mr cardboard will sit in prison for at least seven and a half years longer than he should soley because his attorney failed to offer a simple objection to the career offender enhancement second everyone agrees about that this court on direct appeal made clear that it would have reversed or be sentencing without the career offender and handsome and had mr karr thorens attorney only offered a simple objection the district court indicated that was sufficient for strickland's prejudice prong and the government does not contest this point the standard counsel provided ineffective assistance because the record shows that no reasonable strategic decision motivated his failure to object all of these points make this case truly extraordinary and show that granting relief  this case would not open the proverbial floodgates to other ineffectiveness and why is that so because you often have a failure routinely have a failure to preserve objection yes your honor there wasn't supreme court law on this point at the time was there there was not a supreme court law on this particular point at this time your honor there was a supreme court case that could have supported an objection that the attorney overlooked but as i say there are there are often meritorious objections that are not made we say well it's too bad who are who are these well you are there are three aspects of the failure to object in this case that make it and effective assistance one was that this was a particularly important sentencing issue  hansen ended up adding at least seven and a half years to the top of the correct guidelines range but it could have added over seventeen years that could have more than doubled mr carter in sentence the second is that there was a significant amount of support that could have and should have supported the attorneys arguments and the third is that in this case there's no dispute about prejudice we know from this court's previous opinion and from the district court's decision bel established prejudice and what about the fact that the district court below essentially interrupted counsel's argument and said that it was quote without merit how does that weigh into your argument your honor  counsel effectively conceded this point by agreeing with the district court that the argument would be without merit that certainly seems to be where his argument was going anyway but the fact that the district court specifically asked about what he should make of the conviction the virginia conviction gave counsel even more of an opportunity to object and if anything shows that he was he was certainly an affective for failing to do so the district court also erred by holding that controlling authority is required in this regard and the government does not contest that point we want to be clear that mr karr therms attorney wasn't required to make a perfect objection he wasn't required you know to have a fully formed appellate brief written at the time of the sentencing all he was required to do was to make some objection to preserve the issue for appeal and how would he have done that what would you have had him say well your honor i think there's many different ways that he could have but he could have said something as simple as you know we  well you just say would he just if he just said i object would that be sufficient i mean put it up your honor i don't know whether that would have been sufficient but i think that he could have simply said we object under the reasoning of united states versus white he could have you know there are numerous ways that he could have objected to the name you're saying competent counsel would have known of our decision i do think that competent counsel should have known of the decision and white but i don't even think that white w necessary here your honor in order to raise this objection the supreme court's decisions in james the gay and sykes between two thousand and seven and two thousand and eleven illuminated the meaning of the residual clause and would have provided support or  cardboards attorney to make the argument but even besides the fact that he didn't raise any objection the record also makes clear that he ought to understand or research the correct issue the issue that caused this court to hold that mr carter and was not a career offender on direct appeal he said that he would have liked to have been lucky to find a case that spitting on an officer is not an assault but the question was not whether spitting on an officer is an assault of course that is that was settled by the fact of the birching a conviction understood the question one way and you're saying that the court's question to him was directed at something else but the court just said what do i make of this prior case he directed him to the state conviction so i'm not sure was on real on realistic for him to start talking about the state conviction well you know not good practice but i think you can see that maybe he thought that was this the district court question about the well to clarify i'm not trying to say that he misunderstood the court's question he clearly understood the court's question to be asking about the crime of violence and handsome and whether it should be correctly applied but he seems to think based on the record that the question for whether the crime of violence enhanced and applied was whether the virginia conviction was actually for an assault and that's that's simply not the correct inquiry in order to determine whether the crime of violence and hence that question is whether the elements of the virginia conviction meet the definition of crime of violence before he even arrived at the sentencing hearing he was woefully unprepared to even present his arguments to the p s r or or to the courts and because he didn't do  was just a fool but with respect the choice to argue that mr karr thorne was just a fool landed mr karr thorn in prison for twenty five years seven and a half years longer than under the top of the correct guidelines range and that was ineffective assistance and how would you formulate a rule going forward because it's hard to see the space between those two things well your honor i think at the heart of this distinction as the fact that the judge's job is to judge and the advocates job is to advocate and those are two fundamentally different duties under planar review an error will be reversed only if it's clear or obvious rather than subject to reasonable dispute and that's what the supreme court said and the pocket decision but the duty of zealous advocacy requires to bring requires attorneys to bring certain reasonable disputes to the court's attention you're saying that the court that the attorney needs to be more knowledgeable report needs to think your honor the attorney needs to do a sufficient investigation to to fulfill his duty a fellow slee advocating for the interests of his client and that requires him to thoroughly research the law especially in important areas it certainly was in this case and i believe will be an essentially all cases where it might apply it seems to me that all that rhetoric is sort of at odds with what the supreme court has told us about review and that's where i'm i'm having difficulty well your honor because this isn't an effective assistance claim let me get it that you're right that's the only way really almost the only way that you get any  in those cases in this case for the reasons that i've described the supreme court in massaro said that litigants should not face disincentives not to read not to raise their and effective assistance claims on collateral review but they shouldn't essentially be encouraged to have to raise them on direct appeal when the record hasn't been fully it's not fully mature and i'm sorry to do it this this the district court's decision below effectively encourages lead against to bring ineffect assistance claims on direct appeal because if the court can find no claim error and therefore foreclose an effective assistance relief without even considering the circumstances of the representation that will incentivize litigants bringing those claims earlier than they should under the supreme court's decision and massaro and a host of the sports precedents so what do you think is the supreme court decision finding ineffective assistance of counsel that is most helpful to you glover and glover the supreme court said that how important first of all they said that any any error that leads to increased prison time is an error of significance to the sixth amendment and also that the  amount of increase in prison time can relate to whether it's ineffective assistance under the performance prong for the attorney not to raise it but there are three supreme court cases where the attorneys and effective assistance was premised on a mistake understand and research a fundamental point of law was this mistake a lot you you are obviously well enough obviously but you are more familiar with those cases issues stand there than i am right now but the mistake a law like the mistake of law here in that there is no binding precedent on the issue your honor in each of those cases the supreme court didn't analyze whether the mistake of law was essentially reasonable wear ineffective assistance so so i don't know the answer to it so facto any mistake of law gives you and in fact this distance point it did not say and i would be surprised if it did not report to lay down a binding rule for all future cases but in each of those cases the end effective assistance was premised on a mistake of law and the court didn't essentially ask whether it was a reasonable mistake of law it assumes that that that was not the mistake of law in and of it self was necessarily ineffective assistance but where that led to the attorney one case he failed to request any pretrial discovery because he didn't think that it was he thought that the government had to turn over all evidence that it was going to present and therefore didn't ask for any discovery the court said that that was ineffective  because it turned on on a mistake of law i also want to talk a little bit about how the case is that the government relies on or not controlling and are distinguishable there's plenty of case law that supported the argument at the time of the sentencing hearing that under the force or the end the residual clause of the career offender and hence a conviction for assault and battery does not constitute a crime of violence the government points to out of circuit decisions that themselves relied on the facts of cases from others to show that the offense in question satisfied the residual wasn't the ordinary case but that is not necessarily true of virginia as mr karr thorne's conviction for simply stating shows and unpublished for circuit cases came down before this court decision and white which eliminated the meaning of a very similar force clause and they did not distinguish between the force and there was a jewel except to the extent that assault and battery on a police officer was a crime of violence the unanimity of authority said that in every case to consider that crime it was considered a crime of violence now the white case which is central to the appellant's argument that  objection was warranted was insufficient to have been the basis of an objection here is that insufficient but the white case addressed only assault and battery right that made the point that any any touching but in the cases that examined assault and battery in a law enforcement officer specifically the tenth circuit williams that state assault and battery committed on a peace officer is not equivalent to the same act committed against any other person right but that is contrary to your position we're sure to your your client's decision then you don't have to make the argument even though there's no press authority that sought matter in a police officer was anything but a crime of violence there's simply no reason to is that make a difference here that he didn't even know what he was supposed to be thinking about the fact that he didn't understand the inquiry of a crime of violence as opposed to he was concerned about the legitimacy of a conviction and whether the conviction was a good conviction so he didn't even know what game he was  accepted and it immediately follows counsel's argument for a downward period so the district court poses two questions what's he to make of the gang membership and the spitting in the face of the police officer and now in this court when an didn't even understand that the fact of whether this was an assault under virginia law was not the issue he seemed to be concerned about the legitimacy of the conviction argument is that he isn't addressing what he's addressing now is mercy downward departure and he's trying to show that this underlying crime wasn't really much of a crime he said or at least he's looked for authority establish that that he's not addressing the question of whether in fact it's a crime of violence that he's not is that your position i would agree with that in part but i thought when you were are understandable on their face whether it's for economic motives selling drugs or stealing or even as an assault on an officer that is in the course of say evading the officer but the county courts asking about the conduct which is in the pre watch the reason for someone to do that now ultimately council's answer was he's just a fool right now but that didn't for polluting her or making a separate argument well i understand what you're saying during this  permitted to say i mean the council certainly could have said mike my guys the fool for spitting at a police officer and almost everybody in this room would agree with that ok but that didn't stop him saying notwithstanding  that that under existing case law going through taylor on the council should have known that there is a there is a inquiry to be made under the career offender guidelines under the career ender designation as to whether predicate offenses follow fines fines violence and this gentleman didn't seem to even know about that we don't hear anything about that not just in re his response to what counsel did say he wasn't asked the career fandor predicate question but he did address some portions of the right that he's got come up with his own ideas it's not just responding to the words are you saying that affected you can be affected just answer the ports questions and there is a slam dunk argument you could make it just didn't talk about it you don't have to force not well no but that's not this case running because it's not a slam dunk argument i would ask the court to look at what counsel did say he doesn't use the use of force term but he does address it he says he'd like to argue that the assault did not involve striking injury or violence science and i want to go back to that were you saying earlier that there was no arguable legal basis because there was no precedent there was no case right through the best possible thank you a super criminal defense attorney if there's additional elements that the person owes its police officer who is engaged in the officers duties so it's a different offense if this reached everything in which the common law assault was a component of that had additional elements with and it's really i would argue the reading whites to be much broader than white was that there was no indication on these facts that to  a residual a an argument that white lied in this case can i ask you with that question is there any indication in the record that counsel at some strategic reason for not objecting to you make an argument that there is just to teach agrees and for that i would argue that and on that at the state of the law at the time of sentencing under the strickland standard and jackson the object of lee reasonable attorney would have no basis to have mounted such an object and we don't know there was no affidavit in the twenty two fifty five so it's not on the record whether he understood or not the government's argument is regardless if he if he knew of the white case would argue it did not apply here on the facts as they were this court's decision i would this court's decision in car thorn there was no circuit split at the time eight months after the sentencing had the seventh circuit be the first to argue the sultan battery on police officer in the ordinary case is not a crime of violence under the residual clause and that created a circuit split there was none existing the affidavit from defense counsel if it wishes it could your own right ok well i would i would say if if we're looking for a reason of her affidavit and counsel in this case as to whether or not he was aware of white right what we're saying is we've heard your answer but would like to see it written that it's a type of hindsight review that strickland prohibits because argument here is whether or not he knew of white in this case it didn't matter because every case every time the cords consider this offense it is found to be a crime of violence only afterwards in hampton was it not claims what the maj what the district courts adopted and states is the petitioner cannot overcome strickland's high bar in this instance the sensually for the same reasons that the poor circuit found no pla there was an existing circuit split so there is some authority or if within this circuit or before the supreme court there was and doing the same type of argument so that counsel could say this is not yet been ruled on but it may affect my client so i would ask that this all make the objection because the issue was and the next i'm just trying to understand you would say that even then counsel had not committed claim there that there would be a basis for behavior like that what you're saying that's what that's the case are looking for or you know and not a case but a factual situation it's hard to envision that assistance of counsel claims it didn't come up in the green ok's with the permits and was found to be ineffective because there were arguments there was an existing circuit split in that case and counsel did not raise in this case it's  sorry in which case is this if there was a finding that there was no plane error and yet there was a valid claim it was plain error in the green ok's there was a plane there yes your honor i'm well here i would state that the district court did not announce a new standard it's a conclusion of law and not a legal standard to based on these facts and that the common concept of obvious you're what you're saying and bottom line though is that it doesn't make any difference that this lawyer didn't even know which the word open he didn't and didn't know for solve the case against his client see see but what's bothering me about this case this lawyer didn't even begin to understand what he needed to do and what you're saying is it doesn't matter because that the record doesn't show he absolutely did no because million say a word about what constitutes a crime violence and terminations and that determines whether something surprising sense that yes your honor but there's a case that doesn't help where he should be going ok so your view is that what you're saying now that i mean even though he doesn't even know where he should be going it doesn't really matter because there was  contrary to where he should have been right now you are on or i would argue on the facts of this particular case now at the time of his conduct that those cases that were available those every case the considered this considered to be a crime of violence so you're saying even if he did know what he should have been doing it wouldn't have mattered is that what you're saying are you are you raising a prejudice  was against to say he had no basis to raise such an object there was no basis at the time of the sentence that there was a change in the law so judging under the strictly standard at the time of sentencing there the simply was no basis to have mounted this know no good faith and if we're going to encourage just because it increases i'm about to go over my time as a basis objection one without merit one without any legal support then we're going to ask it in not just for career offender but every specific offense characteristic counsel make them protection because someday the law might change in his favor and if not that that would be considered can i ask you just one last question when you're articulating what is at issue here it's almost as if you're making an argument that there is no playing error with the in you just but just bear with me for a second and so the government has gone out of its way to say no the two standards or to disavow any reliance on the fact that the two standards would be the same and i just wonder why you're doing that because we're looking at different time periods you're hot under th plain error analysis you look at the law at the time after repeal when there was a circuit split in this court's opinion mentions that split up believe four times it was no circuit split the strickland standard looks at the conduct at the time no no that's not you weren't you weren't i was i was you and you didn't make any argument that there was no where i argued plainer you're right you didn't make an argument there was no where now you thank you thank you parker you could also address the suggestion from the government government seems to be saying that it doesn't matter if you didn't know which direction you should be heading if you wouldn't have been successful because there was considerations here yes your honor i think that that relates to the question that you asked before about whether the attorney is expected to know more than the judge and we would certainly not argue that that's the case but the attorney's job is to advance positions that benefit his client even if the court doesn't ultimately adopt those position and here there was an existing circuit split at least to as whether a conviction for assault and battery constitutes a crime of violence under the residual pas of the career offender and hence the seventh circuit in evans and a published decision in two thousand and nine the clear that this is all one quote it's putting together two quotes but all from have been a battery that consists merely of deliberately spitting on someone is not comparable to burglary arson extortion or a crime involving the use of explosives nor could it be said to present a serious risk of physical injury in the crimes of state crime here was putting on the police officer in the seventh circuit case known or in our in this case in this case in other circuits that bore on whether any kind of an assault and battery can qualify as a crime of violence and counsel here chose to fight none of it to the district court so you're saying that competent counsel would have said it makes no other forms of small yes your honor why why does counsel get held no a to make that or your honor because these cases show that an assault and battery normally is not a crime of violence if the government were to argue that the fact that a police officer victim changes the analysis then the government should make that argument but it's the council's responsibility to advance the case law that supports his client's case and that's not what happened here counsel also said that there was quote no arguable legal basis for counsel to have raised the arguments at the time of the sentencing hearing but this court found in favor of my client on direct appeal on the question of whether there was error in this very same case there had only been one intervening change in case law that counsel cites between the time of the sentencing hearing and the direct appeal and when you read this court's previous opinion it shows  that that opinion factored minor really into into the analysis that essentially says that it helps confirm the conclusion it didn't cite that case and coming to the actual conclusion that there was  there is one objection in the memorandum objecting to the p s r but what it's saying is that the p s r should have applied the post fair sentencing act amendment but the actual sentencing memorandum and the sentencing hearing transcript show that those amendments made no difference in this case and so counsel effectively raised no objections to the p s r which just goes to show why it was in effect a assistance not to raise this point on a battery look at the whole we have to look at the jackson's yes are tak together with this in your honor i think it would be appropriate for this court to do so it's hard to imagine a situation where not raising the kind of strong argument that he could have raised on such an important and handsome that would not qualify  ineffective assistance i also want to point out that under this court's decision in point dexter under the present posture of this case the court is required to view the record and the light most favorable to mr carr thorne and to the extent that councils arguments don't comport with that standard the court the court is required to review the record in that light and i also want to address a question from judge earlier about the standards on plane error verse collateral review the fact that this case was reviewed for plane erro directly related to the attorney's failure to object and that was attributable to mr karr thorne on direct appeal because that's how that's how it works but here on collateral review for ineffective assistance the whole point is to evaluate the attorney's performance as an are not particularly close to the error in this case but it does go to show that ineffective assistance can and often in the supreme court is based on an error of law so in kemo men versus morris these are direct quotes the court said counsel's failure to request discovery was not based on strategy but on counsel's mistaken belief that the court was obliged and you told them yes that's what i told you about so that in williams first taylor the court said counsel failed to conduct an investigation that would have uncovered extensive record records graphically describing williams's nightmarish childhood not because of any strategic calculation but because they incorrectly thought that state law barred access to such as and in hidden first alabama the court said the trial attorneys failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under alabama law constituted deficient performance and the court and also said that an attorney's ignorance of a point of law that i fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under strickland if there are i'm not sure any of those are real as you acknowledge very close anyway thank you very much