honored to have been appointed by the court to represent mr thompson in this case along with my colleagues from drop in centers at the outset i'd like to bring two issues to the court's attention st mr thompson's conviction should be reversed because in the opening moments of mr thompson's trial his own lawyer against mr thompson's wishes and without his consent told the jury in his opening statement that mr thompson participated in the taco bell robbery identified as the lead charge in the indictment and violation of mr thompson  amendment rights let me ask you a question about i know there was no evidentiary hearing held in the district court on the two to fifty five motion but what was mr thompson's evidence his testimony his words about how that exchange between himself and his lawyer took place did he say anything about whether that was a pretrial discussion when they discuss strategy or that was something that he told them as things were happening or going forward was he specific about when that exchange occurred in his sworn statement in his two thousand two hundred and fifty five petition your honor mr thompson stated that his lawyer at trial proposed this to him this concession of guilt that it was against mr thompson's wishes and that it happened at trial in a in a reply brief prout filed pro se by mr thompson prior to me being appointed to represent him elaborated and said that his counsel surprised him with at trial at the beginning and that he specifically told his counsel he did not wish to plea or admit to any of this unauthorized we our position is that those are in the certificate of appeal ability and so the court can consider them as part of this case your your contention is that he was granted a certificate of appeal ability on whether or not his lawyer rendered ineffective assistance by conceding guilt on the taco bell robbery and what mccoy does is just make your argument stronger well yes and no your honor we believe that what it does is it it gives us two arguments for the control his defense which is a structural error and requires vacating his concern or mccoy but also this on authorize concession because it violated well settled rules  that that gave mr thompson the right to control his defense and because it was based on mr thompson's lawyers ignorance on the fundamental point of law and that is the minimal showing necessary to prove the mccoy is applicable but we think mccoy strengthens what he originally asserted which is that his counsel's concession of guilt violated his th amendment rights we don't we think that that has always been the law and that this is a reasonable or logical application of forever and the line of cases along those lines that give the defendant in a criminal trial the right to control his defense the nd issue i want to bring your your honour's attention mccoy was a logical extension of prior precedent it doesn't that's not creating a new rule and at least one court the th circuit in the united states read apparently has recognized recently that mccoy affirmed the defendant's autonomy to determine the objectives of his defense a right the supreme court recognized in forever so we think this has been the law for two hundred years it's just an extension of prior precedent and it's not new in the court does not ineffective for failing to move to sever mr thompson's trial from that of his codefendant larry robinson at any point before or during mr thompson's trial it was a catastrophic error that led to the improper and highly prejudicial use of robinson's post conspiracy blame shifting statements to law enforcement as substantive evidence against mr thompson at trial how did those come robinson to trial mr robinson testified at trial  n then convinced the district court to modify the proper confessing codefendant instruction that prohibits use of that impeachment evidence as substantive evidence of thompson lee order the opposite and also argue to mr thompson's jury that it could it was the evidence that mr thompson was involved in all of these other robberies for which there was little or no actual testimony mr robinson refused to answer the question as to whether he had implicated mr thompson or whether mr top and so in that respect i understand he refused to answer that's correct and this keep in mind this was the parties were alerted to this that this was going to happen before it happened it was no surprise to mr thompson's counsel yet he did nothing it appears on the record he did nothing to figure out what the law was on this have a plan to deal with it your client was not her much to robinson's testimony then he didn't graham and right he was because the government when mr robinson refused to implicate mr thompson or refused to acknowledge these statements the government walked through these statements one by one in devastating to devastating impact you told law enforcement that mr thompson did the robberies with you you told law enforcement that mr thompson was your get the last thing i want to say well on the nd issue this devastating use of evidence that was solely for impeachment purposes as substantive evidence of mr thompson undoubtedly prejudiced mr thompson because it essentially allowed the government to use this evidence to bolster mr thompson's bo of the otherwise very weak and circumstantial evidence of mr thompson's involvement in any of the federal bank robberies what's your best case to show that a severance should have been granted in this your honor there's no case directly on point but i think the closest is nelson versus o'neill it's cited in our papers and it's a united states supreme court case in which the codefendant testified at a federal trial denied that he had implicated  the defendant who's complaining about this and the government then used the evidence for impeachment purposes and the supreme court specifically said that that evidence is supposed to be limited or the supposed to be a cautionary instruction to the jury that that cannot be used as substantive evidence of the non testifying defendant but that that was not a severance that's correct your honor but we believe that would have created the compelling prejudice necessary for a severance and as this problem unfolded at trial it became more and more obvious and if the court looks through the transcript it will see that at every stage the defen submit that the fence counsel should have done it before trial and had the defense counsel done it before trial the parties the court everyone would have been more educated about these issues and what happened likely would never have happened but under rule fourteen and the join very obvious during the trial that a severance was necessary and the defense attorney failed to seek it he also failed to notify the court and file a post trial motion for a new trial based on the reversible error that had occurred with respect to the jury instruction and even minimal research it's not hard to find a us supreme court case on point even minimal research would have revealed that that was a reversible error with respect to the way that the court instructed the jury on how it could be used that impeachment evidence against mr thompson thank you very much you save your time for abo please the court arena dutch on behalf of the united states this court should deny the appellant's mccoy claim or strike it as beyond the certificate of appeal ability and to decide the issue of the trial counsel's concession on  trial attorney conceded guilt at the outset and stated that his client was guilty of murder he might have argued that he was guilty of some lesser type of murder but in any event trial counsel conceded guilt here commerce element and for that reason mr thompson's facts do not fit within mccoy and mccoy is simply not implicated you think that if let's assume that mccoy is implicated contrary to your argument for purposes of this question if a defendant tells his lawyer now post mccoy i don't want you to concede that i was at the scene of the crime because i wasn't there i don't want you to concede that i had a gun because i didn't have a gun i don't want you to concede that i conspired because i didn't conspire and the lawyer says i want to concede all those things because i have another argument on which i'm going to argue for a  the death penalty murder scenario yes i agree that as the court has laid out in its hypothetical that would be a mock mccoy violation but that is not what happened here and in fact your honor asked my counterpart i one of the st questions was well what did mr thompson allege in his twenty dollars to fifty five dollars pleading to bring about a hearing what sufficient facts is he alleged to mccoy claim at the district court level and the answer is he did not raise any facts in fact in the i thought he had said at the very least that that was contrary to his wishes he didn't say that no he did he did say at least that but in the two hundred and fifty dollars some odd page brief that he wrote he spent the vast majority of time on this this issue that his club that has that trial counsel had  misconstrued or misunderstood the interstate commerce element and that this was sort of a misguided defense and it was a poor strategic choice on the part of his counsel but at no point did he give the the answer to your honor's question about what had happened prior to trial prior to counsel's opening statement the interaction between himself and trial counsel where he actually told trial counsel no don't do that at best the only allegation that and assess credibility so i think mr thompson did not state that that he had ever communicated those wishes to anyone his trial counsel or to to the district court in fact in my reading of the communicate those wishes to to his trial counsel or to the district court in my reading of the twenty to fifty five petition and the way that he explains the strategy was that the council had come up with a strategy and i convinced him that it would work and that he went along with the strategy although he had previously insisted that he was innocent of all the robberies it is my understanding that mr thompson after the fact learned that perhaps the interstate commerce element wouldn't save him and of course a lab aerated at great length after this court issued its certificate of appeal ability that he he lambasted counsel for making this argument he asked counsel not so the reason for it with respect to the claim or the ineffective assistance of counsel argument with respect to the can concession of the taco bell robbery mr johnson thompson himself alleged that this was a strategic choice and he alleged the fact in his petition that this was a strategy and that as your honor no strategic choices about how best to achieve a client's objectives which fall to counsel is a proper basis for the court to deny that infective assistance of counsel claim mr thomson himself said that this concession was a strategy and in fact he used the term strategy or tactic on numerous occasions within the commercial robbery and seven bank robberies there's only applies to talk over that's correct mr thompson's trial counsel in his opening statement and later throughout trial and in closing argument conceded that mr thompson had committed the offense conduct related only to the taco bell robbery and as the district court pointed out as the magistrate pointed out in the report recommendation that was ultimately adopted that robbery was  obvious and there was overwhelming evidence of it in the language that the magistrate judge used that was ultimately dopped it was that the evidence as to that count was overwhelming and that there was a clear photograph which was the government's exhibit one rather exhibit two governments exhibit one was a videotape and in that videotape and in the still photographs that were captured of mr thompson his face was clearly depicted so regardless of whether mr thompson's counsel had admitted that his his client committed the  conduct he very likely would have been convicted of this charge especially in light of all of the other evidence that the government had aside from counsel's concession and the surveillance video and the still photographs of mr wilson what's your position on whether within the logical compass of a prior supreme court decision even if prior supreme court decisions and former even control or govern they now face of the claim it is still a new rule claim unless the rules actually dictated by preexisting precedent  know that it's not dictated by preexisting precedent because mccoy itself the supreme court analyzed the the conflict in the courts of last resort the difference between how the louisiana supreme court had viewed this this issue e petitions has said that this is a newly discovered rule that has not been made retroactively applicable by the supreme court how is this different in that regard with you compare it to i forget the name of it now the supreme court case which held that it is generally ineffective assistance to not advise the defendant of the immigration consequence of a plea which we've held in other courts have held it's just an extension of type of th amendment violation of the defendant's secured autonomy from an ineffective assistance of counsel claim and but the court i really that part of your argument i don't understand because mccoy engages in the th amendment analysis it says that strickland on the prejudice side doesn't control because it concludes that this sort of errors structural and i take it that's your strongest argument from my perspective on why it's a new rule but the say that this is not a th amendment case when the court begins its analysis with these words the th amendment guarantees to each claim because the court talks about the difference between the court specifically says and distinguishes strategic choices about how best to achieve a client's objectives which follow to counsel and choices about the client which are in fact the client's choice and so this that the whole analysis is about the defendant's autonomy to choose his defense rather than counsel's competence we're not talking about whether or not counsels competent or  acquittal and perhaps that the interstate commerce argument was not the best argument in the world in terms of merit but it was perhaps the only argument that he really could have made in the face of overwhelming evidence of guilt  speculative well word of effective an error is uncertain or indeterminant where we would have to speculate the defendant has not met his burden of showing a reasonable probability that the result would have been different but for the alleged error that was th court's holding and rodriquez the two thousand and five case and that's exactly what we had here as to the prejudiced prong of this analysis it's speculative whether or not the government could have produced mr robinson at a separate trial  however it's speculative and based on a speculative analysis of whether or not the the outcome would have been different we cannot grant an ineffective assistance of counsel claim based on this failure to move for a severance that would maybe would not have been warranted in the st place and even if robinson had not testified at a separate trial the government could have introduced other evidence that perhaps would not have been admissible at the joint trial statements that mr thompson made that might have been in violation of the joint trial so the government could have produced other evidence but and i see that my time is is up but i'll just going to conclude that the government could have produced other evidence that might not have been produced at the trial the joint trial and it was a reasonable strategy are reasonable decision that the trial counsel made to keep the parties together so that he could compare the weight of the evidence against mr robins have to say i'm amazed your honour's that the government would criticize us for speculating about what might have happened that i prophetical other trial without these errors and then ask the court to speculate as to other unidentified unspecified evidence that might have some  other trial in syria be up in the united states supreme court discuss the fact that the strickland inquiry is necessarily speculative and it requires the court to engage in an analysis of what might have happened that some other trial without the errors but our position is that the speculation in which we engage on behalf of mr thompson is rooted in facts on the record and logical inferences from those facts and things that actually happened at trial back if the jury instructions had been to your liking to mr thompson's liking given the circumstances there wouldn't have been any need to sever right i disagree your honor i think that that would have been one of the errors would have been cured but i think that the prejudice from that impeachment evidence coming in the way it did still would have justified a severance so we don't think that would necessarily cure the problem here i want to address a few assistant united states attorney said to mr thompson's jury at trial that both the fence admitted to that to robbing that taco bell and what the government told this court on direct appeal that the defendants admitted to robbing the taco bell i don't think it's appropriate for the government to now be saying no that that's not what happened in addition mr robinson had made it emitted into it some way it's royal that's correct your honor i don't think i think  court ought to look at is what did the got how did the government interpret what happened at the time how did the government interpret what happened when they wrote about it on direct appeal what did mr lawyer tell him he intended to do and that is can see guilt if you look at the facts in the record i think that's exactly what happened and the only logical reading of what happened if we found an effective assistance of counsel on the taco that requires reversal of the entire case can i ask in a question in that regard piggyback on question was there a gun count that was tagged to the taco bell robbery or not there was your honor and we believe at the very least you would argue that if that count the taco bell count goes the gun count with it has to go to that's correct your honor and that if you recall is a seven year mandatory minimum consecutive to any underlying sentence on the taco bell robbery count but important it's also hugely significant in another way because if that gun count doesn't stand at the end after a retrial then the st three hundred month and i want to direct your honor to the case law that indicates that where the record is weak on certain counts the court can consider the error more prejudicial and that's ok we can we can find those cases because we're a little bit over your time and we've got to move on to the rd case mr jay can thank you very much you and the firm for taking on this case i know that your client appreciated and so do we thank you very much thank you to the court for the opportunity