the court your honors jason met in here on behalf of the united states your honors the defendant in this case was a previously convicted drug dealer who also happen to have a murder conviction and at his trial for a subsequent crack distribution he got advice from his lawyer essentially to say don't testify and that was enormously helpful advice and it was helpful because it allowed him to essentially do two things on the one hand it kept out and kept the jury away from hearing about the murder conviction in the prior drug conviction but at the same token it allowed him to present the defense that he wanted to present which was the drugs weren't mine they belong to this other guy named d'angelo and he got in everything that he wanted to get in through his fiance so the lawyer essentially gave what was good and helpful advice and we respectfully submit that there was no prejudice then a new word from that advice even though that advice was based on a faulty understanding of practical trial decision i think if you asked one hundred defense lawyers in this given situation what would you do i think invariably they would say i'm not going to put my guy on the stand i think it's always a good day if you're a defendant if the jury isn't hearing about your prior murder conviction so i think it was helpful advice and i think it makes a lot of sense to do that as opposed to seeking you hitching your star to some sort of nation to appellate rights that you might have on a six o nine ruling is this is aware six o nine is reviewed for abuse of discretion in this record they didn't even noted objection after the district court made the ruling that it did so i think it might have even gotten plain error so it would have been enormously steep hill to climb i think hitting your star more to presenting a real defense theory which is the drugs are not mine when you get down to to the real world and what was actually happening  become i think that's right your honor i think everybody realized that that conviction was going to come in if he testified and he looked at those options and declined to testify and the record is clear that he was even asked on the record by that speaks directly to the question of whether there is a reasonable probability that he was prejudiced by any erroneous legal i agree with you your honor i think he was going to not testify regardless you know you could cite a litany of cases to this defendant about you know this ruling or that ruling the loose case or some other case but at the end of the day you're right he was not going to testify your honor what it what it comes down to it seems to me in this case is that  supreme court has really shied away from creating any kind of per se rules on this stuff and so what he's trying to spin and the strickland standard and the prejudice prog of the strict standard in trying to create per se rules and what pretty soon we're going to have this per se rule this per se rule an automatic prejudice automatic prejudice and i don't think  at all the way the supreme court's going and in fact they would object to it very strenuously because they said look we're limiting per se rules to a very very small category of cases you're absolutely right your honor and i think we can look even no further than strickland itself which says we're not going to impose upon lawyers some sort of robotic you know checklist that they have to go through we're not going to do that we're going to look at this fact specific inquiry as it should be as a case by case analysis and i think if we're getting to pursue a rules i mean to a certain extent this court and hutch and said the decision to testify or not is something we're not even going to go down that road of ineffective assistance we're going to leave that for the tactical strategic and trial decision that it is but no i agree with the court that there should not be personal rules here and i just think on the prejudice prong it just is very very clear there was no prejudice credit convictions on top of that wow right in our view it would have been lights out essential but but we do think there was so much evidence your honor we have you know four key admissions here you know the first admission was the one you pointed out your honor that you know everything is in the basement ceiling that's number one admission number two is that there was a bag of money in the car that's admission number two number three after he was taken back to the station was quote i'm a drug dealer that's a joint appendix page fifty seven and then the admission number four is i'm a hard head and i'm still selling drugs on york road and that's it again join appendix page fifty seven so combine you know four key admissions with all the almost couldn't put it more perfectly in the sense that they're his sure it's there in his bedroom there next to his wallet his keys and there is more crack and more money in the shorts you know we don't think if mr robinson a testified that any rational jury would have come out a different way you know i think his best strategy a trial was frankly the one that he did was to try to use the fiance to you know appendix page one sixty six this is at the start of the defense case the defense lawyers asked who are you going to have as witnesses and at that point the trial counsel said i believe i will only have this power so in our view the record shows at that point he wasn't going to testify that he to century already made the decision that judge wilkinson mentioned that he wasn't going to get on the stand certainly later on the twenty two fifty five context he now says well all along i intended to testify but to put a fine point on it i think frankly the the facts on the performance issue don't essentially matter we can just look at this don't know vote on the prejudice prong and see there wasn't prejudice by a country mile at least in our view  i think number one we would impose on just records in additional burden in other words you know when we have this chance of telling a defendant yeah you can testify or you can not is your decision the district judge to avoid this very scenario from happening with the need to say well wait a minute has your lawyer told you about loose you know as your lawyer told you about this precedent and that precedent and if we start going down that road it's it let's just say we put a laundry list on the district court to have to find  and we think this court and sexton said we're not going to do that the advice to testify or not is going to be the trial council's job we're not going to make the district courts do it but that would be the practical application of ruling for mr robinson here  the other you know sort of difficult i think policy decision would be i think allowing a little bit of sandbagging frankly to go on in other words the defendant could do one trial strategy not spears it was just right so i guess that's again like after the twenty to fifty five litigation happened that's what they're now saying was their presumption the idea that they sort of presumed it was going to come in but they were still going to testify but it's kind of interesting what happened initially was joint appendix page one seventy three the court an initially said the murder conviction is not going to come in and so even though they said the murder conviction is not going to come in the decision was still made you know we're not going to testify and obviously then he made that tentative ruling saying well in fairness because of what i've heard i'm going to let that murder conviction come in and that i think brings up an interesting point in the record the district judge who heard all the witnesses you know use the word i don't want to be buffaloed and i don't want to have this jury have what essentially is a false defense theory put forward that just isn't fair so i think that impacted the court ruling but i think to your point your honor i think it almost makes it frankly a cleaner case in the sense that we don't have to worry about whether the court was you know the six or nine issues  correct that he in fact always wanted to testify in other words i think you know they made a game time decision based always wanted to testify does not want to first of all that the trial counsel's affidavit said it was their strategy i see that time is running down i guess i'll reserve the rest of my time for rebuttal of there's no other questions at this time good morning your honor may please the court judge wilkinson judge traxler and judge e g my name is charles curly and i represent the appellee kenneth robinson in this case it is an unusual posture to represent an appellate on a twenty two fifty five case and i think though that it is appropriate in this circumstance in ruling on the twenty to fifty five motion judge mots made the two requisite findings under strickland first that trial counsel's performance fell below an objective standard of reasonable ness then filed a subsequent twenty to fifty five petition he was still within the one year limitations period and it was mr vi tech who obtained the affidavit from mr say on upon which judgments relied  prior order under the twenty to fifty five and the order that brings us here today is the second order in the first paragraph of that order judgments credited mr seance representations that the reason that he had in advised his client not to testify was because he thought that an appellate an appealable issue had arisen in the course of the trial and he was wrong because he was unaware of the loose case which essentially says that the defense would have to testify to be able to raise that appellate issue and i think this goes to judge tractor's earlier question how do we trace the decision making process of whether he was going to testify and why he changed his mind or do we  is a legal conclusion the finding of ineffectiveness and judgments could only reach that legal conclusion if he had found that the two requirements of strickland had been met clearly the order could be more explicit it could have spelled out the reasoning in the district court judge in the district of maryland for many many years the only standard to apply in this case is the strickland standard and the strickland standard was briefed in the twenty to fifty five motions so i think it is a reasonable inference to that judge mots had strickland in mind and was applying that standard when he made his decision in this case and it is a decision that is entitled to considerable deference by this court as set forth in us versus why he chose not to cite the case in his order but we don't have that after he issued his decision the government passed on the opportunity to request an evidentiary hearing so th case no and perhaps it's so obvious that judgments do not feel compelled to take greater pains to elaborate on his reasoning in the decision beyond that which he did certainly if the government felt that the order was insufficient it could have requested an evidentiary hearing so that the factors could be applied in a more exacting way but instead the government asked for a final order to issue so that it could bring this appeal before this we say that there's a reasonable probability that the result of this trial would have been different was found in the car given what was found in the in the shorts in the bedroom given what was found in the ceiling of the basement given the fact that the murder and drug distributional convictions were going to come  the question just is there a reasonable probability that the result of this trial would have been different when you take the impeachment and you take the cumulative  overwhelming in turn but i don't think that this case was nearly as strong as the government suggests and as the courts questioning might imply this was a wholly circumstantial case and drugs were found in a home and money was these drugs to this defendant in this circumstantial case were his statements and that's why it was so important challenge i mean there's no challenge that those were coerced or anything else well there was  suppression hearing which and then the statements were permitted to come in but notably here mr robinson did not sign the miranda waiver and when the detective hertzog was testifying as to the reason for that he said it's a safety issue when we're but it goes to whether or not it would have made a difference if mr robinson had testified because certainly what mr robson would have said was i didn't make those statements whether or not it would have made a difference where the standard is is there a the testimony of the defendant had he testified had he exercised his right which is counsel erroneous lee told him he shouldn't do and the jury had credited that testimony that the drugs weren't his it because it would have become a swearing contest officer testimony regarding surrendering miranda rights when there is no signature on the page indicating a waiver regarding claiming that a wallet and keys were found in a pair of shorts so that it can link the shorts to the defendant when there is no photograph taken of the wallet in the keys in the shorts as there were for every other piece of evidence in this case so it's a situation where the key evidence that links this defendant to these drugs and sustains this conviction is wholly dependent on the wa statements that they heard that but what they didn't hear was mr they didn't have the opportunity here mr robinson disavow whether or not he had made the statements to the police that the police said he made and that's the crucial distinction so why did that happen and this goes back to judge traxler question the trial strategy all along was recognizing that he was going to have to take the stand and testify was the only hope of winning and the expert in my understanding based upon the record is that mr they are anticipating that both of the prior convictions because they fell w be well there's no question it's there's no question that it's that it's that these prior convictions would be extraordinarily prejudicial i think that's why judge matsch was inclined not to let in the prior murder conviction initially the  well your honor i think that judge matsch credited the sworn affidavit of mark as a on and i have no reason and judgments had no reason to suggest that mr say on would testify on truthfully in a sworn defense counsel to have those discussions and provide that advice privately with their client whether or not they're going to testify the district court judge just even if we're getting away from the many point is there a reasonable probability that the grisoft of this trial would have been different and you're saying that it was a reasonable probability that the jury would come to know differently in the face of all this evidence if this murder conviction had come  judge mots and the fact that the twenty to fifty five motions that were filed in this case focused on the analysis under strickland and when you look at the to the one paragraph it clearly sets forth the basis for the an reasonable that the counsel's performance fell below an objective standard of reasonable ness and then he jumps to the conclusion that counsel was ineffective strickland is all about how you determine when a counsel is ineffective you have to  we're used to see i know from my own it but it's not for me to testify i know from my experience that the judgments can be abbreviated in his orders and we certainly see evidence of that here but again you can only reach an effect if we have to be at all practical well i'm not going to repeat this full of fifth time but three say that the evidence is is anything less than overwhelming is to overlook what the evidence actually was the evidence can only be overwhelming your honor if you credit the testimony of detective hertzog and there were reasons to question his credibility you know it's not just the scores testimony it's what they found it is not testimonial evidence purely it is real and physical evidence drugs a hot plate cash here they are everywhere where say someone well where he said again depends upon crediting the testimony of detective hertzog clearly someone was involved in the drug trade that was in the house but there was testimony that there were many people with access to the house further further suggest and support the notion if you were killed somebody has been murdered which happens all too frequently in the drug trade in baltimore your honor which further corroborates the notion that it was someone else who had who was living whose girlfriend was constitutional violation in this case step one mr say on says to his client you like you're going to have to testify that's going to be our strategy because you're going to have to contradict with this which is you want to do just what he wants to testify and then i ask you these questions about and i think you're going to get crossed on both convictions but that's ok we're going to deal with that if there's it's going to be prejudicial it's going to be difficult but that's what we're going to do that's the decision so he gets to the trial they have the motion on the extent of the forum forby evidence that can come in and judge might i'm only going to allow one of them to come in ok that's a winfall great now you're not going to be subject to the same scrutiny we thought you were going to be subject to and then later in the trial judge after hearing the testimony of antonio appellate judge matsch changes his mind and he says you know what now i'm not going to be buffaloed so it was a fairness decision because the conviction can properly come in it's within ten years so now he can be crossed on what this is where mr z on made his mistake and was unaware of loose heath i think that he said to his client look because the judge changed his mind we now have an issue on appeal they can be successful in reversing the conviction so the basis for not to testify wasn't because he was afraid of the impeachable we said oh i wanted to testify when he's not faced with the actual consequence during trial ph and having those convictions come you know it's all too easy  when you're not faced with practical consequences to say oh this is what i wanted to do all along that is just it just seems  i can't see any any similar clarity on the point drop it just seems to come into focus only on twenty to fifty five and that seems fish well i think that the the but it does happen your honor and here we have the sworn testimony in the form of an affidavit of a respected member of the bar this is not the defendant's pro se affidavit coming forward and trying to manufacture a convenient excuse and someone who would have less regard for what it means to testify and put forth your credibility in your testimony in taking an oath before the court and that's what this attorney did and judgments i think credited  affidavit and accepted his explanation of the reasons that the strategic decisions were made and what that revealed was that the strategic decision was based upon an incorrect application of the law and therefore depriving mr robinson sure  i think that that's the effect of the decision but i don't i don't think that what mr is a un representative was that is what informed the decision i think would inform the decision was he thought that he suddenly had an appellate issue and this is what he represented in his affidavit which judgements credit for thank you your honor i'll be brief and just hopefully respond to a couple questions that you asked of my colleague and his his responses first one of the things my colleague mr mr curly indicated was his argument is that judg found prejudice and those are some questions that he had with with judge a g if you look at joint appendix page four thirty two that is where the second order is and in our view that there just aren't any findings there he did so i did not your honor the first notice i got of it was when the c f notice popped up saying the order that i issued a week and a half ago is now rescinded and then we saw the supplemental come in so it took us by surprise to be quite honest and again considering what the first order said that his twenty two fifty five is wholly without merit you know we submitted a supplemental brief and to be quite candid fully expected the court to say again this is still wholly without m my colleague mentioned asked this court to apply some sort of deference to the district court i'll just point out that we're here on to novo review under the dice case additionally there were some comments made about this being a wholly circumstantial case i do agree with some of the things you said judge wilkinson about we just disagree that the case actually didn't just rise and fall on herzog in addition there was testimony from officer cooper cooper also heard the statement oh everything you need is in the basement so that's in the record so we actually have two law enforcement witnesses confirming these in our view damning statements and you get to your point your honor judge consider the idea that we do have to find a reasonable probability that the outcome would have been different there's no question that drugs were found in his car correct well there was actually no no drugs found in car that's the car that he drove there was testimony that detective herzog saw mr robinson operating that vehicle ok to be clear i think it might have been registered to somebody else but the testimony was he was driving correct right now of the shorts where he is in the bedroom that's our contention your honor we believe that's correct this was a bedroom that he shared with his fiance ms powell the testimony of i don't think they really can know which is then with the dead guy and your honor again the testimony which is interesting here that d'angelo and the sister lived in the basement so how those shorts could find their way up to the bedroom is to you for what i thought was a very fine argument we appreciate the good service that you have provided your client we'd like to come down in brief counsel and then we'll take a