with extraordinarily strange facts regarding double mistaken identity unlike anything i personally have ever seen the claim before you is that mr prey received ineffective assistance of counsel when trial counsel informed the jury that mr prey would testify staked critical portions of the defense's argument on mr price testimony and then failed to call him at trial the entire issue at trial here was self defense and that mr prey did not have the requisite intent for murder during voir dire in the case defense counsel promised twice that mr crane would testify said mr pratt will be testifying in this case i believe that mr probe will testify i can assure you of that in opening the ultimate issue was whether or not the prosecution was going to be able to prove beyond a reasonable doubt that he did not act in self defense that's what defense counsel noted in opening the ultimate issue of this case would be and then went on not one not two not three not four not five not six while about six times of saying what about mark's story his slant is going to be we will submit that he will testify mark will say and he will testify and he will tell you when no one certain terms what mark will say will have the ring of truth well the deficient performance here was that the trial counsel decided that you know before he was before mr perry was to take the stand that the state had proven their case and there was no reason for him to do that any explained that to the jury  he did ok so you know the problem is with strickland it's a strategic choice so how do you get over the that that restriction i don't believe it was what what circuit courts have said in addition to your honor in the recent case of man versus ryan is that there can be an effective assistance of counsel when counsel broke the promise that he would testify and that there was a specific promise made to the jury that he would be testifying and it was not strategic in that regard for him to do so each case that your honor looked at as and ultimately it was not found in me and for counsel to have made a specific promise for us here we clearly have specific promises over and over and over again but but when to found defense counsel makes an about face by declining to present the promised evidence and absence of unforeseen circumstances and there weren't any unforeseen circumstances that came about at trial it would not have justified this change in strategy and therefore it is deficient performance under strickland but counsel in this case when a defendant the defendant holds the right to testify in a criminal trial even over the objection of the defense counsel and you know as always of the right to testify how do we know that didn't happen here meaning how do we know it wasn't praise lawyer fully anticipating that mr prey was going to testify that mr prey got cold feet his declaration submitted under penalty of perjury was that based upon the advice of counsel he did not tell us he did not testify because counsel told him he didn't have to that they hadn't proven the case but again added there is a post verdict declaration yes ok my other question is that if we were to agree with your view in this case and here's one of the things that concerns me with your position include it was a bungled move by the defense attorney no doubt about that you know i've always said you better cash the check you know you better bet you better be able to cash that check and he didn't do that here but wouldn't we be creating effectively a rule that any time a lawyer says my clients don't testify and i fight in fact doesn't testify you get a do over you know i don't think so because you know if you take a look at the limited cases where this issue has been raised to turn him in terms of the ineffective assistance the deficient performance i mean i just can't i can't see that a lawyer is going to go into that with that strategy saying well here's here's my move that i'm going to slaughter but let's have a loser case let's say you have a dead bang loser case you have to prove prejudice and so what's tell me we should talk about that so how how would the trial ha been different you know it's hard to map this whole thing out but there was a lot of encouragement on this guy his story was kind of a wild story going to explain to us how would have been different well and that's the point there was a lot of exactly what you said there was a lot of impeachment on this guy and the impeachment on this guy was the impeachment on the defendant the defendant that over and over and over and over defense counsel it said you're going to hear his story you're going to hear his story defense counsel knew ahead of time that there were different statements they knew there had been a prelim there had been a lot of the witnesses that testified at the prelim testified at trial there were witness statements he knew exactly what was going to happen at trial he put his case he banked his case on mr praying explaining because he was the only one there remember the marjorie his ex wife slash girlfriend was in that was in the car with him she wasn't available to testify at trial and so her testimony which contradicted mr praise was written by a district court clerk far different from had she actually been sitting there and the jury would have been a value able to evaluate her demeanor it was read into the record  detectives were presenting mr praise statements he was subject to cross examination but what you had all the way through which is very close to the facts in the case in the first circuit what you had all the way through here was the state presenting their case that mr crane had acted with premeditation and deliberation what didn't happen and then in terms of the defense case that defense counsel chose to set up that he put on witnesses  great but he didn't call him he didn't put him on the stand for the jury to be able to evaluate that veracity all they got was the examination of by the state regarding his statements through the detective testimony who was at the crime as it unfolded read and by the clerk's record by the court record and the jury heard nothing absolutely nothing from mark's mouth and from his ability to convey to the jury that it was reasonable and these bizarre circumstances to have acted as he did in self defense but why can't a council make a strategic choice of and a trial saying look i got we have your theory out there my opening statement we have the facts in essentially through some third parties let's not i like where we are let's not risk anything by putting you on the stand i mean that's a strategic choice if that's what happened here  and that's not subject to strickland reversal is deficient performance your honor and i believe that the case law out there does show that shows that you can't you know i guess you i mean and in general s strategic choice to not call the defendant versus it's ineffective assistance of counsel and that's the issue that is before this court right now which is somewhat different it's ineffective assistant counsel to promise that you are defend your client is going to testify over and over and over again and then fail to put them on the stand and i believe that that's the distinction that the cases and the first and seventh circuit and that even your honor said and man would give rise to deficient performance and  right to testify and in your client i personally agrees he's not going to testify even though he's heard the same opening statement that everybody else is heard he's had a chance to evaluate the case the same way his lawyer has but he gets to make the ultimate his right not to testify but again the claim is that counsel was ineffective for not having him testify when over and over and over again he promised during opening and that was deficient performance on his part that prejudicially impacted his case such that the jury was unable to find that his actions were reasonable and that he acted in self defense during the highway chase that resulted in the you got to the prejudice problem that you have to also satisfy your client story was in the record probably better told and he i would disagree your honor i would disagree and that again what what the jury needed to find was that his actions were unreasonable his client's story my mr prey's story was put into the record again through the state's witnesses it was put in thr detectives that were presenting what he had said to them and which mr prey contradicted in his declaration in terms of specific facts that he had told the officers in terms of whether or not there was a gun and there was some confusion a over that as to whether or not he said he saw him a gun vs he didn't see a gun vs he saw a finger all of those things that along with his fear of bud baker prior to this incident all of that was done exactly as should unfold in a trial in terms of the state presents the evidence there was some cross examination but ultimately what the jury didn't hear was the ultimate decision the ultimate person who was there and who had those feelings of whether or not it was reasonable mr prey and what happened and he could've testified and cleared up these contradictions that were brought out through direct examination by the state through their witnesses versus the cross actually are ours already addressed a little bit i'd like to kind of address those first off try to get them off the table and then coming at the root of this case and that's a good plan to proceed the first thing and i think i think it's kind of was touched on a little bit and we saw in the in the in the opposing counsel presentation that is i think it's it needs to be clear that there is not and cannot be a per se rule that if you if what happened in this case happen say counsel may render constitutionally ineffective assistance i think that and i think part of the question i think i think defense counsel even acknowledge that and judge owens i think you hit right on the nub of the problem with having the per se rule and that is if there's a per se rule then you'll always just say my defendant my client can testify and kind will testify and then you roll the dice and if you if you get a conviction and you get overturned base proceedings and so there can't be a per se rule in the reason i bring that up is because in the briefing and i think it here again this morning there's a little bit of a disparity in that there is some treatment by by pray that there is federal law i think there would have to be something like a per se rule for that to be the case so then what's left that there's no if there's no per se rule if if what's left is the other part of the deferential standard which is whether or not this was the nevada spring course decision was a unreasonable application of a clear aspect of strickland or the factual counterpart part of that unreasonable if i you ation the facts and i did i do want to i know the court knows this but i would be remiss if i didn't remind the court that of course under effective because counsel said he was going to cooperate and then didn't call pray and that did come up a little bit this morning but but it's just not true that that was not dealt with by the nevada spring court in the excerpts of record sixty eight that of aspirin court did explicitly important so as as i think your honour's have already sort of indicated this morning what i what we have here is the counsel saying and i think reasonably thinking at the beginning in his opening statements that that  as praise counsel said here this is all about self defense his whole theory was self defense he didn't he didn't say i didn't shoot the guy it's all self defense he was retrials praise counsel was reasonable in thinking at the opening statement none of this is going to come in unless pray testify but then if you look at the record if you look at it during the course of trial and this is what the this is what the nevada trial judge who heard this case on post conviction proceedings  concluded he says and excerpts a record fifteen sixty nine he says the judge concluded the defendant made a strategic decision not to testify because quote three statements of the fin that were admitted into evidence during trial in this is based on a colloquy that happened during the post conviction proceedings where the prosecutor explains that the prosecution in this case made made a sort of uncharacteristic i guess it would be because strategic gamble to allow in statements that would allow pr to get in these statements without having to take the stand so this is not a case like the like the cases relied on by praise briefing where you have a defense counsel making a statement and then says and saying he's going to testify and you have no reason no conceivable explanation of why why counsel changes might quite the opposite here you have you have this unexpected thing that happened where the prosecution lied in these statements and so that's why praise counsel changed his mind  that's that's and in fact you you can see that if you read i think if you judge thomas you know referred to there's three pages in the trial transcript during the during praise counsel's closing statements where he had asked the judge to give the to give the instruction to the jury saying don't draw a negative inference from pray not testify he would he he refers to that and then he says he says now you know it was until yesterday that i thought that i wasn't going to have i'm paraphrasing of course but was until yesterday that i thought that the fed it was going to testify but we're ahead were innocent and much is made about the why did he think he was ahead i mean this is a self defense case that's the only thing he thought he was ahead because he thought that with these statements that come in it shifted the burden to twenty hindsight is always twenty twenty but secondly it cannot be that whether or not a counsel was ineffective or not turns i mean first of all this is a tough case from the very beginning the guy the guy you know hold out a gun and shot six times you know had a vehicle that was chasing him and there was inconsistent statements in the record i mean you can't it wasn't like he had a great case to begin with and it was reasonable i think for him to think that his only chance maybe it was a long doesn't change the standard for so i think ultimately all to me what we have here is not a case like those other cases like the cases that are cited by by pray in his previous a case where as as your honor said he made a strategic reasonably so if you open statement that he was the only way pray was going to be able to get a self defense theory in front of a jury was if you testified himself that turned out not to be necessary because of decisions made by the prosecution he made a strategic decision in light of that change he did his best that he could under the circumstances to try to hear spent three pages of the trial transcript try and make sure that the jury didn't hold his not testify against him i think this is not the same kind of case your honor and i think last thing i think we need to keep in mind this goes to the prejudice this is a this is an interesting case because both strickland kind of converge on little bit in this case because prejudice i think was an issue both for the first prong approach stricklin and also obviously the second and that is if he the it's pretty clear i think if you look at the record that the reason he decided to ultimately not have prayed testify is because he was concerned about prejudice he was concerned when pray took the stand he was easy was going to get mercilessly cross examining his credibility was going to be destroyed now at the beginning of the trial when he didn't think that the stuff was going to come in he thought he was going to take that gamble he thought he's going to take that gamble or trade and have a chance of but later on he once it was already  ok there's no need to take that gamble here's what would have come in this is this is important because if you read praise briefing it makes it sound like a prayer gotten up there you know and if he gets a new trial he'll get up there and he'll deal they'll be able to hear from the horse's mouth and everything will be great what they don't obviously acknowledged is that the prosecution is going to highlight that prey gave inconsistent statements and that sometimes he said that he saw a gun but other times he said he didn't see a gun you're also going to ask him how much crack cocaine he'd done earlier that day they're going to ask him about hitting marjorie the all this stuff is going to come out if he took the stand so it is because of that concern about prejudice that i think praised defense counsel clearly made a strategic decision here is clear you don't spend three pages of the closing statement talking about it to the jury if you didn't make a strategic decision he made a strategic decision because he was concerned about precious so i think could be difficult for us to think that there would be prejudice if praise on trial counsel at the time thought that there was a high probable pussy it i think it's it's difficult for us to arrive at a conclusion that there would be prejudiced from him that he was prejudiced by not testifying when praise on counsel thought he was going to be prejudiced like counsel there must there must be some tactical decisions that can be ineffective i mean to make a gross analogy here you know to throw the ball on the one yard line the superball and marshawn lynch in the back was i think pretty stupid as affording understand it was pretty stupid so clearly even though a decision was made under strickland there must be some decisions even though they are strategic or tactical that are so he doesn't that that's per se ineffective if there's not a per se rule then what kind of things would not be in effect what one is when things change at the trial i think and this is clearly a case and this is where i disagree with with i think  praise counsel's statement here things did change a trial there's in the record it's very clear that things change the trial the judge the to trial judge concluded that so unless such an under under  double deference unless the trial judge was you know completely unreasonable concluding that that the reason that he did this it was because because things came because it happened unexpected way that he didn't expect it to happen a trial so you honor and i'm sure that there are circumstances sir decisions that what you might you know i put put quotes around a call strategic that would be so ineffective i just don't think that in less we're going to have a per se rule and we can't have a per se rule then it's nobody can go the other way either i mean in the sense of you can label something strategic with which is an undefended bold choice you're saying and other words you can say well obviously it was a strategic choice and that  immunizes that decision from strickland analysis just by labeling it strategic it has to be an actual strategic choice you write very well that's why i've gone to the trouble this morning to go through the record you know explain in the record i can give you more record cites if  explain how i think that you know if you look at what the trial judge when i say trial judge that the post conviction about a state court trial judge and the prosecutor and then you look at the closing statements  of praise counsel they all fit together to show that what happened here was he thought was going to have to end reasonably so i think at the beginning he didn't think that the prosecution was going to do what they did which was to make the strategic decisions that allowed in praise earlier statements and then once that happened then he then he decided to do what many of him in the criminal if it decided to do what many of them do and decide is i don't i don't need to testify i'm not going to testify is that the best choice that's not i mean that's not the standard that we apply here is that the best choice you know did he get the best possible representation the question here is could any reasonable jurors conclude  that it was a reasonable and that there was no prejudice from from the decision and i think i think that that's a pretty clear answer yes so i have no further questions thank you counsel thank you role i'm not saying that but what you said judge jones is is correct some decisions are so foolish that they have it has to be ineffective and that's what case law has shown that the cases that we've cited and talked about from the seventh and first circuits and what this court and your honor said in man that these there are these cases that happen there are these cases that happen that are out there and if you look at the facts of those cases or harris anderson hampton especially or a trial trial counsel can't gamble on perceptions of what the weaknesses of the prosecution's cases are and that's what happened here  and i disagree with what the attorney general has has stated in terms of trial counsel thought ahead and determined that he didn't need to testify and that was because he was going to mercy mercilessly be cross examined i disagree with that if you take a close look at the argument again we didn't have an evidentiary hearing here and post conviction all we have is argument that was made to you trial court judge that was actually a different judge that didn't hear the trial the trial court judge did hear a motion for a new trial and that's where counsel talked about what happened and that's not what he said in the motion for a new trial he said that he said that he made the wrong call that you know he should've thrown in at the one yard line and he made the wrong call and it wasn't that he was afraid of mr prey being cross examined and that ghost that you can see that from the promises made in the opening he knew that there were different statements he'd gone through he'd gone through the prelim he knew that mr prey had made different statements he knew that marjorie contradicted some of the things that mr price said he knew all of that going in there was nothing that happened and unfolded throughout the trial that would have made that what he didn't know about ahead of time and so basically what this was this was deficient performance in terms of deference yes we do need to look at the deferen for that problem of strickland i disagree that they collapse here i believe that under wigan's and rumpole and part of versus mccollum you do have been over a review on the prejudiced pronk the nevada supreme court only talked about the deficient performance pronk and no mr president once we're going to come in and i don't i don't think that they were self serving certainly they were let's use the objection that you hear is self serving i'm sorry that's you know the objection that you hear the trial court i mean i don't think that there were there were that the reason that they were presented by the state was to show all the discrepancies and differences between what he had said and what during the different times that he'd been spoken to by different officers as well as the differences within those statements from our own from marjorie whose testimony was read in and again it all went to the premeditation and deliberation in the first degree murder about instruction i will say set that aside it was about and about instruction that was given which is also important in the case