please the court william harris for william morris the key problem in the case which give rise to all of the five questions certified by the court occurred on  when morris was in the in the lock up at the jail and counsel was standing outside was that a critical stage had the right to counsel attached at that point because if counsel had attached at that point then monkeying with the attorney client relationship by falsely stating the counsel wouldn't talk to morris was a sixth amendment violation if counsel if the right counsel did not attach yet as argued by the respondent until the moment that the line of actually starts then we really don't have a sixty minute claim because there is no harm no foul but it has to be the law of the under wade that the right to cancel attached at this moment when council is standing outside there's something the line up in the petitioners falls least told  constitutional right to a minor that's correct so how is it a violation of the six some of the sixth amendment look i don't like more foresman lying to the defendant in this case but if it's not if he had no right to weigh a lineup he couldn't evangel why let's put them that way if they didn't want to give him one why would it be critical for them to have lied to him that his lawyer is outside and to counsel does not attach until the moment that the line up is actually what we're walking out on stage with a lot of things when he's put in jeopardy if the lineup is right he's he could get in trouble or get out of trouble and if he's never put in trouble because the lineup is  know lifeline i have how am i wrong if i say that it's not critical if if he has a right to the line up they don't give him a line off how is it how is waiting violated his right to counsel precise question is what is the line or if the lineup itself is just the moment that the curtain is drawn and they're standing on stage that's one thing but i don't think that that's the law well i think i think you know when they're up when they're on deck and getting ready to go apparently the state constitution rather than the federal constitution but it's it was in his interest to have the line up secondly in this case you've got the fact that the lady want the the six pack two weeks beforehand and so there was something in it for him in the lineup and presumably the lawyer that standing outside would have been smart enough to say that by all means go forward he was a little bit uncertain on whether to do what he wanted to talk to counsel so i would to answer your question sooner he was prejudiced by the loss of the lineup simply because he didn't get the get the shot at the lineup and that failure to participate in  lineup then was construed as consciousness of guilt and then the two more serious carjacking in second degree robbery charges followed sure enough the next morning so under the facts of this case three they would have stuck with the september tenth they had the guy neil cold on the september tenth fact that he was driving the stolen car that's a vehicle code violation but what they didn't have was the september eighth fact that he was potential identification with us now if that controls then how does not apply to these five well in in wade the one of the the cashier saw the guy as they were to that language in la pierre we said the right to counsel includes right to counsel and present for the entire line of presentation which helps you then it says well we recently declined to decide whether the witness preparation stage triggers the right to counsel preparation stage you have to go that far that would be you know consultation the night before and a week before in making a strategic decision what we're talking about is counsel standing outside as they're assembl and they were sitting at counsel to have all and the victim be the identification whereas two weeks earlier on september thirteenth she'd been unable to make the identification from the six pack what was the fact that she was like no that did not come into evidence the argument is as to prejudice and how he was hurt by this is that that caused the charging decision the next  day and that was assume that he didn't want to chickened out he didn't want to assume so that's consciousness of guilt and therefore the serious charges fall the next day the prosecutor tell you that no but that it's pretty clear from the way it unfolded that secularly well he arrived the next morning after the line up and first thing in the morning he's confronted with these new two new chargers and it was pretty clear of up until then that they had him on the september ten drive in the car but they didn't have him before and the victim of flint the point the six pack and then here the guy chickens out of a line of you're questioned about whether you're part you part you would participate online that's part of the line of that just to zero in on that i'm arguing that in this scenario that was the lineup the lineup included the you know when he's on deck in getting ready and able to that morning talk to counsel within minutes of the lineup that's the lineup well you have the pu court because he did participate in the line of how could it be a six minute violation because if if were correct in the lineup included into that consultation immediately leading up to the lineup then and there is no lineup then we have to articulate some sort of prejudice and that's what i was going into to hear your argument is that at the the the  the next day with these two other charges yes and this is what you're saying let me ask you this this thing i've wondered about more than anything else was this in court identification time the motion to dismiss where all this was aired was filed after you know a few days after on january three of two thousand and that the prelim includ motion practice that once this motion was filed it was a failure to get this get a merits hearing on it the lady the counsel for mr morris filed appear in the first judge said it was premature and should be brought up before the trial court it came in front of a second judge this judge ciara ski who basically said well this is been heard already and the fact is that it hadn't been heard it in tonight without prejudice and so the the lawyer at that point kind of filled the mark twain test that the court was talking about being timid in inaccurate she to state judge this was never heard it was denied this premature and then also the failure to raise this in the trial court thereafter so it's ineffective motion practice one day on the bench i think the one day was the first case we heard today but at any rate moving to the chronology in this case if i could please the because i want to clarify some both legal and factual matters the lineup that was scheduled in this case was two across the pember the twenty seventh of one thousand nine hundred ninety and on that date as we know the petitioner refused to participate in the lineup the following day when the parties were in court for a already scheduled preliminary hearing the only indication that was given was just that that the defendant had refused to participate it is only in the subsequent preparation of declaration defamation months later that the not the point being that at the contemporaneous time that is when he came back before the judge for the primary hearing there was no suggestion of of any misstatement or misleading conduct on the part of anyone that these claims were added later as that in terms of the way the case was resolved and i think should be resolved it's irrelevant but in any rate my only point is that there was no indication at the time that he had been misled in any way nor do i think the record supports the assertion that was made today that somehow you know part of this conspiracy to to concoct a lineup in this way accounted for the revise charges the charges were revised following the preliminary hearing at the preliminary hearing the victim identified the defendant so the identification of the defendant would of course be the additional element present in the ultimate charges so my point is that it i not fair to say that we can simply infer from the record that it was this plot to as i say engineer the lineup and then add these charges that's simply not a fair reading of the record that the lineup would have been before the women are think the court has observed that requires an interpretation of the supreme court's decision and wade the line of case and if i could quote a relevant portion of wade through as the district court found that the state courts found there is no right to counsel to decide whether to participate in a lineup and that is exactly the claim that was made here as framed by the district court whether the petitioner had a right to counsel to decide whether or not to engage in the lineup the answer to that is no i currently expand that in the line up in the in the line if it takes place and not and as according to cater earlier not not when one is on deck is the potential for prejudice in her an in person line of work cross examination a trial would be insufficient a good deal any suggested influence or improper procedures that might occur in counsel's absence so that has to do with a tainted lineup and that is not the claim here this case has nothing to do with the tainted lineup does not through the lineup at all because we didn't have one but we agree with  expanding well would be weight at that point it would be something else not only is not that not a claim before the court but that was not the claim that was preserved and raised in state court and since we're here at a federal habeas corpus petition of course the only relevant inquiry is whether or not a perfected claim based on settled federal law i can tell from the court knows where i'm going so all i'll stop going there but any rate i think you know the rest of the answer as far as that is concerned  the fact of the matter is as presented to the state courts there was not a cognizable right to counsel claim made in this case and that the scenario that has been proposed whether or not she would have failed to identify  him whether or not what would have occurred as a result of that that is all complete speculation in light of the record in this case what we know in this case is that there was the earlier failure to identify and that was certainly pointed out by defense counsel in terms of the of her cross examination and her impeachment of her argument a trial and we also know and i think it's a very important fact in this case that as a matter of law it is uncontested in this case that the government could have commented on the defendant's refusal to participate in the lineup at trial and could have requested an instruction that the refusal read evidence consciousness of guilt and that was not done here the government did not take advantage of that opportunity so that my client is that the other justified refusal to participate in a lineup yielded no adverse consequence of the defendant when it easily could have and of course it also could have produced another positive identification as it would have been the first time the victim was face to face with the petitioner so for all those reasons we would submit that the writ was not unusual let's say in which there has been a failure to identify prior to something like a preliminary hearing or an in person interaction with the defendant and i am not aware of any case much less a supreme court case which would be what we would be looking for here that would stand for the proposition that counsel is incompetent for failing to argue the inadequac a motion to suppress i understand that the actual witness takes the stand and makes an in court identification that was the moment to to make an objection he had to make an objection but the objection i submit would have to be based on some directly controlling the forty that would allow a state judge to dismiss the case at that point given the failure that as i point out is is argued in many cases and at this point in terms of arguing to this court that it's a strickland violation the court would have to conclude beyond that the other fact that to satisfy the first prong of strickland any competent attorney would have made that motion and i submit that that but it's not a routine motion furthermore this courtroom is not there that i mean in the reality of the courtroom that she wasn't trying to suppress what i'm what i'm suggesting is at the moment that the that  she says i've seen him in the courtroom and that's the person without with that's the first time you you have any sort of a contact you've got to make a motion there don't you may well again i mean you i think you're as a matter of  motion would have been granted but whether any competent attorney would have necessarily would have would have inevitably been required to make the motion and that i submit is what is missing here requirements that  circumstances again getting back to you know that that a d p a that that the supreme court has said this sort of motion must be bait but i don't my  strong suspicion is that a motion like that again given the realities of the way identifications sometimes proceed would have been denied but if it's a strickland claim which it is now the court is required to find acknowledge that given the situation in which the there are there is as you know this was you know the confrontation between the defendant and the victim was short she had a limited matters that will be resolved on cross examination than argument in terms of the strength of this identification and if the court is interested again i'm sure in california also there are plenty of cases on a previous failure to identify or other places but on the whole reliable way to make an identification i think it's pretty suggestive the only time the lawyers they asked they do you know kind said but but it was it was evident obviously to the jury that there had been a limited opportunity to observe the defendant if that you know the weight of that was up to the jury to decide i can't resist pointing out though finally then that in so far as and ultimately of course in terms of the inherent suggest in this of these types of procedures if the supreme court looks at that at some point that that will be the law that applies in these cases but i can't resist pointing out that visa v the photo  if you will a live identification and to determine whether or not the victim could make him out and he refused it was his call he's the one that absent themself from the lineup so it seems to me there's a certain irony  approach based on your honor's statement that the course bothered by the fact that he was a good winter lied to he did make a request for an evidentiary hearing in the district court and the evidence you're hearing would have  entailed whether in fact he was lied to and whether in fact it did lead as a proximate cause to the charges filed the next morning your court your honors point to get beyond speculation one of the reasons i can't give you more at this point is because the evidentiary hearing requested by mr morris in the district court was denied so i would ask the court to consider as one practical approach to this case arena and with specified no nothing wrong because he had no right to have a lawyer that point when he was lied to in the first place that in my opinion is the critical question here did the six minute right to counsel attach and what is under this point we can all take a look at wade and see the four corners of weight on the site that i gave you there are the facts the decades where they observed stuff that was happening as the line of was being assembled the way i read wade is the assembly is part of the lineup and if so i would suggest that when the when there are some when the line up asking the guy if he wants to talk to counsel counsel sitting outside ready to consult that's why she was down there to collapse because of that but that the the problem with this whole set up is that i know the pressures that all the courts are under that's our problem ok