thing that although arkansas is a ways away she is still when s e c country welcome that's right thank you but we have two cases that are scheduled for argument this morning in the first sha that the performance problem had not been met and its most recent response to government has conceded that the strickland performance problem has been satisfied therefore only that they don't concede that they can see that he's entitled to an evidentiary hearing on the stric performance problem not that it's been satisfied to write it correct your honor but turned the main appeal the main issue of this appeal into whether the performance has prejudiced mr gent or whether he's i don't think that's clear on or i'd like to dress those quotes that the government pointed to about a different port approach would not have made a difference might have made things worse those quotes are specifically not about the concurrent with the concurrency issue in mr jones original petition there were eight separate issues the government in its response that petition did not address the concurrency issue in the magistrate reports thirty seven page report recommendations there were four sentences that referenced the concurrency issue stating that one of the authorities was not binding not in point and therefore that defendant had not demonstrated his counsels and in fact the denial of the petition the district court's adopting the are not did not discuss the concurrency issue the quotes that the government appointed to come in the middle of the order they are specifically in reference to whether the drug should have been retested how that would have affected mr chances that's what sense since we're kind of after sort of what the district court was really thinking like what he would a district court judge really have wanted to sentence him to something less than one hundred twenty what is the evidence rehearing look like to the district court judge testify surely not know your honor and if we're going back and mainly looking at the prejudice problem then the argument would be put in front of the district court for the very first time that a concurrent sentence would be appropriate here the prejudice that we analyze here is contingent on the deficient performance the deficient performance here was the failure of counsel to request a concurrent sentence and to make the argument for that request two to indicate to the court the court has this power and this is why the court should exercise that power  here the court was deprived of that argument the other evidence of the reasonable probability of a different outcome we can turn to griffith first united states for this court last year their counsel had failed to challenge a drug quantity which resulted in a higher guideline range the court sentenced the defendant to the bottom end of that range this court held that there was an error for the council not to challenge the drug quantity which if he had would have resulted in a lower range and this court held that because the district court sentenced the defendant to the bottom end of that range and because there's no indication the district court would have said if the defendant to that sentence were not for the higher range that that itself was evidence of a reasonable crossing from reasonable probability just in a kind of rank speculation about what the district court judge might or might not have done you know basically as you kind of parse the sentencing transcript here you've got you know some comments sort of on your side of the ledger all say you know he's got the college degree going for him and what not and then some comments on the other side of the ledger this is the appropriate sentence there is a consistent pattern of criminal convictions things like that so with that i don't know with that kind of mix how can you conclude that this was you know abuse of discretion to deny the evidence rehearing well i i believe there are some comments that may seem to go either way but either way but i believe that the district court's comments and stating that i'm going to send mr jones two hundred twenty months in prison were not for these other separate convictions he would have a guideline range of ninety two to one hundred fifteen months one hundred twenty months is above the high end of that range i think the transcript makes it pretty clear that the judge was searching for a way to reach that guideline ran as again before this court we must look at the intent of the courts at the time of sentencing and there's a contrast because the intention alvarez was to impose a harsher sentence will fender's opposed to a first time offender here i believe the transcript trying to paint a pretty clear picture that the intent was to reach the guideline range of ninety to one hundred fifteen months but for one hundred twenty months statutory minimum so the court was looking for a way and it was incumbent upon do counsel to to provide that method for the court would make that argument what do you do by the way with the law i guess both under the statute and under the guidelines that there is this sort of presumption in favor without a concurrent issue being brought up or discussed but i would still warrant that that's the duty of defense counsel to bring up the sentencing guidelines and argue for why the discretion of the district court to exercise a concurrent senate should be held here well and alvarez there was a concurrent sentence as to the sentences that were being imposed at the time there was no mention to my knowledge of the issue about concurrent sentences to the sentence he was then serving and yet the petition was denied and alvarez and the judge it by the time the petition was decided in an arab case the judge has said that he would not have granted the pairing those comments or those comments are specifically not about the currency issue and in alvarez the contrast is that there there was no discussion of a concurrent sentence but the comments of the court make it clear that he would not have wanted to grant a concurrence here or believe the opposite is true but there is indication there is clear indication that the court wanted to reach a lower range but for the statutory minimum the court now feel that had the ability to do so i argument had been made that the court could have impose a sentence within the guideline range of ninety two to under fifteen months while complying with the statutory minimum it would have but you said this is an appropriate sentence under the circumstances that it had  there is a reasonable probability that the judge would have granted a concurrent or partially concurrent sentence in order to effect to wait an appropriate punishment which is within the discretion of the court so am i clear now that what you're arguing on appeal is that there was an error in the failure on the part of the district court to conduct an evidentiary hearing the term and whether or not there was ineffective assistance of counsel correct there should have been evidentiary hearing and what sort of evidence will be put on to some clear about sort of to prove the prejudice piece of this what is the evidence reaching look like the prejudiced piece of it well the prejudice itself would demonstrate to the court put the transcript in from the court and it may be the jet same judge it may not be the same judge but two to demonstrate that there was a reasonable probability that a different outcome would  put some meat on those bones or be like what is the evidentiary hearing look like how do you convince i presume to be the same district court judge who sentenced the guy to not as twenty to fifty five we're going to send it back from have an injury hearing and now what happens before that same district court judge to prove t performance from well that point were merely were merely putting the argument in front of the court for the very first time since the court has never heard of the argument of why this concurrent sentence would be appropriate here that's what we would do we would be putting in front the court for the first time and i guess i mean to judge wright's point the question is you know we can't collapse the two prongs i mean it can't be an answer to is there a reasonable probability it can't be a full answer that question to say yes because he's never heard the argument we get it he's never heard the argument the government's actually given you that he's never heard the argument and therefore that the counsel's performance was deficient and now separately you've got to demonstrate that it made a difference or that it will make a different sort and i'm just trying to figure out how that happens before the same district court judge well but again i indicate that it may not be the same district court judge and secondly i'd say that strickland actually removes the idiosyncracies from the district court judge when we analyze this under prejudice we're not supposed to necessarily look at how that particular judge normally rules whether there are more lenient or harsher so it would be a it would be an impartial judge regardless whether it's the same or otherwise e constituted deficient performance and that failure prejudiced the prejudiced the defendant now they found that a fair and impartial decision maker would have found would have granted that continuance even though the district court judge even though the sentencing judge in its petition did not indicated that it would not have great it was a it was unlikely it would have granted that continuance so we must look to a fair and impartial judge in decision maker when we're considering the prejudice from thinking i'd like to reserve the rest of my time for a to that you're on a first of all that's been interpreted by this court in the shorts case an evidentiary hearing is not required when the district court can determine the merits of the ineffectiveness claim based on the existing record and moreover as i say in my  asking about conducting an evidentiary hearing regarding strickland's prejudiced prong wouldn't serve any purpose in this case the only person that knows whether the district court would have imposed a concurrent sentences ask i i have an argument to make i would like for you to consider running these sentences consecutively or concurrently rather than consecutively for the following reasons is it possible that judge and co could have changed his mind and accept the argument do you think john i think it's possible anything's possible but under strickland you've got to have a reasonable probability and then in harrison versus reichert there's got to be a substantial likelihood that's my whole argument is the stric strickland prejudice pran and the key to this case is the burden of proof i mean when i was a trial lawyer over and over at trials and fair enough i heard about the burden of proof it's hard having the burden of proof the defendant has it here that's what this case turns on it's the burden of proof was on me i might beat the government might be in bad shape if we had a burden of proof in cases like this which judge new some notes arguably the records mixed but any lack of clarity in the record in this case works to the defendant's disadvantage because he has the burden of proof that's that's what this case turns on your own but always asking for he's not always asking for as it is an evidentiary hearing and so the court could conduct an evidentiary hearing and say no there was no in effect that the systems of counsel because i would not have ruled differently well he's only asking for an evidentiary hearing and my understanding of the strickland prejudice prong is that it just asked whether the outcome would have been different no will be different well strickland requires a reasonable likelihood i'm sorry a substantial likelihood of a different result which is what harrison versus riker said interpret in this the strickland language of reasonable probability and you don't you've got at best you've got a mixed record here you've got at the sentencing hearing at this original sentencing hearing you've got judge judge janet mr johns is going to get one hundred twenty months because it's the mandatory minimum but then you've got judge will saying i will tell you district judge got the twenty to fifty five position that my lawyer should have asked for a concurrent senate senate and ordered a nine to twenty to fifty five judge said the trial attorney obtained an excellent result taking a different approach would not have made the senate's better he might have made it worse and that is in the context of overall that's not in the context of specifically addressing this concurrence and its claim but again that goes to the burden of proof it's it shows that he has met its burden of proof is possible  i don't see it at the time understand your question here that you were no right to an appeal that's he does have a right to appeal and he's got a he says that in his brief that i'm saying he doesn't have a right to an appeal but he does have a right to appeal he just can't prevail in this appeal what i'm saying is in situations like this if you all should have problems with you all should have from the district court because you're talking about a discretionary action by the district court whether to run the senate's going karner consecutive and you've got strickland which imposes a very strict standard and he's got the burden of proof i mean i come back to that your honor i think that's ultimately what this case turns on on the strickland prejudiced wrong is he just hasn't met his burden of proof i think this would be a lot closer case if i had it i think there's some stuff in the record that i could argue i could meet a burden of proof maybe maybe not but he's got the burden not me your honor he has the burden of proof that he's entitled to an evidentiary hearing the burden of proof to establish the prejudice that the prisoner is entitle to know really that three things now it's an addition it i mean they do conclusively show that i mean he's that he's there's got to be something to show the district the argument that was never made i mean not the argument that was never made to the district court judge i'm asking you to run the sentences concurrently rather than consecutively the argument was never made the district court but i think that's what he says if he had an evidentiary hearing that's what would happen that at least he would have an opportunity to make the argument that this record an argument that the district c never even considered your honor that i think that goes to the strickland performance prong his lawyer didn't make the argument and he says the stuff about me he told his lawyer to make the argument as lawyer said he would and his lawyer didn't and i'm conceding that if that's true he's entitled to hear in on that it's lawyer speech that she should have a hearing on strict it's on strickland performance but on strickland prejudice that it there's just no need for  there's not that i mean he's not there's no evidence he could present and more moreover your honor in terms of it being presented to the just a court the concurrent sentence claim was made in the twenty to fifty five petition and the magistrate judge recommended that be denied and the district court adopted that recommendation and denied it without a hearing and that makes sense judge change was the same judge that sentenced him he's by denying it he's showing that there's no strike when prejudice that there's no strickland prejudice it wouldn't made a difference in the record supports that and i mean if the point is to make the argument you can make the argument in a legal brief and i'm an emotion hearing you don't need an evidentiary hearing to make the argument right i mean i 'm just still at a loss of what this evidentiary hearing adds to an ordinary brief and oral argument and i think he should be at a loss it wouldn't add anything and i hope i made that clear in my brief if i didn't let me make there's no no need for one and to get back to judge missions point your honor i really think that's true i mean that there's no evidence you are talking about an evidentiary hearing evidence is testimony or exhibits there's no i don't think that goes to the prejudice prong of strickland your honor mr jones can testify that he told his lawyer to do it it's a totally discretionary call with the district judge it's let me if a district judge at a sentencing hearing said the guidelines are mandatory and then he imposed a guideline sentence without saying anything more and the descend the defense lawyer said yeah judge you're right the guidelines are mandatory that would meet strickland pronk one because it's unprofessional it's unreasonable post poker for a defense lawyer to say the guidelines are mandatory but you still got strickland's second problem and on a discretionary call like going outside the guideline range in my example are like here imposing in this case imposing a concurrent sentence the defendant has the burden of establishing strickland's prejudice prong that get that to my point it's his burden of proof the defendant may not like it it's hard to do but he hasn't met its burden of proof and evidence you're hearing wouldn't serve any purpose in this case judge it's it you're talking about and yet an evidentiary hearing is absolute if you threw out strickland kronk too and you're on strickland you got to have an evidentiary hearing if that was dispositive because mr jones says i told my lawyer i wanted to concurrent senates and he said he would ask for one and its lawyer says that's not true so you get a hearing and judge would have to determine whether to believe mr jones or mr taylor's lawyer but on the prejudice prong whether the district court would have imposed a concurrent sentence if he had been asked there's  evidence there's no testimony or exhibits will knows that whether he would have done so and he denied the twenty to fifty five i just don't you know i don't think an evidentiary hearing would serve a purpose judge wilson and i don't think under twenty two fifty five and under the schultz case he's met his burden for an evidentiary hearing i mean well so the i guess you know and i understand the position of the government there's a verdant established that you're entitled to an evidence hearing i just read the statute as requiring an evidentiary hearing it uses the word must and i mean this is pretty strong language unless the court files conclusively show that the prisoner is entitle to know really it might have an evidentiary hearing in the statute is pretty strong it is your honor but let me in practice you've got case law interpret in the statute and i mean obviously i mean we all know that over ninety percent of twenty to fifty five's are address are resolved without an evidentiary hearing despite the language you're quoting and you've got the burke case which is in bank from this court that says it's his burden to establish never densher hearing he's got the schultz case from this court that says an evidentiary hearing is not required from the district court can applied to the point that while you almost always get a never nature hearing to the contrary it's applied so that you almost never get an evidentiary hearing i mean it's probably over ninety eight percent i mean it's so it's a that the vast majority of  fact and even if you're hearing i'm sorry your honor i would imagine that in those cases the district court concluded that evidence you're hearing is unnecessary but we don't have anything from the district court that a fact that i disagree with that you i think your honor hit the nail on the head here there is no discussion about an evident jury hearing the only disadvantage is the district court say i'm denying an evidentiary i'm not conducting an evidentiary hearing no your honor the rest your requested relief i'm sorry what was your requested relief just so we're clear you asked for what and in your twenty two fifty five you asked for relief presumably and if not relief straight out trade away a hearing right in the twenty to fifty five petition the relief would be the evidence you're hearing and the district courts the judgment line says so so it denied and there were eight issues the only part that speaks to the concurrency issue was the our in our which in its  of the concurrency issue says defendant has not shown counsel is constitutionally ineffective first failure to reach this issue and he's not entitled to relief so we don't know whether that was denied on strickland performance prong or strickland prejudice prong if the government is now saying that we are entitled to an evidentiary hearing on the performance prong and the district court denied it on the performance prong then then we should get that evidentiary hearing so can i ask you just a question again and i hate to be such a dunce about this but the the mechanics of the evidentiary hearing you probably thought about this when you get it where if you were to get an evidentiary hearing what's the evidence that you'll put on to prove prejudice not argument because that's different you've made an argument about prejudice and it's been rejected a legal argument in briefs believe judge wilson referred to it there were two boxes concurrently consecutively and i believe the government said that we that that doesn't matter because you could just check one of them well there were two boxes one of them has to be checked consecutively or concurrently because it defaults to consecutively there one of them has to be checked it's a reminder for the court that what the decision has to be made on that issue and no decision was made thank you all right thank you  you were appointed by the court to represent mr jones in the court thank you for your service thank you mr