thank you i'm with justices of the court of appeals counsel made may please the court happy to be here today on behalf of just a nice that my client who is pleased to have this opportunity as life in prison without the possibility of parole at the time mr eyes that was represented by different counsel and he filed a twenty two fifty five petition for alleging ineffective assistance of counsel against his trial attorneys made are errors made by trial during the that some errors made by counsel excuse me during the course of the trial in regards to a particular witness in the handling of evidence regarding that witness her name was  raised the issue of counsel making a false unfulfilled promise to the jury he raised the issue of a waiver of speedy trial without without his permission  without discussion with him and at least at the entry level he raised the issue of the district court failing to grant him an evidentiary hearing on his twenty two fifty five claims can i ask you a question please so requested one and then there was a stipulated one party said and there were a couple by his counsel is that is that i that was my recollection right that's correct and then what would have been the funny there was there was a final one to a final request that happened just on the eve of trial and every emergency medical emergency and that's not we're not raising that as a that's not the one we're talking about or mentioning so i think the basis would be that if but for his deficient actions and the deficient actions here in error he was asking for a continuance asking for a continuance is that you're saying that that the deficient actions of his attorney was asking for a continuance not exactly what i would say is that the deficient action of counsel was requesting a continuance without counsel as a duty to convey information under strickland the duty to confer with his client regarding important decisions to discuss those important decisions and make them together with with his client and there's no evidence that he did that and interestingly the government in their response submitted not one but two affidavits from counsel talking about his representation and talking about the speedy trial issue but in neither of those affidavits to counsel say oh i didn't discuss this with justin i did lose his right to contest a violation of the speed trial act because by your hypothetical if he said now and there is no delay of the trial that he was there wouldn't have been any basis for his trial at  mr i said was incarcerated during the during the entire tennessee the case and so there's that the loss of liberty that the results as well i mean he's he's in custody so each each day this case drags on short period of argument so we will give me an extra few minutes thank you thank you and i do want to raise one more issue before it my time is running short of trying to talk to fast figure will add three minutes to your clock give your friend of the three minutes to thank you one of one of the issues that we raised on post conviction was has to do with this this handling of the t estimony and evidence regarding a witness mariah pace which was a real curveball in the trial counsel to his credit admitted that he made mistakes regarding the handling of that witness she was she came  in she was granted immunity by the government that came as a surprise to everyone and counsel did not make any efforts at that point in time to try to find out what was going on he did investigate he didn't try to interview or it didn't request a continua e he didn't request make a supplemental discovery request of any type and really mean no effort to investigate our argument is that in doing so he was not able to to to verify or or bolster the information that she was going to provide in her confession which was the drugs were mine not just an ice it's i've been living here the drugs are mine at huge moment the trial she she argued that she got them under the permission of mr eris is that have raised had he had enough time to ask for a continuance and had a time to investigate well the evidence we did provide a little bit of evidence and that mr ayres it was subsequently determined was in fact convicted in the united states court for distributing methamphetamine i thought the testimony was that he was in prison at the time the charge and that was how that was why he allowed her just source of he could very well been the source of drugs for myspace is there any evidence that he did he present an affidavit that he had agreed to this arrangement where he would just leave drugs unleash behind his house and she could come pick them up when he wanted when she wanted there was no evidence of that i want to think quickly on this point i think they really had no idea what the government would say or present  and didn't take the steps to get informed and as a result they were not prepared for the aftermath which was her story sort of fell apart on cross examination based on the information the government had obtained and went out and investigated that evening it changed the complection of the trial and the prejudice was that they really lost the probative value of significant evidence and its impact on the jury potentially  exculpatory evidence that if believed would have at the very least create reasonable doubt potentially change the outcome of the trial so i think that's an important point as well they muster because would you like to will some time for about oh yes please thank you you've got and will give you one extra minute mord so you can plan your day of may please the court christian ask around the half the united states the defendant has not met his burden to show that one of his to retain counsel's representation fell below an objective standard of reasonable nor has he shown that one of his counsel's deficient performance prejudiced him  pace and so to suggest that mr nelson was deficient ignores that fact that that was not his witness there is nothing in the record to suggest that mr gatewood did not spend whether he spent any time with ms pace the evening after she was granted immunity or the morning before he called her as a witness what is in the record is that mr nelson in his affidavit stated that he spent in excess of ten hours preparing his pace for trial and decided that she would be a poor choice and it was only when mr isaac demanded that he call or that they call is pace as a witness that mr gay would up doing the direct examination so i believe that he fails to show any deficiency for m trial well he conveniently left out that that was not his witness there was no discussion about what mr gatewood did or did not do to prepare to examine to question  the witness that he called at this trial and i think that's telling as to the speedy trial issue  to the defendant cites excerpts of record one twenty two to suggest i believe after the fact that what that he's really challenging all the various continuances or stipulations that occurred in this case  the problem with that is that mr isaacs affidavit the only support that mr nelson failed to consult with his client on a continuance has to do with a single continuance that's that's noted on your one twenty two and while i'll grant that he doesn't specifically give a date of what continuance we're talking about i think it's fair to assume with the totality of the circumstances that he's referring to an  instance in where mr nelson didn't ask him beforehand whether he would agree to a continuance and that he and that he didn't learn about until after it occurred and mr nelson in response to that explained the medical emergency that happened three days before trial and so it was only in the reply brief to cite to no support that mr nelson didn't consult with mr isaac and just a minute ago the defense counsel so there's no evidence that he consulted with his client on the continuance is that occurred before the medical situation but it's his burden to show that mr nelson was deficient and there's there's nothing in this record  that mr nelson failed to consult with mr isaac on the prior continuances that occurred after superseding indictment or superseding i'm sorry yes a superseding indictment and so i believe he's put something in the record to suggest and i'm only addressing the alleged deficiency in that he failed to consult with his client before agreeing or seeking a continuance and what the district court had before  was a single instance that mr isaac complained of that married up to the medical emergency and so absent any support or any allegation there's no need for the district court to have a an evidentiary hearing on on an allegation that wasn't contained in the twenty two fifty five petition or supported by  you obviously there are other seven different allegations here if you don't have any questions for me i'm happy to be done if you have any questions as to the other five issues that have previously been discussed i'm happy to answer those as well but shouldn't we be giving mr eyes that the benefit of the doubt here because if you look at the petition and the memoranda and affidavit and all speaks in sort of general terms about continuances and not consulting with him rather than just limit this to the medical emergency issue well i would respectfully disagree it is nothing discusse any support for what resulted in a relatively short delay and considering the fact that no prejudice can be shown i don't believe that's necessary would it not have been a better practice to have an evidentiary hearing to get to the bottom of that issue well the district court was in the unique position in that he could supplement the record given the fact that he presided over this trial could observe first in relation to what he observed first hand and so no i don't i believe that the court was did not abuse its aggression in denying the petition that an adventure here thank you thank thank you looks like i have about a minute forty five seconds i just wanted to touch on a couple things real quick i think that i agree with with justice time that  whether used the word continuance or continuances there was requests for continuances made by his council by its counsel without consulting with him according to any of the evidence presented even his own  even counsel's own affidavits and so i don't think it's splitting hairs i think it is playing here that should say to say he was talking about a particular we're talking about a particular continuances this happened throughout the case on three counsel made an indication to the jury a false promise to the jury that mr i said would testify and would testify and under the safety versus mcdonald case from the ninth circuit twenty thirteen  it talks about that this is this is evidence of a deficient performance by counsel if it's an actual promise not just as a suggestion  and not it's not a not merely an expression of hope but if it's if it's a promise to the jury and that the reason that they gave was that if there's a promise and there's the promise is reneged upon common sense indicates that  the course of the trial could be profoundly altered because a broken promise of this magnitude sort of taints the proceedings gives a negative inference to the jury whose impression is fragile as stated by the c c court  when the promised witness never takes the stand the jurors left to wonder why they'll naturally speculate leaves a gaping hole in the defense theory having waited to jointly for the promised testimony counting on it to verifying the defense theory the germy resolve his confusion through would wouldn't as favorable to him at surface pace was going to say that she got the drugs and someone else wouldn't counsel make a decision  i think mr isaac still could have testified and said the drugs are mine he was going to say that either way the drugs are mine and there was there was additional evidence before the court that point in time but by way of the test cable thank you and extra thanks to both of you from for travelling all the way from boise help us out today so thanks again looking out the docket the next case on our calendar that's being argued is fuller versus safeco