businessman he was a family man he was a husband an active supporter of the community he now resides at the fort worth medical center with a laundry list of health issues and wanted me to personally extend the op the thanks for the opportunity to address this court on the issues before their certificate of appeal ability issued by judge pursue what i want in this matter included two issues first  material perjured testimony i want to return to the first issue and that being ineffective assistance of counsel and to provide the court a little background of how we got here this is a rose from a trial and judge just record this court gave a scathing review of what they termed the efficiency of john mcbride's trials and stating that expediency cannot trump justice and the constitution this court stated that if it is to look at efficiency in a trial as it must it must also carry out the duties of constitutionally guaranteed in a fair trial and they urged him at that time to a reversed a conviction though based on the time given for closing argument i believe that basic in this court they have held it held in this panel for instance that  time limitations as applicable were too strict but the finding and to address the court directly i don't recall i are holding on that but they basically found that five minutes was too short in this matter were they were going to do a standard that would have been better for their client abuse of discretion and so what strikes me as a little different about your ineffective assistance claim typically ineffective assistance of counsel claim is arguing that coun wasn't assertive or aggressive enough in representing her client for example you cite the cases where just the poet council doesn't even bring a winning claim on appeal or in the trial court you know counsel fails to object or fails to call a witness who would have helped the defendant all these things were counsel's not being aggressive enough in defending his or her client yours is basically saying your claim is basically saying counsel was too aggressive because they were pushing for this abus discretion standard and you're saying they should have taken a more cautious or timid approach and admitted oh we this isn't preserved it's plain air can you think of any other i guess two questions can you think of any other ineffective assistance claims that have been recognized where counsel wasn't should have been less aggressive and two doesn't that it creates an incentive that lawyers if they're afraid of getting a refund on them later they're going to take these positions that aren't always in the best interest of their client gets to just come out and met it's plain air that creates as you know a very steep hurdle for most defendants i would absolutely agree with you court it's not the fact that he that he was too aggressive in this matter it was the fact that he'd failed to address the issue before the cork that was that was held and hold itself and i believe standing out all floors to not only be deficient but also to be prejudicial to mr anderson but nothing you saying you failed to address the issue he raised a concern about the limited time given for closing argument didn't he wasn't  it absolutely wasn't found by the whole panel to be a concern for them that five minutes was too short but when you look at his the way it was raised as they pointed out in holt it was the failure to argue the prejudice that resulted therefrom he didn't make any arguments addressing the third prong of the plane there were standard to demonstrate how he was going to be harmed by that five minute deprivation it wasn't that largely because there was no offer of proof in the trial court by defense counsel it seems to me that if you want to look at how this whole thing transpired the bigger problem as between is that trial counsel failed to even objected he got in at just one extra minute then he didn't object to it again and he didn't make an offer of proof saying well if i had five or ten minutes i would have argued all this isn't that  the bigger problem here is what trial counsel failed to do it absolutely is but it does not absolve the appellate counsel of correctly framing the issue and bringing forth the issue a prejudice before the court because it seems to me it's almost like an architect if i have if i've said i want to square house and i build i end up with a round house well ok i've got to make that work somehow on on direct appeal and what i don't offer proof what should appellate counsel of argued under if he had argued plane air and prejudice that what would he have looked to do to support that prejudice without anything in the trial record well let me first point out that to answer the court concerns that the whole panel stated that on appeal appellants counsel did not argue how his time would have been different if allowed additional time in that and then they stated without an argument that what established prejudice this court found its self unable to find point where the record as i pointed out in my brief was replete with issues that could have been argued on direct appeal there was a motion a rule twenty nine argument that allowed a cornucopia of issues to be brought that occurred during the trial that could have occurred had appellants counsel been given a longer time  discretion applied when there was no supporting way that you were ever going to get there if we go back to law school on there was an objection that wasn't the issue was in completely ignored what they got four minutes i think at first he there was an objection they got an additional minute so i think the panel ultimately found we should have been objecting to the five is going there was an objection to that the overall shortness of the time when the court first imposed it so it was a really unreasonable to try to push for this better standard of review well yes because again following basic orenburg law he showed no he he made no offer of proof following his closing argument of what he could have argued had he been provided additional time and there much trial counsel trial counsel yes and so therefore you have as the as the whole panel said no ability to display prejudice from that because the trial counsel didn't spell it out and on the record it was there and the government has argued in their brief that basically this court could have looked to those additional sources cited in my brief such as the rule twenty nine motion and said well  it's right there they could have considered that but that violates one of the basic premises of appellate law is that i as an appellate attorney have a duty to bring forth those arguments before this court and bring them in the bring you guys are not called upon to start fishing around making my arguments that didn't occur in this case and i believe that that not only demonstrates that i believe that demonstrates ineffective assistance of rights he must demonstrate it affected the outcome of the district court or seated and in looking at how we demonstrate prejudice in this matter we look at the focus on the outcome of the appeal the whole panel stated clearly you didn't do that we can't find plainer because you didn't tell us why this argument was right the failure to make that argument was prejudicial and what should he have said then in support of that our the of issues you had the trial counsel facing twenty five witnesses three days two hundred trial exhibits one hundred sixty four text message exhibit plus mr anderson also had two additional counts of money laundering to wait for it so in that matter where we look at this courting gray stated look if it hampers the jur ability to understand the information issues at trial which it clearly had to it clearly had to be because he had a forest of matters to wade through so this court stated in that case of it hampers their ability to differences of whether no way or should have known applies and again i want to i can address that briefly i believe our viewers and some other cases addressed that issue but it doesn't the court doesn't need to reach that is because we know that one of the witnesses stated specifically in the record that i have been told directly from witnesses and defendant in this case they have lied in fabricated defense events under oath at trial and encouraged by the government and the regulus ration of forty i would argue that that alone establishes that the government was on notice of this and again i would urge the court to review the briefing this matter because frankly with one with fifty two left i'm not going to have time to go out which of the few witnesses do you think  is closest to tying the government to the fa i believe that was mr burley and i'm trying to david thirty he's going to say that was the story i was told to come out right right there's also there's also the e mails to where at that time there's the testimony of the hispanic gentleman who supposedly conducted a face to face drug deal with mr anderson and did not know who he was or you're fired no factual finding  upon that but again we had no opportunity to present those facts to the district court in a hearing before the court those were found just basically on the affidavits presented to the court on the lack of knowledge of the government must be agreeing or apparently in agreement that the trial was replete with lies and i just want to make clear the government does not agree with that statement at all  we have evidence disproving the statements of these these four men to the extent that they are relevant to the creel claim but that issue is not squarely before this court because the district court decided that based upon what mr anderson submitted here that it didn't even need to reach the issue of whether false testimony was presented because creel clearly requires that the government knowingly present perjured testimony i disagree with counsel that there is some question about whether that means know or should have known creole is crystal clear on that point  there has to be some sort of knowledge on the government's part the fact that the defense continually tries to bring in this morphed standard this watered down should have known standard is indicative of how they cannot prove actual knowledge but let's say it's actually knowledge why doesn't and there's four statements they rely on bernie says it's it's a little bit unclear certainly but i talk about a d brief and then he said that was the story i was told to come up with so it's a little bit of a passive sentence but wouldn't you agree that if it was the governor governor who told him to come with that story someone involved in the prosecution that that would  at least entitle mr anderson to a hearing on whether this is truthful or not yes if if indeed there was evidence before the district court in this record that the district court could make that reasonable inference and yes that would get him to an evidentiary will it seems in big you it seems ambiguous how do you know who was told who told him to come up with this law exactly and ambiguity doesn't carry the day on knowledge it's the defendant not under the here at the hearing standard though just to get a hearing not too far away a long ways from winning your claim it's your intitled to a hearing in less than motion in files and records conclusively show the prisoner is not entitled to relief so given requires that the movement bring independent indicia of the likely merit of his allegations it's not enough just to simply throw out a statement and say well this could have been the government this ambiguous statement could be attributed to the government therefore that gets us an evidentiary hearing instead what that what the court is able to do is look at the record and as this district court did in the li favorable to the move on but remember again it is the move on as burden to vacate this presumptively valid conviction and sentence to entitle him to an evidentiary hearing and based on false or misleading testimony it's clear that the government has to know about it and also even to get discovery in a twenty to fifty five this court's case law and case law of the supreme court clearly establishes that twenty to fifty five's discovery proceedings evidentiary hearings are not supposed to be fishing expeditions you have to bring forth specific evidence to support your allegations it's not that you have to prove it at that point when they have four different what people who come forward and i think it's clear on the face of their statement that they're saying that they there was false information given you know obviously whether that's true or not who knows but at least a couple of them burning one or two others do suggest that the government had involvement in that so this is a c e o it was granted right judge joan found this was a debate reasonable jurist could debate this claim doesn't necessarily mean you get a hearing under the statute that says you're entitled to a hearing unless it's as i quoted it's it's conclusively established that you're not entitled to relief no i don't believe so because again the c e o way was granted on whether the government knowingly introduced perjured testimony this court isn't reviewing a factual determination that was made during an evidentiary hearing because we haven't reached that point instead what are deciding is whether the district court committed error in deciding on the face of these four submissions whether there is enough of a basis to warrant going forward to an evidentiary hearing and just to correct t e make sure that i clarify here we have four statements two of them bernie and bernie and johnson were not witnesses at the trial mr medina was not a witness at the trial he was a codefendant he doesn't say anything about governmental knowledge he just doesn't know who do you think bernie who do you think we refers to he says he was he was told to come up with the story well right after talking about a d brief as we do and that's an important point your honor because if we want to look at mr bernie's statement a couple things have to be taken into consideration he attribute adams who did testify at trial stephen adams and according to mr bertie he's sitting in jail with mr adams and mr adams as is making all of these disclosures about how when he testified at trial my trial testimony went against my factual resume well mr adams factual resume had already been signed and filed it's part of the record in this case he had signed it and filed it in december trial was the following january if indeed mr and mr adams testimony had gone against his factual resume certainly it would have been brought to this court's attention and all those inconsistency as would be pointed out it's not and the simple truth is because mr adams testimony did not go against his factual resume and so that's one thing the other thing is if we look at mr johnson's it's who do you think of that's my question i think it was answered who told adams to come up with the story if it wasn't the agents in the that's what i was just going to that's what i was just going to get to because if we look to mr johnson's statement what he says is that to use his words he's sitting in jail with these gentleman with adam's flutie and coleman and he says i heard with my own ears and saw with my own eyes these guys came up with the story he specifically takes the government out of the equation that mr according to m johnson when he is listening to these three people including mr adams who is part of mr bernie's telephonic deposition he says it was these three guys who came up with the story not the government  so and then if we look at mr johnson's statement and more doubt he says yeah it was these three guys who came up with the story but then he immediately backtracks and he says well i never did hear what the story was going to be from mr adams i never heard it from flippy and instead i heard mr coleman say that he was going to come up with the idea of saying that there were drugs all over the pool table at mr anderson's pool house well again wouldn't that be something that the defense would want to bring in and show that mr twentyman had made either prior consistent or inconsistent statements to support their theory they don't do that because as mr coleman testified at trial at the time he was arrested in november of two thousand and nine he had already told the officers that about the drugs the math all over the pool table so again the defense has had every opportunity remember that the gentleman who got these three telephonic depositions was an attorney in fort worth named john white john white testified on mr anderson's behalf at trial as a character witness he also made a statement on mr sentencing and according to mr white's own self description he was mr anderson's best friend so clearly he was incentivized to go out and speak to these gentleman and get as much information to support this theory about governments or nation of perjury as humanly possible and yet this is all that he came up with mr to answer the court's question if all that they can come up with this by having every incentive to do so is one ambiguous statement about the story that i was told to come up with and then we look at mr johnson statement to try and figure out the source of that that is not enough to justify an evidentiary hearing and so the district court was certainly correct in that regard returning to the first certified issue the government motions but the rule twenty nine motion according to counsel this morning presented a cornucopia of arguments that could have been brought forth by appellate counsel while that rule twenty nine motion was before the panel on direct appeal was part of the record after a trial count trial counsel brought the rule twenty nine motion it was in a written form it's part of the record and presents a cornucopia of arguments of meeting out of the evidence and issues to use counsel's words in their in their brief and because the direct appeal panel made very clear its strong disagreement with the district court's truncation of the closing argument what the direct appeal panel said is after we have searched the record we conclude that the record does not permit us to find that the district court plainly erred this wasn't attributed to appell counsel's citation to the wrong standard of review this was a direct appeal panel that was clearly had its radar off because it disagreed with the length of closing argument how much madame i'm sorry much time did the judge give the government our government had ten minutes your honor and the three defendants collectively had twelve mr anderson requested an additional minute so he had five and so some of the other the two other defendants they adjusted their time so again it is the record and the evidence that was before the district court there is nothing that is presented to this court now that wasn't before the direct appeal panel that not only did the direct appeal panels have that rule twenty nine motion in the cornucopia of arguments but also appellate counsel in addition to raising the the closing argument which raised the sufficiency of the evidence and in arguing the insufficiency of the evidence it required this court to go back  on direct appeal and look at all of the various pieces of evidence the witness testimony the exhibits the text messages etc all of those things were clearly within the record before the district or before the direct appeal panel and it informed its decision about what could have been argued and the the it is not surprising that the direct appeal panel would make a statement saying that without an argument from appellate counsel to establish president prejudice we are also not able to find plain error but it made that statement in the closing portion of its their argument it had already stated above that but the record does not permit us to find plain error so regardless of whether there was or was not an argument out there for appellate counsel to in addition what i would also point out is mr anderson in this twenty two fifty five presents a list of arguments that could have been made in addition to those that were in the rule twenty nine something else that needs to be highlighted is that this is a jury that found mr anderson not guilty of count four of the concealment money laundering the direct appeal panel made note of day and it's important to inform this court's decision on the ineffective assistance because clearly the jury had accepted the argument from the defense that mr anderson was engaged in legitimate business dealings that's why he received the hundred sixty thousand dollars they did not believe that he was trying to conceal that as part of a money laundering scheme so now for the defense to come in and say well they should have heart more on his his business activity and his legitimate business dealings they didn't need to hear more of that they had already been convinced that mr anderson was indeed a legitimate businessman the problem and the jury s this is that mr anderson in his own testimony and in his own text messages provided some very incriminating statements against himself and i would submit to the court that no amount of closing argument could unring the bell of that very incriminating evidence mr anderson in his testimony talked about how he knew that mr jerry was dealing drugs and the text messages after he gets he's already holding fifty thousand dollars for mr jerry event immediately gets another hundred sixty thousand that the jury accepted was a legitimate transaction that was supposed to be to buy this building but now he's holding two hundred ten thousand dollars and they have these series of text messages going back and forth about how mr jerry needs that money back because he's got stocks that are going to double i need this the mr anderson was there and during at least one of these transactions the back and forth of money in sealed boxes tens of thousands of dollars over one hundred thousand dollars mr anderson getting up on the stand and talking about well i didn't really care where the money came from i just needed it to buy my building well what he what were you thinking when you got this text message mr anderson while mr mr jerry talks in riddles and he always has those are the types of things that closing argument additional time closing argument simply couldn't sufficiently address for this jury they had already heard enough to review of this in search of the plain error standard because it was an argument they addressed the addition they addressed the standard review presented by  secondly but your position is that argument would have been based on what was in the rule twenty nine most and in additional facts stories in the air and and the appeals panel had before it the rule twenty ninth most had before it but again not called upon to review that particular document i'm sure that gentleman that you were view stacks and i can see the stacks of cases that you review every day and i'm has not made the proper argument and could have been victorious had he just presented the correct argument that you're not going to you're you're not inclined to sit there and dig through that because it's not your job your job is to decide the case as presented to you not make arguments on behalf of of the respective parties and so therefore even if it was there  this is the closing argument by page by page as following a trial that lasted twenty five hours with numerous exhibits concerning the other issue concerning the government's knowledge of this the court should be aware that this investigation by mr anderson was prompted by two letters served independently on judge mcbride the record reflects that basically those two letters were served on judg mcbride stating that this was all a sham and those two letters will refer directly back to the united states government for review nothing ever happened to the record demonstrates as far as i know nothing ever happened for that and stating again the records don't reflect as stated in my opening statements that there is a direct statement from one of the much better picture of what exactly happened below not only of the allegations that we alleged the government knew but all of the other allegations which no longer can be supported because those witnesses have recanted they have stated they lied that was the story i had to come up with i would ask this court to consider and again i want to state my appreciation for this panel's hearing this matter because i have lived with this case for a long time and i have done this for about twenty