if you followed my advice and later you think i was wrong and giving advice by all means you'll be able to challenge that advice on the fact that you know you would you're right but the challenge has to be you gave me that advice what's the bad guy they have places that  you're convicted you can challenge both your failure to testify and my vice that that is difficult meaning to accept is and that's that's why the court appoints understood that one consequence is it would not be irrevocably final because it would be subject to talons ok what is the consequence that's problematic because that's not problematic that you could successfully challenge he had a chance of what he did what indicates that he thought he had a very good chance of challenging it well he didn't say a very right he said i could challenge it and he can so that's why i'm asking what saying he was advised that if you take my advice and don't testify and you get convicted then you can say i told you not to testify you relied on that and your and you shouldn't have relied on that and so you get a new tr just because of that just because you waived your right before my eyes if that were right he really did but you know but i don't see how you write that makes any sense it doesn't make much sense to you it doesn't make much sense to me but he's entitle to you're saying his failure to say that led his client to form some belief about his prospects of success in a challenge where is the support in the record with guarding that belief by the client that he had a strong chance of success i'm saying the strong cast the support is he went ahead wade was right to testify in the record it's clear that he wanted to testify counsel went through a long procedure trying to thing that happens day or day out and this lawyer there's no indication in this record that the advice of counsel that i think you shouldn't testify was wrong only problem with the manner in which he explained the ramifications of that it was quiet that that he left hanging out there left dangling this possibility of post conviction challenge that really was a hail mary pass having trouble finding in the record that he had the defendant had to take from what the counsel said not simply that you can challenge it but that it would be there's some representation beyond that that there is a good enough chance of victory in the challenge that it could bear on your decision whether or not to follow the advice i think in the context of the discussions where you say i want to testify and say i don't want you to testify and he's persuading him you know and suppose it goes like this you really should not just a value really shouldn't the other guy keep saying no i really said i'd really like to i'm telling you it's a terrible idea and if you really think i'm long you can always challenge it is that then i'm supposed to say that the defendant in that context must have green from it i guess or probably when he said more than that he said you can challenge both my advice and your failure test that's what he said it's not just part it's what he said in the context the police are trying to persuade him not to testify and these and to believe that he could be successful and post trial trial where he couldn't testify i could challenge is advice in my decision not to testify based on that advice after trial in the event i was convicted i guess it's agreed by counsel that he said essentially that too so far so good he said i understood not final right but he could challenge a post trial in the problem if he can challenge a post trial problem is that it's a long shot that would be totally futile and misleading advice to say or you can challenge anything else wouldn't tell him that because that is misleading your client or counsel told him and he intended him to understand this look if you do what i say you can always challenge that rich need to have a exactly because he's saying look joe don't testify and if you don't look you can do this and if you can do this but if that's totally futile what's the point then we've got to get back to the point go ahead we've got to get back to the point of the street corner i'm sorry we've got to get back to the point of being not just wrong but really wrong well it is directly contrary to spring for all it's got to be a knowing intelligent voluntary waiver wrong you can challenge as you go but i thought your point was no his understanding was based on the advice he got subjective understanding was look if i don't testify and i follow my lawyers advice and i get convicted no problem i'll get another  right who's never been in this position before and he has a very experienced trial telling him you can do that yes that's reasonable in the in the flip side of that is it's unreasonable for a state court to come to a different conclusion yes and what would be the best authority for that that's an because i understand that you're making the argument that you know one could think that the senate really did misapprehend and therefore didn't make a knowing waiver we have a secret of it in that we're supposed to give some deference which says that's just not reasonable given this record there's just no way to conclude he had that it's reasonable to think he had that misrepresent apprehension well the court never says what a reasonable understanding of counsel place would be and the reason it doesn't because there is no other reasonable alternative there's no other way to understand what counsel said so the court's decision that he was unreasonable is how can that be unreasonable no one no court no one has ever said what would be reasonable in that situation what could that client in that situation face with a murder charge  counsel tell him you don't have to testify because you can challenge that what is he supposed to understand that he didn't quite say that i thought he said you don't if you don't testify you can challenge it not you don't have to  you get convicted you can challenge that advice and your decision not to testify that is your waiver you can challenge as has been pointed out over and over you can challenge it but that's not your position your position is he understood i otherwise well unless the advice was really good not to testify though he did not know he wanted to know in that he didn't testify and he was advised not to and so on this record the question is does the statement you're focusing on is that those tipping point that led him not to testify such that we could say that's why he didn't testify and therefore it was not annoying waiver or is it plausible on this record to conclude he didn't testify because he was being well advised not to for reasons having nothing to do with the likelihood of a successful challenge and he was also told accurately that he could bring the challenge read the affidavit it's clear he continually wanted to testify counsel says ye finally i told him this and he said that's why i think he does say you know because of that that's why i didn't but you it's just on reasonable  review i think you sort of leaped over that i mean the petitioners argument i just want to make that point clear because when we're looking at what happened in this case there certainly does that certainly is an important issue  his ineffective assistance of counsel respond i would point out that certainly at from this perspective deference should be given to the state courts in this case and i think what you want to really focus in on is there was the trial court judge t the trial judge he was also the motion judge of the new trial and he makes it pretty clear that mr smith's interpretation that he could somehow reverse his waiver or that his i believe his actual words in his affidavit were his decision wasn't final just wasn't reasonable finding and that's not if a client trying to decide whether to testify or not and they want to testify they've made that clear the lawyers telling them not that they're not buying the lawyers for the lawyer well there's this option for a redo but not tell the client that it's a one out of the hundred shot is that isn't that  well of i suppose if you have an attorney that says you have a shot at a redo i don't think that's certainly isn't what happened in this particular case and i think really what you have is and the trial court also pointed out is there are several points there's there's several things on the record that indicate that this trial counsel gave that place to not testify and that his his understanding after the fact and after he had been convicted that his decision wasn't final and that he was somehow over able to i do doubt waiver is not what his lawyer told him so and it's not reasonable and i think that's really what it comes down to in this particular case to suggest that he would get some kind of do over and i can ask you this the fiction for a moment and say there's the defense and the defendant in this circumstance was in fact told by his lawyer don't worry about it if you follow my advice not to testify you not only can challenge you'll get a not testify and so i think when you have to you sort of have to look at it from the bigger picture especially from the hideous perspective you're looking at it with with deference to all of these findings but he has a right here's a constitutional right to reject very good advice that not client then would we have a problem it would definitely be a different situation i'm not sure how you would know that he was misleading but i think the argument here is that he really did mislead by saying something that was literally true but would many different ways in which the lawyers they could have been made the tone might matter the context of it might matter and you can't deduce i guess is your argument politically you can't the deuce whether it was truly objectively misleading advice from the fact that the recipient of it was misled subjectively right just because he got the wrong message from it we can't say therefore that's on the lawyer the lawyer may have said something perfectly true which was not intended to mislead and nonetheless the defendant misconstrued ok so that might take care of the strickland problem with respect to the knowing intelligent waiver issue though does the subjective understanding of the defendant does that vitiate the knowing intelligent nature the way because that's plainly wrong if that's what he was waiting on that understanding he was terribly wrong to think so right so why doesn't that mean there was no knowing intelligent waiver well i over in other words he correctly apprehended the advice and we would have to defer to that fact finding but the opinions a little hard to follow for me as whether it's saying now or whether it's saying he in fact had intelligent waiver not withstanding what he actually subjectively thought since no reasonable person should think that right the waiver is no which of the two is the state court saying the way i've read it it's the second ok in the the second one is the state court correct to conclude that for the purpose of determining whether a waiver is knowing intelligent we don't care what the subjective mindset of the person giving the waiver was i think it's in the case of the state person making the waiver was incompetent or have mental disability all kinds of things that would lead them to have us have an objectively an reasonable understanding of what they were doing we wouldn't count the way resin going in and so if we have a unreasonable one but it was one that he had his position is that he had this but i'm not what i thought you told me the state court finding was that that was his understanding it just happened to be unreasonable or are you saying that it was not his understanding because of the unreasonable to think he had that understanding those are two different ways of understanding what the speaker to say and i think that the way the state court was reading it was saying that they didn't he didn't meet his burden to say that his waiver was do well he specifically says that he thought his decision wasn't final those are his words who were at the trial court takes that to say that he his subjective understanding of the advice that was given from counsel was that he would that he would be able to undo his waiver ok so given that that's the finding it seems reasonable we would defer to ok now given that understanding of the defendant how what's the state courts in the state court remember specifically i thought you know that they say that i think they say it's an unreasonable subjective i'm reasonable misunderstanding of the advice exactly so let's just take what is the state's position with respect to the phone question assume the stickwork but you subjectively thought at the time you decided not to testify that he would be able to do a do over there but say that's what the ok how how legally can a person who has that subjective misapprehension make a knowing and intelligent way because i think from that knowing intelligent waiver standard i think looking at it from the court looking at it objectively is appropriate ok and what case law tells is that we are only 't set standard on how you determine a right to a waiver to waive her to testify so there really isn't any there particular standard i think part of the other problem that we really have in this case is that we're looking at everything that i say so this isn't one of those cases where you can have the defendant telling anybody at the time that he wants to testify until afterwards when you start looking at all of these pieces together and then says and this is not somebody who hadn't been to trial court before i believe that the district court point waive i would just put forth that his claims that you sort of try to make as an independent right attack right to testify waiver is invalid isn't correct i hate this because there's no supreme court case on that and then if he moves in to be an effective assistance  part of that he certainly can't just need the strickland standard or the double deferential standard for a v s case because you certainly have the state court saying the advice that was given by counsel was reasonable especially when you actually look at his proposed testimony to those rights which the constitution guarantees to criminal defendant to get a fair trial to preserve their rockier a zone of the court said quote the right to testify is basic to the guarantee of a fair trial that is t court has said the test for waiver is the same when ever a fundamental constitutional right that is part of the guarantee of a fair trial is at stake so yes there is clearly established supreme court law do over if he didn't testify which we would we have to throw out this verdict i don't think not probable and then so you've got to then to make this different if that to link it into what look if you don't testify follow my advice you can challenge that but what is he supposed to understand thank you