we did not sign either in the utah supreme court or in the district court it's however that a problem since the you're on page sixteen i think of your brief suggests that it's actually the combination of hill because otherwise it makes no bloody sense how could you possibly proof that a sentence by jury would be really lead to a different result if there was no jury  that's the point of those cases not just mr i believe that's absolutely correct and if i was that point of those cases we small probability of a different outcome and that different outcome could be would you have had a different simpson seeing outcome in this case if you had had a jury at the post to the judge ruling that's different than the standard you're asking for now right well correct but strictly as uses the standing here saying now that when you repeat the gather you get the timpani that hill plotted to be these rights that are fundamental rights that are reserved to the defendant well that's not an argument that was made the utah supreme court they didn't have the benefit of being able to and now you're saying hill alone is enough but you're also saying the three of them combined which i understand you say one hundred and twenty three and the next numbers more but i think the leak case is kerry versus muslim  and you would have had to the concurring judges who agreed with you and that case which was conduct within the court being prejudicial to the defendant and what you had was spectators with buttons with the victim's picture and the court like to express then clearly established law and found two troopers sitting behind a defendant and it distinguished those that said those don't apply here they're clearly established for that principle of government and yes you conduct in a court room but not private citizens so you don't have clearly established law how does that same situation not apply here and none of those three cases talk about juries certainly well and identical fact patterns not require for a lot me it's more than that though obviously if it had been government a nessie a to conduct the court would  cide good enough now let the facts are different but will it for us that you have given us clearly established law it's not just facts that are different it's what happened it's a plea vs a jury determination  the case an appeal ends the case but choosing a jury or a judge to sentence you does not end the case i think that it is important to look to the supreme court's language in florida or to where it says that applying this prejudiced standard breaks no new ground and its explanation for why it doesn't break no new ground to apply they help produce analysis to a direct appeal claim it's because mike the decision whether to appeal the decision whether to plead guilty rested with the defense so you need to have that's a direct you use the key word here direct appeal the fact that the supreme court and direct appeal can apply its press been to a different a different factual conte correct i think that's right so my question is what global of specificity do we demand that the state courts that at the state court a defendant has to cite same factual contests or cases where that's legal principle has been up extended to that actual contents you don't have that here i don't think we need an extension i think that this is a mere application of what the court explained in florence or t from hill i get your point about the extension the supreme court saying that this was no great leap from the pov of those principle well yes ok on direct appeal that's d fine but but the principle would be would it have been on reasonable state court i think with them all requests are for exhaustion purposes is that we explain the standard that should be applied and cite federal case law that explains what that standard is i obviously would have been about right now what i'm talking about now is whether it either either the law would have been clearly established that that that such that that there is clearly establish of hill to determine that it does not we teach this circumstance so right now i'm talking not about whether you're even in the ballgame exhaust and i'm talking about whether the you talk supreme court would have been  and not reaching the same conclusion as to the application of il here i believe that it was beyond reasonable i don't believe that we need to rely on him among i think that when the court is applying you know the heart can buy an argument that you're making here he didn't make that argument as if i if i may please that is the question i think in what argument did you make to the utah supreme court to which you cited bill what was your argument our argument to the utah supreme court was that it was contrary to clear that it was a violation d of constitutional law to apply the traditional isn't that is precisely the argument you're making to us correct that's absolutely correct is that a fair statement only difference is that here you cite the risk  refinement of that principle that is articulated in florida search and left that is i'm from that is our position and to answer judge holmes is preservation question this court has put forth to this court today so the district court had had a full and fair opportunity to weigh in on this issue and it did on the district court's analysis what was incorrect this record said that hers was not clearly established law but that's not by choosing the more primitive or more inclusive just real stricklin standard or outcome that its determination was contrary to the others as we explained as tony explained in state court the correct prejudiced analysis to apply was that that was explained in detail so you're not argument is not based that the utah supreme court should have applied it plied these cases and reach new ground because they know that your ground necessarily follows from most cases instead your argument is those cases  contrary to that's correct so you're not saying in reasonable application you're not saying and that and let's be clear here because you and a reasonable application would could involve a natural extension of prince of precedent and so if you're are you going to have your conference to but you could but are you saying is well and i d don't know whether these things are mutually exclusive or you things well that by reaching the result they did they did not extend extends from strickland and as per your argument last letter and these others extend that same principle so what i'm saying is if you stab was that that you've got this body of law there are you saying that it's i just you know what are we argument is it is the correct pronunciation holyoke holyoke like the tree like that like the college yes i always say like the college but spelled like the tree muscle holyoke for the state of utah and may it please the court your honor in this case in your honors his appeal fails because even before we reach the merits he cannot overcome some significant hurdles  including jurisdiction that his claim is never fairly presented in this procedurally defaulted his claim is on preserved since it was not argued in the district court and if the court does reach the merits mr homeys argument fails because it was not in two thousand and fourteen or now because it's this is quite important in my mind what do you understand the argument of the utah supreme court to have been regarding bill in the utah supreme court the opening brief but mr harney set forth the strickland standard and then simply argued that here he would have picked a judge over a jury or i didn't sorry apologise jury over judge the problem is in his opening brief he makes no mention that there was a different legal standard that should apply there's not  plain statement that here strickland but you should apply a different legal standard there's just no plain statement to that effect and the idea of exhaustion is you need to get the controlling principle in front of the court give the state court the opportunity predecessor we know of is hill but that doesn't apply here mr hony now argues well that is new argument that you put in front of the state court and so i had an opportunity to reply to it in the in my the state court utah supreme court said when in at beliefs such as us in the state court proceedings points out that an argument was not made that's not new matter that then opens the door for the appellant to argue in the and the same situation was here we argued there is no other standard applied so you don't now get to argue a different standard oh let me stop you there and the karma same point the judge in his her o s and i'm asking it this way not what cases were cited but instead what was the substance of the argument did he say did he say before the utah court my argument is that i should have been allowed to choose the jury my counsel deprive me of that and if i would have been allowed to prove a jury that jury would not have convicted me to because that's one thing but if instead his argument as i said been allowed to pick a jury and stop then  i and i can pull up the briefing that right now but from what i recall is the statement was i would have picked a jury over a judge if i had known the difference and that was the  extent of the statement but that is why our opposition briefing said well that's all very well and good but that doesn't get you to the prejudice well to well to to just built on i mean if his argument was i'm prejudiced because i would have picked a jury over a judge that is still i mean that that that is not i mean if if the substance of the argument in the opening brief had been c strickland i would have been prejudice because i would not have been sentenced to death and that would have been the strickland standard but if he said i'm prejudiced because i i would not have picked the judge why isn't that in substance did he did argue that right that he would have picked the judge overage or a jury over a judge sure and that is precisely why we said well that's not enough under strickland you are and if strickland and now your statement that you would have picked someone over the other is not enough was the case orally are you after the briefs briefing yes it was and was the point that mr zucker makes before related question to the question the judge phillips asked and that is this in order for us to decide this case do we have to put on blinders and not look at the decisions in florence or take and cooper that is to say presume ignorance on our part about this the supreme court cases in order to get to the right result in this in this instance and in this case because he only cited hill in his reply brief in a state court is that if i tell this to my clerks all the time why you answer a seems to me that by asking me a question you don't hands are mine and my question is in order for us to decide this case correctly under the way you argue it do we have to put you would have us do is say oh here's the law but we're going to ignore it and the reason we're going to ignore it is that even though the utah supreme court heard the principal argument in this case and was aware of hill but didn't apparently research hill for long enough to see its application in these cases that that's the base reason  applied because now you're getting me into territory where i feel decidedly uncomfort and i understand no i don't think they i think as you said a court couldn't go in and research the loft but the clerk didn't have to research hill at all because hill w the idea is are we are getting the correct legal principle even holy sprit ported principle of what he thinks the prejudiced standard should apply are we getting in front of the state court and here we're not here he argued just a different legal pressure different legal prejudice standard and then he applied it to the facts to that standard without any without even a plain statement that said yes i know strickland applies but you should apply something differently we want it to be different here there was nothing like that there wasn't even a simple statement that said i was prejudiced because i did not pick i could not pick the jury over the judge that simple statement was not there the controlling statement was not in front of the utah state court to even make the decision on whether this this new different prejudiced standard was clearly established so no they weren't limited but they didn't even have to to go they had no they had no requirement to go look at those cases at all it was in the reply brief and they did not have to look at it under you tossed it off and i think there this also brings up the problem with these theories is he had all his theory has really evolved over time it was just hill and now it's the three working together that we have this general standard and there's some real tension between those theories that causes problems w  to me two different ways in his briefing on the one hand yes he if we could still point to a general standard that was on point narrowly construed legal rule in hill that that we could look to like strickland strickland has the very broad language that has been applied in tens of thousands of cases if there was that one general standard that could then be applied then yes if you're citing additional forty's then you're just refining the argument that's correct but he also met mr money also makes has this theory that it's those three working together we're looking at the common denominator of those cases this decision let left to defend and that and i think that the hill is the symbol case and the other two are just applications well he loses under both ways because for example if hill is the sum it is the seminal case there is no general standard here  we as you as that your honor noted in house the hatch what we need is uncle controlling on point folding and if it up if that controlling was applied to a different factual context the supreme court must have its restfully extended no such extension occurred here if there was a general standard that to the extent there is any general standard we could a whole from from the hill it was certainly not extended to this this similar factual context and only extend cases it seems to me that that hill announces a different principle that none not even announces it it decides a different principle namely that when you get to these plea bargain agreements in a selection of a jury over a judge that these are on the structural the way the trial proceeds it's rather than the traditional old fashioned stricklin analysis which is a different result because as i said earlier in my question i mean i don't know how you possibly could prove a different result but jury over a judge rather than rank speculation and the courts are going to do that so i guess i'm speaking my heart here but what bothers me about this case is that in order to decide it in your favor i have to as i said before put on blinders and ignore supreme court law but that really troublesome to me i'm not sure you need to to put on blinders and ignore supreme court law because even the rule that they pull to he's trying to cobble together from these three cases it doesn't even if fell apart in many respects the idea that a decision led to the defendant means that we now change the prejudiced and or is is incorrect and one example of that is what a decision after the defendant is the ability to testify the rights just fine but supreme court president has applied straightforward stricklin in that in those circumstances for example under the next what's whiteside case and so that in that general standard that he's trying to cull to gether fails in that respect it also rights reserved than the norm and well that's not my my point because before it is history has evolved it was at st just a fundamental right which doesn't apply but now for changing it to rights to the defendant it still doesn't apply because we have other instances where straight not i don't know i don't think so but but ok well we'll figure that out but let me let me just make sure i understand very clearly here we have the whole question of whether if they thought ok that's one bucket let's assume they get past the boston and they're in a situation where you say we presented the face the construct of of hill prejudice and in other words you know it was the not that i was prejudice because i would not have chosen a judge ok so now they're in there here in federal court why wouldn't why would there not be clearly established law that's what i want to understand either under seal or under this latest configuration that they have of confidently together the three wives are not clearly established law that the utah supreme court violated under even under either theory under just hill there is no general standard under hill that says this needs to apply in these situations hill apply it to the plea bargaining situation to the loss of the cli ability to go to trial situation that is not analogous here as as house the hatch said you need on client holdings in the same similar factual context we don't have that same similar factual context here and whether the supreme court would extend is not the question before this court if has it expressed extend it to here and it has not it has later extended similar reasoning to lawful as own as mr honey taken so then under the the other theory that it's the three working together that pulls this general standard decision left to defendant that again doesn't work because there are situations where there are if there is a decision left to the defendant and straight circling applies and i think the difference is when we're looking at and i think judge and sara i think pointed out this earlier is  it's really about what the forfeiture of proceedings here and in the hill he was he was giving up the ability to go to trial for a picture of an entire proceeding in loft and in flo forfeiting the ability for an entire new proceeding of his appeal so basically confirming the finality of his conviction and it was in his own that the defendant was giving that up the sealing his fate ok i'm agreeing to plead guilty i'm no longer i'm giving up this other proceeding i am forfeiting the right to appeal my convictions finally give given that up here there was no such forfeiture proceeding mr hony didn't say i'm going to and don't we have cases at least one but you know ration of hoax in which we said that the clear we step was law does not involve pulling general principles out of supreme court cases and saying this is the law i mean based and  so that what we're doing here correct your honor that's exactly right and i think they mr how many states marshal the roger saying that this could be done but that's not what martial the roger said marshal the roger said you could have a general standard that applies to numerous multiple factual situations well i don't follow you there because i must you have a general standard which is in court participation by out of court actors can deprive the defendant of a fair trial and the general rule there is what controls that doesn't extend out private actors but it extends to everything that is government an s t a don't even know you don't have a case right on point right now the words it's not enough to be in the ballpark with the general standard you've got to be behind the plate but behind the plate a lot of seat sure sure and that's why i like strickland for example can be applied to thousands of cases it's very similar if you're if you are trying to just challenge your conviction at trial but this is a very different not just so i understand your position for sure are you saying that those cases hill and florida law are they established clearly established that if you have a fall you may want to stop the clock but we figure out what's going on just give her a minute or two and see if you rejoins and then i'll try to reach out to her ok i'm touched it looks like you're muni i'm not sure what happened no worries no worries the judges are in the middle of up up five minute break we've got about just under three minutes left and then i will bring them back in and i think then we'll resume arguments  were you able do i reach your back i was just she was able to reconnect she's not sure what happened i think maybe her wife i just cut out for a brief moment and it was enough to mess up her connection oh good great i'm so happ able to reach your yesterday r y plywood back up after about five or ten minutes and so we probably wouldn't have had to proceed on my cell but but i thought it worked out ok yeah no it it  because i think where we left off so i was asking i'm trying to figure out where you're linus and where you left off i think you were saying anything any case that involves  ineffective assistance that disposes of the case whether you don't get an appeal or you're going to plead guilty or you could have pled guilty and now you don't get to plead guilty but anything that involves those the laws clearly established even if they're different back to whatever else but anything like this dependent that are just a step along the way who's going to decide that those are not clearly established is that your position yes and i mean i maybe would restate it just went to trial and they can would have been better then that case locklear which is clearly that was an accident and in those circumstances yes and you can imagine a variety of factual arguments relating to each of those circumstances  is that that principle drawn from those three cases because it's clearly established law and the follow up adam even if you were doing that i take it would be your position we don't even have that here we don't exactly even if we could do that and glean some sort of general standard from those three cases and i don't know what it would be particularly because at under house the hatch we need on point counsel and the argument then the question was was counsel ineffective and therefore should we reverse for ineffectiveness of counsel in failing to unreasonable for them to not put that in front of them all right and no the other question i have for you is so there you are city in my chambers and were writing the decision how are we going to write the decision are we not going to acknowledge the fact that floors are taken and cooper would have led would lead us to a different result are we just not going to talk about a pretender sort of dumb or are you going to say let's write it in such a way that we acknowledge it but say these are unreasonable applications by the supreme court hill or how do you have would you r i don't think we could do it i don't think you would they would lead you to a different result i think under either theory that underhill underhill it's not clearly established that this protest that this hill prejudice standard applies to juries sentencing reversed under  s couple together rule from the three cases common denominator it is not clearly established that that whatever general rule comes up with my best course or your best argument that is all this time this morning almost an hour  go to that he would have picked a jury or judge is necessary but insufficient here mr mr honey said i wouldn't pick the jury because i didn't understand the difference but the state supreme court said no you did understand th at the colloquy between the judge and you you understood the difference so that in the insistence that he would have proceeded with the jury falls apart there and secondly as we know underhill hill says that it's necessary but insufficient we're still going to look at outcome of the trial we're still going to look at the prince's inquiry still requires us to look at the evidence that would have gone to trial and here we have a judge that said i putting someone to death is the last thing a judge wants to do we have a very heinous crime that the jury had already heard so the state court found that it was a jeff really reasonable to go in front of a judge a train jurists who would have just passionately taken him maybe more dispassionate view of the facts and those two cases together together with the fact that the insistence of a jury falls apart under the state supreme court's finding which need under twenty to fifty decision would have been many it is reasonable and i think you can look to the affidavit of the move so my feeling requires is to look at the evidence in the records of determine whether there is a reasonable probability that the defendant would have exercise if i may just address we've been talking a lot about strickland and about hell i think that it's important to look to the language in hill where it talks about strictly hill is an application on strickland it's not a new standard performance affected the outcome of the plea process what hill is doing is looking at the language of strictly what it says that you have to show that the result of the proceeding would have been different it's important to recognize that stric on that point what about ms hollyoaks carving knife where she says and got all of those cases that you have cited strickland was for out and now we have pleas and we have appeals and they're over on this side you're not on that side and stead you're something different you're something along the way you're not ending the case with the player an appeal you're just one step in the process which is to have a judge or a jury decide that's different and because it's poll on a jury on you judge to decide if i'm going to get the death penalty you go to court the next day i think you look at mass murder where the defendant forfeited his right to plead guilty to accept the state's offer and in that case trammell which i've got up right now which in which the petitioner tried to do exactly the same thing they took three or so supreme court cases and said let me tell you what the general principle is out of these three cases and those that principle is clearly established law and we said you can't do that that's different than what you had the salute to a carriers and most of them were yes there was a principle to come out of that one case that would apply in different fact patterns different contexts we said clearly that clearly established law mean if you cannot draw out a general principle from different fact that earns and saying this is what the law the law as clearly established by lefler is but furthermore the nature of the right was fundamental in utah under the statute he was it the right cannot be waived without him knowing involuntary waiver on the record by that offended therefore fell within the same category of r trial in utah at the time of tony's sentencing was absolutely a fundamental right as evidenced by the fact that there needed to be a fall of knowing and voluntary waiver on the record or right