had was on tested that there was no case law was not supported that was based only on his interpretation up to seventy three point five of the california penal code he never told him he would have to be litigated he never told him there was a risk support that argument that he was making in the jury instruction hearing and the court specifically said produce and case law for me and he said i would have to do some research but the trouble is he hadn't done the research to that point and i  once i believe they gave the standard to seventy three point five instruction on this but they didn't include a specific intent instruction they did find some willfully and separate instruction which as i indicated under california code says you don't have to have specific inten was the end of the driveway that a witness said he saw someone making a stomping motion with their foot were kicking motion with their foot but the jury hung on that count because there was an issue as to identification it was dark out and the witness the neighbor who saw this going on saw another individual  fact that he never said he was innocent of the corporon injury charge he admitted and on the record mr brodsky and these are statements r c the court can use to determine that he would have taken a plea in this case rather than going to trial because he admitted guilt in th that a defendant as many such as mr higginbotham a criminal proceedings as every rights while his attorney in the trial during the trial proceedings and isn't expected to interpose his own objections or make a record for himself or ineffective assistance of counsel when he's relying  while the state court identified the subjective factors that need to be considered a totality of the circumstances approach the court never took a look at the evidence never considered the evidence because the stakes were never afforded mr higginbotham any saying the only way you get to the conclusion that the evidence shows that mr brodsky told mr higginbotham that he was only guilty of a misdemeanor battery the only way you get to that beginning what you have in the state court record and i'm not going to stand up and say nothing in the state court record can be interpreted to support mr higginbotham's position because that wouldn't be fair what you have in the spate fifty fifty or ninety nine one or whatever at some point the question is whether or not only whether the state courts interpretation of the facts is wrong but whether it's objectively and reasonable look at the fact that the declarations deliberately avoided tying and any advice that was given to any failure to take a plane and bargain on this or higginbotham said  if he had been properly advised he would have taken the place bargain now i thought you begin maybe i'm wrong i think there was nothing in the state court record to exposed now you're saying otherwise it's very distracting i apologize there was what i what i meant to say is there's nothing in the record in front of the superior court at the time that all this went on convictions and continue to represent him past the sentencing on this case without complaint if that challenge had been successful and i just want the courts to look at this in the light of what's really happening it's that challenge ha been successful and the most mr higginbotham would have gotten for a conviction on count two which is what he got here would be nine years which is double the upper term plus one for the  to the prior you think you'd fire your attorney if they you know all this why didn't you give me the plea bargain and then when now it was rejected and he ended up with a twenty six year to life sentence instead of the nine years he could have gotten  a statement that there are two separate things here that he was mis advised and that he was told about a plea bargain now the way the state court of appeal we simply interpret it is that advice went to whether he would testify or not there was a defense to the charge that defense counsel put forth was that he didn't intend to drag the victim what you had here i single other witness who testified testified that he dragged her even farther calling her names and stomped on her and kicked her and said get off my property so our contention is that even if mr one remedy and it's certainly preferable to springing mr them out of prison it certainly is one remedy i mean we're not going to stand on one foot and hop on the other i mean what we're saying bargain the first time that came up is when the court of appeal in the state had an oral argument on the writ of habeas corpus and told defense counsel you know there's really no talking in here and then mr hagan botham tried to submit a declaration after all argument the state court of appeal and under state evidentiary law that was her subjected but i our position is yes that's one remedy and we still maintain that looking at this right record the court of appeal did not unreasonably i apply the prejudiced prong of strickland in finding that mr higginbotham has failed to demonstrate prejudice because despite the opportunity to submit a declaration raising a tribal issue as to whether he took the played by going or not because of the advice he didn't say that in his declaration so i only have twenty one seconds the last thing i want to point out is when this when he would have told and this is another thing what was the research have done he would have told mr higginbotham well there's a case that seems to support my position but there's nothing really on this particular on this particular point and the way the california courts have determined willfully decision should have controlled i mean we're going to later this year if that was the case then a direct appeal like this play like that cited where there's mis advice and and then i think people just leave that person one ninety four in the state supreme court's denials postcards and i was runner millet it but it doesn't deny it on any procedural grounds or failure to which particularly or somehow depleted properly i don't think i think the ties in with the argument that he didn't present or  try to make a factual record in the secret i think he did and i think he did so successfully and with her throwing the dice this isn't a case of of throwing the dice if you're higginbotham was really ready and willing to accept responsibility for the i don't care just tell me what the