good morning your honour's counsel my name is chris to heart i represent the shit to sean ray appellant in this matter and my goal here is to reserve three minutes for rebuttal a criminal defendant makes a very significant decision early on in this case and that is who his attorney should be who he should hire to represent him in this case and in this case mr a hired trial counsel about in two thousand and eleven about three years prior to trial however in the interim trial counsel suffered some pretty significant ethical hurdles so to speak and prior to trial he had been a judge by the state bar court of significant instances of misconduct incompetence failure to communicate with client in addition to commingling funds etc however prior to trial something motivated m to inform mr ray of this the problem is he was not forthright he said this was minor and it only involved misuse of funds i believe he said paying personal expenses out of his business account which was in no way complete and which was no way accurate at all but based on that mr ray decided to keep mr engel as his attorney and that was not an informed decision because he did not have all the brief and then in the reply brief i highlighted that fact i tied the two client's declaration at page twenty five in the excerpts of record with the opinions are also in the initial excerpts of record and tied those two together to say that yes this is an issue i thought just to help me who may be getting this the issues confused i thought the two ineffective assistance claims were the failure to contest the government's role for a four b motion right and the failure to prepare your client adequately for her testimony am i getting this case confused with no no you're not you're not and that's it but what if what is what you were just talking about have to do with those two issues that's where i'm getting confused well it has to do with with i mean why mr a even had mr engel as his trial counsel i mean it goes to it goes even prior to those two issues and so it was raised and presented in as he said the excerpts of record industry or raised declaration that he filed in district court that this was a problem or you're just giving these as background to explain that counsel had problems that might explain the problems that judge wapner asked about are you saying that somehow he was denied his choice of counsel or some other kind of claim both this is background as to what trial counsel was facing in the months preceding trial when he offensively should have been preparing for a trial he was facing a trial in the state bar court the first decision was issued in july of two thousand and fourteen just a few months before the trial in this case and then the second was the sacrament of spurious court civil judgment against him find finding him incompetent and that was issued in the event just a month before the trial so why aren't these issues that should be developed in a collateral proceeding instead of this one because in this case the district court judge made a decision to entertain the ineffective assistance of counsel claim prior to trial pursuant to steal the court cited steel and rely on steel and in steel it says that if necessary there should be an evidentiary hearing so there wasn't an evidentiary hearing rect so are you asking so say we disagree with the what the district court did and think that these things need more development in the records than you currently have to properly consider these claims what should we do vacate the judgment of conviction and remain for an evidentiary hearing on the motion for a new trial and why not vacate the judgment and wait for a car vacate the judgment that there was not ineffective assistance of counsel because that was done without a proper record and then just wait for a collateral proceeding when i don't understand vacate the jo get a little concerned that the district court reached this issue so the district court reached the ineffective assistance of counsel arguments but without having a hearing and it seems that maybe you do have a point that these need further development but usually we don't develop these things on direct review we usually develop them on collateral review so it's a kind of a weird posture that you're in and i'm wondering why should be developed in this direct appeal instead of on collateral review i'm not saying it should be i'm not saying it should be developed on direct appeal because the record is what the record is i'm saying that if first of all my first position is that the evidence is sufficient mr ray was unable to make an informed decision about his counsel and therefore he was denied a full sixth amendment right to the effective assistance of counsel when trial counsel failed to disclose the rulings from the state bar court and the sacramento county superior court that's the first issue however if as the government argues the case the record is not fully developed then you should remain on to the district court for proceedings and the reason is because on collateral attack defendants do not initially get coun and may not get appointed counsel at all and still points that out in its opinion that that's one of the reasons that courts should exercise this discretion prejudgment because mr ray sitting in prison is not going to be able to interview witnesses contact trial counsel to get a declaration from him is not going to be able to subpoena records is not going to have that opportunity and so basically still allows for this procedure and by just now saying ok well we're just going to do it collaterally denies mr ray his right to have counsel have assistance and i think fully and fairly develop the issue for the court to i'm looking at your opening brief the table of contents ye you raised two and exactly two and yes assists claims and they are yes the two that i outlined has nothing to do with anything about the state bar proceedings and you know that i agree with that the problem is this is not necessarily i ineffective assistance of counsel also that is how it was presented in the opening brief and when and but it was presented through the client's declaration and through all this and if you have some other claim that you want to raise  fifty five you're welcome to do that but the only two claims before us as i see it looking at your brief or that this boy was ineffective because he didn't oppose that rule for four b motion and he didn't adequately prepare your client for trial and the district court ruled on both of those i'm not sure we need much more of another entry record to rule that on the merits of those two claims if there are some other claim lurking out there that you think you've been rejected into this proceeding will just not reach it and you can reason i'm right ok but i guess my problem is that if you reason collateral the review then mr ray will be denied the right to have counsel the assistance of counsel most likely but isn't that our normal procedure when people raise ineffective assistance of counsel and director of you we almost always wait for a twenty to fifty five but steele has expressly provided defendants with this vehicle the district court in gauged in the steel procedure in this case he did not go far enough if the record is not sufficiently developed then it should be remanded to address that i see claims that were raised prior to judgement you've managed to consume all of your time you are reaching the merits of either of the arguments that are properly before us i'm happy to give you a little bit of time if you want if there's something you want to tell us about those two arguments but this the stuff you've been talking about so far in my mind is neither here nor there as far as this proceeding is concerned so what do you have to say about the merits of the claims that you've actually  good morning your honor may it please the court matthew morrison represent the united states i was one of two of the trial counsel though i will address this in the fact of assistance argument first your honor this court in oregon has said that there are exceedingly rare exceptions to the general rule that these should best be handled through twenty to fifty five and i think this case as well as this argument so far has shown why that's the case there simply is no record here of what happened what counsel did why he did it and importantly what prejudice if any resulted from that so i appreciate that you're admitting that what's odd here is that the district court resolves the claims anyway and i'm kind of troubled by whether we need to do something about that because it's not clear to me that this can be raised on collateral review when there's already a decision on the merits what do we do about that the only decision on the merits your honor was a finding that leaving aside the factual disputes and there were extensive factual disputes between the two dueling declarations the district court found that there was no prejudice anyway so looked at what was raised the claim at least at the time of what was raised and i think is the court has recognized there is now this sort of this creeping claims and creeping facts that are coming in now at this level but the court at that time said given what's been briefed given what's been raised i find that there was no prejudice both as to why isn't that the no the deficient performance problem i grant you that would definitely need facts developed outside this record i don't understand why we can't decide that no prejudice determination right now there's nothing more that collateral view could produce that's relevant to that question the trial record was what it was the disregard said i don't care what you would have said in opposing this motion i would have granted it anyway that's not nothing's going to change about that and as to the failure to prepare him for trial well we know what the rest of the evidence for  record look like let's assume that he shouldn't have testified at all well the judge said that there you would have gone down regardless the evidence was overwhelming i don't know what else would the record produce that would be relevant to those questions well i don't know your honor but our position is first of all the position  the four four b is that we agree with what you just said which is that the record is clearly sufficient to affirm the denial of the ineffective assistance of counsel claim on the four a four b issue the question of i was inadequately prepared to testify the problem the reason why we didn't take the same position in the brief on that one is that there are these now new facts that have been raised there's now this request to take judicial notice of what was happening in the state bar court that was never raised at least not extensively it was cited in the district court but the  pages of facts that are laid out by the appellant in this case were not put before the district court and i think what judge watt for it's point is is that that goes to different deficient performance and not to prejudice so what new facts are there with respect to prejudice that would benefit from  twenty to fifty five proceeding i'm not aware of any as i stand here your honor i do think it's correct that is largely the facts of what the first prong of strickland would cover i think it's highly likely that if this is then briefed on twenty two fifty five the government will likely take the same position which is that there was no showing a prejudiced because the one person in the world best qualified to say that the district judge has already opined that the weight of the evidence was overwhelming but again because we don't know exactly what this claim is because it keeps on moving and changing and facts keep on getting brought in that are not raised before we didn't take that position and remind me the problem with mr ray's testimony was that his story was just so unbelievable that it actually hurt rather than in any way help his cause is that the gist of it both the district court said two things he did say that your testimony was the incredible nature of your testimony was the final nail in your coffin and i think the court could infer from that that that there is at least some belief by the judge that the testimony hurt rather than helped but the court specifically did say even if you hadn't testified the evidence put in by the government prior to that was so overwhelming it didn't matter so that was the prejudice prong that the district or so i'm just trying to imagine best case scenario for mr ray blent say that it turns out i don't know on the twenty two fifty five that his lawyer i guess they could have constructed a better story one that was more believable more coherent whatever so let's say all that comes out are you saying that we need to know the contours of that story to weigh it against the evidence that you all introduce to figure out whether the outcome of the trial might have been different or because that's what that's the only reason why we would defer this it seems to me and if that's your position then i'd like to know that if the claim remains the same i  guess as we stand here now i don't know what the actual claim is by mr ray if the claim ends up being if i had been better prepared i never would have taken the stand at all then the government's position will be that's been resolved on the prejudice now if if the claim changes as it seems to be occasionally and it becomes if i had been prepped better prepared than i would have responded to this cross examination better or if the claimants of being if i'd been better prepared than here are these facts five or six facts that i really would have used my direct testimony to get in while at this point no one's look at that and no one's evaluated than that question which is i would have testified better but i think it's it is the and the course right that if it simply becomes i never would have testified at all if i'd been better prepared that's been resolved so there's also this issue about the bail hearing that right so he wasn't released pretrial because of his testimony do you think that has any relevance i think the judge said i don't believe you're so did unbelievable that i'm not going to let you out even though i maybe would have otherwise i don't remember the exact phrase but now you you've lost all trust and so i'm not going to you're going to stay incarcerated pretrial isn't that what happened that  fair description your honor so after the trial with the sentencing because this is trial testimony could have been pretrial it was oh that's a good point i must have been sorry but he was released pretrial upon his conviction the government moved for his that under the section thirty one forty three the burden now shifts to the defendant to demonstrate by clear and convincing evidence that he's not a flight risk and that is not a danger in response to that mr ray made actual personal assurances to the judge i promise you i will show up and in response to that was when the judge said well i just watched you commit perjury for ninety minutes yesterday and so although you're telling me that you'll show up i don't have any reason to believe you now in light of what i know learned about you so thank you for the correction i misspoke it was a pre sent cing that this is what was the issue but so so he could show so i'm collateral reviewed that that that he wouldn't have testified and so he would have had this period of time where he wouldn't have maybe he would have been out there is that the kind of prejudice that could make a difference on the icy claim or not i think it's unlikely your honor of though it's conceivable but because again remember that at this point the defendant has the burden of producing that clear and convincing evidence that he'll show up so the default is you're going to be remanded upon completion of the trial if the jury finds you guilty but certainly he would have there would have been a different tenor to his assurances of i promise you i'll be there if in fact he hadn't just commit perjury committed perjury just to be clear on the facts at the time he took the stand during the jury trial and testified he release that's correct your honor he wasn't that's right he was out for the three or so years between his his initial indictment and the trial what was the defendant's argument in front of the district judge as to how the defendant was prejudiced by alleged lack of preparation for his testimony did he say was his argument i wouldn't have testified had i been better prepared or was his argument i would have testified in this is what i would have said it would have been a lot better for me than what i actually did say your honor i would it was it both i i would have to go look at very carefully to be sure the answer incorrectly but my recollection is it was simply i wouldn't have testified because that was the ruling that the district court did make when it said your testimony was the file on nailing your coffin but even if you hadn't testified the jury would have done so is that the government's position that we could decide that and then there can be a twenty to fifty five and if so twenty to fifty five where the defendant would then say well my first argument i'm prejudiced didn't work so now i'm going to try a second one and twenty two fifty five is the government saying that that should be something that the defendant should be allowed to do your honor i actually had to research this for a different case i don't think there's a clear law in this circuit as to the extent to which he can reraise and issue that's been briefed on which he lost there is actually a case from your home circuit has said if you've litigated through to a decision on the merits in the court of appeals you cannot then raise that but we don't have a at least the last time i researched it we don't have a case that's commensurate  that certainly it would be available to him would be to raise questions of was mr ted and the other lawyer ineffective was in his heart ineffective or perhaps there is a ground to which he could push and say here are other ways in which the counsel was ineffective at some point so what why do we need to remap and if the defendant made arguments to the district judge about ineffective assistance the district judge resolve those arguments there before us and that the defendant might make arguments c d enough what difference does that make to what's before us now we're which is where the defendant made just arguments and b why to the court's question there's nothing that is that needs a rebound in this case that has been the government's position throughout it to the extent that he wants to raise any issues that he thinks he has as has available and has not exhausted there is a remedy for that that's the twenty to fifty five procedure but we would agree  r remain at this point as is inappropriate because there's nothing to be figured out that can't be held through these other person processes i see i'm down to just a couple of seconds unless there are any for the questions oh ok thank you thank your interest in your argument have some time for to you start by clarifying what exactly is the nature of the in effect of assistance claim as to his testimony is that he just wouldn't have testified at all or is it something different they actually did not make it one hundred percent crystal clear in the district court ultimately i think he would have been a better advice to know if you should have testified i think is a fair way to say that without getting any advice from an attorney how do you know what you're going to do so i think that's part of the problem is he was not able to make an informed decision because he didn't have any  advice at all and then second as well how how would things have come out differently had he been better advised let's so option number one is i wouldn't have testified at all isn't it clear that he would have been convicted anyway probably and i think it is clear just based on what i know of the cases he probably would have testified with better advice because he did sit down with the government for two or three proffer sessions  he was not afraid to tell his story that he knew what his position was and he wanted that out so i believe he would have testified he would have probably testified more effectively and if someone had gone through what  direct examination of my cross examination which typically are often happens with counsel preparing a defendant to testify for trial so he certainly would have been better prepared in that regard and then as your honor noted that the court really disparaging considered mr ray's testimony at the motion for bail pending appeal so you're saying option number two is he would have testified but he would have done a better job more effectively with that have made a difference given the overwhelming weight of the evidence against him a trial i think it could have yes and how so like what could he have said what could he have possibly said on the stand that would have effectively were bought of the evidence against him presented a trial going through the points by the points of each of the witnesses for what they testified to and i mean it's hard for me to say that there's one magic word that he could have said that would have changed everything doesn't that mean that there isn't prejudice i don't think so no because it's not that the outcome of the trial would have definitely been different it's whether it undermines confidence in the outcome of the trial and the public confidence in the outcome of a trial where a defendant is not prepped at all for testimony i think is there i think that the confidence in the outcome of the trial president and then as to the the twenty to fifty five it is difficult because the claims of i c have now been raised and adjudicated if the court issues a ruling and then precluded from raising those issues in a twenty to fifty five and so if the court's going to rule that he's still allowed to raise other claims on a twenty to fifty five i mean it's going it's going to require a significant amount of litigation as to what issues could possibly be raised are they part and parcel of the same facts and transactions of the claims that have been adjudicated etc and so considering that steele does indeed offer this procedure the court engaged partially in it but not fully in it maybe you should have raised this issue on direct appeal that's my response i don't see why you keep this up prose you want you're the one who asked us to rule on this it's not something that we've jumped out to try to and if it's if it's an issue that can be create all kinds of headaches but this is the pickle then if i didn't raise it in the direct appeal the district court took evidence three declarations from the government one declaration from the defense the district court considered this evidence and issued a ruling correct so i don't know if you didn't appeal that you're saying he could have raised it on a with a new record on the twenty to fifty five i believe there's an argument to be made that that's the case yeah ok well then i guess we need to resolve it on the merits ok and that will be ok all right thank you for given case just argue will be submitted