the next case on the calendar is chandler v state of vermont good morning your honors my name is william a sollie i'm representing petition to charles chandler may please the court petition to chandler raised the issue of bias and was entitle to establish that hearing how that bias led to war indeed by itself constituted substantial or substandard representation and if necessary prejudice he was also intitled he was in total to testify to that and also to examine the trial attorney and to and to explore that further the superior court cut that off with an unreasonable application of established federal law grafting in a requirement for expert testimony when under federal law no such requirement exists understand that this court has been considering the viability of the lackawanna second  exception the principle of that exception and i would urge the court today to embrace that exception in the context of this case it's an exception it's a principle that is based upon justice where a who through no fault of his own was prevented for one reason or another for presenting his a substantial federal constitutional claim and have it decided on the merits and we adversely affecting a present sentence your situation is different right this is not your guess i was not in custody on another he's not trying to challenge an earlier sentence because it will result in him being in jail longer on a present one yes that's correct your honor and the principle has been discussed in that context of prior sentences but there's nothing in the in the actual discussions that limited that whatever collateral consequences that are significant enough so that we should family and his lack of employment opportunities firearms sutter etc but i think what we're really arguing here is though is the lack of want to principle and in terms of the question that was just asked lackawanna exception and it's not in the context of a prior sentence it's in the context of immigration case so i don't think that there's really a reason two although it's come up in the type of cases i don't think there's a reason to keep it there i think it's a  principle that's broad that really is available to to any citizen who has been prevented for one reason or another of presenting his claim the claim here really is a person prejudice per attorney and and the client a so extreme or is so extreme that it does not make sense to to go through a good record could he have brought abs when he was still in prison  he could have raised the issue you say he had no chance to be had he had basically done half of a sentence or roughly half of a sentence of twenty eight days before he even filed his first one which was then he was denied a stay of execution so we had basically you know he didn't have very much time being on it is a very small to the us understandably given what the underlying issue was yes i certainly within the realm of possibility that it could have been filed within the time frame but practically speaking it was it was impossible in this case or was virtually impossible  all the consequences of our holding that one can bring hate b s after a person is no longer in jail because of a series of possible things that may or may not happen would be really quite extraordinary in terms of expanding the number of cases that are brought in so and so of it you know one one might want to do it but by one want to have a case where three circuits that have adopted this this principle and i'm urging this court to adopt it as well i think that what you've got here is somebody that had a legitimate constitutional claims that as a dismissed on summary judgment he was never able to develop the constitutional ineffective assistance of counsel that exists in this case and i suggest that just the conflict itself just the lawyer saying that he wants his client to go to jail and he wants to f him excuse the language that created this is before trial this creates a conflict that we're talking about like in tippens where it says in such instances where counsel is burdened by a conflict of interests where counsel has breached a duty of loyalty it is difficult to measure the precise effect on defense of such a conflict suggesting that that's what existed in this case and that this conflict alone is substandard representation i think that you look at this record you can see substantive substandard representation everywhere he's impeaching his own witness he's  lies when somebody is already jail after having been there for a misdemeanor of this sort and i certainly agree with your honor that this is not the most significant case or the most flagrant case where you would say ok now we're going to embrace lackawanna but if it's ever going to be embraced it's going to cover more than the most significant and outrageous cases that's going to cover a case like this to channelers and i would say that this is a case that is worthy of consideration when you say did i understand correctly did you say in your prior exchange with judge calibrates the that he would have been permitted to lodge his hey b s complaint in the federal court before the before the  the question i was trying to do the mouth in my head of which was exact circumstances were i think that it's possible that he could have filed something in the federal court rather than continuing to pursue it in state court but as a please the court my name is ben battles and i represent the state of vermont in the amount attorney general in this appeal decision low should be a firm for two reasons first there is no jurisdiction under the hevia statute because mr shand there was not in custody when he filed his petition and second if the court does reach the merits of his constitutional claim the court john was firm because that claim was decided by the vermont supreme court and that that decision was not objective and reasonable turning first to the jurisdictional argument that hey be a statute is clear that relief may only be granted to a prisoner who is in state custody under violation of federal law and that is so even if you could not have brought a b was there was litigation one of them on supreme court several times with respect to that and he ultimately was able to file that under state law while he was in custody and then it was decided after he was released and the court held it was not moot and  discussion specifically addresses the custody requirement and finds that the mr cost was the petitioner in that case was in custody under an enhanced sentence and therefore he satisfied the jurisdictional requirement and then it went on and part three of the decision to talk about whether he was able to attack his original sentence you know sort of as a matter of law and it and that's the exception and the discussion there is  custody and although that has been expanded somewhat to mean more than physical incarceration it does not reach the situation and issue here at the waca want to exception is an opposite for the reasons i just described and it's specifically directed to someone who is challenging and hansen's on the basis of an underlying conviction which is not the issue here and i'll turn to the collateral consequences as well mr chandler identifies a number of restrictions that he says he faces loss of professional license travel business opportunities ability to possess a firearm but all these are our ordinary consequences of a felony conviction and refer the court to judge magistrate judge connor as reported recommendation in this case where he walked through all of these and noted that  made two points one that these are spec of the council minute oral argument that position has not actually lost any license so far and that the business opportunities are speculative and he had not made a clear indication about you know his travel plans not be able to travel to canada i mean you know that's a serious consequence if it is very clear so is it it is not a consequence or is it that it is speculative not in the sense that he may or may not want to go to kennedy the family there betty no but that canada does not allow people like that to go that's it and and i thought i came into this case relatively it's i'm not familiar with everything that was filed below but my understanding was that it was it was his statements that were his allegations in the complaint it was not citations to specific provision of canadian law but even though that is a significant restriction that is that is a restriction imposed by a nonparty sovereign to this yeah that's that whole each shoe is one in which there are some courts with have said that we have not and i'm not at all that comfortable we've a notion  allegations what it what is alleged is the ordinary consequences of a criminal conviction and and this court has held in other contexts that that where there if it's not  going carcer ation that it needs to be some sort of severe restraint on liberty where the individual is subject to continuing supervision of a court where their liberty is potentially going to be revoked and as they know it no it's ascii decision  these this particular group of petitioners was going to be banished from the tribe and i think that as a that decision was tailored very specifically to the nature of that remedy and that these individuals were going to be forcibly removed from their lands and forced out and  the court found in that case that there was a severe restraint on liberty and the court declined to extend that and even if this court does decide to reach the merits which as a scribe just grab it i don't think there's any basis to but the vermont supreme court did specifically address mr chan there's ineffective assistance claim analysis can only be upset if the state courts analysis was objective lee and reasonable and here it was not the court the superior court in the first instance looking at his ineffective assistance claim found that he had that it was not clear that the parties disputed the specific things that had happened during the case and why that was why or why it was not deficient performance and found in that context that it needed expert testimony to sort of way deeper into these issues and the court on appeal to them on supreme court looked at that accepted that conclusion and also walked through the record in the different strategies that were presented and found that petitioner had failed to explain how counsel's representation was unreasonable and how he was prejudiced by the specific instances that he described and with respect to the pretrial phone call the court make clear that that was an outrageous message that was left but but also went on to explain reasonably how that was outside of the courtroom that first if i could to go back to the question about whether he could have filed in federal court the answer was no he could not of because he had done half a sentence before his and he had stayed pending appeal after his appeal was denied he filed the petition for post conviction review would stay of execution was denied so ironically it's because the court that dismissed his case without hearing also denied him a stay of execution that he never had his day in court the state argues today and on page seventeen of a brief citing the decision by the magistrate judge about the supreme court's from one supreme court ruling on the merits they didn't get to really any of the merits the key point in this case is the superior court dismissing the case even in the quote from the home on supreme court that's on page seventeen it says they were enemies when they went into court the trial record is a travesty it's horrible the performance is terrible and he's never had a chance to get to court to address it because it was dismissed because he didn't have an expert which is