plea deal and go to trial this is a case where mr a may strangled his own daughter to death admitted to doing it and admitted that he had taken a break in the middle of strangling her based on those undisputed facts a st degree murder conviction was basically a foregone conclusion at trial but the attorney unreasonably advised mr remain to turn down the deal because the attorney thought they had a really good shot at a manslaughter defense that advice relied on critical legal and factual mistakes and because mr m a relied on that on reasonable advice he turned down the deal for fifteen years to life went to trial quickly convicted of st degree murder  serving a sense of life without the possibility of parole mr may receive ineffective assistance and the court should order the state to reoffend this or i'm a deal but you don't just want to do trial you want him to have the opportunity to take the exactly i believe the order would be the state would either release mr remain or re offer him the deal in which case it would go back to the state court for the proceedings so i can counsel his or is there then missions or compromising statements before the time when we recommended that the plea offer be rejected yes your honor so the phone calls were turned over to the defense before trial and there was actually motions practice about the phone calls the trial attorney had filed a motion to suppress the calls that was unsuccessful then there was litigation about redacting the jail calls mitt references to the fact that he was in custody at the time he made those calls and then it was at the very beginning of the trial when the court made the record about the plea deal being rejected so the trial attorney did have access to those phone calls during the pretrial proceedings and any reasonable attorney would have known it was imperative to review those calls with a fine tooth comb if the idea is you're going to go to trial and run a manslaughter defense you need to know what the trial attorney what the prosecution is going to be able to prove about your client's mental state and the trial attorney knew that the prosecution intended to introduce those calls in their case in chief and should have looked through them very carefully and if he had looked through them carefully he would roommate made a series of damaging statements that were identical and in fact even worse than the testimony that he provided at trial and if you look at the jail calls that he says that he started strangling her for a few minutes he stopped for a couple minutes or a few minutes and he started to come to a little bit he thought to himself oh well you know if she wakes up maybe she'll have brain damage and so he decided to continue strangling her and  ld you clarify please what was the date on which the plea a plea deal was offered so i don't think the record is clear about when exactly the plea deal was formally offered what we do know is at the very beginning of trial before jury selection began the court made a record about the plea deal being offered the prosecution agree they offered a deal for fifteen years to life and mr m a confirms with his trial attorney that they had made a counter offer and then turned that down so i don't think we have a specific date in the record about when when the deal was offered but we do know that a deal was offered and apparently was on the table now what a nevada supreme court said that the advice was based on what was known to him and he didn't there's no evidence that he had access to these recordings at that time well i i think the vast supreme court said was the attorney based his advice on the evidence and was caught off guard but they didn't make a factual finding that that the jail calls were not accessible to the client during the negotiations they just seem to assume that because the attorney testified he was caught off guard that means that there was no the fisher performance but that's the kind of a application of strickland and laughter and if you look at the u s supreme court's case in wigan's versus smith if a supreme if a state supreme court just assumes that the trial lawyers explanation is reasonable that's an unreasonable application under two thousand two hundred and fifty four d and that's what we have here i believe the jail calls i don't have an exact date but i believe they were turned over to counsel relatively early in the case because the motions practice took place well before the trial started maybe i can tell those dates down in rebuttal but i believe he had access to those calls at the time that these negotiations would have been going on and if he had looked at them carefully he would have realized they were absolutely critical to the prosecution and devastating for anything but st degree murder you're issue because of the offer was still on the table at the st day or truong what makes you think that because usually if a plea offer is t down it expires it goes away there's no real record about whether it was or wasn't the prosecution didn't say we offered this you know the st day after the indictment or the information came out and expired on this particular day they just said there was an offer that was extended and the attorney and the client turned that down so again although i think it is critical to your case and i've made in my notes a couple places you know have you established the access prior to the advice so maybe when you sit down if you can point us to the record that would be helpful because that's what i was looking for and was missing absolutely i'll certainly think that kicked off let me ask you a  question let's assume for a moment for argument that that the council had access to those recordings and those recordings seem to make it hard to believe there be a manslaughter conviction but could there's if there had been a conviction for nd degree murder as opposed to st degree murder then he would have still gotten a life sentence with the possibility of parole in a certain number of years but with that number of years have been less or more than the fifteen years that probably would have been a ten to life for a nd degree murder conviction but if mr may have gotten the advice look manslaughter is not on the table here the best you can hope for and nd he would have taken the plea deal he testified to that and i think if you look at the counteroffer that's very good evidence of that because his attorney was telling him you have a really good shot at manslaughter and yet he was still willing to take a deal for ten to life which would have been nd degree murder and so if his attorney had said  the best that you can get out of the trial is ten to life it's really not much of a stretch to think that he would have said ok fifteen to life is acceptable and i see that i'm starting to get into my rebuttal time so i'd like to  supreme court petitioner counsel as represented that count counsel's advice in this case was based both on a legal and a factual misrepresentation if this court looks at excerpts of record sixty page sixty nine through seventy one it will find the allegations of grounds to there are nowhere in the claim that allege that counsel misrepresented the law or did not understand the law nor is there an allegation that counsel did not review the evidence in this case those allegations and not alleged to have not been based on reasonable professional judgment and here by presenting an entirely new theory of exactly why counsels the advice was deficient they are presenting a new claim stricklin is clear that that  deficient performance is a mix question of law in fact and so we by presenting a new theory of deficient performance that has never been before presented were faced with a claim that is based on both a new legal and factual theory for rel but even even aside from that i don't think this court and needs to decide that issue to resolve this case and the easiest way to resolve this case is to actually look at the supplemental authorities that the petitioner followed on friday afternoon  he cites to hernandez versus schapelle for the proposition that this court must look to counsel stated explanations for his conduct and if we look at the at the evidentiary hearing transcript in this case and look at counsel's testimony if we see testimony that counsel was ignorant of the law on the homicide offenses issue in this case no we don't do we see testimony that counsel didn't review all of the all of the discovery that was provided to him no we don't but what counsel did testify to is that one he never told his client that it was going to be a legal and possibility to be convicted of st degree murder and that the client always understood that st degree murder st degree murder conviction with a possible sentence of life without a possibility of parole was on the table the nd important thing is that counsel testified that he reviewed all of the discovery all the evidence with his client and with the full defense team which included co counsel an and twenty of the excerpts of record he says you know his his advice was based on his client's own statements i don't want to say that we didn't talk about what he would say they went through what his his testimony was going to look like and really what we're dealing with here is just that when the client actually got on the stand it came out differently than counsel had and to subpoena anticipated finally counsel testifies that the defense that was offered in this case was based on the idea that there was no premeditation and deliberations this was not a st degree murder that this killing was committed in the heat of passion and only if that passion was sufficiently aroused in the minds of the jurors that it would result in a manslaughter verdict so coun very clearly understood here the distinctions between the relevant homicide offenses and just made an error in judgment about what he thought how he thought the jurors would review this case that is the exact fact pattern that this ca not expected to have a crystal ball and predict the outcome of the case what council's job is is to give his client the tools he needs to make an informed intelligent decision on what or whether to accept or reject the this is such bad advice that the lawyer gave to visit your roommate but what you're saying you know we have some students who keep it a little late this is a father who choked is adult daughter to death with his hands and stopped somewhere in the middle of the decided to go ahead finish the job now did they have a dysfunctional relationship sure had she told him he should kill himself because he's such a pathetic person yes where they  us apparently but how could the lawyer really think that if his cloyd could be convicted of a lesser charge under these facts now i'm not asking you to defend that but is it still in the nature of where justice kennedy discussion is the deficient deficient performance problem because he doesn't he says i don't have to address this issue because the parties concede deficient performance but he acknowledges that had counsel been wrong on the law that that shooting the victim below the waist was a legal defense to assault with the intent to commit murder that that would have been deficient performance but if counsel just thought that this was a persuasive argument to make to the jury that there was no intent to kill because you shot the victim below the wa that that would not necessarily be deficient performance and that there in lies the a major point in this case because we're on at the review here this this claim was addressed by then of asprin court on the merit and what this court has to ask is whether under clearly established federal law and lap laugh alert that's not necessarily a holding and laugh were in a way look at strickland strickland actually relies on mcmahon versus richardson which outcome of the trial well that the question of oedipus a cream court said there really wasn't a claim of misunderstanding the law correct that's correct i mean that's that's the opening point to my argument here is that they have never alleged that before right until they got to this court and so that issue of whether there was a mistake of law has not been presented before that's an entirely new claim that i think is not properly before this court because it's not a let it wasn't presented in state court nor is it alleged in the petition but you know in terms of ineffective assistance he he asks the jury in this very terrible situation that they have to put themselves in the basically in the shoes of a reasonable person and that's where mr rim a found himself and the fellow along with j court did in this case is exactly right that that he may have overestimated the possibility of a manslaughter verdict and underestimated the possibility of a st degree murder conviction but that it was completely reasonable under the circumstances that remade found himself in at the root reasonable person standard you have to place that reasonable person in the circumstances that the defendant found themselves in so you have to consider all of the things that were going on in his life at the time and whether a reasonable person in that situation could have snapped and just as a rash impulse of his daughter and and counsel makes a very passionate argument in closing argument to the jury that even though there is this pause and then he choked her again that that doesn't necessarily establish that his continuing to choke her was not still a rash impulse that would at the very least then only be nd degree murder if not manslaughter and so that's that's the really important thing in this case is that count in their in their briefing they try to treat it as as though manslaughter and murder were the only possibility or st degree murder where the only possibilities here but in in their own petition the counsel considered that it was either going to be manslaughter or nd degree murder that's at page seventy one dollars of the excerpts of record and so because counsel could have reasonably believed that his client was only guilty of nd degree murder and that as judge pools question went to the possible sentence there was ten to life as opposed to fifteen to life this distinction doesn't really it doesn't really come down to whether or not he would have accepted that fifteen to life or not because if he thought he was only guilty of that time because he filed a motion to suppress them and then there's a calendar call on may rd two thousand and seven at the very start of it the court asks about negotiations the prosecutor says we're still discussing negotiations but at this time it doesn't look like there's going to be a deal and that's how you are three hundred and five dollars so he did have these jail calls when the negotiations were going on the jail calls were absolutely devastating the client admitted to taking this break and thinking well if she wakes up you know she might be heard so i better keep going that is dispositive evidence of deliberation which is really the key question for st degree murder here is was there premeditation and deliberation he's saying i stopped and then i thought if she woke up so i decided to keep going that is deliberation it is also devis a devastating fact for manslaughter you cannot get manslaughter if there is a period that gives the defendant the opportunity to cool off here he admits he takes a two or three minute break that's a cooling off period and i want to stress that in the prosecution's closing and maybe the brief didn't make this point all that well so i want to emphasize that here the jail calls were the most important thing to the prosecution in closing if you look at you is reading from the jail calls not the client's testimony from the jail calls and then in rebuttal the prosecutor says we have made i guess you could say a big deal about the jail phone calls that's a e o are six hundred and twenty transcript page fifty seven and then the prosecutor start saying well you know he's he's been truthful in his testimony but he's minimizing a little bit in the jail calls he's being much more honest and straightforward so the jury look at those jail calls that's your six hundred and twenty one transcript pages fifty eight to fifty nine so those calls were devastating any reasonable attorney would have seen that and advise the client accordingly unless there are any questions i see and on thank you thank you thank both counsel for the argument from a versus le grand is submitted where adjourn for the day our law clerks are here if the students want to talk with them and ask them questions you're welcome to do so or they're welcome to go on your way as well thanks very much