right our fourth case for this morning is gaylord against united states could reach could could find reasonable doubt under the but for standard a parade so what do we do about the fact that there is an appeal on collateral attack waiver in his case i don't would erase everything because we've said you can't pick and choose in a guilty plea that puts him back yes and he and i that's what goes back even to hill versus lockhart and more recently lapper versus cooper and so that's the real standard and i think first as a practical matter i mean did does he even have a basis for a hearing and i think i think that the record is is i'm vigorous and it best concerning the mixed drug intoxication so  think about if what we're talking about is ineffectiveness of councils a way of surmounting the waivers and all the rest of it obviously there's a performance side of that in a prejudiced side of that but the government argues in its brief that the the coroner's report goes pretty far just saying toward saying that these are independently lethal doses second page twenty four of their brief lived with that in the system and could it could be a victim have a high tolerance for the for the drug for the acid now and then the cocaine put him over the top did the cocaine amplify the effects of the opposite don't i  think that's really so you have audrey if we had a hypothetical case in which somebody ingests two substances and either one of them alone would have been lethal that that's fine under  burrage i believe that they perceive it lee left that issue open but to some logic that implies that that that may be enough but you really cannot do this without an evidence to hear anything when we took a look at th pre birth rape standard nobody really was looking that closely at whether somebody has a high tolerance or whether it's other drugs amplified i mean it could be that that the petitioner would lose  whether there was deficient performance and prejudice for the ineffectiveness and if either one of those fails then then he's just where he is and that's correct that's correct and and  i've already highlighted what we would do with the toxicologist and then also request our own expert to help and analyze these drugs i mean there's some studies indicating when you you're dead to a higher concentration in the stuff i'm not an expert i can't pump myself off whether that's true or not or whether that expert is not reliable don i mean that's something that really needs in the hearing and then the other prong is one of the exactly did the trial or tell my he and documenting one which is the petition on page six he said the insufficient desiccation by the fence councilman for pleading guilty and then on the reply pages and document eleven pages from all of the cases that seems to be the trend to figuring out what just the facts of mixed intoxication drugs on and somebody died is having a hearing it's really do you think that a battle of experts or even agreement about experts getting medical professionals to same uncertainty something other than this could cause this amount could cause i mean that's not medical doctors as i would your position that he has shown prejudice i think it's inconclusive burden there i think that the government would have the burden conclusively when my concern obviously that level does the hearing if we if there's easily imagine which edge forms talking about that it winds up saying there's a range and some people are going to die at the lower end of this range other people won't die and the higher end of this range well but you know and maybe maybe the defendant should get the benefit of down considering the policy of these large twenty year sentences under the statute i mean the the decision to burrage is an important decision and realizing that people are getting it big sentences and he  reference strickland the district court specifically found on page for him in page five of his order that the defendant isn't asserting ineffective assistance of counsel in negotiations instead the ineffective assistance of counsel is now on appeal to avoid the collateral attack waiver that was in the plea agreement even this court certificate of appeal ability didn't reference the ineffective assistance of counsel but instead the whether this conviction is consistent with burrage and we believe that this conviction is consistent with birds because it was consistent with hatfield this court's decision on the but for causality in the results from case which was  little mushy i mean i'm not one hundred percent sure that there's a perfect overlap i mean i think your point about whether he adequately raised in effectiveness of councils crucial because you know and of course it starts out pro se so we need to be charitable and way we read what he submitted charitable as correct but in allowing it to be made out of nothing i think is different there is a procedural bar as well too if it is an ineffective assistance of counsel claim then it's on timely because he could have raised an ineffective assist that's of counsel claim under twenty two fifty five right after he put guilty it's only because  birds was decided and if it's a really a birds claim that his claim is timely so either way you've got a procedural hurdle to getting to where we want to go and if we haven't held people to appeal in collateral attack waivers it seems to me and counsel would overcome the you know even if it's just a straight burrage claim i mean i'm thinking of these mountains of johnson claims that we're looking at right now since we're coming up to the one year mark there and we i don't believe we've said to the government you need to worry about that later ron i'm sure district court and i think the difference goes back to again it is hatfield and berridge hatfield said the minimum for this result from it is a but for causality it sided with approval as the defendant notes in his brief by the birds decision birds no doubt contract it who is liable for results from in the eight circuit where they had this instruction that was taken to task in hatfield we don't think it contract in the seventh circuit who was responsible after half year because the government would have to prove but for causality under the results from after hatfield which was decided prior to the lethal distribution of oxy code on in this case we do think that the oxy code on the p s are seven paragraph thirty seventeen which was on  too so it's a fact that's not in dispute that there was a lethal amount of oxy code on in his system and a large amount of cocaine if this was reversed where mr gaillard was the distributor of the cocaine then we would have a different question four micrograms per milliliter would kill some people all by itself that if you are a habitual user of the oxy co down maybe you need you know zero point eight four micrograms per milliliter we don't we don't have the evidence if this man given his history you put evidence in the record about him could have independently killed him i think we that would have been true had it gone to trial but when he pled guilty and admitted under oath this and the record doesn't say whether they even got their own expert to and also really did he know whether he was talking about but for cause or proximate cause or some other kind of cause me a simultaneous cause i'm not sure that i would go that far on that point if we were to get to this issue i understand your point and i think that goes to the remedy a little bit and i think it's important the remedy in this case but suppose that we are wrong in mr gaillard is entitle to relief then this would go back to be proven to a jury whether or not it resulted from the but for causation after virgin if a jury found it i think there'd be an currently serving a one hundred fifty seven month sentence because of some reductions which wouldn't apply if it went back so i do think there's a practical aspect of maybe being careful what he wishes for and that is his that's his right call actually if he wants to do that but i just think it's appropriate to raise that to say this is a potential outcome in this case but we do think that it was procedurally barred because of the way this claim and we w sorry for walking and talking just briefly what puzzles me that the argument that ineffectiveness was raised for a proceed petition he couldn't raise it anymore he made about the timing is point well one of the government waived timeliness i don't know where they can undo a trick but putting that aside i mean the lawyer had had some maybe stood a savvy lawyer may have understood that the jury instruction case  had field as you called it much he would have put him on notice to try to preserve this issue in the first place but there was just as you know it was a seven circumcision the rather the sit ins and the burrage case did give notice to the client you know that's the type of thing asking about a policy consideration there's a these large twenty year sentences we're somebody gets twenty years because he sold some drugs to somebody and then that person sold another drug and then that person also took a bunch of other bad stuff in the a built in expert that i think so i think the defense should get the expert defense could the expert can say you know what the drugs that he had in the system that he took it does and does not i can't help you or it could be a close case and  i think i mean i don't want always to encourage the court this is going to lead to multiple massive hearings but i don't think it's all that complicated well you know you got of next case you know i'm just trying to think this through and you've been offered a pretty good his or her responsibility is going to be explaining you know and if we lose that battle and we lose this plea deal of ten years it's it could be twenty i you know it's there's ramifications and that's why i'm trying to  jerry and i and i actually agree with you but knowledge is power if it's the expert if the fence counsel hires the expert and can put doubt as to that that that made lead to a better plea deal and so what you have here is that he comes in there with no ammunition he comes in with a gun with no bullets and i and i think that is like most cases there pled out the pleas may be different you know and of course is always a risk but right now from what i seen in this cold record trial counsel didn't get an expert didn't investigate this report and it needs to be sorted out and hearing this and nothing else