they please the court my name is edwin the core and i represent the appellant and de marcus rogers the most important issue in this appeal is whether the district court abused its discretion when did not rogers is pro se twenty two fifty five motion without holding an evidentiary hearing section twenty two fifty five states that a district court must conduct an evidentiary hearing unless the motion and the files of the records and the files and records of the case conclusively established that the prisoners entitled to no relief this counsel's ineffective when she refused to raise a viable self defense argument sentencing instead left the government's relevant conduct evidence on challenge which all but guaranteed the rogers would receive a severe sentence under the guidelines cross reference for attempted murder clarify get a clarification from you on one thing there's a difference in my mind between a justification defense and a self defense defense that's correct you're talking about which i'm talking about self defense theory they were talking about self defense them that's correct  rogers worded it adam pleaded it as a justification defense in his pro se petition but this court is talking about self defense brecht and isn't it kind of what's the standard you just read about this is a section twenty two fifty five this is the standard to receive an evidentiary hearing on a claim which is significant to this court is held is significantly lighter than the standard to actually prove in title minute to you just read the standard a minute ago what is  that that self defense is a nonstarter in this case where where the victim was unarmed and he was shot repeatedly i mean you can't have a self defense in that kind of situation right if you can't have self defense when the person that is threatening you has already been shot and doesn't have a weapon under it why isn't that why doesn't that on its face meet the standard that you just read to me that's my yesterday well we rogers has alleged that there was potentially other evidence that his counsel failed to raise and we also would like to possibly be that would lead of self defense in given those facts whatever else the facts were but we have in essence we have roger's word against the word of rico codes and rico codes his cousin i should brown who are the only two witnesses who testified at the sentencing hearing if rogers is story is true did you at in seeking a hearing you did you propose indicate that there would be some evidence that this was not true that the victim was shot repeatedly but i'm not i am just asking that rogers was was there such evidence proposed there was no there was very little evidence proposed because rogers was representing himself pro se well have been as i understand but we're here saying that the district court was wrong in not having a hearing when the facts that the district court was familiar with showed no basis for a hearing and you're saying was something else might have been going on but there's no indication of what that something else w your honor we have i would point the court to six pieces of evidence that were in the trial record or the guilt stage record and some of those are on just one or two of those strongest one or two for one rogers was arrested the day after the shooting  police officer testified that he was cooperative he admitted to shooting codes but he stated that he acted in self defense because he was under fire secondly as rico coats who enter the house and initiated this heated argument he would have a weapon  there's no way that about there's no direct evidence in the record as it currently stands but this is the point that rogers this is only serves to highlight why some sort of evidentiary hearing needs to clear that the guy was shot four times right on arm and shot four times i mean i just can't as evidence can't fathom how i'm open to the argument that i'm just can't fathom how what argument you could make that that was self defense shot to shot three and shot four figure slipped or something i mean we do know that the coach had at least two compatriots there with him at the time when he did enter the house and begin to accuse rogers of stealing tire rims from coaches brother it is cousin he had his cousin's uncle at least somebody the second time a third time and a fourth time because there's someone else there who might hurt too i want to shoot the other people decide just don't get it i mean we also know there was there are at least two guns present it was code some so if you testify that only one of the guns was used by rogers when rogers was rest of the next day only one gun was in his possession he was only charged proceeding pro se he moved to have counsel appointed for him the court denied that he knew from evidence or hearing the court's not that as well so under this reading of twenty to fifty five the remedy is rendered toothless essentially because the more ineffective his counsel is a trial the less evidence there will be on the record for him to make some sort of argument at the twenty to fifty five stage so that the twenty to fifty five stage he could articulate how this could conceivably be a self defense claim right in the and i am that's what i'm saying i'm not saying you know me he may be without counsel but he could say it's hard for me to imagine what it is that's why i'm saying you know what but what if there was something when he stated he stated again you do not pleaded artfully in his pro se motion but he pleaded that his counsel refused to reject or  to object to the relevant conduct enhancements which included attempted murder and he stated that she refused to raise a justification defense and under this court's precedent a district court is required to grant liberal construction to a pro se lit lawyer but you're a lawyer you're a good lawyer can you hypothesize not based on the facts just hypothesized out of pure out of pure imagination self defense where somebody shoots somebody four times how could that how could that ever be i mean what what kind of situation would there be for you where you get to shoot him four times so we can speculate right now your honor i would make one up i just hard for me to imagine what i mean what will try this rogers is at the house not in his own business codes enters in flanked by two compatriots possessing the second gun or possibly a third we have no and there's no evidence right now about what is unknown  because it is in an essence unknown but he enters they potentially have guns he confronts you confronts rogers rogers fears for his life fires on coats coats still has a gun nearby always on the ground rogers fires again rogers finally stops firing when codes as rogers codes testified rhode island stops firing is a kind of nice way of saying she shot him again in the thigh two to neutralize a threat potentially i'd also like to point out your honor even if even if the court but even if the court were to still apply the cross reference a fuller picture of the evidence may have challenge the rules of the game but she was still obligated to play it in this instance she did not know it brings us to the second argument which is that under united states be chronic rogers was denied the it was denied veracity based on the record alone the deed the very purpose of the hearing is to allow the court to make these factual determination so we would request that the court reversed the district court's denial of this evidence you're thank you there are other questions so the rest of my time for of the united states we ask his court to affirm the denial of the twenty two fifty five motion rogers's attorney rogers's attorney's decision not to contest the enhancement by putting forth some sort of self defense and handsome and made sense for a lot of reasons first of all as judge rogers as noted in it and as this court noted in its decision on direct appeal the facts that were in the record were more than conclusive the other side submits that they're far from conclusive in their reply brief but this was more than conclusive evidence that the attempted murder unhandsome and should've applied this court of course affirm the application of that enhancement the idea that these nuggets of evidence the fact that rogers told the officers when he was arrested that he had acted in self defense or that there was a second gun the only evidence that's in the record about the second gun is that rogers actually possessed that gone in addition to the gun he used to shoot the victims  idea that it just of self defense argument had any traction here when the rogers fall shot the victim followed the victim outside of the residence after the victim fell on to the ground this is an unarmed victim stood directly over him shot him multiple more times shot another unarmed man who attempted to intervene and then continued to shoot at the car that they get the victim in to try to get him away and escape to the hospital he continues to shoot at them  necessity or self defense type of argument just simply would not have made any sense here we also submit that the attorneys decision not to paint a fuller picture or even attempt to paint a quote fuller picture made since the  mr rogers suggests that the sentence could have gone the other way in terms of the sentence could have been lower we would suggest the sentence could have easily been higher this court just decided to sentence at the high end of the guidelines live and we stand by our argument that you can frivolously contest or falsely deny relevant conduct even if the defendant doesn't testify if the court had found that there was a false denial or frivolous contesting a for relevant conduct and  decided not to give all three points or even two points for acceptance you were looking at a three hundred sixty to life range so if that happened if there had been no acceptance because of this frivolous contesting of relevant conduct and the court stills sentenced at the high end of the range we'd be looking at a life sentence here for all of these reasons the decision not to go down that route made sense and the burden here is of course the difficult burden in the twenty two fifty five conduct is on rogers to show there's a strong presumption that the council acted just saying you do you need a hearing well he he has said now that the most important issue is that there should have been hearing we would submit there's there's no factual issue here that would have necessitated a hearing as this court is questioning was getting at the the petition has no affidavit there's actually no real factual allegations in the petition there's a petition in the record and there's a response from mr rogers in a reply think three separate documents none of which have any sort of factual colloquy or factual you know suggestion of this is what i wanted my attorney to do there's a reference to this justification defense but nothing to back it up the this is an abuse of discretion standard on the hearing question it is it was well within the court's discretion to determine that these were conclusions not facts these were inherently incredible kind of statements and that they were contradicted of course by this pretty clear record that was as even stated the record what proceeding no your honor he did not reference anything like that there are of course references in the briefs before this court to those things but just things that are in the record but know that he did not set forth anything like that it was well within this court's to discretion not to hold a hearing a you know the bottom line is that a defense attorney is not ineffective when she fails to make an argument that has no merit or when she chooses one route that may end up being unsuccessful over another unappealing route as well on the sixth amendment question we would make the same point if it's ineffective to raise that question you know we still see that question being raised all the time honour's like to push back briefly against the government's view of sentencing since in guidelines note for section three one one do not believe i think that the plain language of the guidelines and this court's precedent a particular united states be lay show that the council would not have put the acceptance of responsibility credit at risk had she merely cross examined the government's witnesses or introduced contests the positioning of these two phrases suggests that the defendant is not putting his acceptance of responsibility credit on the line unless he or she actually testifies before the sentencing judge therefore rogers's counsel simply basically had nothing to lose for her client by trying to at least calm the question somewhat the government's version of events at the sentencing  and would also like to point out that it is unsurprising that this court affirmed roger descendants on direct appeal for the very reason that the government was the only party that introduced any witness any witnesses or any evidence there was indeed the correct decision on direct appeal because the evidence was uncontested and therefore clearly the provider and the evidence supported that sentence but the point of this challenge is to argue that there was other evidence