the classic example of each party training the issue in a way that uses the same facts procedural history the titian or maintains that issue really is whether he should have been afforded the opportunity to withdraw or sent his way for a jury trial the respondent focuses on bias if and in underlying all this is an issue both that was certified   and an april th two thousand and eleven he appeared before the trial court and he was asked whether he wants to proceed by jury or judge and he consented to a trial by a judge and there's no issue whether it was done freely or voluntarily well we maintain is that there were early wasn't done knowingly because within sixty days later the government submitted a ten page affidavit which presented a whole bunch of facts that made the lay of the land very different than at the time of his waiver and and then in august two months after that he appeared for his bench trial in his trial court attorney was was obviously distraught by the situation and said that you know there was that application for a search warrant calling him a drug dealer and a money launderer and that he didn't believe that and you justification for that and he said that had he known about that prior to the trial waiver he would never would have  fact standard question currently yes it was six was the waiver and then two months later was the f a a gave it support of the search warrant and then two months after that was the bench or so that was the history of it and then in the re and now the did the trial court judge is presumably reading this information and at that point forward from june th all the to the trial date that's the time period whether on that date or later the trial court judge should have just had an account with him and said listen i want you to know i read this affidavit in your attorney has got a problem with it he specifically says i never would have waived a jury it that the now would you would be if the judge had found a witness list and i'd seen as myself as a practitioner the judge looks at the witness list and says you know what one of the jurors one of these witnesses is my ex brother in law this either stop i have a problem because in michigan either side can demand a jury suggesting yes the the affidavit the f f location for the search warrant was done obviously x party for the reasons that you pointed out for safety officers to avoid the loss of evidence we're not contesting that but that triggered a sort of a new series of information that that the court was now provided with it would be similar to what the court later finding out that he knows one of the witnesses or juror had once a juror who sees a witness comes and says you know what i didn't recognize the name but i know i would if if a judge found out that the person had problems in this past the defendant would be given an opportunity to jet to the just serving as the trial judge  that that's just what the work would know when and it's not as simple as that it wasn't simply a disclosure of a prior criminal history it was an allegation completely unrelated to the case regarding drug dealing and money laundering the case in chief and nothing to do with those factors and had the had it would have been a jury trial would been very unlikely a jury would ever heard that and we don't really believe this is necessary biased percent the question is whether now with that new court information does the defendant have at least the right to revisit his waiver he might have said at the time of the truck the trial i don't get with it let's move forward and that often gets this is before us on heebie is where the supreme court has in bench trials and i'm quoting judges routinely hear admissible evidence that they are presumed to ignore the judge here said it ignored it that was excepted how do we now displace that without clearly established supreme court case law saying a judge has an independent obligation to advise his client anytime he learns or she learns of on favorable evidence  that case doesn't exist well yeah the issue is not necessarily the bias issue it's more of the procedural fairness issue so i understand the supreme court has said you have an absolute right to a jury trial and when he is waiving that absolute right by presuming that the judge is going to be fair and and so of course let me ask you this is this judge any time he learns facts that are in admissible is there a casing event has to  advise a defendant about his waiver not never single case of course not in how ever when you have a situation that what supreme court case stands for that proposition or anything close to it were just the presumption that you have a right to a jury trial and if you waive it it has to be knowingly and truly done i mean that's a goes back to the you know i'm not sure why it's not knowingly and freely done at the time and then the supreme court before a judge decided a motion to suppress which to me makes more sense than this but we know the supreme court has specifically said that's not permitted yes well yes in terms of so when you look at the issue of from the court benches view outward looking at the way you presented it yet the court is presumed to be unbiased and they certainly hear things they're in admissible but when you talk about the time of waiving your jury trial that what was what was the landscape at that point if yes doing it to delay or something like that the court has some has some discretion of course saying listen this is just a delay tactic but when you have a situation where if it was related to a witness or in this case he's getting ten pages of  affidavits and then his attorney stands up and says listen whoa that was not the way we thought we were coming into this trial we you know even jers our our you know those that process asking them questions and for dear process to and to to here the judge said i don't even remember it which is an unrealistic in a state court where they're signing ten of these it day or whatever it's not i mean when i was a trial that i didn't remember a search warrant i signed three months before trial judges unlike appeals judges are really busy right and he may or may not have remembered it at the time it was presented on august the left the time trial commenced but we don't know what may have triggered memories during the trial oh yeah i remember that ten page affidavit in his mind the idea though is when you waive that jury that that solemn jury trial that right that so fundamental are you doing it with the information that is fair and formal and then when the government's missed this affidavit it's not and it's not a burden some process if i know that you're reading ten pages of effort even you know we just want to err on the side of caution and i'm from the biased standpoint i get we have an issue we presume that they're not biased i understand but from the defendant the petitioner standpoint supports you with just the general u s supreme court precedent and the right to a jury trial and that if you waive that what you really are waving and what conditions there are that you're waiting under you but you have no specific case against something merits shielding them under and indeed as long as fair minded jurists could disagree with the holdings which they could cameron cannot be entitled to have used relief and this is for two reasons st cameron has not shown that the trial court was actually biased by virtue of signing the search for help location in this case and nd is counsel did challenge the trial court's actions defeating any deficient performance and in any event he cannot show actual prejudice for the trial court explicitly stated as judge the part pouring out that he did not remember any details of the war application and the facts otherwise strongly show cameron's guilt in this case now going to a counsel's st point about the characterization if you will of the st point and that petitioner characterizes it more as a waiver of the jury trial issue and we characterize it more as a biased claim your honour's to be clear that's not us characterizing the claim as a bias claim that's the claim that was certified for appeal from the district court in this case if we look at the c e o in this case the certificate of hillbilly that was issued by this court it states that in ground two this is on page four of the c l a in ground two cameron argued that he did not receive a fair trial because the judge who presided over his bench trial is the same judge that previously our prized search warrant after reviewing affidavit that contained in this bill the discussion about to not include the waiver issue here now we certainly don't lose not waiver issues either because these are pretty substantially related to each other but i just want to be clear to the score that the issue truly is whether the trial court was biased because inadmissible evidence all the time and that's going to be especially true in bench trials because we're talking about someone who necessarily has to serve as both the adjudicator of claims and issues and the facts themselves so we see that all the time right with pretrial hearings such as in michigan because you have a walker hearing which is talking about the defendant's confession and whether that confession would be admissible at trial whether the jury should hear that or if it's a bench trial if the judge should consider that in weighing the factual determination about weapons pending just guilty of the charges he faces  we also see that with things like daubert hearings with expert witnesses whether an expert should be allowed to testify whether the opinion from the expert should be allowed to be considered by the trier of fact and again that that is true i guess i'm talking about whether there are some presidents requirement analysis but as far as the judicial bias claim they only need to prove that the judge was actually biased thinking we we know that from united states versus armstrong there has to be actual and if they cannot prove actual bias then really being free and i also want to point this court to a case that was actually cited within coley vs badgley which is a case that this court decided that there was no bias shown in that case and that's precisely the claim that mr cameron is making here that x parte pretrial proceeding showed the judge case here the other thing that we see is when the prosecutor moved to revoke mr cameron's bond in this case approximately looks like six days after the search was conducted the a lot of facts from the search and the the facts upon which the search warrant application was based di come to light during that proceeding and counsel did not move to revoke the waiver at that time he didn't ask for another colloquy the issue did not come up even though for instance if we look at the transcript for the bond hearing that it's so the prosecutor pointed out for instance that weapons were found in the home that mr cameron was in possession of marijuana and over three  any sort of judicial bias for working these facts and you didn't all of this information is coming out after the waiver in this case so the court knew this information and the defendant still didn't raise this issue didn't remember this information when coming to their decision because in one way the benefit of this being a bench trial is that the judge is required to put their findings on the record that you know the jury doesn't necessarily have to do that they just come to avert but this in this case we have a transcript of the judge's reasons for finding the defendant guilty and looking at those reasons none of them rested on any of the facts that the judge would have learned affidavit you know several months prior you know approximately two months before that information simply isn't in the record and then again your honor is going to be in fact assistance of counsel claim our position is that counsel didn't performed efficiently because he did raise this issue it's not something that came up after the fact he had to file a motion for away from judgment or anything like that explicitly said i didn't remember we can look at the trial court's reasonings for knowing that they didn't rely on anything from the affidavit and the facts in this case for other i strongly had an eyewitness identification from someone who was from milieu or at least b claim she could have got a firearm right that's correct your honor in she stated that was because she was afraid for her safety and her daughter's safety she was even if she was clear about that in defense counsel did indeed cross examine her about that as well saying that it was understandable if you will that the victim didn't identify mr cameron at least by name initially she did provide a sketch of him in  again sanford stroman on behalf of the petitioner i just in rebuttal i just want to note that the brief that i submit it does provide significant case laws relates the fundamental right fundamental rights of an impartial jury or any kind of tr of fact and i think when i want in rebuttal it's like to note that when we just travel petitioners are our four during a jury we're doing that because we don't know who these individuals are and we're trying to avoid any bias which and avoid any prejudice anything like that but with a bench trial you typically don't seem to have that process and that's why this that this little protective measure of saying a judge saying listen i got some additional information and while i think i can be fair i just want to give you the opportunity to understand that i have read this ten page affidavit and we presume the judge did read it and so the bias issue while it may not have been clearly any kind of bias that he's related to somebody or something like that by presenting him with all these pages of affidavits and all these allegations unrelated is was was the type of board here that a defense lawyer would have conducted prior to a jury trial and i'm just trying to make the  know whether it's a judge or a jury the other issue that i want to point out in rebuttal is the ineffective assistance of counsel and i know responded to sort of hedging his bets on both sides you saying that you know that the trial court attorney didn't braze this issue didn't present in a timely manner but then again then it was raised later and i just want to leave you with the words of the defense lawyer when he realized the night before he had read that application for a search warrant that you realize that the judge had read ten pages and he literally comes into court saying you know this affidavit quote calls him a drug dealer in a money launderer and there's no evidence of that and had that happened prior to the jury waiver i never would have waived a bias only thing i can say is that his exposure to all this affidavits presented an opportunity for the defense to have said listen we don't think that you can set it aside we should be able to make that call not you we should make that call