mr levinson's alleged sleeping and he said this during the trial i recall mr lev nodding off and falling asleep on several occasions one occasion was during the testimony of a mess fast pharmacy technician this instance remains clear in my mind because he could not and did not cross examine the witness mr best provided no other information about these other instances and it's important to remember to point that when we consider this affidavit one is that i would have to respectfully disagree with my opponent that the court can properly consider the attorney's allegations as to what other people saw during the trial there's i've not seen any cases that allow that to happen it has to be in the affidavit of the defendant which in this case was counsel this is not a pro se litigant that has given some leniency this is the counsel the affidavit the other thing to remember is this is not a complicated claim of ineffective assistance this isn't like what we often see in terms of you know my prior conviction shouldn't qualify as  where everybody is confused lawyers and litigants alike this is an instance where mr bass claims to have seen with his own eyes things that happened during his trial he sat next to mr levinson so there's no explanation for why he can't provide more whether or not he slept in that respect it is important to remember this data decision which is the decision also involving mr levinson and that mr best sites in that case mr levinson never denied that he asked several different questions that's what the supplemental appendix that one hundred and thirty nine and forty but in his affidavit he provides no explanation is to why he said those things perhaps mistakenly clearly that could have happened but his affidavit does not explain that that omission he doesn't explain why he didn't object at trial he doesn't explain why he didn't raise the issue on direct appeal as a stray claim of deprivation of counsel he doesn't explain why he stayed with mr  levinson through direct appeals if in fact he was so dissatisfied with mr levinson and he also doesn't explain why it took him so long to come forward with this information his trial within two thousand and fourteen and he didn't file his tw stage here how do we deal with that we deal with it the way the courts dealt with it in the past this is not a pro se litigant he he if he had other instances which he claims he did at the time he signed his affidavit there's no reason why he could not have put those other instances in his affidavit i appreciate that maybe the investigation was ongoing but when he swore to his affidavit he said there were other instances and he provided no detail on those turning does that enter question your honor yes yes ok going back to the new seated decision and the argument that his claim is not clearly frivolous because mr leving extended this on a different occasion and shows consistent behavior our position is doing something twice in a four year span does not give rise to consistent behavior nd i think mr best has this backwards if mr best is mr livingston slap that mr best trial that was in tw which is the court has been focusing quite a bit on it's our position that that's your question or i'm sorry i just want to refocus you a little bit your i was serious came out of the box with the statute which is where we all start  of files and records of the case conclusively show that the prisoners entitled to know really and that's sort of where we have to start here does does the record show that the at this moment the mr best is not entitled to relief and doesn't conclusively show that it does conclusively sir show that your honor for the reasons i stated with regard to the affidavit and also because of the record itself the district court properly relied on its own recollection even without an evidentiary hearing which this court allowed and the necklace decision it's important to remember we're talking about article three judge here whose job it is is to oversee trials and had mr best said something during his trial he would have gotten on the record the district court impressions of what had happened mr best want his impressions now to be heard without hearing what the district court's impressions were and this records impressions were he never said i saw astley have everything and i'm certain he said based on what i saw i did not see this happen so we need to combine that with the infirmities of the affidavit and the fact that it seems to be agreed that the mets best pharmacies notion that a district court can rely on its own recollections and you know he takes issue with the necklace decision but it page one thousand and seventy five dollars the court wrote we find one that the record and the trial judge as personal observations in this case negate an allegation of jurors flemings inability to hear that's the holding of that case that is exactly what happened there and i respect that my opponent has a different reading of that but that's a direct quote where the court is saying what they're finding so that's our position that it did conclusively show the pleadings in the record conclusively show that mr best was not entitled to relief or an evidentiary hearing if there's any other questions on that part of my are going to be glad entertain them i happy to discuss cronic the issue of prejudice or any of those things that the court would like unless there's any questions from my colleagues you can move on so we get to that point where there's absolutely you know our position is clear that he's conclusively not entitled to relief the court correctly determined the chronic did not apply because even if  there had been a witness during which mr levinson slept her testimony was duplicative about their testimony it did not bear on any of the issues at trial because she had no personal knowledge with regard to the burglaries which mr best compatriots testified to committing with mr best mr best later admitted that he had testified that he had committed those burglaries he later said on the record that those witnesses were correct and telling the truth with regard to those burglaries so for those reasons the district court properly found this is not a chronic case and therefore turned to strickland and finding no cause the court also said there was no prejudice partially because of the infirmities and the argument that c brandishing and further ends of a drug trafficking offense the jury acquitted on the death resulting count but did convict him on the brandishing count misspelt nurse testimony had nothing to do with that she was not present in fact only three people were present mr best who had been to parts of the events that occurred that day the drug dealer that he was trying to hoodwink mr du black and the driver that brought mr du black to mr best home that was a guy named cerny and if you look at these i apologize are not in the record because mr best notably in his brief is opening brief only to argue that he was entitled to a presumption of prejudice and made no argument factual argument as to why there was prejudice here and in his reply brief kind of backs off the notion the chronic applies and simply wants an evidentiary hearing so i didn't address prejudice factually in great detail in my brief but i can provide these parts of the record if the court would like it's the testimony of mr du black and mr cerny i'm sorry you need to just to do chronic it all here i don't believe you do your cross examined longer than he was on direct and i can i'm happy to submit those a supplemental panix that the court would like but they're also available on the docket docket entry for thirty for the district court docket so with that we believe that mr best even if he could prevail on a claim cause claim he could not show prejudice and therefore his motion was properly denied and for all the reasons i've already stated properly deny without an evidentiary hearing from from from mr maritz and here are just very briefly a few points in rebuttal i mean st just to be absolutely clear that i'm not sure my friend got this notion from our library but we certainly don't back off the contention the chronicle applies here and i know that kate this claim is based on mr best allegation that his counsel slept during substantial portion of the trial and therefore assuming this court agrees that every circuit court to address the issue of chronic applies and there's a presumption of prejudice so so we have not backed off a couple other points in virtually all of the cases a to see this is one of the rare exceptions but look a moment certain and all of the circuit court cases are just like mr best case where the non lawyer defended the defendant who is not a lawyer just like mr best is not a lawyer do not raise the issue of his counsel or her counsel sleeping at the time of the trial when some of those cases the engineer hearing for example on burdine took place ten years after the original trial so it's certainly not unusual for a non lawyer like mr best to not understand the significance or whether or not there's any relief available for his counsel sleeping something he discussed with his family at the time was happening he didn't know what to do about it until he got other counsel two thousand two hundred and fifty five motion counsel you know many years later so i think it's unreasonable to expect a non lawyer such as mr best to know exactly what she should do at the time in to fault him for not bringing to the court attention at the time of his trial in two thousand and fourteen his counsel sleep in terms of mr best comments at his sentencing i think you know the supreme court in chronic itself said it best in saying that we put no weight on defendant's expression of satisfaction with counsel's performance really i think as we said in our brief you certainly if if every time a defendant who was convicted expressed satisfaction with his counsel i'm sentencing or after conviction if that essentially precluded a later i effective assistance claim there would be no ineffective assistance claims that could ever prevail that certainly is not grounds for denying the hearing here ultimately that i think the bulk of the government's argument is that there were pleadings insufficien you know ms are going frequently mention the fact which is true that mr best's twenty dollars to fifty five dollars motion was a counsel motion he had counsel for that and because of that the government appears to be arguing that he should have done a better job of leading his claim the five i think it is clear that his claims were not clearly for who has in that the record in the motion to not conclusively show that he was not entitled surely the court did error in not giving him the opportunity to present evidence at a hearing to demonstrate court could as an interim step say to mr best you can expand the record under rule seven you can i'm not sure traditional discovery has and taking discovery of the government is you know necessary here or appropriate that you can expand the record i'll give you two months affidavits get evidence and then i will re evaluate under the standards again very low threshold for getting a hearing but all we have valuing you can take a hypothetical the mr best doesn't present anything else that the jurors refused to cooperate that they say we're not we don't remember anything we're not going to say anything and he has no evidence presented that point there's no point of a hearing at that point and so i think it's likely the court is going to reach the same result whether or not that's correct i don't know it depends on what the record filed a motion you know he's not allowed to take discovery center without the court's permission as well he has a number of different claims he believes they all of merit he wants a hearing if he gets a hearing he's going to pursue you know gather the evidence investigation he's got it you know hi i mean i'm i'm reading the district court's opinion it there's a finding the court finds it best is totally failed to show that counsel slept during any portion much less a substantial portion of the trial how do we review that is  clearly erroneous you know that's a high no i don't think that it i don't think that the court under the two thousand two hundred and fifty five or the rules governing twenty to fifty five for the case law is entitle to make a factual finding without holding a hearing i mean that the record and there's nothing that the court points to i don't think it's all about what they think it's going to judge us to testify but again i think it's different at this stage you're talking about the pleading stage ringback you're saying you have a hearing the judge is making a finding the judge in this case made a finding i was there this didn't happen when i hear you saying is that fining is ineffective absent a hearing i think in a minimum it's ineffective  a hearing in the circumstances of this case where you've got a trial with many witnesses for he years ago in the question is not you know mr best does not have to demonstrate that his counsel slept through the entire trial if that was the standard show that the counsel sluff their entire trial but that's clearly not stated and given what the standard is in given what the courts have interpreted substantial portion a trial to me given that this was an eighty trial with many witnesses i do think that the court is not enti stage to just simply summarily say i disagree he did not sleep during a substantial portion of the trial i don't i don't think that the court is entitled to make that as a finding i think the following the hearing after evaluating the testimony of the evidence the court can  considering all of that as well as my own recollection of what happened at trial here is my finding i don't think the court can do that at the pleading stage under the circumstances of this case a judge ordered judge media anything more ok