counsel had it exactly backward the plea resulted in mandatory banishment from the united states no one seriously doubts that if mr lee knew the truth about his plea he would have rejected it but the six circuit dispensed with this court's totality of the circumstances test for proving prejudice and created a categorical rule in state courts to state our state courts mandated to follow what we do and of course under rule eleven that is to say before the  please accept or to advise the defendant of all of his rights i'm sure they are i think in most state courts they do follow that does he do do they also advise the defendant that if he or she is an alien five adventure hearing justice kennedy that when he said i don't understand he then turned to his attorney mr fitzgerald and mr fitzgerald said don't worry this is a standard warning that everybody gets if the deportation consequences are not in the plea agreement i probability of success if you go to a jury but well to two points on that justice kennedy first with respect to what he heard from the judges what i would really like the court to focus on is the sentencing hearing colloquy which is that pages one twenty four to one twenty seven of the joint appendix and there it's clear that everyone even the federal district court judge believe that he was going to be released back into the united states after his one year was over she even put him on three years of supervised release and told him to give the probation officer his address once he was released to deficient performance i think we're beyond there question is is prejudice well the question there at the colloquy was whether he was in form at all and how that prejudiced to kind of combine the response to yours and justice kennedy's question what's the standard that we have here and we start with the baseline which is strickland is there a reasonable probability of a different outcome but that was refined by this court in hill and as we explained at length in the reply brief the hill test is whether there reasonable probability the defendant would not have pleaded guilty and here is that on that point you see the facts here support that that conclusion and go through them all but i don't understand how you'll be able to distinguish any case in the future you say well here he's been here a long time hasn't gone back to south korea has he struck out but i think someone has just arrived might say you know this has been my passion my whole life to come to the united states i don't want to go back you know the i'm not sure how at the outset a judge can simply say oh we don't need to have a hearing in a case like this it seems to me that there would necessarily have to be a hearing in every case but there would at least have to be a twenty to fifty five hearing to get those facts on the table but mr chief justice what i want to emphasize is that this is an object of test not a subjective test and so it's not enough for a defendant simply to say well had i known i would have rejected my plea well it sounds like a subjective test i mean the i don't know if it's hypothetically or we can assume it's actually the idea is that even though the result of a trial is going to be exactly the same there's no reasonable probability that he won't be deported he nonetheless wants to go through the trial now that could be certainly characterized as a subjective wish not objective an objective person would say well it's going to come out the same anyway but well first let's talk about an example where you can see where the outcome would be different based on objective and then let's go back to the facts of this case and show why it's objectively rational here i consider a case where a defendant is new to the country he has no familial or business ties to the united states they're all to his country of origin and the sentencing disparity between the plea that was offered and what could happen to him if he went to trial is enormous say it's fifty years it would not be rational for that person to choose to go to trial because they don't have the connections but what we're talking about here is now what you have to do with this mr burch well we  often get people who come in and say i wasn't told about a plea and i would have pled guilty and judges then look at the facts and find out that the fended was claiming he was innocent despite overwhelming evidence that he or she was guilty yes rock solid evidence i mean not only is there a video there's witnesses there's fingerprints you name it there's the and defendants will come in and say i'm not guilty and we say you know he's foolish he's irrational no rational human being would not take th the difference between fifty years and five years and yet we deny their motion to do their plea because we basically say it's subjective this foolish defendant wanted to go to trial i'm not quite sure what objectivity has to do with making a judgment whether this particular person under their particular circumstances would have or would not have gone to trial now the factor point to can support that subject to wish if the difference between going to jail or not is only nine months i might say hundred percent chance i'm going to be deported and the only benefit i get is nine months of my plea which is what happened here yes and there's even a one percent chance that i might be found not guilty or at least found guilty of possession and not something else i sees a number of possible standards that could be used here one is purely subjective what would this defendant have done i understand the concept it creates a lot of practical difficulties another objective standard would be is there a reasonable probability of a better outcome if the defendant had gone to trial that's mashable that's the end of strickland but if the test is would a rational defendant have had gone to trial given that the sentence that would be faced that the defendant might face if convicted discounted by the probability of conviction versus the consequences  of deportation i don't know how to do that it's because it's it depends on how a particular person values those two things well is it what is it irrational to try to climb mount everest without oxygen i mean is it irrational to swim with sharks or perform on a tight rope without them that you know i wouldn't do those things but people do it i can't say they're irrational the prevent the person from making the crazy decision like justice sotomayor was suggesting where if the consequences of going to trial where the death penalty and they had a plea on the table where they could serve twelve months and then then be out you know true irrationality in most cases like this one you're going to be dealing with a defendant who acts rational and simply a backstop and when you're talking about giving up any chance to stay in this country versus a nine to eleven month to munition in the sentencing guidelines range i think that's not only rational for levy or for you and me but for almost anyone well you have very sympathetic facts but if suppose we change the variables a bit you know they both can they both are a sliding scale yes so you have a much more serious but the potential for a much more serious sentence let's say if the person is convicted the person will serve eight years and you have a person who has many more ties to the country to which the person would be removed but how do you make that how do you decide whether that's rational and well point doesn't become irrational well i think the starting point is the hill test is there a reasonable probability the defendant given all the objective circumstances would have pleaded guilty and once you satisfy that and you say well was this a rational thing to do and the court shouldn't guess in close cases again it's a backstop to prevent the life sentence verses twelve month sentence defendant from doing something irrational in a case like this one it's easy but courts have to do this balancing all the time and the genius of strickland was that we didn't take any of those factors and say we're not going to consider those which is what the six circuit did we said we're going to look at all the circumstances and so when your hypothetical the length of the sentence matters and the consequences matter now i want to take your plea process are two different things and i'll quote from hill this is for seventy four us at fifty nine whether in fact the performance affected the outcome of the plea process miss advice as you're indicating justice ginsburg causes the defendant to forsake their constitutional right to choose a trial so it's a prejudice to the decision justice alito whether to invoke their right to trial in the first instance but that points to to a purely subjective tests which as i said is conceptually coherent but creates a lot of practical difficulties because then the court is going to have to try to recreate what the defendant would have done and of course after the defendant has been in prison for a while and is facing deportation the person the person i mean all may have second thoughts it's very hard to recreate that well it's not so hard because under the federal statute for filing a twenty fifty five petition you've got to do it within a year you know what happened here is mr lee found out essentially the day that he was assigned to a facility that it was a detention facility that is that what you're asking us to do to adopt a purely subjective standard you know absolutely not is what is what is our standard is the same objective standard you articulated in hill and that is whether there was a reason probability the defendant would not have pleaded guilty or it's so so great even if it's irrational well we're willing to live with the p d l language that the decision where you have to be completely rational question differently but it's meant to be the same question what is the precise mistake of law that you think six of the six circuit judge back seat batchelder in the six circuit made the mistake of having a categorical test where instead of considering all the circumstances objectively she looked only at the likelihood of success at trial to the exclusion of everything else i'm not sure she did it i thought that she said my reading of it was she tried to follow but we've said well you learned in particular in particular said look this person would have been faced with a choice so you started with your example in your example it would have been nuts to reject the plea bargain the guy would have ended up in the same place he ported and he would have been in jail for a lot more time she says here it's the same he would have ended up being deported anyway the lawyer would have had to tell him your chance of winning this trial is eroding near zero close to zero and you will have served an extra at least an extra nine to eleven months because you'll be in jail for nine to eleven months  more and the same thing what happened you anyway who would want that there might be more than one to eleven months because the chances of departure are smaller ok so now i can repeat you started in answering the chief justice what's different about this case and i'd say there are factual differences and there are legal differences start with the legal differences and then tell us the factual differences why they matter starting with the legal page  what you want us to do is to add to what she said and what you have to mean by that because it would have been no hope for you at trial that's the reason that that's not really for you or what do you want to that's not the point that we're making the point is you should never focus just on one piece of the circumstances the likelihood of success at trial you should consider all the circumstances like you said and so let's consider them all and that is one of them is there is no hope of success to dr jury no right and there's two responses to that which are kind of legal and factual the first is that even a defendant who has virtually no hope at trial we don't concede that's the case may still choose to invoke their right to trial rather than take certain mandatory banishment from the united states for the benefit of only a nine to eleven month reduction in their sentencing range that is both reasonable and rational the second is that there is a possibility that with informed counsel he would be able to bargain for a that has lesser deportation consequences and we know that again justice kennedy going back to one twenty four to one twenty seven of the joint appendix the sentencing hearing college hearing colloquy even that the government thought that this plea was going to result in mr lee going back to his restaurant business after his sentence was concluded if i don't know it was a good point so why didn't your lawyers below in this very case went to the government and said look everybody was under a mistake here why don't you go to the district court with me we jointly will tell them the judge what would have happened if you got good advice he's the government would have figured something out to help him the government would have charged him with a lesser crime and my guess is you did that and my guess is the government wouldn't do it my understanding is that that hasn't happened that the government took the position that because there was no likelihood of success at trial game over the sixth circuit got it right we would love to have that opportunity and the fact that we haven't had it is trial judge i can do that other than it's strictly a case by case basis which is my view this is like a jury question but justice kennedy the reasonable probability and rational bases tests are not our test the it seems to me that you're you have so many subjective factors that you endanger the system by having second second thoughts people who want the second but of the like in any strickland case when you consider all the circumstances you have individualized facts not subjective facts but individualized facts that must then be looked at objectively and let's think about hill and what happened there and hill you had attorney who gave affirmative miss advice to his counsel about parole conditions and that was enough for this court to say there was ineffective assistance but no prejudice there because he was unable to show a reasonable probability that had he known the proper parole conditions he would be facing that he would have rejected the plea but we have the exact opposite here no one denies that if mr lee understood the mandatory banishment that he was facing of course he would have rejected the plea and taken his chances that trial even if they were slim but i think several times in your brief and here today you talk about you someone who knows what will happen at trial well that can't be the right test because otherwise they would never be prejudiced in a strickland situation well i mean those will happen maybe the jury will convict because they get it wrong maybe they'll be a case of jury nullification you see in your brief maybe the government witness will die i mean it's only course you can't be certain about what's going to happen but if your test is right then all the strickland cases come out the other way now mr chief justice i want to draw a bright line again between post trial ineffective assistance and please stage ineffective assistance because after you've had a trial you can already see what the government's theory is what the defense theory theories were whether motions to suppress were granted or denied how the witnesses responded under the fire of cross examination you have all that data and i did i don't know what would have happened if the attorney had not been incompetent but you don't know what would have happened if you turn he hadn't you know not called a witness or not presented this evidence who knows what would have happened but you have this large data set and district courts are fully capable of saying ok what if this witness hadn't testified would that have changed the course of the proceeding yes or no but at the police stage you don't know any of that you don't know what's going to happen to the motion to suppress you don't know what's go put that to the side correct but here the inquiry is different than the inquiry is not the outcome of the trial the inquiry is the outcome of the plea proceed exactly and the police proceed in might be very affected by somebody say in you know given my ties to this country given my negative ties to any other country given the fact that this is only a nine month difference and prison term i'm going to roll the dice for that one percent chance exactly and that would be a completely reasonable thing to do with that many people would do absolutely because that's the kind of risk calculus that as you know that he is that the outcome of the proceeding here is not the outcome of the trial as it usually isn't a strickland case the outcome of the proceeding here is the outcome of the exactly just like that quote that i read from hill it's about i'll of that process at the process all of that is true on the facts of this case but i have to ask the same question i want to beat a dead horse but you can change the facts so you have a defendant with more ties to korea he didn't come here as a young man he came here when he was twenty five years old yet he still has some relatives and friends in korea this sentence that he faces here is much higher let's say it's five years or it's eight years or it's ten years at what point how do you decide whether it's rational well that's the job of the district courts applying all the circumstances i want to be pleasing mr how would you evaluate this district judge well the first question i would do is i would ask the hill test is there a reasonable probability that this defendant would not have pleaded guilty and i thought the answer to that question was no and that's the end of the game and that is the test right we've had that right and it's been i mean this is not your test now this is a test that staring at me on page fifty nine of volume four seventy four that's right well that's a very subjective way yes there's always a set of degrees i mean whether or not we talked about this rational person would have accepted how much of the defense and how viable is the defense one percent defense versus twenty percent defense thirty percent defense at some point the district court is going to your progression the line that they think is reasonable correct correct and it's a series of levels every one of those factors and defense that has a one percent chance is that ok versus one that has a twenty percent chance or how do you even measure how rational a potential defense may be well inquiry is how much do we know he would or would not have taken this plea we think that is the whole test correct and i don't think anyone doubts the government or even the district court judge doubts that had he known he would have rejected it let's look at the right answer the question that was was was was put to produce with reference to strickland was in the context of what might happen at the trial with different evidence with different arguments well i wouldn't say because it's an objective test not the mindset of the defendant but the mindset of a defendant in this particular i understand you call your test an objective test you get is you don't know i understand that but the question is whether or not it isn't so distinct from strickland as to be unworkable i don't think it's so distinct as to be unworkable in fact i think for the reasons justice sotomayor and justice kagan have articulated it's actually much easier here you know  insisted on his right to try and correct that's exactly what we said the standard is and i think you're just asking us to and i think i'm asking you to to react here to that standard but also to reaffirm the strickland totality of the circumstance all right so so is this the mistake you say the judge children made is she said i will assume at least that your client would have said i want to go to trial question would that have been a rational decision some circuits say if there is overwhelming evidence of guilt it's never a rational decision and that's what we say and you want to say that's where she was wrong correct and so send it back with the knowledge that sometimes it could be rational for a person to want to go to trial even not hoping necessarily for jury nullification  sometimes it could be and my client's the guy and just so i judges go back to the district court do it over again knowing that overwhelming evidence is not always the end of the case justice regulated this district court judge i believe this person would have gone to trial but this rule doesn't permit me to rule in his favor that's exactly right just what happens if there's overwhelming evidence that this  dant that the defendant in the case would have gone to trial if the defendant knew about the deportation consequences overwhelming subjective evidence statements before the police was entered but also virtually no chance of acqui had the defendant gone to trial what happens that i think the defendant still gets to assert his constitutional right to trial and can't be deprived of that by ineffective wiring is there no other billy believes it's a possession with intent to distribute and i suppose carry adverse deportation consequences so it is that determination whether to charge them less or give the jury the choice between with intent to distribute and plane possession that the trial can't can't force it but all of the guys at the federal and state level encourage the government to consider deportation consequences and here the government thought there would be no deportation consequences i reserve the balance of my time thank you coun stephen thank you mr chief justice may it please the court the crux of the pedia claim is the defendant's contention that if he had constitutionally competent counsel that counsel could have given him a legitimate chance of avoiding a removal with particular voting a conviction with particular removal consequences a defendant can't prevail on that kind of claim if there's nothing constitutionally competent counsel could have done to create that chance and that's the case here where the lower court found in the words of the court of appeals that petitioner had no bona fide defense not even a weak one and stood to gain nothing from going to trial aside from a longer presence and except for the off chance of you'll agree that there are many possibilities where it would nonetheless be rational for him to choose where it would make sense for him to want a longer prison sentence right let's say that he has a serious medical condition the medical care he's going to get at millington is better than he's going to get were ever is going to get no medical care where he's being removed to isn't that rational for him to want to go to trial with the expectation that will get a longer prison sentence well two points on that your honor first when i think the court is using the term rational here and where uses it in as a supplement to the would the defendant go to trial test and says that the defendant has to convince the court that it would be rational under the circumstances to reject the ple the court is using the term rational in its traditional legal sense when we talk about a rational jury and the result a rational jury would reach we're thinking of a jury that applies the law to the facts and doesn't think about results like jury nullification or happenstance as your particular question about whether it be rational i think in a more common sense way to want that that might well be true mr chief justice but that's not the kind of thing that we consider to be prejudiced for sixth amendment per says under strickland under stric this court ever accepting a claim the defense counsel was deficient because he didn't get more prison time and i don't think that's the kind of help but i mean you know that's funny but the fact is this is a situation where he might well elected to have more prison time because it would keep him in kentucky tennessee close to his family where he would be able to visit his children where he could even as i think the judge suggested have some role in continuing to run the  would his life like it if p c millington it's i take it it's not alcatraz right i'm not sure what level security is at that facility it is so i don't think i could accurately answer your question mr chief justice well  honor i think there's visitation right i think the premise that someone is entitled to counsel who will keep him incarcerated in the united states is not only contrary to anything the courts recognize under strickland but also contrary to our criminal immigration laws where incarceration in the united states is the penalty for re entry i also would want to make clear that there's nothing in the record to suggest that this particular petitioner had he known that removal was inevitable for a conviction would never the last have could be read as he says that that if the evidence is overwhelming that's the end of the matter and it wouldn't have been rational to let you ask for a trial and now all we've done is think of situations word might be i mean he thinks he's going to be sent back to some country in the world and it's going to end up he's dead as his family he rather be in jail now we're not supposed to take that into account well enough well you know there's a real disconnect between the claim the petitioner is bringing and the relief that he's seeking the reason that he is subject to removal is not because of any mis advice counsel made it's because a rational any rational jury the lower courts found applying the law to the facts would have convicted him you see that was  things and this is goes back to the point that the chief justice made is that you keep on saying what's the probability that the jury wouldn't have convicted him but that's not the question and we made this clear in hill and in other cases the question is what of what's the do what's the probability that the relevant proceeding would have been different and here the relevant proceeding is the plea negotiation and the plea agreement and that's the thing that we're looking at is did this deficient performance leads to a different decision by this by mr lee to go to trial or not to play or not and that's all we're supposed to be looking at here according to hill and that has its difficulties as justice alito said what exactly do we look to how do we draw the lines there's no questions and this is in some cases an uncomfortable inquiry but that's the inquiry we're supposed to be making isn't it and you keep flipping it to a different inquiry which is the in trial context but not in the plea context and that's because they're scared and i don't actually think that's purely the inquiry we're supposed to be making here i don't think hill or any other case in this court strickland line values the right to go to trial this is what hill says mr fagan it just says here is the standard the defendant must show that there's a reasonable probability that but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial that's what we're trying to determine whether he would have insisted on going to trial well let me say a few things about the first right after that so looks at the right to go to trial through the lens of an attorney and whether the reasonable attorney who's just looking at the outcome of the was a bad deal for him because he didn't care so the emphasis clearly in hill is is one of the things that would have made a difference well in the plea negotiation your honor the particular defendant in hell didn't even get to the inquiry we're discussing today because he failed at the outset there wasn't even an allegation that he subjectively would have selected a trial but i'd also point the court to produce where it lays out the test from hell and says moreover a defendant in these circumstances needs to convince the court that it would be rational under the circumstances to reject the plea and finally another good place to look would be a is saying isn't it mr fagan is essentially look this is not going to be a case where somebody can just get up and say this is what i would have done in the court has to accept it nobody is says the court doesn't have to accept every claim the defendant makes a court contest those claims against the notion of rationality against a notion of what reasonable people would do but still the the essence of the inquiry is what would what would have happened at the plea negotiation not what would have happened at the trial well with respect justice kagan i think as the discussion when my friend was up here demonstrated i don't think a court can reasonably do that as the chief justice pointed out there might be somebody who hasn't been in the united states very long and doesn't have the ties that this defendant has who says well all my life i've been waiting to come to the united states and so it's perfectly rational for but the last place i would look point you to for the fact that trials are treated as instrumental under strickland not is and in and of themselves is the court's most recent strickland decisions in cooper and fry which look to the outcome of what would have happened in the combined trial plead process and in fact find that a defendant's alexion to go to trial was prejudicial where there was a plea offer on the table before he went to trial that would have given him a better overall outcome i think this makes a great deal of sense because if you're granting relief to defendants in circumstances where a rational jury would have convicted them had they gone to trial you're giving them winfall relief that they couldn't reasonably ha insider to a constitutional trial but putting that as a you're not entitled to a plea you're not entitled to a lesser sentence you're entitled to go to jail if you want to isn't that what we said reasonably probable he would have gone to trial absent the error it is no matter that the choice may have been foolish now that's stricklin under rule eleven and it's the same inquiry would he have pled guilty if he had known this information and we explicitly said your decision can be foolish we're on our wall dominguez benito's draw some analogies to strickland it's a slightly different it's not as now logy talks about strickland in the ruhleben context i think the court made clear in gonzalez lopez that actually the sixth amendment right to effective assistance of counsel actually includes the prejudice itself which isn't true of the role of an right there was issue in domingo's benito's attorney errors come in all sorts of shapes and sizes and the kind of error that amounts to ineffective assistance of counsel is one that prejudiced the defense well you how do we have a defen decision to go forward i think you have to always know i think you have to also look whether there was prejudice in the outcome and i actually think this is clear if we if you'll bear with me for a second if you think about an example that comes straight from hell so let's take a defendant where there is overwhelming evidence that he committed say a bank robbery forensic evidence video evidence what have you and that defendant's complaint is that his attorney didn't adequately investigate and the attorney did nothing to investigate he just said i want to plead guilty and turns out had the attorney investigated he would have come up with twenty character witnesses all of whom would have testified this is a great guy and he just needed money because one of his children was sick and let's say the defendant because he has a sick child would have done anything to avoid prison time under the analysis that goes from pa fifty nine to page sixty in hell that defendant even if we subjectively believed him that he would have selected trial is not entitled to strickland relief if his only chance of prevailing at trial was during off occasion or some off chance of some external circumstance handicapping the governor so setback a second and i grew through i can't find total clarity in these decisions and it seem to me that if we're making the separation is the match between what you look to show prejudice in a plea agreement and to the trial both strickland errors it must be that the constitutional consideration of not really wanting the person to feel yes to give up his right to a jury trial that influences the standard and if it doesn't influence the standard i have a harder time deciding the cases so really i think what we're deciding here is to what extent it influences the standard for you you see how i'm thinking that because it kind of just look to the clique just look to the police don't give a damn about what happens at trial well we can't get that extreme so we say well we'll look just at the plea but if it's just overwhelming then we're going to say we're looking to the trial to ok if i'm right as to what these cases me then we are in a world where ninety five percent of the people and what happens to them depend upon police not upon trials and doesn't that argue for look to that plea part of the thing don't worry so much about whether he'd been convicted at trial you know the words we're talking about very small degrees here but that factor seems to me to to to push in the direction of if you really think he would have gone to trial that should be the end of it even if he's pretty irrational you know and i don't think that's a good reason for under for unwinding reliable admissions of guilt when we have a kind of a wire case like this if i could just loosely recount the evidence here on a search of his residence they found eighty eight ecstasy pills over thirty two thousand dollars in cash and a loaded rifle immediately after the search he admitted to the police after being given miranda warnings well your honor there might be cases where a prosecutor might say that but the question here is whether the petitioner has a constitutional entitle meant through the lens of ineffective assistance of counsel to try to think he has the right aren't we depriving him of that right and the right to a trial both of them guaranteed by the constitution and keep saying a plea is not to have his attorney try everything that is legally permissible to try none of these and your adversary went on for pages the variety of different ways for him to have achieved in deportation as a possibility of you know i mean he literally said fake and i think you don't mean that i think was i think what you just said was that there is no constitutional right to go to trial when there is no evidence you're not answering the question about the plea i'm if i could of course i should about the trial there's a constitutional right to go to trial isn't there there is your own even if there's even if there's very weak evidence on your side there is your honor but i think we protect that ex ante much more than well post and let me explain why well let me just finish the question i mean you would agree that there's a constitutional performance and a person's in title meant to go to trial and entitlement to stare at all the various probabilities and to make an informed choice that entitlement has been taken away by this supremely deficient performance and that should be the question so you're i think there are several reasons why we would we value the right to go to trial ex ante and not necessarily in the brooklyn context where as i've suggested i think it's much more outcome focused the first is that this is when you're trying to decide whether to exercise that right to go to trial and there what you're intitled still is that a lawyer be able to give you in a non deficient way the various circumstances that the various things that you would consider to enable you to make that constitutional constitutionally protected decision in a reasonable way we want to report tech the right to go to trial  very closely and allow a defendant to select that result even when it's foolish but the difference when you're looking at it ex post is that you're asking a judge to both evaluate and indorse the idea that someone see these extralegal results like jury nullification or simply hoping that overwhelming evidence of guilt falls apart as a reason for unwinding a reliable admission of guilt on your asking the judge to do is to say that in certain circumstances it is not beyond the bounds of reasonableness to throw the dice in order to get an outcome in order to get in order not to be deported from a country where you've lived your whole life when i don't think the bounds of reasonableness rational the test is a particularly workable standard and i think in cases like this it's just going to leave the stuff thinking you know we talking about cases like this the circuits are split the vast majority of the two the reasonable probability tests don't seem to have the problems you're talking about do you know how many of these motions they were i don't your honor but i you know i mean there's not a whole lot of them you're  with these well you don't i can't give you a precise number but if you search for cases in the federal and state courts in which you know that he has cited more than five times you get about fifteen hundred results and i think that shows these claims are being brought fairly frequently and under any time a defendant can subjectively state that he would have gone to trial and the trial judge finds it credible which i think you could under pretty much any set of circumstances the chief justice point out i'm sorry the times is going to run on just as well  fine then the defendant will be entitled to relief and will have a new trial even though that defendant when he actually faced the choice as to whether he should enjoy the plea and was balancing that against the trial didn't have any legitimate chance of prevailing at a trial you know answers were jury nullification i understand the argument that the test would be purely subjective what would this defendant have done there's language in hell that supports that the language that says is it rational under the circumstances is contrary to that as i read it because rationality is not a matter of subject is not a subjective thing it's objective but let's say it is a purely subjective question then i think it's a question of historical fact so you have to have a finding of fact by somebody presumably the judge in the twenty to fifty five and that would be reviewed for clear error with that would not  well you're on i think you are you proposing a test where you just find one thing that test but i'm proposing suggesting that that is the consequence of our saying that the test is purely subjective we can't decide that this defendant would have as a matter of fact gone to trial had he been properly advised that's a that's a factual question purely historical fact it would have to go back to a judge to make a finding of fact on that question you mean in this case in this case or in any case i think you could ask judges to make those sorts of factual findings but i think one problem that justice kennedy brought up earlier is there's a problem there of hindsight bias and in some cases i'm not suggesting that that's true in this case a defendant telling things that aren't true in order to obtain collateral relief and having an objective backstop where we make sure that we don't give defendants chance in post conviction review and most commonly the district court says lawyer told me i did x and at the peak we covered i asked that question and the defendant said yes i understood that consequence and the court doesn't have a hearing a ruling in our case wouldn't change those cases well those wouldn't change the cases where the defendant comes in and says i would have pled guilty but the lawyer comes in and says he insisted he was innocent i kept telling him the evidence was overwhelming that he should take the plea but he kept telling me i'm innocent it doesn't require hearing for a judge to defendant would not have pled guilty because he was claiming his innocence those cases wouldn't change either those are a good majority of the cases that come before district and circuit courts so your honor we're talking about here is a set of cases where as the lower courts found here the only chance the defendant had a trial was during off occasion or frankly some stroke of luck that would collapse the government's case somehow and in that set of cases it does not make sense to grant a defendant winfall relief the gives him an opportunity he could never have reasonably expected at the outset well i think it should  to my earlier point which is the difference between nine years and five and ten years is very big for nine months and sure banishment what's so irrational about going to trial we are i suggested earlier in my colloquy with the chief justice i think rush analogy here has its traditional legal meaning meaning looking at it through an objective we reasonable one a lens of objective reasonableness and i think that makes great sense here because if that were not the case then i think videos promise that the ruling would not really be opening pandora's box but would instead be  who reject please with full knowledge and say a rational person must have wanted should have taken this case and so you should vacate because i didn't  don't look at all the facts and circumstances don't look at any of the arguments because it's only a rationality test your honor we're not saying there is only a rationality test here first of all there is a threshold inquiry and this is where the defendant in hill failed there's a threshold inquiry that this defendant has to say i would have done something differently if my lawyer had given me better advice constitutionally competent advice and then if that is what the then if we believe that the defendant is credible in saying that we then go on to the objective person the incremental begun again the just in your words objective reasonableness why can't a judge find as to a defendant that it is objective leave reasonable to give up six or eight or nine months for a shot at staying in this country rather than being ordered to a place that you don't know and where you have no ties i mean you know if somebody gave me that choice sign me up so i think of myself as objective lee reasonable human being well your honor i think what objective reasonable miss means here again i come back to the way the court uses the term rational that's used in pretty in the way uses it to describe for example irrational jury is the application of the law to the facts and what outcome we would have reached there and it's a generally reasonable assessment it's in the it would be an object to be reasonable choice to exercise my right to a jury trial in that context and that's the question whether it subjectively reasonable to make a decision different from the decision that i would have made in this proceeding which is the plea negotiation so your honor if you look at the inquiry that way i don't think it's acting as any sort of meaningful check at all because you could always make the argument that yeah i would have risked two more years yes i would have risked five more years and i don't know how our court can come in and say you know what that's not objective  do it in the way that the court has done it since one thousand nine hundred five when we said that this was the inquiry underhill and this is what courts have been doing since for the last thirty years well you and i think the circuit conflict we have here shows  things not saying that a court can't try to do that i'm saying that we it's very difficult to achieve reliable results so petitioner has an example on page six of his reply brief  circumstances where defendant doesn't have very many ties the united states and just got here and petitioner asserts well in that case he couldn't possibly have shown that he would have selected a trial but i don't think that's true a defendant could get up on the stand and say oh my life is the chief justice suggested earlier i wanted to come to the united states and this is a little bit little bit different question but you know assume the partitioner prevails in that there can be no trial because the evidence is stale or something can the ins still proceed to deport this person does it need a conviction given given his admission that the earlier plea right now there was a final order of removal but that final order of removal is based on his conviction many can you do it without the without the conviction without the conviction for aggravated felony there would be no basis for the removal he would be a lot there has to be a conviction to make sure i'm giving you complete answer justice can be he would need to seek some sort of immigration relief from the immigration courts in order to in order to not be removed from the united states well he would get them right if the basis for the removal order was a conviction that's been overturned he should be able to should be able to seek reopening if for some reason the case is not reopened he could seek judicial review of the non reopening so he has various avenues in which to could the government still make the case that even though the conviction is been set aside it has adequate proof and it wants to present proof of the violation in the in the deportation hearings i don't believe it would do that just because it has evidence that wouldn't be sufficient to convict i don't think that's necessarily going to make him removable here so i think if the defendant's conviction were vacated he he would not be removed do prosecutors ever advise the court in open court that think prosecutors of course have their ethical duties and if they see some mistake is being made i'm sure they would speak up and the court is always entitled to ask the prosecutor if they have a view thank you thank you counsel at two minutes mr chief justice three quick things first i don't want to lose the point that justice sotomayor raised that this isn't just keep this plea or go to trial there's also the opportunity to negotiate other plea alternatives and we give a couple of those in our reply brief including one where there was a defendant with two and a half kilograms of meth he was able to get a plea conviction with less and deportation consequences and my friend says there's no evidence that could happen here well that's because the government based on the six circuit categorical rule has refused to negotiate throughout the process if you look at what happened at that plea colloquy again even the government believe that mr lee was going to remain in the country and the fact that he was willing to serve seven years here instead of just his one voluntarily rather than be deported is strong evidence that there could have been some other arrangement a meeting in the middle second thing about cooper and fry my friend mentions that in that case you did look at what would likely happen at trial but we don't disagree with that approach under our approach just like in strickland you look at all the circumstances and the six circuits mistake here justice joined second to the united claimants to the united states should be taken into account evaluating the legal matter she says that because that was the test but then what she says on page four a of the a again the prior six circuit precedent they're bound by we held that no rational defendant charged with a deportable offense and facing overwhelming evidence of guilt would proceed to trial rather than take a plea deal that's the problem so that the final thing i think justice kagan nails this on the head when she says the test has to be deficient performance lead to a different decision that was the standard you articulated in hill it's been on the books for thirty two years justice alito i understand completely how district courts might struggle with that in tough cases but they've been doing that successful successfully and to the extent that there's any doubt about whether that should be the test just as prior you're exactly right it's that consideration of the right to jury trial that's being given up the gold standard in our judicial process so we ask that you reverse the sixth circuit and hold that mr lee can