findings were based on an unreasonable determination of the facts as explained mr abuses briefs the th circuit has recognized that where a state court makes a finding of fact without an evidentiary hearing the fact finding process itself is deficient in the title the difference there's no precedent from our circuit on that not on that specific i not that i could find that specifically found that you are required to hold an evidence you hearing to make a finding of fact i mean i think that you could it's implicitly found in a couple of cases including the daniels case which i filed a self a little authority a couple days ago but not the directly states that same point i'm aware of but it does make sense the th circuit's holding because of a finding of fact is the result of an unreasonable fact finding process the fact found itself cannot be reasonably said to be reasonably determined what facts do you think we're in correctly determined by all of them are quite frankly we can't be all of them well if there was only about three facts that were found specifically and i you know i can go through them certainly but let's put it this way case which was a prescription defense to the drug trafficking offense he was charged with essential a what the court did was make a finding as to what mr abuse was told by his trial counsel during an out of court conversation  is incorrect in the in the state court proceedings in the motion what he actually says is that his attorney advised him that he could raise a prescription defense in terms of the sentencing procedure in terms of if he were to plead guilty at sentencing he could raise this as a defense and it would somehow mitigate his case or somehow result in to dimiss will dismissal of the charges at that stage which is clearly and correct there is nothing in the motion itself that says that he was ever advised and that he could proceed to ran it's not a legal bar to the prosecution the way it was with the the other drug that was dismissed count three i think it was it was dismissed because of a prescription for mr gibson this these were prescriptions to other people and for other people and he was storing them in a hidden compartment and he was partaking of them from time to time so it hardly bespeaks an a bsolute defense well that he could have raised there's a couple of problems with that and number one it's still an affirmative defense because in florida if you are in possession of somebody else's prescription drugs lawfully you're basically acting as an agent for them and so your possession  lawful so it is an affirmative defense that you could raise a trial it is not a defense that you could raise in a pretrial motion to dismiss successfully because it's really a jury question fighting a fact of whether or not you're actually a lawfully possession and the other issue is that he never actually admits that he was using these drugs at any point you know but one of the one of the people that he was keeping the drugs for quote keeping drugs for are not rich deceased correct that's correct the mother of a friend of his that's correct  so it's hard to see how that was something that he was he just it's not as though you were holding the drugs because somebody was visiting you and they they left and forgot them there's a person left permanently and he had them for years right which actually to my point demonstrates that he actually was unlawful possession of them if if he for some reason was holding them for any kind of illegal purpose whether he was using them or selling them or doing something other than what he said he was which is just holding on to them it stands to reason that over the course of five years he surely could have found a buyer or surely would have consumed it makes no sense whatsoever or center some evidence that he did use them but there is no there is no evidence what he says is that this man this bundle of of prescription drugs that is found in his house which includes prescription drugs that he actually himself has has a prescription for if he had uses them rarely he doesn't identify in that statement whether he's referring to them the morphine which he's holding onto for others or if he's referring to the prescription drugs that he actually has a prescription so it's ambiguous there's not actually an admission by him that he's using the prescription drugs that that are not his even if he did that doesn't necessarily preclude him from raising that as a defense at trial because he could still be unlawful possession of them and using them for a legal purpose the central issue or question is whether he came into possession was holding them lawfully before before i forget to bring you back to were we started about the facts that you think were wrong so the st one was on no it's ok the st one was that mr abuse was properly advised of the prescription defense and you've explained why you think that factual finding was wrong tell me the other two that are critical you think well we're basically we're just covering them really that he admitted to using these and that he admitted that he was advised of the defense in his post conviction motions are really both issues that judge walker was well it's just shows two basic issues whether he was advised of the prescription defense by his lawyer and nd whether he admitted to using some of the drugs that he was holding for some whether or not the defense was rendered unfiled or inviolable whatever the credit for there is right let me ask you one question which i don't think the parties have addressed but the cases in florida which extend the so called prescription defense to narcotics that are being held for someone else based on someone else's prescription those cases all post date the events in this case and so my question is at the time that the lawyer did what he did or didn't do what he failed to do why was it deficient performance to think that that statute extended to mr buza situation with regard to the prescriptions of others right for a couple of reasons or one i believe all the cases actually turn rely on cases that predate the charges in this case so i think that the case law is out there too i think it's just a logical conclusion that a defense attorney if they're doing a proper investigation that legal research and case would come to that conclusion i mean nobody would look at this and think to themselves well the state a lot of florida such that if your mom hands you her prescriptions for it to hold onto for a day that that somehow makes you a drug trafficker so i think that it's just something that for the state of the state certainly thought so and argued against the rule in these other cases right right and wasn't that it wasn't that the state gave in and said yes these individuals are covered by that prescription defense to a court had to make that determination and we have cases which indicate that a lawyer is not deficient for failing to anticipate what the law is going to develop into in the future and i'm wondering how that and i don't impact your case if at all yes i don't think that it really impacts at all because at the end of the day it's not like we're talking about a change in the law this was something that basic research would have led an attorney to the conclusion that this was in fact a vile but the fact would you agree that it's not an absolute defense just the fact of a prescription that it's got to be shown that he wasn't the other prescription or that he was that i mean it seems to me that they don't actually it was a tribal issue it seems to me it is a trial issue a completely a trial issue ok and but yet he decided not to go that route he government has has recited which were the fact that the other the fireworks would have been introduced in evidence and he had masses of fireworks i don't know how many twenty thousand i don't work for something  acceptance of responsibility to have the firearms through and he had firearms as well understand that but there's a couple of things number one it still has to be a reasonable decision by the defense attorney after reasonable investigation for him to arrive at that and we're talking about a case where he had the case for five days didn't have discovery himself admits that he goes in right away and immediately this is just the plan without any thought what do you make of the fact that there was a very short period of time between his  defendant's arrest and his guilty plea or no plea right and that's that's exactly what point is that demonstrates that there was an actual reason in consideration an investigation done by the attorney prior to his advisement in this  case regardless well there was also in mission by your client that there may be because he was rushing to plead which was his interest you wanted to do this so he could quickly go and go and cooperate which is where you offered to that he may be missing certain facts facts might not be might come out later that could could alter the course of action in this case but he was waiving any problems on that score and that's essentially what happened here is not well yes it is essentially what happened but at the end of the day he's still relying on his counsel and as entitled to rely on his counsel to give him informed advice as to whether it makes sense to wait for the development of the case w way for the development of the facts and for him to make a reasoned give me reason advice as to whether that may be that may be in most situations but here your client was clamoring to cooperate and he knew he mandatory minimums and the only wear way for a five k one dollar letter would be our cooperation to the satisfaction of the government and he thought he could do it and certainly his lawyer accepted what he was saying about that but he made that decision without any knowledge that he actually had a defense that he could raise a trial so it's not an informed decision for him to put it's not like the lawyer didn't know about the prescription defense and all because it seems the charge well but the charge the charge that was based on his own possession of his own narcotics that he had a prescription for that was dismissed it was no prost that had to come from somebody somebody had to realize once mr abuse came up with a prescription that that charge no longer could be not only would be forced forward but only demonstrates that he had an awareness that a personal prescription would be a defense that doesn't demonstrate that he had no awareness that you could be a lawful prescript holding holding something for somebody else that has a lawful prescription so it doesn't so that he understood the agency aspect of it once just nothing in the record from the state court hearing about the prescription defense and all of my correct other than yeah exactly there's nothing in there other than maybe a tacit comment about that it wouldn't be a basis for getting the charge dismissed which is true you can't you can't have it dismissed pretrial on that basis it's completely a jury question so other than that no there's not any kind of  yes at this point though he's looking for an evidentiary hearing so you can actually prove these claims but yes ultimately he is seeking to have his plea judgment sons vacated and the center of the case set back for that particular aspect of it which goes to the prejudice  was ruled upon correct good by the state court the state court made absolutely no finding on that and then what happened is the district court below did with drawers plea he did but that's under a completely different standard that's under the manifest and just analysis is on a different issue of whether or not he was advised you know x y z or whether he has authority you know miss advised him concerning his ability to have things dismissed at sentencing so in my mind no it doesn't address the central issue that's raised by mr abuse at is related to whether or not counsel focused on this particular question of whether or not there was a defense based on prescription and and inform the client of that and that the there was the of the prescription defense and is that is that is that threshold question and and the fact that there was no specific that was that was something that really wasn't initially in the post conviction proceeding that there should be an evidentiary hearing right in the state post conviction proceeding in a state conv know know my questions a little bit different in the state post conviction hearing scuse me the state post conviction proceeding the state initially agreed that the court should hold an hearing on the motion to withdraw the plea which did not address the prescription defense the so called prescription defense did and so now so now you don't have anybody testifying about there's no testimony from the lawyer about whether he thought that the prescription defense was viable with regard to rd party prescriptions there's no testimony about whether he discussed that possibility with mr bewes there's no testimony about an evidentiary hearing about what mr bewes react how his reaction was to that sort of advice there is nothing three to five years you know that's the big deal yes that's very true if that's viable and if he's been advise about the other possibility and told here are your options you can go to trial we can try to assert this prescription defense it has some problems so you may lose and if you lose you're going to get the twenty five year min man on the trafficking charge or you can try to cooperate cooperation is soley in the eyes of the state you can do all you can for the state but if it doesn't lead to tangible results that they're happy with they're not going to ask the judge to go below the twenty five year m man those are your two difficult options choose and then he chooses there is no testimony about that whatsoever there is i didn't find any evidence to support the state court finding that mr bewes was properly advised of the prescription defense if you think that that's if my reading is incorrect tell me what testimony or what documents in the state court record shows that mr abuse was advised of the prescription defense by his lawyer a let you finish in a nd let me interrupt the thought if that's the case then that factual finding has been overcome he has shown by clear and convincing evidence that there is no evidence to that but nothing stops him from taking a plea on the fifteen year and fighting the twenty five year because ten years is a big thing so he could have taken an alternative option of pleading guilty to the charge that he had no defense to and trying to beat the charge that would have given him another ten years that's a viable possibility to has been a lot of discussion regarding the prejudice aspect of this but i would submit at this point it's actually premature to even be looking at prejudice prejudice that we don't have to really concern selves with an evidentiary hearing so really the prejudiced shouldn't even be reached and tell that hearing takes place and he has an opportunity to develop a bit of you but if you accept going to judge walker's point if you are right that we if we conclude  that the state court made an unreasonable determination of the facts based on the whole record and that triggers dunno review in the federal court a federal court's not required to hold an evidentiary hearing if it accepts all of the applicant's alleged facts is true right if you allege facts one through ten and the district court says i adopt them all i assume them all to be true that's what you're going to prove in an evidentiary hearing there is no need for hearing i think a quick the question is how does mr abuse get to write prejudice ruling accepting all of his facts is true accepting all of his facts is true then he has demonstrated prejudice because actually when you're talking about a rd of the bias of a defense the question really becomes whether it would be objectionably reasonable for the defendant it to have proceeded to trial on a defense or otherwise stated rational for him to do so  here it be completely rational what did he what did he alleged your state in his yes what he had or will he be a petition about that point yes what was a leisure stated regarding that is the fact that he was facing a twenty five year mandatory minimum on the charge versus a thirty year sentence if you proceed to trial so he's risking a total of five years on that offense by proceeding to trial given the fact that he has a very minimal record yes he has a felony from twenty years ago but again that's twenty years ago he's also a military veteran and it's just doesn't seem likely that he's really risking much if anything by proceeding to trial because rationally speaking mandatory minimum twenty five dollars and going up to the thirty in the circumstance of this case where there is no evidence and nobody is nobody trying to argue that he's a drug dealer to these distributing these narcotics is very very slim and that's what's put in the in the federal petition is that given the circumstances of the offense even under the state's theory it's just not reasonable or likely that the court would have done anything but given the minimal mandatory in fact the sentencing court itself actually makes reference to the fact that it doesn't make the twenty five year minimum mandatory seemed appropriate in the case which blinds the point that would have been rational for him to take his chances of a trial on the prescription defense even if the chances were minimal because reality is he's not really risking anything so thank you thank you you know the question actually i do have another question going back to my question about wilson versus ls on page thirty of the our in our the magistrate judge says this court should not look through the unwritten pca to the last reasoned decision and applies a standard from harrington v richter which is whether any arguments reasonably could have supported the denial of post conviction relief but the supreme court reversed that position subsequently so if that's legal error what impact would that that have on this case to be perfectly honest i don't i don't know that it does from the perspective of because what she ultimately does is just look at the state she looks through whether she says she's doing it or not my understanding my reading of the report recommendation is she actually ends up looking through the state the state the pca to the state court order so to be honest with you i don't know that it does have an impact but i will definitely take a look at it had mean as a matter of fact to judge prior's point you're asking us to look through i am because you're asking us to figure out or determine that the state courts determination of fact was unreasonable in light of the entire record right right so you want to look through i do yeah that's take a look at what the state trial