my name is adele l corey and i am counsel for petitioner david and i am under clearly established supreme court precedent mr and i received an effective assistance of counsel in deciding to go to trial rather than plead guilty st as to decision performance there's no dispute that under clear texas law at the time the jury was permitted to consider mr nighest aliar to retreat in deciding whether he acted reasonably and using deadly force common sense dictates that any juror weighing a self defense claim will consider whether a person could retreat in deciding whether that person acted reasonably that is precisely why texas law prohibits jurors from considering whether the person failed to retreat in certain cases and mr nigh as case were treat was a critical issue because he was in a car and thus any jury that was allowed to consider retreat would likely conclude that mr nigh could have retreated and therefore acted on mr advised him that it would be irrelevant this was affirmative mystifies on a point fundamental to the case and it robbed mr nigh of his right to make an intelligent decision whether to try to go to trial or plead guilty that your honour's is quintessential deficient that case said because that's a matter of state law and you need to put on some evidence or proof that would show us what that is so for example there might be a thing or the judge could not reject the plea that would prove it but you say nothing what the rules are in texas on this so please expand on that respectfully around or what a lot learn from says is that ordinarily it will be possible for a court to make an objective assessment as to whether there is a particular fact or an intervening circumstance that would have caused the state to withdraw the plea or the court to reject the plea and what courts have looked to is whether there are such circumstances on the record now that could be that the offered a sentence that was outside of the guidelines range that could be that the court a pint on what an appropriate sentence was back could be that there are reasons to think that the state withdrew it such as that there were multiple please there are no such circumstances here and respectfully or honor that is sufficient under last law or the one would expect that if the state could point to some other facts and circumstances here it would have done so but it hasn't because there aren't any this isn't an unusual case and other is similar to federal law where the court has discretion to reject the plea agreement and the state does have with right with a discretion to withdraw the plea agreement but respectfully just because those courts have discretion if that were the only then no defendant could ever meet the standard under fry no defendant could because a defendant is not going to have access to evidence about what a court was thinking or what the state was thinking and he's not going have about what usually happens and there's none of that what i'm saying is you can at least make an effort to talk about i mean sometimes we have to decide what would influence a jury and obviously we don't have the jury sitting there to ask them but you can look if you because i'm not seeing well your honor so previously mr nigh did brief before the state court and the district court here that you know he had met his burden because you know he s he would have accepted the plea that the state that the state would have continued on with the plea and that the court would have accepted it now reading of those pleadings liberally as this court does with a pro se in the gym defendant we have been taken up on appeal and pointed to the fact that in the state record there are no particular facts or intervening circumstances to suggest that that that that is what would have happened typically what happens is the lesser on usual circumstances the that he had stated in an rebut affidavits that he would have accepted the plea and that there was no reason to think that the state court would have withdrawn it or i'm sorry that the state court whatever jack did it or that the state would have withdrawn it and so the supreme court did affirm that reasoning and that's why other courts of appeals applying that holding have said unless there is some reason in the record to think that this would not have gone in the ordinary course then we will find that defendant has met its burden that is the way the courts are la flor and that's because they had a firm the th circuit reasoning and that's not the case here there are no such circumstances and we've pointed you to a case in our briefs where where there were such circumstances and those are cases where you know the state either the the there were multiple please but the state withdrew where the sentence was outside of the guidelines range where the court comments on the fact that it thinks one sentence is appropriate regard lists of what the plea as or what the sentences and there is simply none of that here and the state hasn't come back there are many contexts in the law your honor in which someone who has the burden of proof comes forth with what they have he advised as to all outcomes it was mr and i have two ways to go to trial that is not sufficient and again your honor i would just i would just point you to this that if you think that's unclear then you should we manned and let the district court hold an evidentiary hearing on this  i know that the court denied the seaway on that but that was before it had the benefit of a briefing and of understanding that this may be a factual question on the affidavits and so if if as a nd level matter we would ask that you just  district court to to deal with that and you know whether it's to put mr nigh on the stand or to to bring his lawyer in but but he does not rebut specifically this one claim he does the others but not this one and the just for court know that counsel when the answers are readily available are deficient performance that is tech from sufficient performance and in fact the statement that you could comment i mean again we've got to  was quote irrelevant when in fact it was central to his assessing his chances at trial and to understanding what he was going into when he was facing trial and so that is an on a reasonable application up but beyond the deficient performance part your honor so i'm some perhaps not acting my question very well but that's why we have the state court proceedings and make plans in fact conclusions will where where are they an arrow why would you say it says so honor so the the does the state court denied the claim without written order so we don't actually have findings by the state court although you know we presume that it adjudicated this on the merits but the district court actually didn't decide likelihood of success in asserting such as a justification for petitioners actions so the one finding are arguable finding although it didn't the district work a little bit unclear about whether it's making a finding out or deciding on the fishing performance the one finding that we clearer standard of review now the district court finding that mr nigh would not have accepted his plea agreement despite his despite his affidavit that he would have any affidavits of his family members that he would have was based on reasoning that this court has already rejected before in the ad but context he said well he maintains self defense at trial but this court has said applying supreme court precedent that no just maintaining your innocence does not mean that you cannot show prejudice because people choose to go to trial or to plead guilty for different reasons and then the district court also said well he was facing a thirty years under a plea deal but again this court said and rebuts lopez when looking into this st part of the prejudice analysis  that you know any amount of time is significant for that and so of course when you're doing a totality of the circumstances analysis maybe looking at a plea offer for thirty years you know in a vacuum you would think well someone wouldn't take that but it was perfectly reasonable in this case to believe that mr nigh would have because as he attests in his affidavits not only was self defense the only issue at trial but the duty to retreat was was critical to his decision of whether he wanted reasonably couldn't determine the trial counsel's performance fell within the wide range of reasonable professional assistance and nd the state court reasonably could have concluded that an aisle was not prejudiced by trial counsel's alleged error i think it's worth pausing before i get into the elements to be very clear about what the standard of review is because mr n i s suggests for example on his reply brief page fo that he's entitled to relief because he can show deficient performance of presidents but of course that's not true we have several layers of of review that he has to overcome here and in this case because the suit because the state court summarily denied his strickland claim the petitioner must show that there was no meeting is not being recorded for the state court to deny relief so taking into account findings and conclusions that the state court could have made mr nigh a must show that the state court ruling was so lacking in justification that there's no fair minded disagreement that it was wrong and he question because i think that's where you start and what is your response to her contention that it's going to just say well he would have accepted the plea and there's nothing that would show if the state would have withdrawn it's very clear under ed that the petitioner bears the burden to show that the the stick court's determination was unreasonable now mr nigh relies heavily on the last floor but i think that's applied to a different bird same thing with fry it's a direct review case so it doesn't involve at well that pride was very clear that you have to have something on this i mean that's why and they one of the things that they remanded for in fry was the fact consideration right of course and and i think the burden is all the more clearly on the path to enter here if we start with the question whether he would have accepted this plea deal but for counsel's advice here again and doesn't account for twenty dollars to fifty four dollars he says that reply eighteen it's perfectly reasonable to believe that he would have made a different decision if counsel had an advise the failure to retreat quote did not matter on but the question is whether any reasonable jurist could believe the denial would have made the same decision and here there is there is reason to think in the record that he would have and on the other side of the balance mr nigh this not provide any contemporaneous evidence to support his argument that he would have made a different decision think it is hard to deal with hard to refute if you will then the fact that there is nothing here that tells us what is the ordinary course of business in this court for dealing with circumstances i would say here and we don't have any indication of our ability to know what the rules are in texas if we just we just breeds so i don't see how they prove that that's where i'm going with that i understand your honor and i agree that there is nothing that he has provided on the record and the answer to your question how do we have value a this is the court can't because he has not provided any basis to do so and because  it is his burden that's dispositive whether we're looking at you know what the trial court might have done we have nothing on that he concedes there's no evidence on the record whether the prosecution would have continued to make the offer available again he concedes that he bears the burden it doesn't point to anything in the record this court's unpublished decision and arnold versus they'll are provides at least some indication of what a petition or might do because there the prosecutor testified in d state court and confirmed that yes if he would have accepted it you know before it expired then yes we would have honored that agreement so that's something that a petitioner could do but he hasn't done here i think and there is not a lot that he has pointed to in the record but i think one thing to consider is in the police offer the written plea offer at with a minor so there are three convictions and one charge if you look at their pretrial filings the state lists twenty one convictions and prior bad acts that they intend to rely on that's what our o t three  federal district judges inject clean green then and there's not a lot of explanation why they certainly do it so if there's a lot of discretion in the judge and not somebody who is repeated committed wrong and was aberrantly still out on the street then and then kill someone kind of randomly that might be a circumstance where we reject is late and i understand it's true you can't share what's in it says it's mine but you can certainly look at the objective and at least as best said in a analyze it and that's what i feel like is missing here i want to well though i agree i mean you're you're absolutely correct and i think your point about what the court might have done with this greatly expanded list of convictions and prior bad acts i think it's a very reasonable given what we have in the record and what we don't have for the state court to say that mr nada did not carry this burden to show prejudice on any of the prongs of prejudice whether you know it's what the prosecution would have done or what the court would have done or even whether he would have accepted the offer you know on that point this court has been clear that self serving post hoc affidavits are generally not sufficient to carry a petitioners concepts the supreme court has been careful to note that the plea bargain context creates a lot of potential for distortion based on hindsight and of course here when we 're four years after trial mr in iowa and his family members they know now that he was convicted they know that the defense wouldn't work so of course looking back with two thousand and twenty hindsight  easy to say gosh if he had only told me a little more i would have taken the deal but but it's it's far from clear that that's the case and it's not reasonable by any stretch for the state court to reject that argument  in imminent danger and you don't think we're treating would say that that is something where you can defend yourself you can she choose if you will right i mean so it's not  and make that argument that frankly with or without the duty to retreat if you're just shooting randomly cars around you you will be convicted if your if somebody got a gun to your head and you shoot him because you think as to where you kind of was in those to jews that's a that's absolutely right and i agree i think judge change your you're correct about the state of the law now there was you know at the time of the trial it wasn't one hundred percent clear how the two thousand and seven amendment to the self defense statute affected the duty to retreat in every respect but there was certainly authority at the time as we have cited on page eighteen of our brief there were state courts that said well they took out the duty to retreat so but i but i think the more important point on prejudice is if you look at his affidavits this goes to what you were just saying the affidavits seem to assume that well if i had known that the duty troops to retreat would completely invalidate my self defense claim i would have taken the deal but if that's what counsel had told him that would have been affirmative miss advice because that's not what the law provided the question is ultimately whether he was reasonable in taking action to defend alleged erroneous advice i think it's important not just to look at the affidavits but not even to look at what he maintained at trial but look at what he has continued something for and maintain through brings are based on the argument that he would have prevailed if counsel had only to ensure that the jury got a proper instruction now of course he has a claim on the other side which says well he should have given me better advice about the duty to retreat but it's very unclear what he thinks counsel sort of told them and i think this is a good point to jump back to the deficient performance because that argument centers very much on a factual question which is what did counsel say to an iowa before trial this is what i want to ask you about bec at trial the lawyer certainly made the argument about you would not have been reasonable to retreat because the bullet can find your form around the corner whatever he said at trial and that to me reflects conviction and what the lawyer is saying about you've got a very good defense at least saying that it trial how does the how do we as a federal appellate court judge bath in the light of the double deference do you under and right well so the question we're asking of course is whether there is any reasonable argument state courts implicit finding that trial counsel did not miss advise mr nada is entitled to a presumption of correctness the only be overcome by clear and convincing evidence not just to go to where you where you went judge bork still about what he argued the trial so i think that most of that is ambiguous i think it is reasonable d well it is reasonable to read that as some system with the correct understanding of the law because what he argued to the jury was i recognize that there are these particular factors that can make the duty to retreat irrelevant but what i'm telling you is those don't matter here because my client had a gun pointed at them and in that circumstance his action was reasonable d whether he was treated or not and that is consistent with the tech with the state law that appl argument here and so the duty to retreat is not the central cooling here when you're saying they've got a gun pointed at me there and across our i can drive off that they can follow me maybe he could have go away maybe i'm such a fast runner i could run away from the guy pointing a gun at me but i don't think anybody would say well you had a duty to retreat and so regardless of what the accession says or doesn't say versus you easily could have left and you easily could have avoided this so then you really don't have an arm i think that's absolutely right and and it it goes back to what you mentioned earlier just change which is there i think we've got kind of two extreme versions from the petitioner about what the law is on the one hand the affidavits suggest that this duty to retreat and the limited itself the self defense claim for him that's not correct and then he has i think he's hypothesized or asked the court to infer that trial counsel went to the other extreme and said as he says at page nineteen of the opening brief and to in seven of the reply he says counsel told d him that quote failure to retreat was legally irrelevant court now that's not correct but it was absolutely reasonable for the state court to determine that that is not what counsel said and he can't prove by clear he says counsel said i had a viable defense he would argue that my conduct was reasonable and he informed me that i had acted reasonably and the did not matter or make a difference if i have the ability to retreat so that leaves us with a question of interpretation is it a statement of opinion or is it a statement of law if you think of it as a statement of opinion counsel could have said listen you have a viable defense we can argue self defense i think you conduct was reasonable under the circumstances because you had a gun pointed at you they later found a gun that's a statement of opinion that's not affirmative missa but it's now think about another hypothetical this would be a statement of law if counsel said hey listen we've got a slam dunk self defense claim failure to retrieve is legally irrelevant your conduct was reasonable as a matter of law this is a slam dunk that is not what the record shows counsel said no that would have been incorrect but that's not what the record shows and i think it's it's also worth noting that every family member's affidavit that he relies on when they talk about what trial counsel said they say that trial counsel was of the opinion that his conduct was reasonable so i think that is very strong evidence that counsel did not affirmatively misrepresent the law and it's certainly enough to support the state courts reasonable finding that counsel did not render an adequate performance and if there are no further questions we respectfully urge the court to affirm the district court thank under texas law and this was a case where mr n i o was in a car he never says in his affidavit that his attorney told him that the duty that that the duty to retreat i meant that he could not be convicted what he says instead is that he told me that i acted reasonably and that it did not matter or make a difference if i had retreated and so and if you look at the next sentence of h and said i have henri but it affidavits on this record showing stating that counsel told mr in iowa that he misrepresented what the law was and so in this case again the question the relevant ones  which to look through which to look at that this is what did mr nigh and no was he informed when he was making the decision whether to plead guilty or to go to trial if he was misled advised about a central point in the case then that is deficient performance and that's exactly what happened here he went into trial thinking that the jury would not be able to consider retreat and the jury would be able to consider a tree and respectfully your honor this is it a case on the margins where if someone's in a car any reasonable juror is going to say that person could have just stepped on the pedal and driven away and that's exactly what the state court said here that's exactly what the state said when i got up and it's closing argument on prejudice your honor i just want to go back to this this question of you know whether mr naya would have accepted the plea my opposing counsel said that you know the plea offer mentioned that the crime was very serious and that he had multiple prior convictions but what is intervening circumstances that means a circumstance that happens after the state offers that plea and so the police had already taken into account the seriousness of the crime and you can't double count then after that what you're looking to is whether something happened after that would have caused the state to withdraw that or the court to reject it again yes in texas as in many jurisdictions almost all the court has discretion to reject a plea bargain but there's simply no reason here to think that he would have done so and that is all a defendant can offer in this case that's why i laugh or affirm the six circuits reasoning it would make why fleurs promise hollow if this court required more during one of the central point in law or and to establish it and then support that i'm having trouble with whether we all committed could or maybe if we were the state trial court we would say that but what did he do to establish that we're on or again reading his pleadings of course he would prefer that he would have done this a little bit more strongly and the courts below you know his pleading is not perfect and his brakes aren't perfect but he did say that there that there's you know no reason to think that there's no record on whether the state court would have denied it and whether the state would have withdrawn the plea and so you know we've come in now representing and pointing to the places in the record that show why this was well within what happens in plea bargaining which is you know a state court cannot be involved in plea negotiations counsel and the client discussed it and the court you know typically accepts it respectfully i don't think that that is what frye required to record in analyzing the reason little under a few months of the state court action yes or no but the part of the record that's relevant here it's friday doesn't require you to put forth extra evidence that you know this court accepted this money please this many other places what frye's says is are there intervening facts or particular circumstances to think that the court would have rejected it and based court has looked for those and it has said what they are those are things like the sentence was outside of the guidelines range or the court commented on you know well this is the sentence that i would impose regardless of the plea or there were multiple pleas at issue there is none of that here that is the part of the record that is relevant the fact that there is no particular factor intervening circumstances to suggest that the court would have rejected this and certainly not that the state would have withdrawn it appreciate your arguments mr gregory this case is now under mission and i would ask the court yesterday excuse the public and the lawyers from the courtroom