investigated that defense and consulted with this client about it would have gone to trial the district court didn't exactly answer those questions it assumed the defense was viable and acknowledged there was some evidence supporting it and it assumed that counsel performed efficiently by not looking into but it got the defense wasn't very good really it thought that gish is expert at the hearing in the instead of focusing on fish's testimony trial counsel's testimony contemporaneous evidence about their communications before the guilty plea they would all go into what was he thinking when he made the decision to plead guilty the district judge assumed that because he didn't find the expert persuasive on the affirmative defense trial counsel wouldn't have found them persuasive either and from that again ignoring that wasn't what was issue and health versus lockhart but it was saying that in certain circumstances the most important piece is going to be what would happen in a trial so where you have an affirmative defense the question is what would happen in the trial but even there it talks about the need to weigh the risks and benefits of trial versus the risks and benefits of a plea so i see those winds in lockhart as being primarily sort of an example and then the case that they use as an example is this court's evan v evidence vs miers case where there really was no defense at all and so the court said you know the defendant's claims that he would not have pled guilty if he had known about this defense doesn't make any sense it wasn't even an affirmative defense under state law there there was no evidence of it and when you weigh the risk of trial which was a one hundred and twenty year sentence against the benefits of the plea which i think was roughly a nine year sentence there was no question so that's the case the whole versus lockhart is looking at and so i don't think you can read that language to mean more like likely than not to win at a trial and i think that in levy it really refined that standard in explaining it was really about where someone no and the supreme court repeatedly says where there is no viable defense there are situations in which a defendant would nevertheless go to trial but here we aren't in the no defense world the whole claim of the defense counsel missed a viable defense it's just a matter of the district court thinking it would not have been likely to win a trial which it did by essential of treating the evidence you're hearing and the he vs court like it were a trial rather than evidence about if defense counsel had adequately investigated this issue what would he have learned about  all of that and if he had had that information it's not again playing out at a trial what would the attorneys review of the case that ben ben and we know from this hearing defense counsel is quite interest it it would have been a defense that he would have shared with gish and then all the contemporaneous evidence of communications before the to plead guilty which happened on the do that was set for trial was that dish was just really looking for a defense to go to trial are you saying then that you don't think the inquiry of the likelihood of success of the affirmative defense plays any role in that analysis no that's not what i'm saying and i think it certainly plays a role the likelihood of success but it goes just wouldn't that inform the lawyers to sit in on what to tell guests to do absolutely but it's not a more likely than not test is what i'm saying certainly if it's a defense like  the evidence case that couldn't have gone anywhere because there was nothing to it then and then we're not going to say that somebody would you know it's not going to be different performance it's not going to be prejudiced but defendants routinely go to trial with the fences that are now more likely than not to win and in this case where again we have contemporaneous evidence that he was looking is there some defense i can raise and in particular i'm really interested in a defense that would raise my medication and then when you look at again the weighing is really important in the state tries to ignore this here the plea that he entered even under that clear his lawyer was arguing for i think it was a thirty year sentence and defense counsel said at sentencing this is essentially going to be a life sentence for my client who at the time was in his forty's so we're not weighing a one hundred and twenty year sentence against a nine year sentence and we're not like evans or lead where there is no viable defense here there's a viable defense he could have succeeded at trial how do we make that at it and i think how do we determine if the defense is a flyable for purposes of this analysis because it seemed that's what the district court was doing sure and in fact sure there is a defense and it looks like he could get over the some evidence to present this defense to the cherry but is that enough or does your have to be something more than just some evidence some likelihood that if he presented this to the cherry that he could ultimately win under the facts of this case that is absolutely enough he was looking to which one sorry that just having some evidence having a real defense being able to present evidence to a jury to show that he was not guilty that's what he was looking that's what he wanted before he made the sort of you know last minute decision to plead guilty and so in this case absolutely in a different  as the court found wasn't likely to be said does that matter to the analysis here it matters to the analysis to the extent that it matters to the decision process and that's why we have to focus on the defendant's decision process and we just i mean the cases before lee certainly get into that but we made it crystal clear that this is about the decision process that was occurring so in that case where there was really no defense he could play for a fumble because he didn't want to be deported here we're not talking about playing for a fumble but we're not talking about a defense that's necessarily everybody thinks is going to  an estimate around and he knows that if he goes to trial and gets convicted it's a sure thing did he ever argue in terms of the reason that i keep writing these you know to my lawyer asking him because that was a class b felony just like the crime that he really pled guilty to she ultimately did not want to go there was a lot of discussion in the letters about should we do anything with that she didn't choose that sort of number it was only at the very very last minute that he did it and they're sorry that he made the decision to plead guilty and i want to sort of clarify and maybe this is already obvious but in the in the federal world defense lawyer was arguing for a twenty five to thirty year sentence and the state has emphasized in this case the gruesomeness of the homicide and they're emphasizing it for reasons relevant to their position  but also what that meant is although there's no mandatory minimum in this case theoretically it anywhere from zero to sixty years we're not looking at a lower sentence here from the start it was clear the sentence for any homicide was going to be incredibly high and so that was absolutely a part of what was factored into between the plea in the trial and under the case law the court is required to do that weighing and consider the decision of the investigated the defense has never looked into this and so they never had an investigator tried to determine what was going on with the medication certainly statement to the police it's problematic  ultimately that's just a question for the jury and what he's asking for is the opportunity to give that question to to the jury because he didn't get that opportunity what he lost was not you know like we're not  looking at the evidence that he's presented in light of other evidence that was presented at trial so we can figure out how it all plays into a jury verdict what he lost was the procedure of the trial itself so he's looking for the opportunity to  well ultimately the state who would be disproving the affirmative defense but he's looking to take that case to trial but he's not just looking to take it to trial he wants to win or somehow end up with a lesser sentence so is it really just the he lost the procedure because based on his own statements to his lawyer vance he's not looking to go to trial to have a trial he wants to succeed or somehow in depth with a lower sentence and the letters are really they don't go back and forth with a sentence he he wants it was more focused on he wants to have a defense he committed this horrible horrible offense and he's trying to make sense of it with his attorney he's trying to find a defense that especially takes into account the medications he took he feels like it's to blame for his actions but a defense that will potentially succeed with the cherry it could potentially not just a day in court but something that that succeed but the situation here with a plea is really similar to what we have with the right to appeal an attorney does not advise client of the right to appeal we don't look at is he likely to succeed on appeal certainly not more likely than not to succeed on appeal what we look at is if he had been given the information by his attorney is there a reasonable probability that seems inconsistent with the language until then there's a tradeoff there's there's no benefit to not appealing the morning there's a court system attorney general carom you have the state council the state's primary position here today is that mr does not overcome at the deference but i'd like to pick up just where we left off on the de novo review question of of prejudice i think it's very important to note that mr guest is not challenging two of the district courts factual findings in this case that actually makes this very easy to rule on prejudice the district court prediction as to the likely trial outcome and assessing whether mr guest has proved prejudice levy united states says that and so does hill the law card if you take a look at footnote three and leave the supreme court is a very helpful discussion where we're basically talking about two different types of attorney errors when we're talking strickland prejudice and the plea context there are those errors that have nothing to do with the outcome of the trial those are errors that affect the defendant's understanding of the consequences of their  it was deportation will be lockhart it was i didn't know my correct parole eligibility date in those cases courts are predicting the likely trial come because it's relevant but the other type of attorney errors are those errors that are we have here mr gisha saying hey wait a minute i had this viable firman of defense that i didn't know about and one that is a claim under hillview lockhart the resolution of the prejudice and largely turns on whether the affirmative defen largely depends on what the district court's factual finding was as to what the determine of issue and mr bush's decision to plead or go to trial was if it were a situation and you know i miss your guess is trying to compare himself to this hypothetical  defendant who views the one way for the law to work isn't it i'm not sure i think i think when we're trying to figure out what was most important to a defendant to a defendant and taking a player going to trial that's it's going to be a factual determination so in th the hill question or do we just say no no this is clear i think in that fact pattern if mr guess if the district court determined under that fact pattern that mr viewed the consequences of a and the consequences of a trial as similarly dire then in that situation yes you're right i don't think we would do that he'll be a la carte whether you are likely to succeed at trial because really that defendant was viewing the consequences of taking a i think you know and we have to give the example if you take the plea you get seventeen years you go to trial you get nineteen years you might grow he'll marry in that situation so i really just depends i think it depends largely on what the district courts factual finding here was as a what was  important to mr guest and taking the plea or going to trial and how do we assess the likelihood of success at trial is that a jury would have to agree with it or is there some likelihood of success or well to this point i want to point out that mr gish is also not challenging the district court's factual finding here that he had no credible evidence on the nd element of this affirmative defense he's asking this court not to consider that factual finding defense his chances of success at trial were essentially you know and that's because of the court's determination with respect to dr o'donnell correct that hit his testimony was incredible i would also note that it is the state's position that mr bush does not have credible evidence to show the st element of the affirmative defense which would require him to prove that he actually even took that next according to prescreen i think you would agree that's maybe a closer call than the nd it's a little bit closer held in the nd one but it is know we're not disputing that he was found in a kind of confused state there was obviously some sort of mental health issue going on at that point but the question is whether for purposes of today is whether he could prove at  trial that it was caused by xanax and that he was incapable of distinguishing right from wrong at the time now as i mentioned the state's primary position here today is that this should have never had gotten to a federal evidentiary hearing we do not believe that there was constant court of appeals decision in this case constitutes an on reasonable application of strickland to the facts it seems to me that the dispute between the parties here is about what the fa mean for purposes of this court's analysis mr gish his position seems to be that the facts are essentially what he alleged and his response to a poll council's no merit report because he believes that those facts are presumed true for purposes of a no merit appeal but i think that's really a distraction from the issue here today because the wisconsin court of appeals obviously did not presume that his factual allegations were true and concluding that there was nothing to invest thing that troubles me on that issue is that it seems that the straightforward simply never allowed him an opportunity to develop a factual basis for the sort of th amendment claim right and you know it does seem your honor that his complaint is that they deny his ineffective assistance of counsel claim without evidence cherry hearing but there is no federal constitutional right to an evidentiary hearing and state court on an ineffective assistance of counsel claim so it seems to me really what the complaint is is that this is this is a wisconsin law issue you know the question is whether the whether we've got a decision on the merits from the state courts when they haven't allowed factual development honor is our position and under wisconsin law in this court's own precedent that a decision on a no merit appeal is a decision on the i think it could be interpreted point is that they did the district for it seems on life which was on really sound footing and say let's have a hearing and figure out what went on here and to look at the plane but this was a decision on the merits in state court court did not decide this case based on mr bush's failure to allege strickland claim and that is the analysis that the district court ran here whether he stated the strickland claim that's not what those counts and court of appeals did they looked at the facts that were presented what your honor it routinely happens whether it's through a merit appeal or whether it's through the no merit appeal wisconsin courts are routinely denying ineffective assistance of counsel claims on the merits without holding evidentiary hearings based on their conclusion that the record conclusively shows that the defendant is not entitle to relief then are they to link that when maybe the record shows it but there's additional evidence presented by the petitioner that suggests otherwise because here it seemed like the court just looked at what had been presented below the trial court and this issue of the intoxication had not been vetted there but just submitted a lot of additional information in his response to the no merits petition that the court didn't seem to look at at all which is different than what you're suggesting it is our position your honor that the court of appeals i know the language you're if you're referring to they said that this additional documentation is not properly before us an assault so i agree that that was incorrect but the court then went on to say in any event we are not convinced that this issue has arguable merit it is our position based on our reading of the case that they did consider that additional documentation they not so if we read the record differently that the state court did not consider what had submitted in his response because the state court thought those documents were outside of the record is he entitled to a hearing i would say no because i don't think you know even if you were looking at this is just a few sufficiently pleaded stricklin claim you still have to show how you would prove that claim and i don't think he offered any support for his assertion that he was incapable of distinguishing right from wrong at the time of the murder and this is at a stage at which he has played guilty as and his lawyers are saying there is no conceivable important to note he did have the benefit of an attorney looking through his case for him to see whether he had a basis to appeal according to a co counsel mr gish never brought this claim up to him so he did have an opportunity for his lawyer to look into whether he could have gotten on an expert to support what his assertion was which is that he was incapable of distinguishing right from wrong at the time of the murder never brought it up to the health counselors trial counsel never brought it up to appellate counsel side he's never brought this claim up to me because he certainly brought it up with  trial i don't think for purposes of the analysis we know that fact we find out later following the evidentiary hearing but what was in front of the wisconsin court of appeals was simply mr bush's allegations with really no evidence of what actually happen and it is the state's position in this case that in that situation because the presumption under strickland is that the attorney was competent because the presumption is that an attorney's attention to certain issues to the exclusion of others reflects trial tactics not sure neglect we think that the presumption is that inaction is not the result of oversight so i think the wisconsin court of appeals here if they were correctly a prime applying that presumption of competence could look and determine whether or not that there would have been some sort of strategic reason for why counsel had known of mr bush's claim that he took xanax on the day of the murder didn't go any further with  address they pulled up the alliance from hell versus lockhart that everybody is particularly concerned with and there's a beginning part that that wasn't talked about and that's that generally the determination of whether to plead guilty is based on what would that count what would council have recommended and so then it says this assessment in turn will defend depend on a large part on prediction of what the evidence would have likely done and then it goes down to evans versus myers where the person says no counsel in his right mind would have advised to clients that guilty here that's not what we have we don't have an attorney who likely would have advised his client to plead guilty regardless and in fact the evidence presented at the hearing was that counsel would have told his client that this is something that he can do at trial and was found it to be quite promising and he is the person who has the experience in the milwaukee county courts but was going to go that far did counsel go that far to hearing to suggest that he would have advised his client to go to trial with this defense i think that is the inference of a lot of what he said but he also specifically said that he doesn't advise his client's right on whether  and i think it's important that we don't try to fit this into one box or the other because this ultimately is a strickland claim and under the analysis we're looking at all of the circumstances all of the facts in the individual case to determine whether in this particular mister likely would have gone to trial rather than plead guilty and less your honour's would like me to answer more questions about the other part that the state was just talking about i will