the question in this case is simple should the court below have granted mr griffith an evidentiary hearing based on a specific twenty to fifty five pleading the answer is yes mr griffith went above and beyond the minimum required to get a hearing in this case this court cannot say that the files in records of mr mr griffiths case conclusively show that he's not entitled to relief mr griffith pled facts said if true prove that his counsel was ineffective for failing to familiarize himself with binding case law and failing to argue based on that case law that the weight of drugs attributable to him should not have included the five liquid seized from his home the standard for hearing on a twenty to fifty five motion is extremely low if a petitioner pleads facts that i evidence is not required at this stage all that is required is facts that if true provide him for relief so he did not have to provide evidence to support the facts that he says all you provided were your clients on that says the petitioner is as entitled to an average aerie hearing if he asserts specific factual claims based on his personal knowledge so if the facts are specific enough you don't have to provide additional proof unless unless the contradicted facts and the record yes and your honor no none of their assertions in this case are contradicted by facts in the record in fact they're consistent with many of the facts presented by the government the government presented no evidence during the trial to show that these liquids were usable are marketable in any form let me ask you that the chemist testimony because i found it very interesting a with cocaine and a cutting agent inside there are reports that it was improper to count the liquids because the cocaine was on usable when mixed with the liquids so something is only a mixture a substance containing a detectable amount of methamphetamine if it's mixed with something that can be consumed with the drug and in this case mr griffith asserts that the liquids were on usable and in fact toxic and therefore could not be consumed with the drugs and therefore did not fall under the definition of a mixture  substance containing a detectable amount of methamphetamine when if they can be used to produce a drug your honor in this case there was no evidence that these were currently in production in fact mr griffith played that it was left over from production and in united states v new some this court said that if it is in production the proper way to determine the weight is to determine have it somebody testify about how much could be produced from that and that's the weight you use and here there was absolutely no testimony about how much could be produced from these liquids and mr griffiths played extremely specific facts in this case he pled that the liquid seized from his home were unusable unmarketable and toxic they were improperly counting the drug amount he also said that he asked his lawyer to review these cases and make this challenge additionally he pled that expert testimony would prove that these liquids were toxic and use  unmarketable an expert testimony would also prove that fifty grams or more of methamphetamine could not have been produced from these liquids these facts if true entitle to mr griffith to relief under stric investigate vining case law and read commentary to the sentencing guidelines to be one doubt one was objective leon reasonable prevailing professional norms require counsel to research relevant issues in this case dirt terminations was incorrect that he received from him and he had an independent duty to research the law and make a legal argument based on the evidence in the case that is in his client's fate for on top of this it's even more egregious because mr griffith told him that he believed that he was in interpret the law incorrectly all counsel had to do was research these cases and read them and he failed to do that and i think his affidavit in this case supports that conclusion he says in his affidavit quote i don't know what the petitioner means by usable but i assume that he means the amount of substance which if ingested will get the necessary in fact unquote this is are not the definition of usable a certain in rwanda gabriel newsome and the other eleven circuit cases on this point which shows that he was unfamiliar or mis understood those cases ignorance on a point of law is a quintessential example of deficient performance under strickland in the united states supreme court said that it's a liquid carrier maybe a marketing agent four yes i believe that's correct and there but there was no proof in this case that these is the dimethyl amphetamine was mixed with a cutting agent and at this point we have to assume the facts on the facts of those cases they don't necessarily specifically quote the language from the sentencing guidelines because that was adopted after some of those cases but the reason the court or the reason the sentencing commission added that language to the guidelines was to fix the problem created in chapman and the fact that there was a circuit split over whether or not to include on usable liquids as part as part of the calculation and the commentary to the guidelines that was added after chapman specifically says make sure substance does not include materials that must be separated from the controlled substance before the controlled substance can be used unquote and i think that that is extremely clear that something cannot be classified as a mixture of substance containing a detectable amount of a controlled substance if it has to be separated if the liquid is unusable or unmarketable this court has directly defined unmarketable in rolonda gabriel they defined unmarketable is not ready for retail to street level or wholesale by the big drug kingpin there was absolutely no evidence in this case that these liquids were ready for retail or wholesale and in fact there is evidence that they were not not this council decision not to pursue this defense in this case cannot be considered strategic a decision can only be strategic if it's made after a reasonable investigation not reading the case law is directly contrary to reasonable investigation and so counsel was unable to make a strategic decision whether to pursue this case because he was not from ilya familiar with a binding case l venture jeff you have to let the fact that it's true he did what did he have to lift that he had to allege to make up his calling he claims that he started with two point four grams of methamphetamine and that you cannot produce fifty grams or more of methamphetamine he doesn't say he doesn't specifically say that you can he doesn't talk about the usability the liquids he says most of them are makes me waste material he talks about they're not usable in their current the i mean isn't that talking about the usability of the liquids when he says you can't produce that much you can't produce that much methamphetamine from those liquids and that's what he is effectively charged with having produced or manufacturing so why isn't that alleging sufficient facts to establish entitlement to  i just i disagree that the facts that he alleged entitled him to the hearings special a letter i understand you disagree but i don't i guess i don't understand why and i want to make sure that i'm giving your argument due consideration so maybe you can explain to me why it is that saying that you can't produce that volume of methamphetamine from that liquid is not saying that it's usable it's not usable because the that's not what the case law says is that you have to be able to produce that amount of methamphetamine from the liquids that exist but doesn't he also say that the liquids that you would that would you would precipitate out the map are toxic and not i he couldn't just get up there and say that you have to have some evidence but at this stage why isn't that enough to get to here because the case law says unsupported can place restatements are not sufficient from which you can g statement that this out of four contain x grams but it was contained in a state that could not be used to produce methamphetamine without additional steps are additional chemicals and that it wasn't usable when it wasn't a carrier agent that i don't know how you get it or specific then more non conclusory than that why don't you do this is  pleadings that you say he made that are insufficient there and tell us what a sufficient pleading of that nature would have been ok two point four grams of methamphetamine the f a drain would not have been enough did not were not sufficient basis from which the court could find that the weight of the methamphetamine attributable to the  fifty grams or more that basically what he said he said you can't even use that much he did say that you can't even use that much to make that much methamphetamine but the case law doesn't say you have to be able to make markable methamphetamine that's all we weigh what we weigh is the liquid that it comes in but doesn't it very liquid has to be consumable i mean it has to be for example you know in a supreme court case the reason why the paper counted was because people ingest a paper when they're taking l s d that l s d defuses into a paper and that's how the product is sold but nobody goes around with you know a beaker of toxic liquid in pours it out when they're selling methamphetamine and that's how they sell it that's not that's not the medium by which the drug is distributed i gree the it isn't distributed in that sense but the guideline that talks about specifically the guideline that defines what you weigh when you're talking about methamphetamine and fed a means and p c p it's only it only it involves those three drugs it specifically says you weigh the greater of the weight of all the liquid that that it's in and i think it doesn't the liquid have to be usable i mean if the liquid is toxic and you can't use it then haven't had is that count in that but the the liquid is usable i f there's a difference in usability and marketability and we have that language in the cases that talk about mark ability and usability that liquid is usable is it in creating the methamphetamine and it so well let me ask you  let's say he had actually followed through and he got caught at the point in time when he had precipitated out the map and bad i mean from that solution would it have been possible that he could have said that he could have had the volume actual may produce methamphetamine is in his right if he had fall if he had taken the liquid and he had actually instead of getting caught at the point in time when it was still and in process of he got caught at the point in time when he had precipitated out and met from that mixture ok ok how much would he have had at that point would it have been the amount that he got sentenced for or would it have been substantially less i can't answer that question well isn't the answer that it would have been substantially less and that then then you have a problem sentencing somebody to more time based on when in the process they got caught which seems i mean that seems problematic is well under our case law but also on the other hand if you only punish for how much they have at the time of the actual methamphetamine that's and sell ability a sellable form then you're not punishing him for the manufacturing of the methamphetamine you're just only punishing him for what they have at the end well but there are other guidelines that punish for the manufacturing i mean and there are other ways that that's taken into account are the not there are some some ways of the second yeah i mean yes right so right i'm going to switch gears here because i do have some other arguments and i understand the court disagrees with me on whether there was sufficient prejudice pled but this court can affirm for any reason and i would point out that the defendant mr griffith did not place vision facts to prove that there was a deficient performance here contrary to what mr griffin has argued before this court his attorney was aware of the specifically said he specifically references it in the record but it looks like he may not have read it i mean if he had read it i don't buy it i don't think he would have made the statements that he made which would statements  usability of about i don't think it's clear from the case law but usability means and marketability means and what we're talking about when you talk about methamphetamine it's particularly difficult in this court has had some cases and i think new some itself  conflicting or hard to understand what is wastewater what is part of the what is part of what can be weighed in the methamphetamine production process we have the methamphetamine oil that they say can be weighed you have the sludge that can't be weighed it was thrown out here we didn't have sludge that was thrown out we also have him discussing it with the prosecutor probation he does seem to understand it but i don't think it's clear but even if he didn't understand  hearing then on that on what he understood it to be yes i mean whether he actually read these cases as opposed to just saying that he was aware of them but there's no fact that he didn't didn't read the cases and wasn't aware question here of whether there was precedent in our circuit that this was an error and if it's clear precedent that this was an error then he should have r the allegations and the motion which is the client told him look i'm an expert trust me this couldn't be used we've had to do this and so forth so it seems to me like to really parse allegations as to whether this was further usable in the manufacturing process and could have it make sense lancer sure don't have to but if it makes sense to say you count all of this methamphetamine either you can sell it now and distribute it retail recite all or if they can be used in the manufacturing process and then whether he's alleged that at least some of this couldn't be course the allegations don't explain why i still had a hand if it could have been used in the process but i think maybe you would agree let me ask you if you agree that under millennium martina's if he should have raised it and if it would have resulted in a different justice kennedy said the third prong of plain error is automatically stablished absent very unusual circumstances such as a judge saying i don't care about this even in the same sense disagree that the plane error standard and what they found in the lane martinez on a direct appeal in reviewing a player issue is different than ineffective assistance of counsel claim or looking at it on collateral view and i would point the court to a and it was plain we don't necessary even though the standard in plain error in the prejudiced promise stricklin of the same we don't necessarily apply them in the same way in class or repeal the court specifically found that deficient performance standard of ineffective assistance of coun evidence that the court said you can't present any other evidence so what we would have to hold is that reasonable probability of a different result means one thing and ineffective assistance of coun knew usable on marketable liquids or substances should be excluded from the definition of a mixture of substance that that has a detectable amount of a controlled substance and your own i believe your observation about the magistrate's court decision is marketability of the drug mixtures the court said that this type of evidence would have to be there in order for a line to gabriel to control what the court miss is is that the fact the defense counsel did not present this type of evidence is exactly why mr griffith is claiming that his stands for the proposition that the government would have had to present evidence of how much could have been manufactured from that the oil in that case they still did not the weight of the oil but instead based on the chemist testimony of how much could have been produced from yes and i think that that is appropriate based on what mr griffin pled to have this evidence area hearing so he has the opportunity to prove his claims ok thank you thank you