that an ample lead need not cross appeal to raise an argument in support of a judgment that does not seek to enlarge his rights petition or who prevail on ineffective assistance of counsel claim that the district court did not have the cross appeal here for two reasons first he did not seek more were leaf than the new punishment hearing greeted him in the in the judgment second he raised an argument that the district court rejected as an alternate basis to affirm the judgment and if he did not need to cross appeal he did not need to see a sorry he i don't know if this is a new argument or a new issue and the reason i raise that is when the judgment to shoot here by the district court it specify that had occurred and basically told the state court fix those still the work you have to release the defendant let's assume they fix those too and then  could you come back and say release him anyway because they didn't fix the third that i lost on no nine under those circumstances so how is it not more really a bit more how is it not more really or different you had good counselor bad counsel you may have clearance darell and still be denied effective assistance of counsel if clarence darrow makes one mistake i mean when we find that there has been ineffective assistance of counsel i think that means counsel failed to do one for me then he should have done but there's there's no such general finding that counsel was was in gross ineffective where you're you're describing it as though is though that's what the finding is and that's not what we hold when we find in effect of assistance of counsel we find that this particular counsel made this mistake it says well let's take that a step further let the quote best analyze and i see claim is to first isolate the errors of counsel it could be one it could be a hundred doesn't matter you can relate them and consider them together to determine prejudice if the deficiencies in performance constitutes sufficient credit is to undermine confidence in the verdict and counsel was constitutionally ineffective not because of a b c or day but because the t representation did not meet the constitutional standard so it's not a matter of fixing any particular error of counsel and that's where we're i believe the state's position is a little a ride to it was a federal court judgment is a lawsuit against the we're having to do with the body of the prisoner the federal court doesn't have authority to tell the state to do or not do any particular thing the effect of the federal court judgment is to basically say release prisoner unless within in our case under twenty days you re sentence them to life or you get a new punishment hearing would your argument be the same if all of the claims in this case were not in effect of assistance of counsel claims let's take the an example that's in the briefs where there's an ineffective assistance of there's a and if ineffective assistance of counsel claim there's a coerced confession and so the petitioner wins on the ineffective assistance of counsel claim loses in the district court on the opportunity to introduce it's to exclude a coerced confession so would you does your argument applying that situation as well assuming the course convention involves the punishment phase as opposed to the same place yes ok i think that's a situation where the state has a decent argument that because it's a different claim that would perhaps entitle you to middle relief under the judgment that is not just a new punishment hearing but a new punishment hearing without the unconstitutional confession that the state of the law today know if i you had just a follow up on that if you say that could not the same situation arise with respect to different ineffective assistance of counsel claims let's say that in this case you won on your  that were said during the closing you lost on the weekends claim let's say the wiggins claim was that there was money available from the court from the state to hire experts but the attorney didn't apply for the money didn't do an to go back and do the time or the money to to do the investigation i would respectfully disagree with that because if you get a new sentencing hearing you get to do whatever you want to do with the new sentencing hearing and for our purposes if you now kno let's do it over with what you know but with a proper closing and that's the thing the federal habeas judgement cannot direct the state court what to do or not do at a retrial all it can do is tell him that releasing this person unless the constitutional thing they don't have to fix it's up to them but let's remember in an icy clay it's different than a freestanding did mission or exclusion of evidence claim because a federal court hey b s judgment can not for example in this case the sta enlarge our rights under the judgment by asking the federal court to order the state to fix any closing argument error and require a new trial for you to say here we didn't estat we could not have asked that a federal court cannot order a state court to fix any of defense counsel or tell defense counsel have to try the case what to offer what not to offer what arguments to make all the court can do is provide a remedy for the petitioner if he does not have affected counsel at the re either way it would seem to move if you didn't file a cross appeal that the federal court decision would be an advisory opinion on the confrontation clause and so in that circumstance if you were seeking additional relief i keep out the  right constitutional admission of evidence that in that situation i would fall across appeal and move for a c o r p because i would be seeking to enlarge my rights under the judgment the judgment that we got here didn't really give us anything more than the constitution gives any citizen the day he walks into a court right which is the right to a trial with effective assistance of counsel no no no the the right to a trial that did not have this this failure of counsel this particular failure you do not need title to counsel you're entitled to councillors make a mistake he could be the dumbest counsel around so long as he doesn't make a mistake and he could be the smartest around and if he does make a mistake that's ineffective assistance of counsel i respectfully it's not by itself the mistakes may be mistakes but unless the totality of those mistakes constitute sufficient prejudice to undermine competent the verdict was not an issue here i mean looking at the blue brief in the in the read brief it would seem to me that the issues here of turned on a mistake how many mistakes are there it wasn't a question of prejudice that is the lower court said even if you're if you're right and they thought you were right that these two errors in failing to investigate the background created prejudice so i don't think there was an argument on appeal about whether there was enough prejudice it was a question of was this in the state am i right or not well my position on appeal was i'm denying i'm missing was there an argument about that no they disagree about that i think the state certainly disagreed with the day and they argued that it was a court they said even if there they said the issue before the fists are it is whether all together these three things amount to prejudice because our view of the state he was all right even if there were errors here it didn't amount to prejudice what i basically said is that the the state court findings and conclusions regarding those matters so but let's let's play the state's argument to its logical conclusion under their theory let's assume the same thing happened to the district court we w not appeal to the circuit the state would take the exact opposite position they're taking here they would say this is a prevalence appeal he got all the relief he wanted in the judgment which is a new punishment hearing he doesn't have the right to appeal this this is an example of death row inmates abusing the system and following frivolous appeals to the light things on the predicate of the argument is that again that ineffective assistance of counsel claims are different you would think that it ah claim it wouldn't be crazy for you to appeal the loss on either of those things because if you don't get relief on mapping you're going to have the same thing when you go back right and that's right in that situation i would be seeking to enlarge my rights and t we won two we lost one we willing with the client we got the new punishment hearing so at the new punishment hearing let's assume we got one and i was it doesn't mean i would have to put on the evidence of mental health history in disadvantaged background i could make a strategic decision based on the landscape of the retrial what to use or not use so the federal court order would give the petitioner a new punishment hearing but it would not dictate to me what evidence i had to put on what arguments i had to make well could the state or the trial court compel me to do or not do anything it could only provide a remedy if i didn't do it correctly but i think if you failed to put on the same evidence which the court of appeals had said the failure to produce constituted ineffective performance of counsel if you do the same thing again why wouldn't that be ineffective assistance of counsel will or might or might not depending on health history would would create more harm than good based on what the state's doctor's going to say i'm not going to put that on i'm just going to go with the disadvantaged background and argue that they haven't proven future dangerousness because he's got no history of violence when he's incarcerated i could make that strategic decision if somebody want to come along later and grade my papers they couldn't they could say was thumbs up or thumbs down as the case may be let's let's examine the state's argument that you couldn't put if all things otherwise were the same you could do what the lawyer did here without being ineffective assistance that's what isn't out there holding the holding of the of the district court the district court says the lawyer in these circumstances did not give effect of assistance as to two things so of course things could change in the new trial and then you could act differently but if they didn't change you would have to do act but the district court said wouldn't  i would agree with regard to evidence that disadvantaged background because it's written in stone shall i know once that so there is nothing in the order that would things being identical stop the that would prevent the lawyer from doing precisely the same thing there is something in the order that would prevent you from doing the same first two things things being precisely e different question let's assume he didn't vesta gave it and he failed to sign things that i fail and doing havior and he decided not to put it on then it would be a strategic decision which he would have to defend and so that's where we come back because that evidence was and those are two specific ones he would look at that i disagree i don't think you even need to reach the issue of this i see one claim or not it's here because they've they've split my claim into thirds by saying i make three claims instead of one i can still win under a pure interpretation of american railway because i am not seeking greater were late if then what i got in the judgement which is a new punishment here would you agree that to include all of the council errors is important to show the substantiality of the air and that's what i did in the fifth circuit would say look would your grade that go to show how substantial the incompetence was the combined effect relates to the prejudice in our area but of course one of one can be sufficiently sufficiently pregnant which with that in mind i want to try and do the c e o a stature let's assume that we accept your argument that you did not have to file a separate in the text of the rules is if you need to cross appeal you need to see if you do not need to cross appeal you don't need to see ojt let me give you to let me hit the government's arguments head on and i think this is key they say t what should be read into the statute or adopted as a matter of common law that is a tacit acknowledgement that the statute does not require a c e o way for the non appealing petitioner ample late in their brief they do rely on the text of twenty two fifty three c or the associated rules twenty two bigger habeas rule eleven they want you all to the court to read that into the statute and that is not appropriate or the text is clear twenty two fifty three c says a c o a is required for an appeal to be taken to the court of appeals now we know that doesn't apply to the government for two reasons first undersea to a governmental entity could never showed the denial of a federal constitutional right secondly under fright twenty two be free the government's expressly ink excluded so if it doesn't apply to the government who does it apply to congress and ten for twenty to fifty three c to apply to the answer is clear but titian are apple appellants who applies there because then we get into exactly the same argument with the need of cross well but i say i don't need to cross appeal because i'm not seeking to enlarge my rights in the judgement as you are being as a uniting the same mind i see is a single point we disagree with you you needed to cross appeal could you answer on or didn't agree with you you didn't need to cross appeal ok answer justice kennedy's question of why you don't need the required it has to specify the issue or issue that satisfy the showing of the denial of a federal constitutional right do you agree that a petition or who has to take a cross appeal because the petitioner wants to enlarge the judgment does not have to year in which the petitioner prevails in the district court under the daunting at the standard of review and the state appeals the information we received off of the public databases that we were able to check and so i'd put an asterisk next to this is that late in two thousand and thirteen there were eighteen cases in the federal circuits in that have our scenario where the petitioner won and the state took the appeal so that's less than two percent per circuit that's a speck of sand on the beach  cases where the petitioner prevails in the district court under the at the standard review that appeal is not a frivolous appeal the appellate court's going to have to spend its time on it it's serious especially in a death penalty case and the briefing rules page limits the fact that the petitioner would have an incentive to protect his judgment and focus his efforts on the claim he won which certainly discourage people from doing what the government sales which is to write one hundred frivolous arguments in response if hours or the rest of my time for rebuttal i want i don't know whether this court appreciate our name but i suspect that you do and i consider it ironic that the state is basically trying to scare this court into reading a c requirement into the statute for a petition or ample wait under the guise of the appellate courts being inundated with one hundred frivolous arguments by prevailing petitioners in a case where the protests prevailing petition to raise the exactly one argument and it comprised three pages out of a fifty three page brief in which the first fifty pages talk to protect the judgment a final thought if this court were to rule in our favor i don't see there ineffective assistance of counsel constitutes separate kline's based on the number of allegations of deficient performance and that cannot be harmonized with strickland under the state's theory there would be no circumstances that would be no commentate it's not a lack of jurisdiction it's that the court can decide to excuse some procedural the fault based on calls and prejudice in our case it's a pure question of appellate court jurisdiction does the court of appeals have jurisdiction to rule on an argument in support of been affected assistants were already one on the client all i'm asking them to do is consider the argument as an alternate basis to affirm the judgment of the district court and for that reason this court should reverse the judgment the fifth circuit and  chief justice and may please the court it's now common ground that petitioner would need to cross appeal to add some conditions to a conditional release order issued by the district court the only question in this case now is whether the particular condition requested by this particular petitioner was necessary or sufficient to add to the conditional lease order and we think that it was we think that this particular condition the speech error was a meaningful condition and in th argument you're going to have a new trial right now presumably i mean the lawyer may say the same thing or the new owner may say the exact same thing remain not it seems to me that it's a very academic dispute is whether or not you have a separate claim once you have the relief of a neutron well we don't think it's an academic claim with respect to you adding the condition that requires a certain level of constitutional performance for the defense counsel and always will always have the same level of constitutional performance this is only going to come up as a particular problem if for some reason the lawyer says exactly the same thing in closing as the prior lawyer did and i don't anticipate that happening but this actually happens an ineffective assistance of counsel claims in other contexts where the state court has the power for example to conduct a colloquy with the defense lawyer to probe what the judgment is that has informed the defense lawyers representation what the defense lawyer has done what the defense lawyer plans to do and of course the state has the ability to object and look for curative instructions if the error occurs but the fundamental the really important some of my questions to to your opposing counsel suggest that ineffective assistance of counsel is a mistake by mistake that there are here three claims have been a festive assistance not just one maybe that's what what do you do with this case where the the the trial court fin s two instances of ineffective assistance the state agrees that those two are valid but appeals on the ground that it was harmless error that the cumulative effect of those two mistakes was not enough to change the outcome of the trial the defendant on the other hand wants to raise the issue that there was indeed a third instance of an effective assistance and that if you combine all three there would have been sufficient harm to enable setting aside the verdict what do you do with that case there they are there the three separate instances of sort of been combined into one where where the issue is the harmful effect the answer justice scalia would turn on the particularities of the third error of the hypothetical that is if the third error was sufficient to push it across the line of the sixth amendment in the deficient performance standard then that would be the contours of the ineffective assistance of counsel claim ok so you would allow that one to be to be raised without a cross appeal but it would so long as it it would certainly so long as it's all argued that that would produce the incremental effect of reversing the judge yes we agree with the clarence darrow hypothetical from the top half of the argument which is that you measure the constitutional error based on where the lawyers performance transgresses the bounds of the sixth amendment and so if in the hypothetical if that happened to have been on the third error then that would be the contours of the ineffectiveness claim to return to the chief justice or before you leave that i thought that your opposing counsel said that did happen here it wasn't that you did raise the question of whether there was enough produce and therefore they were entitle to bring in the third as showing that even if the first two were insufficient with lurd made up for justice by we disagreeing with that characterization of what happened in the court below what happened in the court below and in the district court was that petitioner raised three allegations of deficiency this is how we characterize it in his own search right petition to this court through allegations of deficiency each of which standing alone both transgress the bounds of the sixth amendment and was a prejudicial error we fought back on to because the district were granted two and those were reversed in the fifth circuit he raised a third independent and or if he wants to add that third independent error to the conditional release order that is he wants to call the state to be held responsible in a constitutional error imputed to the state sufficient to command his immediate release upon failing to fix it at a second trial thrown out on the grounds that there was no error right that's correct not on the ground that the ok so petitioner wins on two and he loses on the third issue the the closing summation does he have to then often write their conditionally sorters differently to say for example as judge pollock did in the lame case these particular areas have to be fixed and everyone seems to agree that if the judgment said these particular areas have to be fixed he could have taken the first appeal or he could take appeal how does it work that is it seems to me that i've seen lots of petitions in haiti is where a incarcerated person will bring up forty arguments and suppose that he loses on thirty nine and he wins on one and he gets his new trial and the court the prosecution says fine we'll go ahead we'll give you the neutral is the lawyer then supposed  example right now have you found many cases where a petitioner wrong in the district court there is no state appeal but he did lands on other grounds and he decided to take a first appeal on several of those other grounds i'm unaware of any but only because the state offered appeal you want me to issue an advisory opinion just in case they do i don't see how we can do that well it wouldn't be an invite her opinion in the sense it would it would say that what happened in the previous trial transgressed the confrontation clause or the sixth amendment depending on which case which  was set aside he got a new trial and he's saying there are additional reasons why i should have got a new trial i'm not going to listen to that it's absurd but you got what you want it don't go away  about which is is he going to go present a corrido are we going to have to entertain it since he won his release but if does he have to get a call but more importantly what happens when there's a new hearing those two mistakes are not repeated but the new one is introduced and the old one is repeated are you saying he chance appeal again no i'm on the earth one or the new section much more so much more protective of the is the third error is committed and even a new one is committed that wasn't a part of the first function can he appeal of course of course it was a  people can be prevailing parties in the sense that the judgement imposes no why ability on them but they can on the west appeal and i would submit that this is one of them and it's precisely because he wants the additional protection to go back to justice scalia's example everyone agrees that if  court would provide against that era being either recommitted or failing to state feeling to fix it i think that you keep talking about the conditional release order it doesn't say anything about what the state must do what errors it must correct it's on page thirty five it just says given the new sentencing hearing or sentence him to a term of imprisonment it doesn't say because of this because of that because of yes that's absolutely correct but we it seems like both sides agree that it could have said exactly what the opinion says that is i found two errors here i've not found an error on the third look around and therefore it could have been incorporated in the text as they often do i say footnote six of the bed beef collects a series of the ways that federal courts phrase them and it would be a bizarre cross appeal that would turn on the particular phraseology of the conditionally sort of  being able to argue going in your brief yes yes your honor that's what twenty two fifty three c three says issue by issue specification and every court of appeals in the united states agrees even the seventh circuit there would seem this would say three of the areas that you hypothesize would be the same even in the the certificate of probable cause standard which courts of appeal starting with the rim on decision in one thousand nine hundred sixty required prisoners to satisfy the issue that the requirement even as the apple e and as we sit here today six out of the eight courts of appeals would require twice in both miller allen and slack the language of the statute twenty two fifty three c imposes a list of necessary but not sufficient conditions and it is entirely within the provenance of the courts of appeals to deal with these issues on a regular basis to interpret that language to also apply to a prisoner who is the apple e who wants to raise an issue for the court of appeals consideration both because that's the purpose of the statute and because it was the pre and post standard upon which the statute was and acted and so if i might just return to the chief justice hypothetical about the potential for something not happening again this is much much more significant than simply that if you think about the quintessential error that could never occur it would be for example a brady violation that is the withholding of exculpatory evidence once it's in the possession of the defendant how could it ever occur but it's in precisely that circumstance that one of the most powerful exhibitions of the conditional release order has worked out because in the in the wolf vs clarke case at the fourth circuit the commonwealth of virginia received a brady remedy that is that it had its conviction vacated because the particular evidence and not been turned over to the defense not that error that particular error could never be recommitted but the commonwealth violated the spirit and the intention of that conditional release order by interviewing the jailhouse informant gave the evidence threatening him with perjury and convincing him not to testify at the second trial and in that circumstance because the conditionally sort of which was phrased materially identically to ours by the way the phraseology did not mention brady but because he had the power of the federal conditional release order instead of having to sit through another trial instead of having to have the court the brady evidence excluded he was able to go back to the federal district court that issued the of original condition i mean that may be situations in which the state or  n effect of counsel will do repeat year or they may not win this one call couldn't have been repeated it was by definition not repeatable but it was because the state failed to fix it see that it's actually a significantly greater obligation on the state than not and simply so let's just consider but it still says you can't be deprived for suppose you have to make a substantial showing of the denial of a federal right so they're saying the federal right here that we're deprived of is a sixth amendment right to counts hearing it there are a lot of different bases for it there are a lot of different things that happen but that's the single ground or right or in this case issue doesn't change the word of that it used to counsel we're going to produce a pretty good nightmare because the shading to each other often they're related in a friday of ways they may be or may not be related to the prejudice problem and will start wondering when they have to file a court cross appeal and create a mess so that's the basic argument i think of this brief and it is one of the arguments that they're trying to make now what is your simple answer to that the current rule in is not a nightmare and the current rule issue twenty two fifty three c three to me an issue not to be in a single claim and so the nightmare that's predicted or the pragmatic solution is it in want of a problem in the sense that this is the  justice indicates there were may or may not the third error may or may not be repeated so go back to that point which is if you're a successful that it didn't even have a right to try to go get a c the judgment entitles into it to either release or to every sentencing under particular terms and if you want to change the terms of the resentment saying he's attacking the judgment and expanding his relief we all agree that he would be attacking the judgment and expanding its relief if he wanted to add my brother you didn't put on my sister you didn't put on my uncle you didn't let on my aunt and the court says you know we think your brother and your mother really did have something to say we're not so sure about the others the you think i have to cross appeal on my aunt and my sister and my uncle and not only that you think i have to cross appeal but you think that if i had one and the state had not taken an appeal i would have had to appeal myself to things justice kagan one is  that on that particular hypothetical i would suggest that there's just one we're going to claim that it's fair to call family to testify and so there is a sort of attention in how we conceive of the claim in this case and i don't you know i could do another short of a quote family failure to call the psychiatrist failure to find the psychiatric report failure to go investigate my mental background absolutely and our position is yes you do not that you have to cross appeal is that you can cross appeal right in the sense that you could if you wanted to go back and have a second trial without having the ones that you lost protected by the federal constitution then you can but if you want to have a conditional release order to commence the state to fix those particular errors a pumpkin of a mediately releasing you  a certificate of appeal guilty and our position is that the particular rules that we're offering here offer protection to prisoners in the sense that the office protections of the state as well right it's what everyone know before we have to go back and have another trial about the mother  the sister the cousin the psychiatric report what the rules of the game are it allows a prisoner to know that if the state doesn't fix that gets to go free and it allows the state to make a decision as to perhaps not even conducting a trial again but we've offered this example in the reported in the reply that depending on what the particular conditions are the statements were go in commute to a term of years which is the ultimate benefit to the prisoner and so it's incredibly important to give a prisoner the right to cross appeal in that circumstance and if he wants t of appeals to address that issue he has to cross appeal because it would expand in that relief by adding a condition on a conditional release order that the state must obey or fix or otherwise let him go immediately anything i need to do to get this closing argument in front of the circuit in response to the state's appeal i said well no i wouldn't on ineffective assistance of counsel i'm just making another argument in support of the judgment as to why there was prejudice end of story all and it's tough enough to win on the merits to create the procedural nightmare of even getting into the ballpark that the state would have you it's like they went out the baby with the bathwater the the simple thing is we want to make it easy proof of course to acquire this way you can win this according to use if we were i a c claims are one claim oh i can i can also win just a set amount of the on the basis that even if i see as multiple claims i did not seek to enlarge my rights punishment here i would have to cross appeal obviously in that situation you answered no but then you respond produces yes you're saying you don't have to cross appeal because you've won on on an ineffective assistance of counsel