based on a silent record if that is precisely the approach the sixth circuit adopted in granting hay vs relief here the record doesn't say how attorney talk investigated or what advice attorney talk they gave but based on that record silence sixth circuit assume toko was ineffective and under strickland the presumptions run the opposite way now if there's one thing that the court takes away from the oral argument this morning i hope that it's this how upside down the six circuits analysis is when it says on page one thousand a of the petition appendix that toca was deficient because the record contains no evidence that he advice to you about elements of evidence or sentencing exposure the correct question is whether the record contains evidence that to did not do those things and that record silence is dispositive in favor of the state and he is review now if we could pull the curtain back and see what really happened here it may be the case that toca gave the proper advice that he advice  grid and there's all kinds of different boxes that this could have fit into and he would have had to have analyzed the evidence in order to determine that the two to five range was appropriate for a manslaughter conviction and to be able to then negotiate with the prosecutor about whether that was  was not appropriate and so we know that took it did a lot of work with the sentence that was ultimately imposed after the trial for the second degree murder conviction within the guidelines within the michigan guidelines yes it was what do you know w skylines work i don't recall but it's something on the range of fifteen to twenty years and when we're talking about guidelines it's important for the court to understand the difference between what the guidelines called for for manslaughter and what was in the plea agreement because michigan's got this indeterminate sentencing system where you've got a range for the lower end and so the police deal with seven to fifteen years on the lower end and a manslaughter conviction that is if they had gone to trial and last for manslaughter that lower end was two years to five years and so it was entirely reasonable from an objective perspective for an attorney looking at this record at the time the plea was withdrawn to say yes if you want to maintain your innocence the most likely bad result at trial is most likely better than the plea deal that you already have sure there's a risk that something worse could happen but this court is that in strictly in laughter in other places that bad predictions are not sufficient performance and so really when you get down to it it's really a problem with both the advice  reasonable but also the failure to carry the burden of proof it's just the case that has not come forward to demonstrate as he was required to do as she was required to do on the record what it did to investigate and what on the plea agreement to lho was already in prison saying i'm innocent maybe i should be withdrawing that this plea setting in motion a chain of events that resulted in her firing the first attorney and then hiring a second attorney and i don't think that the court of appeals the michigan court of appeals articulated any kind of a per se rule about that you know certainly we all understand that the ethical obligation of the lawyer is that if your client insists that they want to maintain their innocence you have to allow them to do that but what the court of appeals did at pages one hundred to one hundred one a satisfy her burden innocence was one part of that could you explain the procedural situation before the michigan court of appeals there was a motion by the respondent for a remain to the trial cour create the record is that correct that's a broad issue of ineffective assistance of counsel and so the question to the question of the court of appeals had to decide was whether the materials that were submitted by the respondent were sufficient to justify the hearing innocence and that was reason for the change of attorney so the issue really wasn't that the that was before them was really not entitle me to relief but in the course of deciding whether there should be  necessarily got to the issue of whether there was an entitlement to relief is that is that correct or do i look let's just be clear about michigan procedure the defendant has an opportunity to ask for what's called a hearing in michigan and that's this evidence or hearing it develop a record for ineffective assistance cla so the court of appeals before it issued its merits opinion issues a one sentence order that says that motion to remain is denied because you have not proffered enough evidence to demonstrate that a hearing was warranted and that makes sense because the only proffer was the polygraph the less the gaffa davit and the pearson affidavit you know it would have been entirely appropriate this often happens that to herself would have submitted an affidavit saying this is what to do this is what token knew this is what toca advised and i relied on that or it sometimes is even the case that the previous defense counsel is willing to submit the affidavit that says this is what i knew this is the advice that i gave none of that was there and so that's why you have this denial of the motion so now in the context of that record and justice kennedy the claim of innocence and this whole thing being set in motion by that claim of innocence it was quite easy for the michigan court of appeals to say that on the proofs presented and in light of the strickland presumption there was nothing objective leean reasonable about allowing to call her plea and it just thinking about that michigan court of appeals decision there's one sort of troubling line in it to me it says when a defendant proclaimed his innocence it is not objectively unreasonable to recommend that the defendant refrain from pleading guilty no matter how good the deal may appear  one way to read this is a kind of categorical rule which says that when a defendant says he's innocent basically your obligations to properly advice him about a plea go away right now i understand you not to read it that way correct so could you tell me a little bit about what you think of that question and why you read the sentence the way you read the sentence yes i think it would be very difficult to defend the opinion if that was the only sentence of analysis because we do not agree that a simple claim of innocence by your client relieves the attorney of any responsibility to do anything that's not what happened here four sentences before the sentence you just read on page one a one a court of appeals talks about the strickland presumption that the attorney is doing his or her job two sentences after claiming innocence and you have to put all that together and i think it's significant also that the michigan court of appeals was giving to the benefit of the doubt here because on page one hundred a just one page earlier it assumes a position that is that toca actually gave the advice to withdraw the plea we don't even know that because we don't have credible evidence in this record we don't have an affidavit from to we don't have an affidavit from toca that indicates that toca ever gave that advice again if you could draw the curtain back it may very well have obvious the first factor is that the client said that she was innocent and taking that into account with the other things that could have justified adequately his withdrawal of the plea and not convincing or not second the sentence that the district attorney wanted to give it was more than a year greater than the guidelines for manslaughter and that could have justified now it writes the court then writes in its opinion only the second reason and never mentions the first now we go to and the his court thinks that second reason is pretty flimsy there she was exposing herself to murder pretty flimsy the first isn't so bad but they didn't rely on it ok so now what is the court supposed to do is it was should the should the defendant have gone back to the state court first is the court supposed to have its own independent hearing and make up its own mind how does this work that's a delightful question and i'm glad and i want to start with a record response to distinguish our case from your hypothetical and then address the vs question i'm your hypothetical assume that the state court only mentioned one of the two reasons and here obviously the court of appeals talked about innocence we discuss but on page one hundred eighty of the opinion the court of appeals also notes that the defendant moved to withdraw her plea because the agreed upon sentence exceeded the sentencing guidelines three so they're both here but assuming your hypothetical that we only had one and not to the question is really easy under twenty to fifty four because so long as the decision was not a misapplication of this court's clearly established precedent there's no violation even if their reasoning might not have been as strong as it could have been had they mention the other reason  next question does the defendant get an opportunity to have a federal hate hearing to further develop the record about what happened and the answer is no because under twenty two fifty four he wanted you to there's a presumption of correctness about everything that was found in the state court system and there is no right to get a federal evidentiary hearing if you have not adequately pursued your ability to develop the record in the state court and as justice alito has already pointed out it was not the state's failure to properly proffer evidence think that's significant because those two things are not mutually exclusive the defendant could believe in her heart of hearts that she is innocent and at the same time the attorney could acknowledge that there are facts in the record already admitted that a reasonable jury could conclude that you were guilty of manslaughter and so it would not be inconsistent for that attorney to argue for a lower guidelines range in the police and so there's really nothing inconsistent about that but the important thing to understand here is just the failure of the burden of proof the six he would represent me he told me he could take my case to trial and win so that sounds i was persuaded by go to trial because i see the win and he had at that point not well first i have to disagree with the premise of your question justice ginsburg because there's no doubt that token made an appraisal he had you know the quote from the plea withdraw hearing is a lot of materials and he made a very sophisticated argument about what the guidelines range should be not range was lower than the plea actually offered but what you need to understand about this testimony from tylo right here this was a plea for leniency at sentencing this was not part of the proffer to the michigan court of appeals as part of the motion for  could have done was submit her own affidavit or the affidavit from toca establishing whether this was actually true or not in addition you've got to take the context of this and juxtapose it against the other things that lois saying at this very same sentencing hearing and it's remarkable really that she says both of these things i'm she says she feels sorry for her and billy for being this manipulating an evil person and thank god that she did not do what billy asked her to do and she says it was only because know that the truth came out so somehow it's it's still a claim of innocence even after trial even after there's been a conviction if there are no further questions i will reserve the balance of my time thank you counsel o'connor mr chief justice and may it please the core there are two primary points that the united states would like to make first when evaluating stricklin prejudice in the context of a rejected plea offer the statement of a convicted defendant that she would have accepted the plea absent the fission advice should be viewed with skepticism and to support a finding of causation the statement should be judged based on all the objective circumstances second when a federal habeas court finds a sixth amendment violation and the rejected plea cont it should not categorically require the government three offer it rejected plea deal and that decision should be left to the sentencing court and requiring the government to re offer a rejected plea deal in a context like this case where the the agreement required the defendant to do something other than plead guilty give testimony against her and it doesn't make sense and the government should not be required to make the reality for every defendant who rejects a plea offer and then is convicted after a trial will have an incentive from a want to revert back to a plea deal that she rejected beforehand the statement of a convicted defendant that she would not have withdrawn her plea absolutely years ago one of my colleagues not on the spin but a different one so to me you know there's much to do about judges basing credibility on to me and he said no one knows that what you base it on is the internal consistency the logic of the testimony and how it's corroborated by circumstances and he said otherwise you just rarely hear anybody say story makes sense nothing corrupt story doesn't make sense the story's not corroborated but the guy looks like he's telling the truth i'm reading all the decisions that you cited for me and not one including in this circuit rely simply on th kind of statement every one of them is based on comparing the testimony to other factors so  evidence to objective so i don't know what rule it is what objective evidence means you need corroboration but where you need to prove murder is what you want us to announce i don't we're not asking for any kind of a special rule that there has to be you know certain amount of corroborating evidence in addition to the defendant statement i do think it is just a general rule that you have to expand out to all the objective circumstances to evaluate the credibility of the defendant and what the six this case is unlike some circuit this court does not require that a defendant must support his own assertion that he would have accepted the offer with additional objective ever it's said it but it didn't do it well to the extent that the court was saying that the defendant's statements should be credited or not credited alone without necessarily looking at everything that's wrong and to the extent that looked to other evidence in the record to corroborating circumstances the ones that it pointed were two were too weak and they were also very selective st meaning what judges look to to determine credibility realize on factors that you can't sum up in one word all we're asking the court to announce or to clarify on this question is that the subjective statement or the self serving statement of the defendant in these circumstances should be viewed with skepticism and that the court's recourse as well to the if there could be confusion on what the six circuits rule is i mean there is the sixth circuit believe that it was announcing a rule are there in this area i didn't think there are there rules i mean doesn't every judge would never judge is deciding a factual matter for the jury to take into account from every e whether that witness is making a pretty self serving statement that's a factor and i guess we could have some situations some time in someplace where a witness got on the stand and said something  totally in his favor when you heard it and you knew the case it's right and then that could happen with this kind of witness to it could happen i'm not saying it very often does but it could so why should we have any special rule for and not for any we are not asking for any kind of a special rule we are just asking that that the court clarify if it addresses the second question that what the sixth circuit is saying that you centrally if you interpret it to mean that you don't have to look out to all the current objective circumstances to determine the credibility of the defendant that that's wrong when you need to give us some examples of things that don't count i thought maybe it was in your grief that you would said look the fact that it turns out to have been a very bad deal you know the bargain was when you're in the sentence after guilty was twenty years that i take it you say is not a corroborating factor not in this case the disparity between the sentence that a person plea deal and the sentence that they receive after a trial is going to be present in every case in fact right has to be for prejudice that could be a corroborating circumstance or something to support the defendant's statement in a case where like some of the court of appeals to s the defendant was mis advised on sentencing exposure a good lawyer said well you should reject this plea deal for fifteen years because the maximum that you could get at trial is twenty and so it's worth the risk but this defendant understood completely and said multiple times on the record she understood that the potential sentence for a murder conviction was a life sentence and that that was back on the table if she withdrew the plea offer on the question of the size of the sounds what do you think were the the range of reasonable sentences that could have been impos compliance with our recent decisions you have you have the sentence that was offered before the trial but that was predicated on a testimony and b not having to go to trial and then you have the sense that was imposed after the trial when there was no testimony and there was a trial what was that what would what do you think a trial court could reasonably do with that situation just split the difference well i think the trial court has a lot of discretion under the court's opinion but i think what what should have happened in this circumstance is to go back to the sentencing court not require the government to riyadh for this plea deal which just simply can't be can't be offered and accepted anymore in fact in the record when you see it being real for they're saying we're offering manslaughter in exchange for her testimony at a trial that already happened it doesn't make sense in this case that there there should be no reoffend we should go based on the conviction after trial because of that and perhaps there could be some kind of a reduction of the sentence within the district court renew a bargain it can't be carried out that's become impossible well i mean we think that's right i don't know that it makes sense to say that there because there is no remedy that the court shouldn't address the first or second questions i mean maybe if the court thinks that there's there's definitely no remedy and that this twenty to forty years should remain in place but exactly we don't think that the government should be required to riyadh for the plea agreement in these of the problems here is that the sixth circuit sort of took as a given that in circumstances like this that the original plea offer has to be re offered and what we think the court was saying in laughter is that that's one thing that's on the table it's not necessarily required in every case there could be other creative remedies like there could be a defendant who can no longer miss the opportunity to give the testimony she was supposed to give but perhaps she has information on somebody else and so maybe we could do a renegotiation of the plea the sixth circuit we do not think should be just requiring after finding six of them in violation that the government ryall for a plea agreement and circumstances that are different from those in law i mean the court did say that the court the court below the six circuit didn't say that the court whether offer accepting the plea is right there giving another remedy is right all of these arguments should be before the court not before us as an absolute rule that's right and we simply think that the decision whether to require the government to riyadh for it in the first place should also be something that's left up to the sentencing court so that's your only going to choose that that should be issue for the court yes that this should all be left to the stress and discretion of the sentencing to court to come up with an adequate remedy but some remedy has to be offered well if there is a violation of the court's opinion and laugh where i think leaves that question open says that it could be circumstances that the sentencing judge determines that the  fair result is to leave the conviction and the sentence and place but the sentencing court has that discretion thank you thank you counsel look any further to say that defense counsel provided effective assistance there's also agree with you and so does your adversary but he says there's nothing in this record to show what research was done or not done the fact that the prior council's record was a review doesn't say that he didn't talk to the prosecutor doesn't say that he didn't that at every turn when mr toca stepped into the courtroom he asked for more time and indicated he wasn't ready the record does show it is soon as the plea was withdrawn mr toca said i need more time i'm not ready to go to trial and in all fairness my my client deserves to have a fair trial i'm not ready he's not ready to go to trial he doesn't have a good handle on what the record is my brother counsel makes an argument that mr toca made a very sophisticated sentencing analysis and therefore had a grasp by the record i would disagree with that interpretation of the record mr tucker came and said that the guidelines were two to five on the minimum sentence ask or said i don't know what the guidelines are and i don't care there's we don't even know if his recitation of what the guidelines range was was accurate so there's nothing on this record to show that mr toca even knew anything about it that's all you know arguing that the he needed to you needed to have enough material and to have familiarized himself enough with everything that's relevant to the case to be able to go to trial before he could move to have the the  previously withdrawn you know my argument does not go that far what i'm arguing well but i don't understand what the argument was the argument is that defense counsel has a duty to investigate that defense attorney has a duty to be able to inform the client of the risks of either accepting a plea withdrawing a plea whatever the case in this case it's withdrawing a plea that's been accepted by the court this is a very significant step in this matter while it's true but you you have the duty or that's not the way the game is played i agree with you just as guilty and we're not putting the burden on the other side there is if i were for refer the court to the pearson affidavit which is in the joint appendix at page two ninety eight that affidavit in why she was in jail while she was represented by counsel that the approach was you should reject the plea and not testify against her and that's the evidence that we have on the record and that is courts findings are entitled to no difference because the state court took that affidavit from on your person and turned the words on its had its affidavit does not state that ban lead to a lower approach the sheriff's deputy and i asked for a new affidavit states that the sheriff's deputy approached her she told her she should consult with his attorney because his attorney was really good and his attorney would be able to help her and so it's the sheriff's deputy unequivocally from this affidavit because it's the only place that this evidence comes from is the sheriff's deputy i'm sorry we're looking it's on page two ninety eight of the join persons affidavit is the sheriff's deputy that sets everything in motion about innocence why does he do that because he's in the courtroom when the plea is entered and what is part of the plea part of the plea is that donnelly to low passed a polygraph what do a layperson what does that mean you passed the polygraph you're innocent you didn't do the crime when this case that's not the situation at all the passing of the polygraph cemented her guilt in participating in this crime but what that what she passed in the polygraph was that she was an aider and abettor so it was her aunt who took the polo and smothered her uncle not mr low but she was present she participated she accepted money after the crime so it everything that happened in a michigan court of appeals took the actual facts and turned them on its head which is why they're factual findings are not entitled to that isn't a week is it unreasonable to read the pearson affidavit and you submit it that is not correct correct all right to read it to me that there were discussions between deputy and took and to close said she wasn't guilty  i mean does he go around saying to everybody just generally oh you know if you're not guilty you shouldn't plead guilty i mean it says they had discussions and during the discussions he told her she shouldn't plead guilty if she wasn't guilty it also says it also says without due respect that deputy approached her where approached your right and discussions with her it doesn't say why he approached i mean i just don't think people normally do that they go to every did person in jail and say you know if you're not guilty shouldn't plead guilty i mean somebody might but something triggered that and fifes well and the affidavit doesn't tell me what triggered that advice so i could infer that what triggered the advice was her statement she wasn't guilty or i could infer this is an unusual situation where for some reason unknown he brought it up i don't know from reading a paragraph six in just over his burden is it just for i would argue that it's in it's it's an inference that doesn't matter it's an ok in this case it doesn't matter why doesn't it matter because if she went he she said you know i'm not really guilty he said well you shouldn't plead guilty she said but what i have a lawyer will get rid of your guilty plea if it went something like that and then we assume the war was told about this all right reasonable assumption and then the court opinion of the michigan seems to make sense that that was a reason that was one of the reasons that made his conduct not miss tetlow who's saying i want to withdraw my plea it's the attorney who is saying to her and encouraging her to reject a plea now newman you know i'm i'm this may be the first case that i've been involved in this with judge and there might be others but myself personally we're in a situation like this the defendant has not put in the affidavit to explain what happened there series argument that there's really sparse records here and at the difference requires the burden on you you can't deny that i guess i don't know if you were responsible for what other circumstances that would occasion a defendant not saying this is what i was told i was not the attorney i came into the case at this level so i did not do any  however there are there is a record of it and to support not what there is record evidence that supports the claim and maybe it was a strategic decision by the attorney not to submit other affidavits because the attorney was simply looking for a hearing to expand the record so we have that they all asked for the hearing in the michigan michigan the way michigan works is within fifteen days of getting the transcripts you can file in the trial court if you feel if you fail to make it fifty six day deadline then your alternative is to go to the court of appeals in ask for a rematch so we don't know when the case got to the attorney and so on i don't think that there's any inference that can be drawn from the fact that within that very short time period there was no motion filed in the house the attorney at that stage it take it it wasn't a trial a trial because the big part of a she was i don't know if she was appointed to retained but she's not with my office with the men if you would read the sixth circuit was wrong at least to this extent is there the defendant as closely as possible back in the position he or she would have been in but for the ineffective assistance in absolutely cooper the court recognized that there's going to be situations where circumstances have changed and there's going to be this blog then was he wanted the testimony so how can this i've never seen anything like this where a court orders the prosecutor to make a plea offer that was never made well again referring to laugh or be cooper the remedy goes that the sixth amendment right attaches to the defendant not to the prosecution so the goal here is to remedy if the court finds and agrees that there's a sixth amendment violation to remedy that sixth amendment violation if there is an unequal burden to be borne by one one side or the other has to be behind by the government and so therefore the way to remedy the sixth amendment violation it was a charge reduction is to re offer the manslaughter plea which has already been done in this case by the way my client has already accepted that plea and then it's up to the trial court now whether or not to accept the plea reject the plea or do some sort of modification which is exactly what the sixth circuit ordered and is exactly what this court ordered him in laughter of the cooper to allow the trial court to have the discretion and fashion the remedy the both will take care of the sixth amendment violation and can balance the concerns of the prosecution in what's been lost in that process but still be able to craft a remedy i don't know that it's so strange to me to make the prosecution submit an offer that can no longer be accepted i mean it doesn't seem to me any more strange than to make the prosecution submit an offer where the situation was at the beginning you do this and i will you know i will prosecute the quid pro quo as you ovoid the possibility of conviction but here she's already been convicted she had a trial you know twelve fair impartial jurors and she was guilty that's that's what the jury found so it seems to me just as strange to make the prosecution  now that we know she's guilty so submit that prior author so i mean it seems to be quite weird in any event so one one incremental weirdness is that the prosecution is has made comments and they referenced this in the appendix they reference a newspaper article of the prosecutor talking about the fact that this is nothing more than a manslaughter case this is where charging first degree murder but really it sort of  she's going to go to trial and the prosecutors already admitted this is nothing more than a manslaughter case should be convicted of manslaughter and she's going to be in a better position following trial and conviction just like in cooper there was no question mr cooper was going to be convicted there was no question at all of about the input of a manslaughter sentence because this was a manslaughter case i thought you were making that argument and i misunderstand that i'm not making that argument there is a reason that they spoke about which you say that's just contrary to fact his point the affidavit the affidavit i read i think it's a little and rather ambiguous in that respect and i can overturn that or a federal court can only if this factual statement i just read you he's clearly clearly so i have a tough time saying it's clear and i know they overstate it because they said the automatic that's good maybe an overstatement you have to read it in light of that so then you're making a second cake if this is right your second argument is anyway he was incompetent for a completely different reason he didn't read the record and if you'd read it he never would have made the statement that this is just a manslaughter case he would have seen plea she'd be tried for murder and then she get a really long sentence so that's an ineffective assistance of counsel now what does the court in michigan say about nothing so that i wonder if you know we made that argument to them or maybe they made it and they rejected it subsequent you that's why i asked my first question ok so and you heard the response even if they were had heard that argument and they said nothing about it they don't have to they don't have to mention every argument made if they just deny we assume they deny it and what we do is see whether they were within their rights to tell we're supposed to look at it does it clearly violate supreme court law to deny it and there's going to be a factual part of that and a legal part or at how do we deal with what twenty to fifty for a gives separate provisions for the legal aspect of a first of all did anybody make the argument as clearly as you have made it used i saw it once and i think so did anybody make that argument to the michigan court not that i'm not and i ok well that's the end of that isn't it i mean what you're coming or you have to proceed by asking for reopening in the michigan court and see if they say it's too late and you know it set or they're all spelled out in this opinion which i care remember call in or pinholes or something if i could move beyond the particular facts to some of the broader points that the solicitor general has raised if you don't have the requirement of at least some corroboration then all you have in every case is a completely self serving assertion i wouldn't have pled guilty if you know i've known this or i know that and everybody will raise that argument everybody raises ineffective assistance of counsel and he will just add on to what this assertion i mean shouldn't it  require it but it exists in this case and the reality is as we discussed in our brief that every circuit looks it's a strickland analysis just like every other strickland analysis the court looks at the entire record and makes a determination based on the record and other circuits which require something in addition that that's the rule that we should adopt i don't think no i don't think that any particular rule should be adopted i think the rule as it exists under strickland are fine for the circuits they know you're telling me the circuits have always done this so the six circuit at least thinks it's doing something different it may think it's doing something different but in this particular case there was objective evidence that they pointed to and as the solicitor general mentioned there's always that's like saying you don't have to have corroboration right but for this my point is obvious for the court can can set forth a rule but in doing so i think we're going to run into what is sort of my error said earlier in terms of judges judges do this all the time they figure out who's credible i mean it's never just like here's these things but this guy is credible so i'm going to believe him it's a totality of the circumstances and it's always going to have to be a totality of the circumstances so to say here's a line there has to be objective evidence then what is the objective evidence how we're going to define objective evidence so the sixth circuit was wrong with it said we're doing something different than the other circuits they certainly did not do anything different in this case and the other cases that i've reviewed from the sec circuit i've not seen a case that relied only on subjective testimony so i can't point to a case where the sixth circuit is doing something different than any other case and i don't believe anyone else has pointed to a particular case so they might think they're doing something different but in reality they're doing the same thing as everybody else  ethical lapses so they do they have a legal significance in this in this case they certainly speak to his his credibility in united states versus sort of is a very similar case out of the ninth circuit where the court did rely on the fact that the attorney had significant problems of the problems and in this case mister toko as actions advocate problems go hand in hand i mean here produce a representative find and who is in jail and encourage her to reject the plea he did this on a very short timeline admitting that we're not admitting but we know from for prior concert that he had not even picked up the phone to speak with her concert who had spent almost a year later getting this case if not retrieved prior consuls file it appears from the record those are facts in terms of in ences it appears from the record that he got his information from the media from this was a highly highly publicized case he signed a retainer agreement with a client who had no money who gave him some jewelry and the right to promote her story so he had every he violated multiple article rules and those violations lead to the conclusion a reasonable conclusion that the reason for withdrawing the plea was to make the deal more lucrative it's not lucrative if she pleads and she'd already pled so she'd already entered a plea and other was law for sentencing that's not a very exciting story if your entire retainer agreement relies on the fact that you have the media rights to saw the story so yes i would argue that the that the other collapses are very significant in this case and mine credibility to zero in what sense is his credibility desisted his credibility figure on the decision of the court of appeals what didn't they there were separate issues raised on ethical violations and they were denied by the mission court of appeals and they were denied by the federal court to do with the michigan court was ever presented with this argument that in fact he gave the advice he did because of the  arrangement that he had they were specifically presented with conflict argument and the top of my head i apologize that i don't recall if that is was specifically contained in there but but i think it was i mean there the record of the federal court and we've been unable to get it from the state court but it does exist yes motion absolutely yeah you have to file it you have to file a motion to remain and and the court of appeal specifically references that motion to remain because it's the michigan court of appeals that failed to engage in further fact finding and so we take the record as we get it from now and under williams and other decisions if the court is the one that's responsible for in and out of court record i mean we have what we have quantum of proof necessary to overcome that assumption the court of appeals made based on the record before it and actually the legal standard under it is not clearly wrong under twenty two fifty four one which is reprinted in our blue brief it's presumed correct and that presumption can only be overcome by clear and convincing evidence and we don't have it here second with respect to the advice my friend on the other side points to paragraph eight of the pearson affidavit and it's a little ironic that they put all their eggs in that basket now because in their briefing they disclaim it as triple hearsay and say this court should not rely on it and she said some things characterizing that paragraph that aren't in there there's nothing in paragraph eight or the rest of the affidavit that says approached i don't know where that comes from but assume that everything actually in the plea actually makes this objectively reasonable advice and in fact it's more than that because at the time that the plea was withdrawn consider all the facts that were known from talking to the prosecutor looking in the police file and everything else that  did at that time no one knew about this critical shaheen testimony which only came out at trial that it was actually tetlow who held uncle down down while he was being smothered in that completely changes the complection of this case and so to say that  know that the other circuits all look at objective evidence and we think that's the right way to approach this and you're exactly right chief justice that the sixth circuit takes a different approach the sixth circuit says although some circuits of held that a defendant must support his own assertion that he would have accepted the offer with additional objective evidence we in this circuit have declined to adopt such a requirement and you can see how that difference played out in this case because the sixth circuit didn't look at all the other evidence that was in the record that was contrary to this self serving statement that to live made that to low had the plane in hand before the ink was even dry was already professing innocence and talking to other lawyers that she fired lusti and there was no reason to do that unless she wanted to withdraw the plea that she did not have a propensity for truthfulness at trial she lied about the fact that she was drunk when she was not the night of the murder but it's came out that she asked shaheen to lie about the alibi and she had the murder weapon and then you've got all the statements at the sentencing hearing and post remain on where she's continually asserting her innocence that's happening all the time when you consider all that objectively under the other circuit standards clearly that would not be sufficient to establish prejudice here general's office explained that shouldn't come into play here because that was a well known disparity that was a something that was hidden by clients ineffective assistance and they'd the sick circuit talks about the fact that she accepted the plea once and then withdrew it obviously that cuts both ways so all you're left with is the subjective testimony and when you look at all the other object of evidence the evidence that other circuits would look at there's really only one possible outcome here so in some your honour's oh i guess i do want to mention one other quick that said join appendix three o two to three seventeen it was because he falsely put someone else's license tabs on his license plate and that was a misdemeanor and then he lied about it record silence under strictly means the state wins not the convicted murder