it please the court strategic decisions of trial counsel especially in deciding which jury charges to seek receive significant deference and should not be second guessed but that's what the district court did when it substituted its own judgment and granted relief we're here in a posture of ed the deference to a state hey b s court merits ruling that petitioner did not receive ineffective assistance of trial counsel the state court determined that counsel did not performed efficiently indeed reasonably chose against seeking a double edged lesser included offense instruction and the state court found no prejudice in that decision in light of the plausible trial outcomes as court quoted and applied that standard on page eleven forty eight again on page eleven fifty of the record it's it's own it's the standard and the conclusion that robbery would not have resulted in a different outcome on page one fifty two of the record reflects that and the question is it was it was it reasonable to conclude there were really just two ways of resolving the key fact question in this case if the jury didn't believe the victims about the knife but it was a reasonable to think they wouldn't have believed them about fearing injury that equals acquittal if the jury believed the victim feared injury it's reasonable to think it was because the knife was a deadly weapon that equals an aggravated robbery conviction so it was perfectly reasonable as the state a v s court found to find no prejudice in omitting a plain robbery instruction that that's especially true in light of the soul defense witnesses testimony which set up an unusually stark dichotomy with the testimony of the two victims that the brothers  reuben if you're a fear of imminent bodily harm because they believed the defendant would hurt them with the knife the way the wife of the defendant on the other hand testified that there was no way that could have happened because the knife was in the trunk with her so in light of the fact question that that testimony set up the jury timing in having asked to see the knife very their deliberation and then returning a verdict shortly thereafter that was a perfectly reasonable basis to find no no prejudice there were just two competing accounts here at these facts and see just to plausible outcomes based on all the evidence fisher can't overcome ed on the first part of strickland the ineffectiveness you argued that defense defense counsel said that she was doing so looking at r o a ten eighty two ten eighty two i think that's her testimony from the state hey vs transcript that tracks most closely to that and i believe it's spanning ten eighty one to ten eighty two where she talks about him i'm pursuing my what i believe was my best theory what my witness put forth and then  first court it's twenty fourteen westlaw to fifty eight to eight nine five star five it dressing a slightly different argument but at least one court has already noted that the evidence in the arguments of this case were were fully consistent with and all or nothing approach this was not a case where the the defense counsel was just putting out a hope and a prayer that the jury might not believe the the state had met  burden on on all the elements i mean there's there's testimony that if believed would have led to a put on the wife's testimony if the jury had believed the wife that there's no way that this event could have happened the way the brothers described that that the knife was actually in the truck with her it couldn't have been shown to the to the victim's that's that's acquittal but of course the defendant also got the benefit of any reasonable doubt about whether the knife was a deadly weapon or not as the state havey escort i think correctly pointed out if a plain robbery instruction had been submitted the only basis for acquittal would have been this consent theory that the wife's testimony put forth does it have to have does the council have to said this is my strategy or if we just i am pursuing an all or nothing charge and makiya in the gets footnote five for example it says you look at the ultimate strategy and whether it was reasonable objective when reasonable if it's  even if it's not perfectly articulated even even if there were some mistake in long the way in reaching that strategy it's it's reasonable performance and just setting back the ultimate question as mickey also this could be a sound strategy and it in a was here if the jury if the jury believed the wife it would acquit she gave testimony fully supporting the defense theory of it whether the lawyer made some mistake along the way is just not the ultimate question but that's not even what we have here we've got a lawyer who come in after they've heard the counsel strategy w would be the lesser included offense in that one that one allowable under texas law and then there's some discussion of this of this theft approach but i think that mostly goes to initial trial strategy formulating it that at most what you have here is a case of theft if the guy on the bulldozer never got involved her testimony was affirmatively putting out a case of of permission to take this property not displaying a knife multiple grounds to try to show that the victims were lying i mean this was not this argument of counsel and so far he referenced theft was was if you're taking the wife's testimony there's just complete innocence of any crime if if the wife testimony is only if the jury acquits the it can't it can't both be true that the mr ducks or its hand being shown to the victim and also in the cab of the truck with her and i think that's a unique factor in this case you don't always have that sort of stark dichotomy in the facts presented  you can imagine a case perhaps where the wife testifies you know he had permission he took the pipe and i saw him he had a knife in his hand but he didn't threaten he he didn't come out  was just holding a knife we don't have that kind of testimony here and you know maybe in some cases some testimony like that could be consistent with arguing some kind of lesser included offense here but that not a last minute bar i mean it's a charge compered she argued for a fair jury charge and the judge said no we can't do that is not permitted a car you didn't put on any opposite presumption that should have been applied i mean if this was not a denial of a request to charge she would lead the charge in it and after an off the record charge conference we know very little about it because the state has claimed it was an error in seeking the theft charge that wasn't a claim as should you have pursued robbery or not and that that record is just undeveloped about all of her thought processes we have to presume that it was reasonable aggravated robbery not right i think it's it's not completely clear but regardless of that the question is whether she should have sought the instruction or not the claim is not should she have had that conversation with her client or of the defense was acquittal in the district court thought acquittal was a possibility this was not the defendant's choice to make in seeking strategy but that's not one of the choices that belong to him and it certainly wouldn't have been in a reasonable for a lawyer to look at all the evidence and present it in the best light possible to the jury and it would've been reasonable for a state habeas court to look at that and think yeah that was reasonably sound but again in an un robbery it you can't just look x post once we know that the aggravated robbery was was unsuccessful that he was convicted we have to look at the time that counsel should have made this decision do i choose aggravated robbery and a lesser included the froggery or do i go for for acquittal based on my witness testimony if the jury believed the only defense witness it would have acquitted i think it would have been unusual it best to also argue this new robbery theory that that telegraphed to the jury that your only defense witness might be lying it robbery was not consistent and it was totally orthogonal to the defense's only witness's testimony if the provide direct performance if you ask for them that are included of the i don't think that i don't think that that's that's true but that's not our argument and it goes to the specific kind of unique circumstances of this case of this witness you don't always have a witness that puts forward a competing defense narrative that is materially different and in the most important way from the victim's testimony that's what makes a double edged isn't going to risk my shot at acquittal based on this witness's testimony that's a strategic decision that belongs to a trial counsel and that's why she didn't perform deficient late was reasonable and it was reasonable to think it was reasonable  made please the court i'm randy schaffer it's my honor to represent donnie dirk's ducks worth i want to define at the outset what is not an issue in this case first is it the decision of defense counsel or the defendant to request a lesser included offense that's a really good issue is when the supreme court needs to be a result of but this is not the case to do it's not implicated second can defense counsel unilaterally decide not to request a lesser included offense with that advise and his client say this case is akin to the involuntary guilty plea cases or courts have held guilty pleas involuntary were defense counsel gives the defendant ronis advice regarding for example parole eligibility or deportation consequences let me tell you in a nutshell why the district courts grant of hades corpus relief should be a pale and then will parse the different arguments in a nutshell counsel deferred to ducks worth's pretrial decision to request theft instead of robbery as an alternative to acquittal based on counsel's erroneous advice that theft was a lesser included offense of aggravated robbery when counsel learned at the charge conference that it was not she did not revisit the issue with ducks worth or explain the difference in prolog ability or tell him that she was wrong in what she had told him before trial she thought that's right if the if the error here is the failure to include robbery and as it as a lesser aggravated robbery then instead of the remedy that the district court ordered which as i read it is respondent that is the warden of the director of the texas upon the criminal justice must release duckworth that's worth in custody unless the state initiates retrial proceedings with one hundred eighty days from the day of the final judgment of this court so it's a release to retry remedy wouldn't the remedy be the one the just suggest that you're opening which is i don't think you can get there i think the too many jumps in between i think you have to give a new trial and then whatever happens in district court in terms of plea bargain or whatever else but instead of revisiting the issue with ducks wor the lawyer at that point you know i ask you how that skip over ineffectiveness and get to and talk about prejudice because how could the jury they found out debated robbery there in thirty minutes i think didn't take them long  what's the theory on which they would have found robbery but not aggravated robbery because robbery requires put placing in fear of imminent bodily injury if not for the knife what what would have placed the victims in that fear ok let me let me give you the possible scenarios under the said x if the jury believed that ducks were took the pipe without consent made a threat displayed the knife and that the knife in the manner in which he displayed it was capable of causing serious bodily injury or death that's aggravated robbery if the jury believed he took the pipe without consent made the threat but did not display the knife that's robbery or that he took the pipe made the threat display the knife but based on the fact it was partially in his pocket never came out the complainer for more than arm's length away from him in the manner of its use or intended use was not capable of causing serious bodily injury or death that is wrong for that here's the problem i have i mean first of all i think the fact that they they found a place them in fear of imminent bodily injury like very likely means they found that he displayed the knife but the other the bigger problem is how for them to assume there was a threat or to conclude there was a threat they had to have believed the victims because the victim said there was a threat so your your prejudice theory requires us to say the jury believes some of what the victim said but that they did not believe the victims when they saw the victims both said your client displayed a knife which happen to be found on the truck at the gas station here is what counsel could've argued to a light weight because you know the state takes a position that well you know there's just no way to argue not guilty and robbery and be credible about it of course there is she could have said you should find mr ducks were not guilty because he believed the pipe had been abandoned and he didn't display the knife as his wife testified but assuming you believe every word that the vera brother said you still can't convict him of aggravated robbery and here's why assuming that you believe he took the pipe without consent that he made a threat and that he displayed a knife he's still only guilty of robbery because that knife was not used or exhibited as a deadly weapon based on their own testimony or they were too far away to be injured and he didn't take it all the way out of his pocket now if the jury believe the wife which that was not going to happen but assuming theoretically they believe the wife they would acquit but if that's not even she described it not even that right it's but i mean you know there's just nothing happened that's that's why the state's argument that well you know it diminished the prospects for acquittal there were no prospects for acquittal on this set of facts but if they believe the wife if there is acquittal if the way the case was instructed that the government had to prove all or nothing at approve aggravated robbery so so why was it reasonable for the defense to say well look maybe they won't get all the way there and then we walk completely free if the jury believed the complainants that there was no consent and a threat and then he displayed the knife but the knife was a deadly weapon and there was an instructional robbery there's a reasonable probability they would have convicted him of robbery the charge on robbery doesn't diminish the prospects for acquittal in a protects against the prospects of the draconian consequences of a conviction for aggravated robbery and here's what i want to say about correctness i think there's three components to prejudice used think about first of all  the supreme court recently decided i think earlier this year leavers as united states it's a guilty plea case where the issue was to show prejudice on him erroneous advice that results in a guilty plea does that is go have to show reasonable probability that the outcome of the trial would have been more favorable than the guilty plea and the supreme court said done it's the deprivation of the perceiving it's the deprivation of the opportunity for consideration that is the prejudice you don't have to show and indeed you could never show it well if i had a trial this is what would have happened just like i have no forum no vehicle to show if there'd been an instructional robbery different but what i'm saying about one is here he was deprived of an entire opportunity for a jury to consider a lesser and the state relies heavily on the fact that the jury looks at the knife and twenty minutes later they c ct i think we can infer this for the jury to want to see the knife ahead to believe that he took the pipe without consent which clearly by the time he left with the pipe he knew he didn't have consent even if he initially thought it was a bandit so they got consent and i think they got past the threat don't come any closer or don't call the police are all hard so they wanted to look at the knife to see well ok under this charge we've either got to convict him of aggravated robbery we've got to send him home and if we think he stole pipe and threatened a guy are we willing to send him home let's look at the knife and maybe they looked at the knife because the victims had described its length and maybe some other features of it so they wanted to see if it matched up with what the victims were describing it had already been introduced evidence and they'd seen it when it was was introduced and in front of them but the fact the fact that they returned a verdict twenty minutes after seeing the knife means absolutely nothing if there was no charge on robbery i would concede had there been a charge on robbery the jury asked to see the knife in the twenty minutes later came back with aggravated robbery there'd be no issues but without a charge on robbery their choice the jury's choice was guilty or go home assessing whether the trial lawyer was deficient do you agree with your opposing counsel that the subjective state of mind strategy cases on this issue because i think this is important they take the position that defense council can unilaterally decide to go all or nothing on a lesser included under florida versus nixon supreme court case nixon hailed that defense counsel can follow a particular strategy when the client who has been informant does not object it assumes that the advice the lawyer gives is correct advice here ms gordon does not claim it was her decision not to request robert she says i deferred to mr bucks worth decision and that decision was based on her own as advice this was not an all or nothing case this was a case where she intended to go for a lesser but the lesser she intended to there was no indication the client was involved in the decision there was no indication defense counsel misunderstood the law and i believe those cases applied were defense counsel makes a unilateral decision without the client's participation in this case ms gordon was not going all or nothing she recognized the implausibility of that she was going for a lesser but the lesser she was going for was theft and she misunderstood the law she gave erroneous advice the ducks worth relied on in choosing faith and she failed to revisit the issue after learning that she was wrong and for the same reason the richards case which this court reversed on the failure to give a jury instruction is not distinguishable on the basis that the state contam is the state says will in richard's defense counsel did not realize a lesser was even available but here is gordon they get to made a misunderstanding of the a political law is just as bad as ignorance of that law as you know it's often the prosecutors who ask for a lesser included offense right you know that why why do they do that to hedge their bets sometimes so why why can't defense counsel go the other way and say we're going to roll the dice and hope my client walks free because even robbery as this stiff very stiff penalty for robbery you know if defense counsel willing to serve the time i think they'd be right to make that decision but whose life is it is the defendant's life and here she let him make the choice now that robbery aggravated robbery have the exact the punishments the same  of custody it's the it's the parole eligibility it's as different as night and day it's as different as the fact that on this set of facts he's got to do thirty years calendar time before he comes up for parole but had he been convicted of robbery and got the same sentence he would be up for parol seven and a half years it's a major difference that a client's entitle to know about and i want to address the problem with the state court findings because i mean we do have to jump this hurdle of are they did the unreasonably determine the facts is it contrary to an unreasonable application of strickland so let me put that for a second the state court fine is really good up to the finish line the state court found that gordon strategy was not guilty of a misdemeanor theft based on a pretrial conversation with ducks or the state court ducks were decision not to pursue robert and that totally ignores what i consider to be one of the most important parts of gordon's testimony which was that it was not dux words fault but her fault and his two questions page forty six of the hearing questions so you're not trying to blame mr bucks worth for your failure to request a charge on robbery are you answer no question all right that's only eat if it's wrong it's on you isn't it answer yes so she says and the king's english this goes on mate not on him yet the judge failed that he made the decision and that really skewers the testimony and unreasonably determines who made that decision just like an involuntary decision to plead guilty based on erroneous advice of counsel ducks worth the not make knowing and intelligent decision to reject the lesser wrong robbery based on the inaccurate advice that he could go for theft and not being as guys with a pro eligibility i want to leave you with an analogy that i think will bring this time and i think is is particularly apt let's take it out of the context jury instructions and let's go to something far more fundamental same set of facts the conversation yes should ducks were testified and counsel says well you know you have the right to testify but you also have a bunch of proc convictions and ducks or says well if i testify can they be used to impeach me and counsel says no because they're twenty years old and it has to be ten years old to be or it's too remote so you can testify free from impeachment ducks were says fine i want to testify after the state rests at the charge conference the defense lawyers as to the judge and i just want to make sure the state's not going to use those priors to impeach m were when he testifies in the prosecution's judge those priors are admissible because even though he was convicted twenty years ago he didn't get out of prison until nine years ago and it's not the date of the conviction that counts for purposes of the remoteness rule it's the date of the release from prison so they're not too remote here's a case and the judge looks at it says prosecutors right and so the defense lawyer under the state's theory then has no duty to go back and then the defense lawyer defends it by saying well sure i didn't go back and tell him i was wrong about the advice i gave him that caused him to testify but he said he wanted to testify so i told him to testify you know under their fair that's not problematic that's not in effect ineffective and a state court decision that says well she deferred to his wishes to testify even though it was based on erroneous advice is not based on an unreasonable determination the facts or an incorrect this case she did it and i think that's what distinguishes this case from drury mohe of the other you know unpublished opinions i cited she involve the client she let him participate let's assume she didn't have to did it he made the decision based on what she told him she told him wrong she had a constitutional duty to make it right and she did not i recognize the odds of winning a federal hate is from a state court conviction on ineffective assistance of probably  good as win the powerball but every once in a while one does and  thank you so opposing counsel has made a lot of this involvement involving the defendant in the decision and really what supreme court case has been cited in any step here that it's clearly establishing what level of involvement if any should have been made here it's it's not in the district court opinion it hasn't been presented argument it's not in in the brief i think without that there  earlier it was was the strategic i mean the question do you think your claim for lack of consent was a better claim to go forward on and stronger claim answer yes she also says we were concentrating on our primary theory question and in this particular case do you think it was better to go forward strictly on the consent rather than trying to bring up the collateral issue of i mean the other issue of deadly weapon correct that's whatever opposing counsel thinks of it that's that strategy and it receives deference and the state court gave a difference and the district court should have given that decision deference and i do want to also focus on on how are putting forward this robbery theory would have would have affected the shot at acquittal which i think is important to remember here the defendant was still hoping for a shot at a pivotal so in addressing counsel's performance and her strategy and certainly practice i think you have to look at what any given strategy would have done at the shots of at acquittal so if the jury didn't believe the knife was used or exhibited as a deadly weapon which is an issue it would have had to consider for the state it to make its case and believe it was a deadly weapon if the jury didn't believe that it could have bolstered the wife's story that these guys light if they if the knife could have been there because it was in the truck and these guys are saying i saw this knife jury doesn't believe that there's also reason to believe that they didn't really fear imminent bodily injury either throws open their their entire story which of course included details that the truck's license plate had been taped up and that they certainly did not give this person consent to take the property but if plain robbery i'm sorry if the jury that the knife was used or exhibited as a deadly weapon it would have obviously been damaging to the wife's testimony about the knife but if plain robbery had been get just plain robbery the state could have argued for conviction even without a deadly weapon doing what trial counsel did here put the state to its highest burden of proof on the most number of elements possible so it set up that avenue for acquittal but given that the unique facts of this case and the testimony only defense witness it also gave the jury a way to credit her and provide another shot at acquittal and introducing robbery it at best would have invited the jury to credit the victim's testimony over the testimony of the only defense witness and if any if any lawyer could have thought me it's reasonably best to be avoided to do that there's no deficient performance and  judge could look at that and say you know that's seems reasonable to me brazil is debatable the district court should not have granted relief this is a classic example of double edged consequences that in the moment when trial counsel is supposed to be making this decision was her choice from the available options reasonable that's all it has to be reasonable and if if if there's any suggestion that as the district court thought that you have to prove pursue and lesser included because there's nothing to lose or just federal law from the supreme court so there are no further questions court should reverse render judgment for the state our thanks to counsel for the good argument the cases submitted