almost fifty five years of practice when i say that at least we know this is not your first argument and but that's something unusual happens it will be my last statute for the issue at hand and as a result of that fulfill all the provisions necessary and strickland it was certainly not that reasonable  don't have to give any reason whatsoever but all lawyers all the lawyers did was to ask that a court to appoint independent counsel to give advice to mr grant on whether he really should withdraw his pl they they they didn't read the rule they didn't know the role bot what was so bad about what they did and what it what they suggested was that mr grant should have independent counsel advise him on whether on whether it's a good idea to in fact withdraw his plea now that's incorrect you're right what happened is they were operating under this full spreaders that there had to be a good reason so meeting with them instead of saying if they did what they should have done you have an absolute right to do it well let's understand something you go back to square one the indictment will be there and you will have to go the trial because you're certainly not going to plead guilty to an indictment which the judge has to give you a grant and he says i want to withdraw my plea would you not at least talk to him about whether that was a wise decision absolutely and here's what happens he makes it known on june twenty six when we agree on that statute or not that's his absolute right and by the law is failing failing to do the most basic thing it certainly fits the first category of strictly and the second zero is there a probability the result would have been different in the probability it was an absolute certainty the court had no choice but me here for you for as i understand it was november brooklyn game over on this going direct and let me ask you this question if the district who are judge were to enter an order that purported to be a latin phrase team but i'm if you will standing in the shoes of the magistrate judge who took the plea which i could have done as district court judge and some district court judges by the way will always take their word i will t court judge to avoid this problem if it turns out to be a problem have the power to enter in look for into court obviously not otherwise would disagree with you should do to avoid this problem is to take your own guilty good lesson to be learned the name is thomas mckay i'm the sister united states attorney in the southern district of new york i represent the united states in this appeal there grants ineffective assistance of counsel petition fails on both prongs and i think two of the questions that were asked during mr i dollars argument cut to the heart of each prong with respect to the ineffective assistance program judge chin asked or perhaps they made a mistake they didn't read the rule what was so bad about what they did and that is the critical question because the question the standard here is not a subjective standard what prior counsel thought as they were acting as an objective standard was what they actually did reasonable under the circumstances and as judge jacobs asked at the time when their grant informed his prior counsel that he believed his guilty plea was entered based on their bad advice a potential conflict of interest arose and so whether or not they had looked at the rule what they in fact did seeking the appointment conflict free counsel to consult with grant on this momentous decision one of which would have given up a plea agreement which got him out from under a mandatory life sentence was eminently reasonable there wasn't much discussion of the prejudice prong during this  his plea what would he think would happen that he might be able to negotiate a better plea deal underhill versus lockhart from the supreme court the united states versus our teka from this court the standard here is not just whether he would withdrawn his plea but whether he would who withdrawn his plea and go to trial in all those affidavits says he never wavered in wanting to withdraw his plea of this is that fifty four of the appendix he does not state that he would have gone to trial and that's p important given the procedural history in which this arose so grant did not file any affidavit in support of his initial petition our opposition brief and this is at page thirty six of the appendix specifically pointed out the requirement that he file a sworn affidavit attesting that he would have withdrawn his plea and gone to trial because that's the legal standard now even though mr grant was represented by counsel in his habeas petition and even though he was put on  notice of this legal requirement his affidavit he filed in reply was deficient in two different respects first it did not include the assertion that you were going to trial and second it was on sworn both of those are in to his motion and i'd like to talk a little bit more detail about the police case from this circuit which we think is on point and is cited in our brief in that case the defendant had filed a sworn affidavit but it simply incorporated by reference t rest titian of facts in his attorney's memorandum of law which had the necessary assertion in that context which that he would have accepted the plea that had been apparently prior previously offered this court held that that adoption of his attorney's statement of facts was insufficient because a statement regarding intent must be directly attributable to the hate is petitioner whether it be through sworn testimony in the main proceeding or by a sworn affidavit in support of his motion that's telling and it's failed his motion the burden on is on him to establish presser you make i did argument in a footnote we do your honor it's a telling and decisive and powerful i don't know i mean i knew i hadn't under the rule you dispute that we do not dispute that well in that case isn't the defendant's right that he had a right to withdraw his plea and obviously  drupal it's up to the government to decide whether to go forward and go cheri who plea or take the trial or seek to dismiss the indictment but he said look for whatever reason good bad or indifferent i met want to withdraw the pulley had not yet been accepted by the district court judge over the eight month period but it could have been an eight day period when is it the district judge you take in the plea for the depended scamps to say game over eight months go by in that period the defendant says i want to withdraw my plea isn't entitled to do it until it's accepted by the district court isn't that really what this court is now faced with determining no your honor that's what this court was faced with the turning on direct appeal i stood in front of this court three years ago and argued that point on direct appeal and what this court decided at that time and the summary orders that paid begins at page sixty five of the appendix is that what we get a lawyer and he had to advise because he doesn't listen to me because that goes back to the point that i tried to make at the beginning in response and judge chin's question which is that perhaps it would have been better for defense counsel to act in a number of different ways but the question is not with the benefit of hindsight how defense counsel could best have acted it's whether what they did was within the wide range of reasonable professional assistance and what they did as this court has held is in hindsight and if if the motion have been made to withdraw the pl it would naturally have been granted indeed all you had to do was send a letter saying we withdraw when i say hindsight what i'm referring to is the standard under strickland for ineffective assistance of counsel and the question is when defense counsel were put in this tricky situation we have a client who says that the very favorable plea which he had entered was based on our bad advice that put them in a bind there's a potential ineffective claim there i think the problem though is that the if i should have been you have an absolute right to withdraw your plea we think it's a bad idea but that should have been the advice and he might have said i want to withdraw my plea the problem is that at that point in time what defense counsel would be doing is in the face of potential conflict of interest giving the defendant vice on a critical issue like this many defense counsel in that situation would think it a comment upon themselves to try to talk their client out of making such a decision but what defense counsel did here instead was rather than further advising someone in a situation where there's a potential conflict of interest make a very simple request of the court please give him a conflict free counsel to advise him on this very important decision and i should say that although for him in the way it played out he lost his right to withdraw the plea for no reason is is that not prejudice well again the standard for prejudice is both that he would have withdrawn his plea and that he would have gone to trial the burden is on him to prove that he's failed to do so he's failed to file a sworn affidavit but i don't know that there's a case like this one but isn't there prejudice in losing his absolute right to withdraw his plea for any reason for no reason not if he has an x not if he hasn't met his burden of establishing that he would have in fact exercise that right and would have in fact gone to trial that is the standard set forth that he'll versus lockhart united states versus our teka the requirement that he'd support his assertions on this was sworn testimony to set forth in united states versus puglisi so in this situation as in any other there might be ways where the court could think of a way in which defense counsel would have acted more prudently than they did but under the difficult circumstances in which they're in we think making the request to get mr grant a second conflict free opinion was first of all that first point advising him further on the law and on what he should do is problematic where there's a potential conflict of interest this court case law sets out on what he should do but simply on the fact that he had an absolute right still giving a defendant advice about the law and about his legal options under a potential conflict of interest is in tension with this court's precedents that say under the circumstances defense council should seek the appointment of conflict free counts i should have given you have an absolute right to withdraw your plea we think you ought to get independent counsel to consult with well i think the point is the same i'd also go so far as to say it is not now we lost this argument on direct appeal i'm not trying to relay to get direct appeal but there is at least some uncertainty there's a circuit split over whether or not someone can withdraw their plea after a magistrate has accepted it there was no precedent in the circuit now we lost it on direct appeal i'm not really getting that issue probably i agree your honor but the point is simply that the defense counsel at that time it wasn't such a simple answer to just say now you have absolute right to withdraw your plea in fact it didn't occur to these two extremely experienced members of the c g a panel there's a circuit split on the issue so it's not quite as cut and dry with the benefit as it is now with the benefit of hindsight with the benefit of a second circuit decision saying that he did at that time have the absolute right to withdraw his plea so you know for if you look at both affirmation attorneys point to them saying that he wanted to go to trial so it's in there that's number one number two the government fails to just look at the language maybe something say something different and there was no conflict they made it a person is entitled to conflict free advice even as to something that that person can do at will but there was no how flic because there was no reason to have a adamant he's never ever changed his mind even after a substitute counsel he always wanted to withdraw and you know and hindsight is someone my age i mean forty is going to trial and what was the big his early twenty's so it's understandable why you have to sort of let me go to trial that's off my right you can do it and that's what should have been done i understand the frustration with the lower court it  expressed it on the record going to trial with another one and i hung jury went to trial again convicted was reversed and the frustration we're all human well let me tell you conclusion it was a pleasure to