the morning may it please the court i mean is matthew pruden and i represent nicholas reagan in this matter your honor back in two thousand and four mr reagan was charged in a drug conspiracy a conspiracy against the united states thirty year sentence now subsequent to his conviction he filed a twenty two fifty five motion he was numerous things but there's really one thing at issue today and that is he alleged that his lawyer his trial counsel fell asleep during trial hearing about a year ago i'm approximately seven years after the trial took place so what we have here the issue to focus on here is whether his counsel was ineffective in violation of his sixth amendment right to effective assistance of counsel for falling asleep at trial now one thing that i want to point out is generally speaking these types of matters are reviewed through the analysis set forth by the supreme court and strickland v washington and that is a determination of whether counsel's performance was deficient and whether that deficient performance prejudice that lawyers client now i don't think there's any argument here that falling asleep during trials efficient performance the issue that we have here is an issue regarding prejudice and going to strickland i do just want to read one seems to me you have to take one of two approaches either you have to argue that fall in this league for even a second at least to presumed prejudice or you have to argue that this is clearly you would find generally acceptable what other courts have looked at and said falling asleep alone is not enough to get presumed prejudiced under strictly but certainly some  narrow the focus down to you think that on this record who held an evidentiary hearing and explained his decision and failed as a matter of fact that the client i mean the lawyer had not been a sleep for substantial one little quote that strickland strickland pointed out and i do think that that is very important to consider in this case and the stricken court said that there is an ultimate focus in every inquiry into ineffective assistance of counsel and that is the ultimate focus must be on the fundamental fairness of the proceeding is result is being challenged in every case the court should be concerned with whether despite strong presumption of reliability the result of the particular proceeding is unreliable because of a breakdown of the adversarial process their system counseling to produce just results and that's what we're looking at here now going to the facts of this particular case that your honour's mentioned earlier there were four defense witnesses on behalf of mr ragen the appellant in this case and there were two witnesses on behalf of the government now out of all of those witnesses not a single witness said that they did not see mr reagan's trial counsel sleeping the defense witnesses can see i'm sorry to interrupt but but you're operating on the margin here right as it is no question there was sleeping more than once on separate occasions everybody sought jurors co counsel the to the presumption of prejudice because frankly it looks like the good judge got it wrong when in that footnote when the judge says even assuming there's prejudice it's harmless but we don't get to harmlessness right that's right this is a chronic case not a strictly case if we presume prejudice that's correct if prejudice is presume then that clinches the twenty to fifty five right that's correct your  honor that's that's all you see that's all you talk about that's what's there is there presumption of prejudice government can't rebut that presumption of prejudice right that's going to say it was a structural breakdown in the adversarial process yes that's how i meet again yes so so i guess all of that is to say the greatest deference we owe as a reviewing court to a district judge is the district judges credibility determining right so my question to you is can you make an argument to us and frankly i think you can but i want to hear you make it i don't want to make it can you make an argument that there's a clear error here without having us try and show on the district court credibility terms another word is your argument that there was clear apart from the credibility determination of this court yes your honor that's correct and i think the the main focus for that particular question has to do with the testimony of pamela vernon and she was able to have a good view of them and she testified that she saw mr makki his trial counsel sleeping every day at least two times a day and sometimes for as long as thirty minutes at a time  now the district court now and this is also in the terminal credibility but the district court inserted certain facts that never came into evidence and are certainly not in the record and i call them facts are not really facts because they weren't there was just a nice way to refer to them but those facts were that mr vernon may have had sympathy for mr reagan based on the length of his sentence now the problem with that is that there was never any evidence presented nothing presented at the evidentiary hearing showing that mr in had any sympathy towards mr reagan for any reason nor was there any evidence that miss miss vernon was ever even told or even knew about the length of a sentence or or anything more than that so the judge was basing its determination and discounting her testimony based on the insertion of those facts that were just not there now when we determine carefully and i don't want to say is not fake but i do think that and in the long run it may not make much difference but not everybody testified he was sleeping in that correct did some people say he had his eyes closed and i don't know for sure he was sleeping but he looked sort of but in that first year how long ago i do believe i have one witness did not use the word sleeping but i do believe every witness except for the trial counsel who didn't answer whether or not he was sleeping  everybody testified except for the lawyer himself said he was sleeping and not the record is you're the agent said he was not in off he used those words he said he was not in often not sure if he was outright sleeping and then he also used language that he was struggling to stay awake i thought other witnesses said he had his eyes closed for long periods of time when sure he was sleepy miss vernon your honor was the he was the juror when she was asked by the or or their client so they didn't have their attention drawn to his trial counsel during the entire time of the trial so there was a bit understand i wasn't asking that question to talk about what the what a reasonable inference is or reasonable suggestion yes from the overall record i was asking a very technical question about what the exact testimony was in march instant not what the overall impression was or maybe water a reasonable  his trial counsel sleeping mr vernon being the one who had a clear view of him who testified to him sleeping on these many occasions and the testimony of the others really corroborate her testimony testimony more than anything none of them a and you would have us determined based on this record that defense counsel was sleeping for substantial portions of the trial that's correct i don't but that's what i would ask i would ask that the court find that the evidence did show that do with the footnote to judge davis talked about the district court view of what presumed majors mean you think that's wrong don't you think the footnotes wrong that's correct on what we'll do we make of the dish court's view of what presumption means is that necessary at all for your argument your honor i guess it may be necessary if i'm if i'm not mistaken i believe that the footnote states something about prejudice would be harmless even though he fundamentally fair trial that produced just results thank you thank you  morning may it please the court william miller on behalf of the united states the district court did not air let alone clearly air in finding that the defendant's claim that his counsel slept through stanch reports in the trial was wrong based on that finding the court correctly declined to presume prejudice and applied the ordinary strickland standard to the one key fact that the defendant failed to mention and talking about the court's finding in this case is that the defendant's initial allegation was that they were sleeping on two occasions that's a critical fact that supports the district court's ultimate conclusion and it returned it would basically in my mind support the finding in and of itself when the defendant and his letter two months after court writes the court provides a laundry list of complaints about defense counsel he says the fence counsel even had the audacity to fall asleep two times is that explained why the government made the decision that it didn't need to contact the other jurors because the juror witness was very clear in her testimony that this was a subject of discussion among the jury and it seems to me that it would been pretty easy for the government to go out and harvest remaining jurors on a significant number of them to come in and say yeah we saw him diving off once or twice we joked about it but it was not a big deal you didn't do that and and your sister in the earlier case that you heard her relied very heavily on what was not in the record and it seems to me it would be perfectly appropriate for reviewing court to take into account in assessing the weight of the evidence and applying the clearly erroneous test to say well we've got this juror here who is giving a fairly detailed narrative she was in a position to see what she testified about yes she may have been wrong on the thirty minutes perhaps one occasion but the government didn't even bring in any other jurors to refute what the juror who had an opportunity to see what she saw and to come in and testify and i'm curious why you didn't and so maybe that's why you you went into it perhaps thinking oh he only said it was twice and therefore you look at the law the government didn't have to call any any witnesses there's also ben did we did you did we didn't and so my question is having decided to call witnesses why don't you call other witnesses who had real information and that could have absolutely  rebutted the testimony of a defense witness namely that juror and i was the usa who handled this at the district court as well and so i can tell you that in my judgment i read the letter i spoke to trial counsel from all all the trial coun you that now of course not and i think it's important in this case that there have been i think at the time hearing seven years had elapsed since the time of trial and so you know we're stuck unfortunately with that gap in time  there is evidence and i don't know whether you have to get the chronic you don't get to present at all but if you make that standard but you you introduce in this case that there was evidence of prejudice because but you open the door to an interpretation of what happened in terms of deliberation with all the jurors and you asked this question and once that the seven of the pending question during your deliberations did you hold your observation i guess your attempt to close it but i think you left in the jar you said it but your verdict against the defendant the finda were you able to follow the course instructions yes we were that's not inconsistent yes they could f the structure next question was that verdict based on the facts and evidence that you heard yes but you didn't ask wasn't solace though you had already terminate it was it was held against them that's in addition to you open the door that they not only saw him sleeping they discussed it among themselves in their deliberations and they held it against the defendant that's an refute you put that in because you open the door but you didn't clarify further then you did then setting aside the door opening portion of the question still under strickland prejudice is something that the district court has to analyze and but we do know it was held against the defendant i'm not aware that's what he's saying i'm not aware of any case where that's been sufficient to satisfy the prejudice prong under strickland the question is whether or not there would be a different outcome but for the air and hear the juror affirm that her evidence was there her verdict was based on the facts and evidence and that's the critical question under strickland it's still the defendant's burden to show that if this unprofessional error had had not happened there would have been a different wouldn't the court would have decided that once you just establishing the record so that if you had to argue prejudice you would have the facts to argue whether or not prejudice occurred as to all this it did matter it didn't matter it was is the reason why i ask the question is when she said we talked about it that's now out there and that i thought it something the court needed to hear about in order to address that point not to determination but is is left to the record for the court and that's how you abuse discretion followed the court's instructions and i'm going off memory here but i do believe that that's at least in a footnote in the court's order so i don't know that that statement by miss vernon is not sufficient  substantial portion of the trial and where it isn't thirty minutes a day that testimony was out of step with every other witness out of everybody on this she said that it happened morning and evening every day of the trial for up to thirty minutes at a time that other not just ignore it we just have to accept it you know the district or didn't ignore it he made a specific credibility determination as to the juror he found that her testimony was inconsistent with the earliest allegation of the defendant of two initial allegation of this occurred on two occasions that was repeated in his sworn affidavit in and of itself provides ample basis for the court's ultimate conclusion in this case that two times allegation was corroborated by the testimony of all of the other impartial witnesses including the two attorneys and the case agent who the government called to testify and so there is ample evidence in this record to support the course conclusion that this occurred on two and the requirement that the defend show that quote confidence in the outcome equates to an innocent person got convict in other words you're not suggesting that our our analysis is the sufficiency of the evidence and else right certainly not even a guilty person even an obviously guilty defendant in our system is entitled to a fair trial that is consistent with the adversarial process right absolutely so if a lawyer is sleeping through an entire trial you don't ask whether the defendant is guilty right if chronic kicks then i'm not aware of a case where that presumption has been ok and so your position here i take it again and i think i understand your position all along is that you never expected there to be a presumption of prejudice wrong in that footnote which is a part of his legal analysis right ok so i think you've answered my question you can go right to judge chin make me up but the point is here if there is a presumption of prejudice it doesn't matter how substantial the evidence was against the defendant i think you agree with that right i don't think there's any dispute among the parties as to when the presumption kicks in and the district court's interpretation on when the presumption kicks then is consistent with the party's understanding even as we stand here today the issue is whether or not the court got it clearly wrong in applying that part of the standard and what the court concluded there was that two occasions during this trial does not rise to the level of a substantial portion of the trial if there were only two occasions that's the clearly erroneous question if there were only two occasions exactly absolutely and my position here is that there's ample evidence to support the district court's conclusion on that piece includes an assessment of the weight of the evidence now we defer to credibility determinations nine hundred ninety nine times out of a thousand but you're not suggesting i don't think that  court is powerless to assess the weight of the evidence in the analysis of a of a mix question of fact in law now i'm not suggesting and i think the weight of the evidence supports the district court's conclusion here you have the three impartial witnesses other than juror who all testified about one occasion maybe a second occasion you have the defendant's own allegation that it occurred two times all of that that's the weight of the evidence right there the jurors testimony outweighed the evidence includes the absence of the other jurors mr miller it includes the absence of the other jurors it includes what's not there as you as you well know as you argue to jurors and as well as th standard instruction say a curious entitle to take into consideration what's there and what's not there in assessing the evidence and i think that that comes back to the point i made earlier which is the burden is on the defendant in this case no doubt that you're right you know if it were a criminal trial absolutely that would be held against the government but here the burden is now on the lesson about exactly what your position is so we have it straight on the record and talk about what you did we have to make a determination but i think it's fair to talk about what  did the law is not yet established in this sort of own substantial portions correct correct the district judge looking at the law applied substantial portions correct yes he did do you think the district judge made an error of law all insane i am looking at substantial portions standard that wasn't an error of law was it not that was not was that an air of law for him to say we need i believe you need to see substantial portions before the presumption kicks in he wasn't wrong about that was a no your honor he was wrong about error of law all youth suggest as i think we all do as to what that presumption means if it kicks in correct the error but never listen to me now is so my question when he says the presumption if it kicks in is overcome he be wrong about that winning yes under chronic error of law in this case and his legal analysis was there no your honor he did get the law all wrong we think based on a footnote but that's a mistake of the law but that's not anything that's an er law as it in any way affects the analysis in this case is no and here's what i'll say about that i think i meant to ask in your questions yet then when you win you win in is that correct based on the record and what you know you so i think everyone had some idea but no it was not it was what say so on this circuit at the four circuit established substantial portions of sleep it was an established no that and i just say she didn't write and i was just adding that we looked at the other circuits standard if that met all just the normal strickland standard for prejudice correct correct so you took your judgment and i don't think there's anything at all anybody could say you think was wrong with that you tried to establish the government's position so the government would win because you thought the government was right only under either standard correct correct and now not all you organize today you may be wrong about that at some point but that's all you've done in it that's right and you thought you were at risk all the government if in fact you had to meet the normal strickland standard which it turns out you did you thought you had to be able to address the question of prejudice to the court in that and that's only what happened in this case is the court didn't follow the normal strickland prejudice analysis one response to the foot no that we've talked a lot about that is an alternative basis that the district court used to support its ultimate conclusion and that's not an alternative basis that the government would rely on this our argument is that the district court got it right and declined to apply the presumptious for sumption and as alternative basis if we get there which the government says we don't get there if you miss the only east you missed the point i think of all the questions we've been asking you and why you want to answer that question the low embodied in that you want to talk about us so let's talk about why you want to talk about is beyond me for your side but that footnote doesn't that but thing you have is that the best support is that because the defendant only reference twice seeing him sleep and because the people other people not just your other juror who said she saw him sleep every day morning and afternoon and other jurors saw her saw him do the same and they talked about it and he does  song and that's on that's a person who you know physically had a better view of him than the defendant did and so and he discounted her because he said i think she's having remorse because he got a lot of time ok that conclusion is not based on anything in the record is nothing in a record distance even knew that and the other reference about she called him not a first name i don't know what that is i really don't know what it is to me that is nothing but whatever that is that's all i'm saying how do you discount that incredible amount of evidence of proportion of times leaping consistently sleeping to the point that it was held against them they talked about it in weighing that evidence just because the defendant said he only saw him twice that tha the evidence your honor it's not what it's not in this weighing of the evidence it's not it's not an employer's involved turn of it's not clearly wrong it's not the overcoming the deference that what is the other aspect that the district or specifically referenced is that no one not the defendant  have you thought about the fact you know judge shouted i would district judges and honestly i'm a human being every judge is a human being i can't imagine what would be what will weigh on me heavier than as a twenty to fifty five judge looking at a record seven years old and that and it was my job as the presiding judge to make sure the lawyers wor up now i've got seven years later i've got the prospect of retrying this case because i and the us attorney and the co i think it cuts both ways i mean that's a tough way and just as likely bolsters his ultimate i don't know what judge conrad saw or didn't see should i think the fact that should the judge have recused and become a witness in this case i don't think so you're i think wouldn't wouldn't a judge agree with me in part that human nature being what it is very few of us would want to retry a case where where we were arguably complicit and the failure of the adversarial  process i think the fact that the judge is the trial judge make put to me even a better position to assess the facts and the evidence and it's on the back and you agree it puts pressure on that judge i don't know quite as to waive the evidence in a way to see you know this guy is really guilty the evidence is overwhelming you know i'm going to make findings that i don't have quite as demo bew a judge conrad is and it's not a view of judge conrad that's exactly my point that's why i mentioned judge shared in judge davis one coming from a system where post convictions were assigned to different judges in the state system in maryland and that's true about a lot of states i celebrate the fact in the federal system the twenty to fifty five go back to the original judges i think that that celebrates in an appropriate way ability of federal judges like judge shed to to disassociate his or her own personal views about things and to render a fair and impartial judge even when they're reviewing what they themselves did that's what twenty to fifty five that's what congress has told us that's what the judicial conference has told us but there are cases that come along every now and then where you have to sit back and you say well wait a minute if everybody's a human being given the incentives and the disincentives at play here i'm just not so sure frankly if i were the trial judge i would want searching review of this record fathom i know i would have done it under the best of the term nation in this case and i guarantee you he wouldn't do it would ever preside in a trial where the lawyers leaks thirty minutes a day for fifteen days or whatever that if we want to get into what weight that matters there is this simply is is not believable to me i don't think that way into this case but if we want to talk about it and as far as whether or not he should be a fact witness maybe that's something else but you have you would have to cast aspersions on the district court who rules on this you would have to say he either was completely incompetent or he said they were and let somebody sleep which is big on this beyond fathomable to me they mean to say this it just it just is and so i don't know how we get into that or not but judge conrad sat there and he knew and by the way judge conrad knew enough to know to call wake up or whatever he did say wake up but he called his shocked him didn't call his attention about it we have been in trials where i've had to call some lawyers attention to something because a lawyer is doing so i'm not saying in this case  now i'm saying a lawyer is doing something else and not paying attention you've asked him for response or do you want to say something about that you have to get his attention you may have been a spot yourself that happens sometimes but it's just not fathomable to me now whether or not that factors into  ahead i'm happy to just conclude there ok well no one point i was going to point out is that there was a question asked about why didn't you bring it to the court's attention that was asked of any color who represented traits tracy howard and he said after that one occasion it wasn't a problem again interesting you know i think this case can can be decided whichever way is decided without you know at home and all i don't think it has to be an indictment on anybody i think is just amount of what the law is what the law is and we do it without fear or favor say about it but i think it's kind of ironic that when you ask that second question that somehow we have to somehow discount with the jurors i think take a lot of courage for the juror to come up and testify on the oath what she saw and that other people i just i just want to dress just a few things very briefly one of the last things that mr miller mentioned was mr colors testimony about what happened after he noticed mr makki sleeping i do believe that the record says that he didn't really pay much attention to mr makki after that it was mostly focused on the evidence and his client so i don't think that the record really shows that he saw mr makki being alert after that he just didn't see what mr makki was doing one way or another mr miller also address the  mr reagan's letter regarding two occasions where he stood up and of course the district court discounted mr reagan's testimony and and we didn't spend any time arguing that but that doesn't do anything to discount this variance testimony and i think that's been the main focus and i think that's where the court clearly erred in placing these facts in there to discount her testimony mr miller mentioned the inconsistency between the attorneys testimony and agent teddy is testimony where they said they saw him sleep testified that they were also focusing on their case again they said he wasn't alert on these other occasions and finally i just want to two last things mr miller mention how miss vernon still base the to thank you for taking the time to listen to this and want to once again conclude by saying that i think in this particular case we can not say with confidence that mr reagan received a fundamentally fair trial that produced just results and as a so i don't you you a way of a court finding that's that's correct your home but you don't think you have any obligation to say the four circuit found that mr makki slept a member of this bar slipped due in portions substantial portions of the trial substantial portions of the trial correct likely and so you would just have to look and see if you'd have to report that i think i would be an obligation in south carolina but i get the sense that the obligation and knock on may be slightly different