good morning may please the court issue in this case is whether a defendant may render a knowing and voluntary guilty plea when his attorney provides miss advice on a crucial aspect of his case under this court's exist the answer to that question is no that plea is invalid and that defendant has been deprived of the six and the right to counsel that is exactly what happened in this case jackson asked his attorney whether he could present evidence of intoxication at trial and his attorney wrongfully told him no that advice fell below an objective standard of reasonable ness and prejudice mr jackson in a variety of ways counsel must inform his client of the advantages and disadvantages of the plea agreement in order to assist the defendants evaluation of his options here after receiving the mis advice from counsel it was impossible for mr jackson to rationally weigh the advantages of going to trial versus the advantages of pleading guilty for this reason alone we submit that mr jackson is entitled to relief in this case there's a minute another major problem however with the advice provided by true for all counsel in this case and that's the timing of that missive but there was no motions practice in this case nor was there a trial therefore the only point in time it which mr jackson might have been aided by his counsel was by weighing his options and evaluating this particular plea agreement but he was unable to do so this type of mis advice that is miss can miss advice concerning a crucial aspect of the case provided at a critical stage of proceedings about which the defendant specifically asked about amounts to an effective denial of counsel and we submit the mr statement however the government counsel in on this appeal has represented that the death penalty was in fact on the table and i'm not a position to disagree with that statement we would submit however that whether or not the de was on the table is a relevant for this court's analysis in this case and that's because in in a variety of circumstances an outcome based prejudiced test simply does not work take for instance a case in which a defendant asked his attorney to introduce perjured testimony now that perjured testimony may well help him win a trial but the supreme court has said that that doesn't constitute precious on the sixth amendment what the court looks for is whether a defendant has been deprived of a constitutional intoxication and the advice was to the effect that voluntary intoxication was not a defense specific intent crime such as first degree murder would have been a defen to a second degree murder charge either well your honor i would disagree with your premise i don't think there was any advice on that point i don't think counsel ever said to my client yes this is a possibility however it's a bad idea there was never that conversation i think by looking at the j at one thirty the but i wasn't  the it's clear that it's voluntary intoxication is not a defense first or second degree murder isn't that correct to second degree murder i would say that's correct your honor the first degree murder we submit that voluntary intoxication eliminates the government's ability to prove the specific intent required to carry out the offense under federal law second degree murder is still death second degree murder as a academic matter i concede it's death  under the facts of this particular case we submit that it is not a death penalty offense namely in the united states versus lighty this court has said in order to be punished to a death sentence the government needs to show that a defendant acted with intent and that the government simply cannot do in this case if the jury accepts our intoxication defense and finds the defendant not guilty of first degree murder but rather guilty of second degree murder when you say it's an academic matter do you mean by that there are a couple of court of appeals opinions out there that say or suggest that it's possible but it's never there's never been a death penalty sustained on a second degree murder conviction that's a very interesting getting it that's a very interesting point your honor and i have not been able to find an instance in which that has taken place let me ask you as i understand it wish i wish i could i don't have a good answer for that the magistrate judge did order a briefing schedule from the government and in the interim when i suppose the government was working on that motion the district court went ahead and filed its opinion  i don't know what was driving the district court's decision making process nor do i know the precise reasons why the district court felt necessary to dispose of mr jackson's motion without a hearing or without at least hearing from the government to g during the offense in question but on page one thirty four he doesn't say to the government look government you're going to have a difficult time proving intent in this case my client did not have his faculties he was acting in an bizarre manner rather he merely talked about mitigating factors that sentence in this goes to support mr jackson's understanding of what happened he says that his his trial counsel never informed him that the government would have to prove this element at trial and in our opinion this mitigation memorandum fully supports that view so i think even if the court were to consider a remedy in this case we feel as  though the mitigation memo itself support is provides objective evidence in support of arguments that mr jackson was given improper advice actually the get back to the chief judge struck first question if you were to persuade us that there were here you agree that the motion would be entitled to would be vacate remain or to give the government an opportunity to respond and if necessary conduct a hearing perhaps  one would suppose well judge davis i think that an evidentiary hearing is certainly an appropriate step and it's certainly in this court power to to order such a hearing however we don't necessarily think that there is reason in this case to hold a hearing and as i said the first said the remedy nuts must neutralize the taint and in this case we submit that the taint was an effective denial of counsel and in such circumstances prejudice is presumed and we submit that there is no reason to have a hearing now th recently earlier this year in fact and united states against fisher ruled effectively just that when there was no hearing below and on appeal this court found prejudice and vacate and they remanded for a new trial there was no hearing   i have no basis in the record from the government's representations to disagree with that statement on oaken like the state have concurrent jurisdiction here that's a good question to your honor  put before a jury voluntary intoxication defenses are not the kinds of things that juries are likely to buy because they won't really don't go to guilt or innocence trial and why would anybody in order to presume prejudice that's a question you have to ask and when you read what happened to floyd had happened to his daughter but he continued to do what he was doing even after he recognized that floyd was not his daughter and i can't imagine a case that would be to indicate we don't we have to ask ourselves whether somebody would want to go to trial under a def eligible  i read the julian decision second degree murder is a death eligible to bounce you may regard it as a theoretical matter that the jury wouldn't grant the death penalty on but problem counsel face and sometimes it's not ineffective assistance of counsel when you look when you're stuck with a perfectly horrible case just where what i don't think we need to get that far in this case your honor and that's because underhill the longstanding test for determining the validity of a guilty plea is whether that plea represents a voluntary intelligent choice among alternatives now in the o'toole case this court said and o'toole was a death penalty case it was a first degree murder case and his counsel was able to negotiate a plea deal for second degree murder that's a good result in our view however the court said it's beside the point whether or not counsel was affected in  that the point was that this is a structural problem the defendant isn't it isn't that that goes to the performance oh and for how the the question is would a reasonable person have wanted to go to trial now you know the prosecution not going to simply drop the first and second degree murder charges it's it's not going to proceed on a manslaughter theory you can be sure of that and the jury is probably going to be instructed that voluntary intoxication is not a defense who has specific intent problem to first or second degree murder so the question is given these facts you're in is perfectly horrendous set of facts and and given the fact that a first and second degree murder charge that the jury's going to be instructed that voluntary intoxication is not of the f and given the fact of a second degree murder charge under what i think is the plain language of a federal statute and the eleventh circuit judy and decision is going to be death eligible the question is the at the end of the day not whether what this individual would want but under he will be lockhart whether in objective lay reasonable person given the lay of the land here would warrant not to try to negotiate a different bargain or whatever but would want to go to trial but i think your honor that objective standard has to be applied looking at the particular defendant in this case and in this case it's a sixty year old defendant he's never been in trouble before he's never been violent before and he just wants a chance to get out of prison before he dies and i think looking at it from that perspective it's certainly reasonable for a six year old offended to so want to get out of jail before he does whether or not he's faces a very difficult burnet trial is a question for the jury in our opinion no it's a question of whether i have a person of any age even what he did to these two young people would have wanted to proceed to trial on these facts you know and counsel whose entire back you know there's the western district of virginia jury and they go look at these facts  dealt with cases similar to this one in a different way than the supreme court handled hill and that is this court's praga because hill isn't the only bench park by which a defendant could establish sixty minute prejudice in cases such as via and folks entice this court said that we can't tell whether or not he would have won a trial we can't tell to merely whether you would get a different punishment other than a death penalty but we can tell that the defendant was deprived of his decision of whether to plead guilty or not and that's the harm in this case so our harm your honor rather than look underhill but that's not the way the supreme court poses the question or the supreme court which is the question not on the specific defend by argument underhill we have other arguments under the chronic line of cases that say there was just a fundamental breakdown in this case of the adversarial proceeding as i said earlier there was no trial there was no motions practice so were asked wondering when our client was provided any sort of legal assistance and we can't find it in this record thank you throw in two what mr jackson claimed his petition and which was decided upon by judge wilson was jackson's claim that counsel rendered ineffective assistance when failing to raise a defense of mental impairment constituting manslaughter constituting manslaughter and that that they had to raise their fans consciously manslaughter appears throughout jackson's petition for example page six of the memorandum the joint appendix it page one o nine counsel drop the ball when failing to present an affirmative defense in a jury trial this could have resulted in a lesser included offense of manslaughter joint appendix one sixteen cents based on counsel era when in fact that event was guilty only of manslaughter was seeking in this case and that was the claim the judge wilson addressed squarely in his opinion in fact judge wilson this joint appendix page one thirty eight frames the issue thusly jackson claims his counsel mr advised him concerning the viability of intoxication defense capable of reducing the homicide from murder to manslaughter he contends that he was intoxicated to such an extent the birth of manslaughter would have been problem that was the basis of the judge's opinion a guilty plea the it's a small point but but you understand he's here challenging the guilty plea and so you can't bootstrap the legitimacy of the plea by the stipulated facts because that's the saying the guilty plea was not knowing intelligent and voluntary on account of defective advice from my lawyer and that let's listen if we can and i appreciate fully your description and certainly the district court scene unquestionably to take mr jackson's pro se pleading at face value but don't you agree that this court and supreme court for decades and decades have said we construe pro se pleadings in a friendly manner sympathetically construe it so even if you can't reach manslaughter second degree is still better than first second degree is better than first but still leave the death penalty on the table judge but but the point is he could have avoided first degree if i mean even you would agree that voluntary intact of perhaps a cation if accepted by the jury as negating premeditation it's no longer a first degree case i group that just happens and theoretically you could get a judgment of acquittal on first degree at the close of the government's case if if if if a clever defense lawyer is successful in getting into the record all the evidence about intoxication i've never seen that happen judge davis ike at the given the given the government's evidence in this case which we've received here for  you the evidence of what he did to these people his own the statement he made to the to the police afterwards he said i'm crazy i didn't do some crazy that's among the things he said after after basically telling them that he sat around that day that he had  parkway looking for mr sanchez because he thought mr sanchez and his daughter would be up there if i could point that she the point is when you go to the case is going to be submitted to the jury on a first degree murder charge is going to be submitted to the jury on a second degree murder charge and it may be submitted to the jury test which which of course has not been changed by the recent supreme court jurisprudence as i understand it is an objective test and and what you would weigh has to establish is a reasonable probability that if then it would not have played guilty would insist on going to trial in these facts and there's the evidence that existed at the time of the play was which is very overwhelming against mr jackson he has a federal court of appeals  a death sentence for second degree murder yes your honor it has which case was that was the case of the fine i know it's here your honor i don't are but there's at least one is are there more than one is there more than one yes in fact there was this is united states versus jackson's with circuit case as in nine twenty four j in that particular case mr jackson who had pled guilty in state court is second degree murder and i thirty year sentence i recall and the federal government charged him with a nine twenty four day among other things person using the firearm to commit murder under eleven eleven and he in fact receive the death penalty that was the case where he and the jury found him not guilty of first degree and guilty of second you know what happened was obviously my question is has a federal appellate court ever affirmed a death sentence when you have a jury verdict specifically on second degree murder i've not found one with a with a second degree murder without a direct to the jury but did but by in jackson those years davis he was convicted only of second degree murder in state court and what happen is the federal government i guess they weren't trying it what i'm trying to get i just sort of i'm clear i'm trying to get at is there is there a case anywhere in this country since one nine hundred seventy six course the federal death penalty wasn't right let's much later in that where a federal death sentence was affirmed by federal circuit court where the jury was instructed and specifically found the defendant guilty of second degree murder only  so if you have another if you have one of those nine twenty four nine forty four counts you have to look at the instruction how the judge instructed jury with regard to the death with regard to the to the degree of murder and what the penalties were ok i mean i think you agree with that you don't let the jury convicts them impose the death penalty just because somebody was convicted of nine forty four resulting in  any more than you would permit the death sentence in a rico case or nineteen fifty nine case but you have to instruct look on the degree of murder in every case in which the jury is being asked to consider the penalty do you not agree with that yes but perhaps where i'm where i perhaps disagree with your honor ok is the the nine twenty four jag as i understand it is is a death eligible of fans in of itself right and which requires the district court to instruct the jury on the degree of homicide an agreement i think we're in and what i was going to instruct on the elements of what is it nine forty four nine nine twenty five point four tax that's what the basic instruction is going to be it's going to be on those elements is not yes it is all right and you know  even if we get into two questions of degree of first or second degree in your colloquy with my good colleague we were assuming that he was only going to be convicted of second degree but that assumption seems to me very very speculative given these facts i mean the voluntary intoxication defense that supposedly of is the linch defendant's case breaks down when he returned he is fully in possession of his senses to the extent that he knows that floyd is not his daughter that there's no question of sexual molestation of his daughter that a rescue team is trying to come and rescue these people from death i mean let's get real let's get into the practical nitty gritty of how that case is going to come we can we can debate the theory of first degree murder and second degree murder but it's those facts that are going to be before the jury and on the hill the lockhart white defendant is going to want to go to trial with this case it's one of the worst i've ever seen one person shot another person badly you know mauled two people no provocation two people who engaged in a perfectly innocent springtime activity recreational activity which they pay for it by being maimed and with their life what's the closing argument in that case going to be it's going to be lethal from the standpoint of the defendant and there is a chance with which most defendants don't hurt like to gamble and if this lawyer had let this defendant go to trial and this defendant had received the death penalty there would be so many claims of in affective assistance of counsel that you wouldn't believe it he would have been he had a bad case and he was going to be clobbered with an ineffective assistance of counsel claim no matter what he did but it isn't his fault it's the it's the problem with nick case it's a horrible case you can't blame a lawyer for that case i don't disagree with that analysis or all judge wilkinson that's exactly what we had tom i was the prosecutor on the on the case i don't disagree with that analysis at all it we do wish you had a chance to make that argument to judge wilson though it would have been helpful but i felt that looking at judge wilson's analysis it was it was certainly defensible judge davis and i felt like it was it was something i should come up with given given type of analysis judge wilkinson is expressed what we've put in our brief this was this was a an absolutely horrific case each of these are happening with the death penalty and again i would point you to the language i want to your ad you look at the language of the plea agreement the police grammont says that where we are going to this life these life sentences but that's it's going to be up to the attorney general to decide and obviously go to turn a journalist who we've worked this out we've we've laid always different circumstances out it without the plea agreement been rescinded correct but we've gone back to square one correct correct that's exactly how this case came to be and then judge davis you've asked a question for about about i my time is running low here  predicate for the taking off the table the fact that mr jackson had agreed to a sentence of life imprisonment and that was raised that was that was a time to go through the case like you know he was not going to agree to  manslaughter have been an option for the jury in my opinion these facts the answer is no no judge davis why or why do you say that it would not have been an option for the jury because there has to be and in order for there to be to instruct the jury on a particular element particular degree of killing has to be evidence to support it and there is in this case there is no there's no and there's no evidence to support a manslaughter charge it would say that of say an exposure of what he thought was his each of these victims were shot twice according to kristina floyd and calls and according to the autopsy on on mr davis so he shoots each these people twice i don't know why you keep looking when the defense asked for manslaughter instruction in a first degree murder case will give the jury that option unless just absolutely no evidence whatsoever but the words i think the law i think you agree that the law favors erring on the side of giving middle order to the jury when the defense earnestly wants it and conversely when the jury when the defense doesn't want it at all i mean there are some defense lawyers who go in for the  and they don't want to jury to have the option of the lesser included right i mean you're seeing that you're having around a long time it's oh so i'm a little surprised even though you keep looking at me i don't know why you keep looking at me about manslaughter i didn't raise manslaughter i re second degree murder but the point is the fact is i think a lot of district judges on these facts largely for the reasons judge tracks are just mentioned but for other reasons as well because the rock throwing was after the shooting he didn't shoot anybody if i understand the record act he was throwing rocks over the ledge and that kind of nonsense it was judge wilkinson is right horrible facts absolutely horrible fact but if if you're six the euro guy looking at life and death maybe this jury really going to give this guy death and how long is that going to take i don't know but i'm not arguing for manslaughter i'm really focused on whether he was entitled to make a decision about whether if he's going to get life anyway when i go to trial you are guests at the the and my time is up fact if my answer the question that agreeable the that is not that what he has allegation in his respond i mean look we understand you're here you do this to be here you would much rather have been able to file a considered deliberate response to the petition before the district court and have the district court have the benefit of your argument before the case came up to us certainly each day and that certainly jibes that would have been my preference but i have the record that i have and it is i'm here arguing for the court in good faith i believe th wilkinson's point defense i agree don't like to gamble with their fate however in this case and in other cases when you when you say gamble that means you're making a choice to make a decision and as judge davis pointed out in this case  our claim is that he was just the defendant was fundamentally unable to make that decision he couldn't but the the the point on the prejudice why you keep coming back to this defendant this defendant but the point on the prejudice is  what lawyer wants to be burdened with activities brought somebody to trial that he's already somebody to go to trial of the person gamble with his life in lost in what what you know person's life is worth everything to them and why would it objectively reasonable person want to take i think is significant chance of a death penalty being escaped with my life given what transpired on that parkway yes your honor and i'll go back to my earlier statement that's if you're if you're if you accept that premise then hill is out of inquiry is answered yes him in most cases of buyer's remorse and trying to fathom out yes what this person wants and what he didn't want your honor it's our position that hill arises in most cases because most cases don't involve a factual scenario where trial counsel never advises his client about the only possible defense in his case now thankfully that's the case and thankfully chronic cases are rare thankfully nine times out of ten if not more the adversary process works and it's effective and therefore when you bring a claim saying well my counsel's ineffective because he failed to cross examine someone well you can just point to the record and say well that didn't matter what was wrong with the advice the council gave counsel so the fact you know you can't do that voluntary intoxication is not going to be a defense to a specific intent crime your honor that's not the advice that he gave the invited if i could direct your attention to join appendix page ninety seven he says i would have gone to trial and this is mr jackson in lieu of pleading guilty had coun correctly advised me that mental impairment was a defense to demonstrate i did not have the mens rea a to commit first degree murder that's what this case is about he asked his client at the only point in time in which he needed help to evaluate his options at the plea so i'm a little surprised you have mentioned but the well your honor is that the the gloss on hill that you're relying on well i think so your honor in patea the court said look even when it's a collateral consequence these things are important to defendants and we can tell they're important to defendants because defense ask about them and even objectively we can look in the record and say you know this guy asked his counsel and not only asked his counsel he told his doctor and not only did he tell his doctor but he told the district court in open court that he had been treated for narcotics and we don't even know what the defense lawyers response to any of this is that we we from the record the response was you cannot present such as if you have it well that's jackson's a carol yes or what the response we haven't heard from the defense lawyer well i think if you're saying that there should have been a hearing in this case i fully agree with you your honor however as i mentioned earlier and perhaps in our fully you know a one thirty four it's clear to me ask in these cases is a question of performance but you know the supreme court has said in these ineffectiveness distance of counsel claims you go to the prejudice inquiry first and there you do ask whether things are a good or good deal and put dio for example still continues that objective test and it's very clear that in objective tests we'll still governs but you know what you've tried to do i don't blame you for trying to do it it's a good strategy but you try to make this whole case into a performance case and and try to say that in some ways you know under and he'll be lockhart i don't read the case that way at all no your honor i don't think it undermines at all either i think there are two parallel tracks of ineffective assistance cases in tal afar is still good law in this court strickland anything that came after that hill nothing affected that decision and then that decision this court did say that whether or not he received a good deal it simply doesn't matter now in this other lot of cases and let me briefly address but he doesn't need to be added whether an objective lee reasonable person would want to go to trial get does matter and asked whether the decision would have been rational now the citation for that decision is a two thousand case called roe versus flores ortega and in that case the supreme court asked whether the failure to file an appeal was ineffective expressed such an interest and in cases such as mooney in arkansas that this court is also look to that interest based test so we're going to go to that patient and what the supreme court actually i think that that citation in india was rhetorical flourish in our order and i said nothing to disagree with that earlier ruling but i think fundamentally this is a chronic case and this is unnecessarily i think we argued that it is but this court need not find that it's a hill based case in this case my client was simply unable to make an informed decision on the constitution he has he alone has the ability to make the decision whether to proceed to trial or whether to plead guilty now your honor judge wilkinson even if the facts are horrific and even if my client face zero chance of winning a trial trial counsel still had the obligation to discuss his legal defenses and his possible options with him in this case that just did not happen he may well have saved a man's life and we're going to ring him up for ineffective assistance had been adverse even to the extent of certainly to the extent of the death penalty but it even to the extent of a life sentence we would have been here with the inevitable to twenty to fifty five ineffectiveness claims you know the problem with these claims is lawyers lose no matter what they do your honor i submit in this case it would have been easy for at an evidentiary hearing and your hypothetical first trial counsel to merely point to a memorandum that says this is a legal possibility but it's a bad idea and explained why that never happened in this case and the reason the fundamental reason why there is precious in this case is that giving up the right to trial is a very very very  serious decision that every guilty plea i mean you know that would undermine every guilty plea that same kind of man well no your honor i think that making the decision to plead guilty has to be a council one and that's the supreme court's however and this court's cases it says that where there's this type of structural breakdown with there's a lack of advice at a critical stage of proceedings and the adversary process itself breaks down and there should be a presumption of prejudice if there are no more