good morning would you like to proceed thank you your honors and may please cosas and i've been appointed to represent change datsun chain datsun was charged with felony burglary under west virginia law if convicted at trial he face mandatory sentence of life in prison though the state offered a plea deal that promise not to charge dog seen as a repeat offender he rejected that plea deal and went to trial because his lawyer gave him bad advice the state supreme court in west virginia conclude th about the strength of his case because he didn't know the elements of the governing law in rd datsun was prejudiced by his lawyers bad advice because he rejected an otherwise favorable plea deal the st point your honour's is that the state high court's decision was and then otherwise this is the case right and so the western sprinkles as this is the novo we take a look at it we come out this way in that scenario you agree that we would evaluate the westerners from courts factual then that may have a nd and so when the west virginia supreme court determines what the standard view is right and in this case they read the lower court below and they determined the standard to review was instead of with deference to the lower court why is that any less of a state procedural decision that we don't review for reasonableness or not we have to accept the state court ruling on state court law that are leading sort of the the steps that get to the decision making and so that in the case that we've got here the western spr determined that it standard review is to novo that's a matter of state law we don't review questions of state law and so instead what we do is we just look to the west virginia supreme court and they're determinations of fact as the last the trial right not up a fact of the standard of review between courts right so parker's about the trial court's finding not a  all the other cases that you all include are about a hey b s and let me just say i think the states waived this so i'm not sure this is like crucial for you but i just want to understand i'm trying to also get it right so what i'm trying to understand is why in your scenario assume that i think parker deals with the distinct issue of findings which are historical fact not vertical hey b finding so why that's not a state procedural determination of whether deference is due or not and i might agree or disagree with it but it's the state determination that we don't review at all so i agree this is a waiver and we don't have to address it but directly answer your question if the state had said we're going to decide to review under state law i'd agree we have a tough uphill battle that seems like a state law question to me but i will maintain that that's not what the state court said here and if you look at the language jay at seven it said had the circuit court made credibility determinations we would have deferred and i think that sentence is clearly what we would have deferred right i mean that is a standard review determination right is based on a factual belief about what the circuit court did right but it's a standard view determination when we make those kinds of standard review determinations all the time pinning or whether the issue is raised or not raised below was it adequately brief or not brie we make decisions about whether we review things for plain error or an abuse of discretion but that's a standard review determination and it seems to me that what western is done here the supreme court may be totally incorrectly i'll accept that as sort acquittal but what they're deciding there's that under their sort of state procedures that they're finding that it's a did novo review not an abuse of discretion review and it just came to be that we're reviewing that state decision the key here is you can't divorce this from the initial question the state asks the state supreme court says it's opinion which is where their credibility determinations in the st place and i know you think the parkers distinct but let me just try that parker is talking about stop but the put this that matters is that what we're asking is whether there detained in violation of the constitution and we know that no procedural problem with the hague be as a person because there's no right to habeas proceeding there's no procedural problem with the state hey b s can grant really right it has to be a problem with the trial or maybe the appeal but but the trial right that vertical piece that's where the problem has to be in order for your client to get out you agree with that and so the historical fact in parker is not about the abs court but about the problem which is what we're reviewing we're reviewing whether he's detained because of a problem with the trial so let me take a shot that that also would be true if they were determining plane air or harmless error or any other standard review because what you're saying is that a state standard of you determination this based on a factual reading of the hey s court's decision that that's a factual determination that that we look at even though it's a matter of state law we evaluate that under like our deferential standard so the key is you're not scenario wasn't a hevia score but austin said when the state supreme court misread the state trial court's decision that misreading was objective leon reasonable and that gave and that was enough to satisfy twenty to fifty four do so but there are also there are a lot of fact below that you think we do refute that i agree this is nothing we're not arguing that you get to review state standards or review determinations really the key here is that the state supreme court said there were no credibility determinations now i understand your point that's relevant because that might affect the standard of review down the line but i hope that's the only thing that was relevant for in this western supreme court is do we review this with deference or do we view it to know both the standard review question right but there are other questions were in which you can read fact in which you can agree with you on that is right and you know it and just to try and satisfy your answer one more time really the key point is just i think she may have a question mark yes right i know i'm sorry if i mean are you if you have something new to add on that please go ahead i think i've made my points i'm happy to take your arms question ok yeah does is the result in this case affected by whether we give that to deference or de novo review what is your position on that so we have a bottom line to hear flying get really does it matter which standard  we think we went under both standards it's certainly harder if this court provides that deference we all know that that was a tough standard to meet but we still think we went under that so my modern line is we win under the no review we went under the deference but certainly we prefer no wait but deference because we do not know the governing law that's the testimony of the not during the previous hearing and we think it's not just a matter of looking at trial counsel statements but there's other corroborating evidence to that highlights that dotson did receive ineffective advice from his counsel dotson's always pled that we did not make those arguments in the brief that doesn't matter though to the outcome here because even assuming that it is a historical fact that is appropriate for this court's review it is still entitled to the double deference at st but don't matter how respectfully your honor this is not a case that turned on a credibility determination or relative assessment of the demeanor of the two witnesses why not done in the question was whether the lawyer what the lawyer said to the attorney what the reasons were and whether the attorneys were all talk and were talking about the attorneys performance and and whether the attorney in making decisions whether they were decisions that constitute effective assistance counsel army yes your honor and of course the state a b s court did make a determination about which was accurate but if you look at the actual language of that opinion it's clear here that it wasn't relative assessments of demeanor motivations or who is telling the truth that led to that result here we have an example of a state trial court who is looking for anything else to make that decision we can see that for three reasons in the state circuit courts beeston st if you look at the factual findings section there's a paragraph there ajay seven hundred and thirty one dollars that talks about the testimony it simply states the testimony of mr dotson and the testimony of mr lambert and then it says that counsel's statements and arguments at trial can be seen to support mr dotson's account you don't have finding that mr dodson was more truthful or more reliable the court specifically looked the statements and argument trial that if you move in the circuit court's opinion you have four specific pieces of journal evidence that the circuit court looked at and these do not turn on relative credibility assessments this is at the joint appendix seven hundred and forty five through forty seven st the circuit judge looked at the statements that mr johnson made at certain scene that perhaps indicated he didn't fully understand the elements of the offense and the circuit judge discounted that some accounted like the lawyer didn't understand the elements of the daytime breaking under west virginia law well well your honor is the west virginia supreme court that that's not the best reading of the record or at least it's not an objectively unreasonable reading that's the nd factor that the slower you are you are you saying that mr lambert demonstrated knowledge of what constitutes a time breaking your honor i'm saying that there is not enough to show that mr dodson met his burden to overcome the strong presumption of effective performance what we have are statements about trial statements that focus on invitation into the home of course there is one inference that that shows he didn't understand that breaking was not necessary for any conviction but there is another inference that that focusing on imputation showed that mr dotson did not have an intent to commit a crime when he went to the home perhaps he went there and maybe a domestic battery occurred later but that's only a misdemeanor it is a complete defense if the jury believes that he went to the home to pick up a car title and not to commit a battery you know what mrs mysie i'd like to give you an opportunity and you know you usually don't get into this but i'd like to know why the state is so committed to a sentence of life in prison for somebody who committed a daytime burglary at his girlfriend's house i mean it you know the why would the state's perception of justice be such that the state would want to stick with this argument despite the very real question regarding what this something that just resonates throughout the record how did this kind of situation get this far well respectfully your honor it's important to look at the underlying offenses here this was mr dotson's th felony conviction and the escalated in violence over time in two hundred two thousand and one there were felony convictions for possession of a stolen vehicle and grand larceny and his rd felony conviction was for malicious assault and attempted murder now that we have this domestic violence where there were injuries involved we have a pattern of violence at the underlying offenses were crimes of violence and it is perfectly appropriate under west virginia a state law in that case when you have triggering offenses that involve violence why did the prosecutor offer one to ten  i can't speak to the motivation of you know you see what i'm saying no i do understand i do understand the concerns that your honor is raising but there are many reasons that go into offering a plea or not in this case we have a prosecutor who recognized that the state's star witness was not only staying silent was prepared to defend to testify on behalf of mr johnson perhaps and again this is speculation but perhaps the prosecutor recognized the strength of the state's case was not as strong as mr dotson would say that it is what was said in a closed door meeting with the client ahead of before trial that's reaching too far we agree that that was an appropriate or at least not an objective lead on a reasonable result for the state supreme court to reach and that's because there are perfectly plausible explanations for what happened at trial as judge can and as question earlier on out there is a perfectly valid inference as mr dotson argues now that those statements at trial at sentencing indicate that mr dotson was not properly advised but it's also possible that it was part of an effective or at least sound trial strategy to try to raise the defense to the element of intent to enter the dwelling to commit to commit a felony that invitation element is  not relevant and it's not simply an error from the attorney it can be interpreted as sound trial ok but but but doesn't it you know let's get back to that credibility point that you were making why wasn't it a question of credibility because the only people who dotson his mother and lambert and the issue was walk dogs and rejected the plea yes and there were competing considerations the explanation of lambert could not stand aside the explanation of dots one was right and one was wrong one was correct one was incorrect why wasn't in the context of why a plea was rejected as opposed to was a daytime or nighttime something that can be factually assess wh in that inherently credibility determination your honor because that wasn't the only evidence that was before the court we agree of course there may be some cases where all you have is competing testimony and in that case if the judge reaches any result it is a fair inference that was because assessments of credibility here we have a judge who lament to the fact that he was left with faulty memories and incomplete recollection what we don't have is the judge saying but looking into their eyes when i saw their testimony i thought that mr dotson was more credible after lamented that it didn't have that it had this faulty recollection and memories it said quote the most reliable indication of what happened is the record at trial  is additional extrinsic evidence that shows that the circuit court's decision was not based on these credibility determinations but an evidence of what happened at trial the made trial motion is another one of the factors the th factor that the circuit them together i mean they're just da metrically opposed yet you have a conflict and so what the circuit court does it says this and i'm trying to figure out what the answer is and so i look at the crowd rating evidence and the corroborating evidence supports one story or the other right in this case the circuit court decides it supports mr dodson story it seems to me that is exactly what a credibility finding is that you lay out the two stories you look at the surrounding circumstances and you say based on th surrounding circumstances i believe the story that dodson told i don't see how that's anything but a credibility determination respectfully your honor i believe that's a very broad definition of what a credibility assessment would be that's equating the fact that a judge reaches a bottom line conclusion of what they think actually happened and assuming that they must necessarily have believed one of the parties over the other it's possible in this case the judge could have not believed either of their witnesses fully the judge could have thought that neither one of the witnesses were fully credible and then said what else do i have in front of me in the record to decide what actually happened in this case so we could have set aside both of the testimonies sensually and then looked at what was in the record and that's exactly what it does it really is the order think about that for a minute what you're saying is that the circuit court could have filed there both lying there neither of them a credible but based on these corroborating circumstance none of which really like tell any kind of a story that those corroborating circumstances were sufficient to meet the petitioners burden to establish a constitutional violation no way that that's what the supreme court's decision is when the corroborating circumstances support one side or the other but they don't independently meet the petitioners burden respectfully your honor that's not the way that the circuit court proceeded again if you look through the three pages analysis you don't have anything that talks about whether he believed any of the particular witnesses what you is marshaling through those four pieces of evidence you have the judge every time he talks about mr johnson or mr lambert's testimony it's in context of what happened at trial he says about mr johnson at j seven hundred and forty seven dollars that petitioners version is supported by the mit trial motion not by petitioners demeanor this is different for instance from the case that your honour's just heard where there was that express credibility determination their counsel noted that there was a finding that went to demeanor that went to motivation and that's the sort of credibility determination that we're looking at here here we have a judge who said i don't know that the testimony i'm t v in recalls what actually happened what else can i look at your honor this court should also reject its broader definition of a credibility determination because we have to look at the highly deferential standard and we have to look at the specific factual finding that the west virginia supreme court made and the west virginia center cosa says it does matter west virginia supreme court is so clearly off the rails it's his answer it's said there wasn't a credibility determination and we would have deferred if there had been and he's saying there plain the actual finding is that there are no explicit credibility determinations and there's no serious dispute about that that finding a j eight hundred and seven is that there are no explicit credibility determinations and of course the state supreme court said if there weren't would have given it deference but we don't know anything about what the state supreme court would have done if there were implicit credibility determinations so this court doesn't even need to reach what the actual contours of the definition of implicit determination is all that matters here is that there are no acts listed credibility determinations so it cannot be the case that petitioner has met his burden to show that this is false by clear and convincing evidence let me ask a question about the different factors under fry you know  b because there is no constitutional right to a plea agreement as i understand the state's focus here the state's focus is not on the nd and rd that you're agreeing that the prosecutor wouldn't have withdrawn the plea offer i mean they put it on the record it was good for two weeks and you're agreeing that i mean you're not saying or are standing before the court and saying the court wouldn't if accepted the plea no your honor that's not so so and really the heart of the case here is explicit credibility determinations that would sit it would still not be appropriate to grant the relief petitioners seeks we can look st at that prejudice pronk both sides have agreed that de novo review would be appropriate because the west virginia supreme court did not reach it but as the s supreme court has said it's not enough to have post hoc assertions from a defendant you have to have contemporaneous evidence the defendant would have accepted that plea agreement and here we have nothing in the plea colloquy on the record that shows any hesitancy what we do have is an example in a very similar case where mr dotson was also facing a life in prison with sort of this enhanced meant where when he found out that the evidence against him was not as strong as he believed he tried to withdraw his plea the petitioner argues that that doesn't matter because in fact he st pled guilty but that's simply a matter of time in the reality is that when this petitioner thought that the evidence against him was not as strong as he was originally led to believe he was really into rule the dice and go to trial and not take plea agreements so that is not enough to show that he would have done something different here here he knew that the victim in the case was not only going to not testify but was going to testify for him was going to testify that it it is not the most strenuous burden of course in other areas of the law but it still requires something and what we have here is the most closely analogous situation we know what mr dodson did he tried to withdraw his plea even though in that case he was awesome facing up to fifteen years without the enhancement and to life with the enhanced man he was facing very similar penalties this is not a case where the disparity between the plea and what he could have received was that far off the mark if this was awesome a case where the evidence suddenly seemed much less strong for the state than it had been before it's the defendant's burden to show prejudice so even if it is not the most demanding standard it's still on mr dodson to show it exist that's his plea history shows that we have a watch and we don't know what he would have done but a wash isn't enough to meet his burden to show prejudice just a factual question to make sure the stand this occurred in september of two thousand and incarcerated yes and i believe it was a twenty eight day period that he was released and so part of the sense that he is serving does include some the time served before his conviction so he was since september two thousand and ten he's been out for roughly twenty eight d here five judges who have looked at this case before have found that mr dotson is not entitled to this relief we agree that if this court were city that in a direct review posture or in the st time when a judge is looking at the evidence that this may be a harder question but that's simply not the case we have here here we have a reasonable factual determination the west virginia supreme court on adequacy emphasized that the haiti is court had essentially flipped the burden on to the state away from the petitioner the s court faulted mr lambert for not keeping notes as if it was the state's duty to have to prove what had in fact occurred there other than mr dodson's burden to prove otherwise we have an example where the state haiti's court did not presume strongly that occurred at trial could have been and likely was the result of a sound trial strategy and not simply because of errors in how counsel understood the elements of the offense mr dotson here has not met his high burden to show that the factual findings were clearly erroneous the specific finding of explicit credibility determinations he challenges and also not has not met the separate burden to show that we're manes in the record leaves us a decision that is factually and objectively unreasonable as an application of clearly established federal law not it's all right thank you very much what do you think about that really i just really laugh lurd the last paragraph and laughter which i think says how these are supposed to work and that's pretty close to what you said i think the way laugh learned in visions is working is this court issues  file a motion there i think of motion probably to vacate the sense among tiredly sure technically how we phrase it but some motion to get the court to vacate a life sentence and then adopt a one to ten year sentence dotson's pretty close to the ten year mark so depending on when this court issues its opinion he might be able to seek immediate release but if not we could then move for parole since he's served more than one year and that's that's out there but we'd be happy with that at least in theory just so i'm walking through that sure if for some reason mr dodson refused the police then then in theory the state could retry him properly understood plea offer and he c i think that's right i can tell you that i would strenuously we're talking hypotheticals yeah we we haven't thought too much about that as to how that works i'm not entirely sure laughter is relatively new and we haven't looked at all the case all that implements it so i'm not even sure that you reject the plea we redo the trial i think that that's probably what would happen that if he says no or maybe if you rejects the plea that the if they can stay i don't know i mean i'm not positive but i do want to i think we might have to redo the on advice of counsel and we think that's a really helpful point because it undercuts lambert's whole theory of the case which is that dotson doesn't listen to his attorneys the nd point i want to make is that the state courts finding on j o seven they really do say credibility determinations full stop not necessarily express the sentence before the one that mysie quotes is the one that says have the state court made credibility determinations and we think from that state high court's generally it's fairly expressed but we agree that all the statements we