trial attorneys by offering him a deal true life in exchange for the death penalty phase but he had to waive all future litigation including any challenge to the effectiveness of the lawyers who had represented him at trial and were continuing to represent him in the sentencing phase one of the fundamental fairness of trial proceedings depends on the undivided loyalty of defense counsel to his or her clients in this case the state drove a wedge between the lawyers and their client and the law is that client need not raise ineffectiveness claims on direct appeal and in fact because they often require development of the record the preferred method is through collateral block consideration of claims on the merits nevertheless the claim was presented the issue was litigated and the arguments against upholding the waiver were presented below the state decided but there is no exposed to this on the issue of the organ supreme court was squarely presented with the federal and state questions in mr washington petition for review and to the extent that substantive merits they moved for summary judgment and the state post conviction proceedings at the hearing on the motion for summary judgment the state argued he should not even have a day in court in their briefs to the organ court  appeals they said it was premature to examine the advice of counsel regarding the negotiation of the plea agreement and in the district court and again here the state has urged that mr washington decisions from state court including this one two against one in terms of striking down the waivers and the circuit courts are nearly unanimous in rejecting reverse that are broad it's very very difficult and surely you know for somebody who's pled guilty so successfully raise claims just it happens but it's the blue moon kind of a that and so you can fairly say a lawyer that really wants to protect his backside will do the argument as i understand it is is is more theoretical than specific in this case do we really have a reason to believe that the attorney here we had a reason to cover his backside mr washington went to trial proclaiming  alleges that there were witnesses an investigation that could have been conducted that would have tipped the scales in his favor we had more than his al well you have to the state has prevented development of the record so i went ahead and had the closing argument transcribed to look at what the evidence was mistaken since it doesn't have to wreck the evidence that mr washington was the shooter that caused the death of the the evidence in this case comes from co defendants trying to limit their own liability for their wrongful acts the surviving spouse could not identify mr washington as the shooter the murder weapon was never  located and the state trying to prove its case by connecting up the entrances mr washington also alleged that he is an african american and he alleged that the state struck all of the black individuals from the veneer and so that he was deprived of a jury of his peers and that the prosecution tainted the case by displaying to the convincing the courts that he should have a new trial there are there's a possibility that the result could be different in the possibility that all you need but now your honor the actual conflict and if i may finish the answer to the question the actual conflict is tailing to notify the court that this kind of waiver required independent counsel to advise professional norms are evidence what is constitutionally required in order to go over the ethical rules protect the integrity of the process here the lawyers have the incentive to downplay their failings to protect themselves against bar discipline malpractise liability professional embarrassment and perhaps even their end of indigent defense contract so their source of income depend they're going to be disciplined for that but i think the precedent of this court holds squarely that a conflict arises when a lawyer is called upon to argue his own ineffectiveness in order to advance his client's interest i see that my and i thank you we will give you a to pursue federal court this relief in exchange for the latest sentence that he possibly could have received even had this penalty phase gone for work there is no difference however with regard to that ability is very limited to the ability to challenge the validity of his waiver right and the record in this case i believe unequivocally shows that you know exactly what he was  doing the most he offered as evidence in the post conviction proceeding to try and rope but that was rather vague testimony that he wasn't real sure what post conviction relief was and wasn't particularly sure what an appeal it factual findings are expressed the actual findings are presumed to be correct the only evidence in this case that even supports petitioners claim that his waiver was not valid was his testimony in his deposition or excuse me it wasn't a deposition it was his testimony before the post conviction court and the post conviction court was in a position to observe his demeanor to make credibility decisions and determined that no statement that he didn't understand did not overcome the plain tack that he stated repeatedly to the trial court that he had understood what he was doing factual determination amount of at leaves me a little bit of a quandary because if you really do succeed in actually bolting the door and a convicted defendant can't utilize post conviction relief techniques in order to acquire information somewhere in a park or house from the facts of this case is this a device that just goes a little too far in extinguishing rights and prevents a challenge invalidate or to remedy a breach of this contract obviously there are things going happen that can happen over the years following a conviction or or sentence that may change either party perspective as to whether it would be a good idea to  go back to square one but even assuming that the state in this case and i could not find any cases that dealt with a situation where the state actually sought to declare a breach and entered this agreement and changed the name but you understand what i'm going to do you actually close the door to an actual innocence claim with this kind of agreement and in doing so you depend upon the good will of the defendant opportunity to raise even an actual  instance i suppose that's possible i suppose there may be parts of this type of an agreement i mean a theoretical agreement that we're talking about that might go too far that might be unconscionable because they would preclude  petitioner had fled after the crimes in this case and what petitioner asserted was there was some other evidence suggesting that he had last simply to take a his intent to visit a family member and that his intention sent down thank you thank you they have consistently tried to enforce the language of the agreement as it really is written starting off with requesting summary judgment to enforce the waiver and urging every court that mr washington has appeared in front  identical agreement on appeal in a separate case before this court currently in the process of being reached the opening brief that's been filed with the notice of related cases and there are other cases in my office on pavia street view by the district what he was waving during a critical state of the proceedings and we request that you read first district court's denial of history requests to proceed every man for further proceedings we found