after trial as a result of the deficient performance his counsel provided mr monet not only was precluded from raising a potential defense to the charges against him he also suffered prejudice in the most visceral sense but for his counsel's deficient performance it is reasonably likely that mr monet would have received a shorter prison sentence in addition to the ineffective assistance issue there is at the very least a factual question that warranted hearing under twenty eight u s c section two two five five b as to whether the prosecution introduced false testimony and mr moniz trial given that that testimony was provided by the government's star witness twenty eight u s c section two five five be required that the hague be as court hold a prompt hearing judge adams failure to do so and in fact his failure to respond at all to mr mone is to defy five motion for nearly five years was indicated why he didn't think they knew hearing was necessary or appropriate in the address the issues raised in the requests for the evident truth hearing  in what way was that ruling deficient in the twenty to fifty five order your honor which again came nearly five years after mr murtha filed his hideous motion joe johns actually doesn't go through that analysis so with respect five order in the penultimate paragraph is well there isn't enough evidence to corroborate the claim but that of course is not the standard under twenty two fifty five b what the statute congress wrote says that except in the narrow class of cases in which the motion and the files conclusively show that the petitioners entitled to no relief the heaviest court shall grant a prompt hearing and this court has said in cases like hof and valentine that there's a very low standard that a petitioner must meet in order to get a hearing has to be a factual narrative as opposed to just legal conclusions instead of just saying i suffered ineffective assistance of counsel or i suffered prostrate misconduct you must provide a factual narrative that's clearly satisfied here that factual narrative must not be inherently incredible and that's clearly satisfied and i'm happy to talk about that if it's part of any questions about that and third it must not be conclusively disproved by the record and again that's not what is true here but  and the sufficiency of the tapes and the over the issues pertaining the two or so or the issue in connection with the direct appeal government makes that argument and to be clear with respect to the second issue on which this court granted a c e o a that couldn't possibly have been waived because the issue was soley a collateral attack it had to do with statements outside the court during the forfeiture proceedings so that analysis is entirely irrelevant to whether or not a hearing was required on that issue but it's also legally wrong as to why as to whether hearing was required on the unit fact of assistance issue but just as a formal legal matter petitioner cannot an ineffective assistance claim on direct appeal on the federal system that sort of claim can't be raised and looking at the facts here i mean it's very clear that a hearing would have made a difference because judge adams from team leader refers to wh in his view was a two second alteration but of course if he had looked at mr stockmen's affidavit which was submitted after the october fifteenth all the hearing because again in about to go through that the chronology of this but trial counsel failed to come forward with competent experts in order to give testimony on what was a very serious issue that clearly under rule seven zero one seven zero two would have required expert testimony to a pine because trial counsel did not come forward with competent experts in a timely manner joe johns was left with the misimpression that all we were talking about was a true second issue but of course as the expert stated in his affidavit in an affidavit that judge adams never referred to in either his supposed trial decision or his two to five decision it's not a two second alteration the remnants of the alleged alteration last for two seconds but if mr m is allegation is correct then that is an alteration of unknown duration that may seem like a trivial factual distinction but it's clearly something that irked a judge adams that he thought this was a nothing issue and had affective trial counsel put forward a meaningful presentation of this issue had he investigated it prior to trial had he brought me in to be able to overcome the question of whether these things could have been altered the tapes so i mean i don't there was all this testimony about how there's no way you can even play it back if it was altered i mean how is that going to how was it ever going to be or three responses that your honor the first is i  least the possibility that it could be proven but even if this court and the court below should this quarter man thinks that that's just not possible even if it's true that you know it couldn't have been it couldn't have been altered there's still the issue of sentencing prejudice i mean if you know the standard the stricken versus washington or x is always a difficult one for petitioner to overcome because it's by nature a counterfactual but here we have a pretty darn good evidence of what judge adams would have done had certificate of appeal ability on the sentencing err didn't we group for i believe that's half right your honor i mean so you're correct the court did deny siri on this and it's an issue but i do believe that mr mundane is pro se to do five petition did argue that he would have law that if it is reasonably likely that but for counsel's deficient performance the defendant would have reversed to the lower sentence but that can be thing i don't see that explicitly made below i mean maybe i don't maybe i'll take another we couldn't do it then if that were true so i don't think that if he didn't say it in so many words it would be jurisdictional because that's part of the standard i mean so if so if the deficient performance and i'm happy to walk through the facts of this course thinks that there was division performance and i think it's clear as day that at least after trial the failure to follow john adams august second order as to which expert tara and then let me ask you a question of approaches the didn't judge adams say ultimately that he wouldn't have given a lower sentence in this order in the in the in the hay vs context so he said so why isn't that why doesn't that just settle it i mean it's the same judge yes but years before he had said man i would grant sufficient performance and prejudice you wouldn't remand on that issue i mean just that would just be a reversal there would have been ineffective assistance of counsel that was proven in terms of what we would be saying to the judge adams i mean but it's ok fine we would remain but we would remain for resetting right you're saying if you're if you have raised the sentencing issue and that's the prejudice and it was prejudiced at sentencing because of the i guess we give it back for re sentencing right we give it back to judge adams for re sentencing except judge adams has already said it wouldn't have affected my decision so looking to point to things and i know it's a dog's and i'm over my time at this point i mean the first is if the rule were that whenever the heaviest court who  tried the issue before says why i wouldn't change my mind if that were the rule then there's never going to be prejudice and that cannot be the standard because it's counterfactual so you obviously cannot prove a counterfactual that's inherent in the nature of the task that's written versus washington imposes so if it were to sort of per se defeated any time the judge was the same judge before said no i wouldn't change my mind then there wouldn't be a standard at all and i mean just quickly as a factual matter we're in month one hundred forty nine of mr monday's one hundred fifty mon sentence so i do think that resentencing if that were the remedy would look you know would look very different than if we were in month one and i'll reserve the rest of my time for  good morning made please the court mathew call for the government mr monet is attempting to use evidence that his trial attorneys gathered submitted to the district court used to convince the court to get an evidentiary hearing and then additional evidence that those same attorneys obtained and submitted it after the evidentiary hearing he's trying to use all of this evidence that his own attorneys gathered as evidence that they were ineffective so there's a sort of irony to his claim here today this court held on direct appeal but they do it the even the judge suggested that he said once you go get this expert i've got a guy and they come back with these guys and the judge says what do you do it well in your honor the problem with following the course that the district court suggested is that when a defendant submits to an independent expert they have no control over the result they're sort of stuck with what happens it was a strategic decision and in a twenty two fifty five those types of strategic decisions are left to defense counsel and they strategically decided let's find experts that are going to agree with our opinion and submit those to the court they had no control over this proposed expert that the court suggests to them and for them to show that it was ineffective and finally exercising judgment about this issue after not even paying attention to it after this other guy said hey i think there's something here we ought to do an investigation he feels so adamant about it he tells i'm going to tell the court myself i made that reasonable performance by this attorney we think that he did exercise reasonable performance this was an outlandish claim there was nothing other defendant's own work to support it they still listen to what their investigator had to say about it and when the investigator came up with something other than the defendant's own claim they submitted it to the court and they pursued it aggressively in their new two motion getting an evidentiary hearing and even after it was clear at that hearing that the attorney scuse me that the court was not convinced by what they submitted they went out and got additional ever evidence from additional experts and this court on direct appeal said that the district court thoroughly considered those new experts and yet was insufficient to merit a new evidentiary hearing so to say now with no new evidence that it was somehow ineffective the way they handled it is a stretch and even if it were even if you could show they should have let's assume for sake of argument that they should have presented this claim sooner they can't show a different result they can't show that the trial would have gone differently or as as you pointed out judge now banned in the sentence would have gone differently the district court at the sentencing they were hams right i mean they i don't know what to do with this but they didn't have access to this device right there experts could did they examine this thing it could they it could the fence have been tested this argument that it couldn't be altered they request permission to do so the district court denied it and they didn't raise that on appeal and a ll of the evidence their experts were given a the way the device works is that it's recorded to a chip from there it is downloaded to a computer they were given a copy immediately off of that computer and there was testimony from the evidence technician at the f b i that it had not been altered since it was downloaded in i think was november sixth of two thousand and six so they had access to first generation authentic copies of that digital recording they didn't have access to the underlying device but they didn't appeal that issue and they haven't shown that that was any kind of error and that really wasn't raised in the twenty two fifty five petition is being ineffective the attorneys tried to get it but they were unsuccessful lack of success doesn't mean ineffectiveness  sometimes they very legitimately supposed to lose and even if they were ineffective a point which we certainly don't concede they have to show some kind of prejudice at sentencing yes judge adams expressed annoyance at how defense counsel handled the issue timing wise but frankly any district court judge that surprised just before the jury comes out for closing argument with a new somewhat outlandish issue any district court judge is going to react poorly to that but ultimately he considered their new trial motion he granted them a daylong evidentiary hearing and he thoroughly considered the post hearing evidence that they submitted so they haven't shown what would have changed had it been handled differently it i mean if i had known yes i guess i'm giving you the sentence i'm giving you but if i had known about this other stuff if you had been timely about it if you had been competent about it i would have given you more time right responses to that your honor number one this its order partially granting the certificate of appeal ability stated that no reasonable reasonable jurists could not debate that the district court's conclusion failed to show that whitaker performed deficient lee during sentencing and that he was prejudiced by any alleged error so this court's order has already said no reasonable jurist could debate prejudice at sentencing jurisdictionally that issue is not before the court you're saying this is the issue i raised with counsel about  this way so you're saying you're so you're saying the c e o way it wasn't broad enough to cover sentencing prejudice as part of the i a c this court's order said that no reasonable jurist could debate that there was prejudice at sentencing and even if this court were to consider the merits of this argument the sentencing transcript itself the judge clearly says that it will that he will set that issue aside at sentencing and then goes on not pause and in their brief they refer to departures that's not what the district court says the district court specifically says if it gave him pause as to whether he would grant a variance those things cause me great pause as to whether or not this defendant deserves into consideration as to a variance then the court comes back and says it would set it aside so that two different times page id twenty seventy nine page id twenty eighty and the court gave a substantial downward variance the defendant was at a two hundred  thirty five to two hundred and ninety month range i believe was the range he sentenced him to one hundred fifty months it's a eighty five month downward variance so to come back here and say i was somehow prejudiced by that when the court says i will set it aside and then varies downward by approximately seven years there's just no evidence to support any kind of finding of prejudice what do we do with his statement that it wouldn't matter his post statement now  that it wouldn't matter there's a conclusive i don't think it's conclusive but i think it's something this court could certainly considered especially in light of its statements at the time of sentencing where it says i'm going to set it aside and i'm going to give a downward variance and then he does give a downward variance not a few months but a seven year downward variance from approximately twenty years to approximately thirteen years so they simply haven't shown any kind of prejudice even if this issue is not already determined in the certificate of appeal ability on the merits they simply can't succeed on that let me ask you this question just change why don't they deserve a hearing perjury  the credibility conflict here if there were no other evidence in the record and if the claim weren't inherently incredible points which we do not concede they'd still have to show materiality and the government the number of counts was entirely within the government's control the jury knew that the jury knew throughout the case that the number of substantive money laundering counts was a result of how the government structured the money laundering the deposits on the money laundering transaction the jury knew from tanz as cross examination the undercover p j v twenty six ten to twelve the redirect twenty seven zero nine to ten closing argument twenty seven twenty nine to thirty that the number of counts was directly related to what the government did the jury still convicted this court still affirmed on direct appeal their verdict was there a question about each cat each received its own special order question whatever i believe it did your honor if you give me a moment i can check the verdict did it affect his sentence at all or just it had no effect on this sentence for purposes of sentencing the one hundred thousand dollars that was divided into this fifty thousand and forty five thousand and five thousand dollar transactions counts to three and four those were part of the nineteen point five million dollar money laundering conspiracy that was the number that drove the guidelines that was the number that drove the sentence to having hearing yes if the claim is contradicted by other evidence on the record or is inherently incredible no one evidentiary hearing is required under aaron audio and the district judge had the conversations that had rizzo says yeah i'll try to get it to you and then he tells him hey is it ok if we do it in a couple deposits money has no problem with that result then gets off the phone and gets on the phone with miller and engages him in a discussion and during the discussions he tells miller hey by the way i need some money from you because i've got something i've got to take care of so the evidence in the record clearly showed that rizzo did not have the funds available to make the transaction and even if there's an issue of fact i her claim is inherently incredible her claim is the government lied and manipulated because it wanted to have three counts instead of one if that were true if this if this was not because the government didn't have funds but the government really did have funds it would have been easy to do i'd risible could have told monet my funds are coming from a couple different accounts res scuse me monet didn't care he just wanted to get a deposit so he had some indication this transaction was going to go forward so her claim is inherently incredible it's contradicted by other evidence in the record so no evidence you're hearing was required because the factual dispute didn't matter it was immaterial to the outcome of this case the jury knew during testimony during closing argument it was clear to them that the number of wire transfers was an w matter soley under the government's control and they still convicted on all three counts and all three counts were firmed on direct appeal so this claim that there was somehow governmental misconduct is insufficient to get an evidentiary hearing strickland so are you where i mean you're you're making the argument he's making the argument i mean i don't we have a dispute on the level of performance here by the attorney the performance of the attorneys spelled out clearly i don't think any eviden hearing i think on both grounds there is no need for a hearing just looking at the record as it appears this court found that the district court thoroughly considered the affidavits the defense counsel submitted after the evidence tampering hearing this the district court thoroughly considered them and there was no need for a new evidence here hearing they've submitted no new evidence no different evidence no additional evidence whatsoever to show evidence tampering they have the defendant's own allegation that he was threatened they have his buddy's allegation that he was threatened that doesn't show evidence tampering that shows no changes to the tape what they could have done was gone out gone out and found it an additional different expert and maybe that would have shown that the defense counsel should have obtained different experts really when it comes down to it here defense counsel pursued this evidence tampering claim aggressively once they had the information from the investigator i mean when there's a difference between doing something after trial after the judge you know said there's you do a suggestion of a certain expert and actually doing it before trial when you're putting together your trial strategy and you're putting together how you're going to present your case the trial strategy was to argue advice of counsel and that there was no intent to conceal those were very reasonable strategies and they chose not to  immediately pursue the strategy of i was threatened in there are changes in the tapes that's a strategic decision for a defense lawyer to say that they were ineffective by pursuing one strategy over another is typically the kind of thing that's not examined in twenty to fifty five and moreover they did once they had the information from the investigator roberts they pursue that claim they got never bench here hearing they got multiple affidavits the district court thoroughly considered them and rejected them this court found that the district court was not required to give him any additional evidence you're hearing he submitted no new evidence since then to show ineffectiveness so no evidentiary hearing was required thank you thank you very much just a few quick points in rebuttal first counsel said that it could have been a strategic decision to not hire mr owen i mean that's possible that it could have been a strategic decision not to hire that particular expert but it can't be strategic to hire someone who is woefully inadequate someone who cannot be qualified to provide expert testimony on an issue that obviously under rule seven a two and seven a one must be provided by a qualified expert so regardless of what this court thinks if it's close to the line before trial always deficient if you hire an expert and he gets booted on the job or is it like for example i don't know if you picked the wrong exit people turning up the wrong expert all the time for a lot of different reasons it doesn't mean we're objective we deficient under strickland who doesn't always but this is a pretty easy case for that to be clear the court did more than just direct the defense to a particular expert it attaches curriculum vitek it said specifically this is the type of thing i want an expert to testify digital audio forensics that was the sole grounds for expertise and mr mereology insisted had no training or expertise in digital audio forensics so i don't think that is close to the line with respect to division performance secondly that counsel said that you know the judge expressed annoyance at the sentencing hearing but there's more than that i mean first of all sentencing counsel who is separate from trial counsel specifically argued for not a day more in her words than  hundred twenty months now it's very it's true that judge adams granted a significant departure from two hundred thirty five months to one hundred fifty months but one hundred fifty months is still thirty months longer than hundred twenty months if it had been one hundred twenty months mr money would not still be in and i mean i think it's it's pretty hard to say that judge adams was just annoyed and if the court looks at page twenty thirty two of the of the record which is at the december seventh two thousand and seven tensing hearing  johns specifically denied a downward departure on acceptance or of responsibility because of quote what i believe to be a contrived excuse his problem was with the way that this issue was presented he said out the sentencing hearing as judge no band instead had this issue been presented perhaps in a different manner but because it wasn't i find it extraordinarily unless i find it extraordinary difficult to look at this individual with any sympathy now yes it's true that judge adams went well below the bottom of the guidelines but of course the reasons that he gave for that would have been true even if cover to counsel had competently presented the issue he cited mr monet's age he was sixty at the time he's seventy two now he been true still it still would have been true had competent counsel put forward this very serious charge in a way that didn't spring it on the court at the very end of the trial that we still have after this we send it back to him to have a hearing to determine what the practice was you argue that you argue to him you your honor would have done something different and he looks at you and says no i wouldn't i mean i what do we do that i mean what do you do with that so i think whole the whole thing that we are asking for on the ineffective assistance issue is not a remand for here we are asking for reversal as a matter of law on the record there is both division performance and i think that's clear at least after trial but then what is what are the sure so i mean with this court said in rosencrantz is exactly appropriate here the materiality question is not would it have changed if he had told the truth the materiality question is would the outcome is it is there any reasonable likelihood that the outcome would have been different had the jury know that he lied so i know i'm over my time but just very quickly in rosencrantz the star witness who was not a member of the investigative team it was just a eyewitness lied of the allegation was that she lied about whether or not she had met with the prosecution prior to trial and anyone who's seen long ordered knows that it's certainly likely that the star witness for the prosecution meets with the prosecution before they come to trial and yet what this court said was even though the effect had she just told the truth would have been minimal in this court's own words that's not the standard all the way up now we know that credibility can often be determinative particularly where it is the star witness and here especially isn't hans it was the sauna round which the government's case revolved his fingerprints were all over the case and if his credibility was damaged it is at least reason likely that at least one of the three counts would have come out the other way or the judge adams would have other varied greater down to the hundred twenty months