burnett is taking over the appeal after that that time and he's already entered an appearance is the clue or the clerk already knows yes or keep your voice at the end of your sentence is absolutely so this court granted a certificate of appeal ability on one issue from mr shield section twenty two fifty five motion that issue is whether his trial counsel gave ineffective assistance by failing to argue that his mental retardation contributed to an invalid waiver of his miranda rights because he didn't fully comprehend the nature of the rights that he was abandoning or the consequences of doing so it was at the time and remains well settled  that mental retardation or diminished mental capacity can contribute to a determination that waiver is not knowing and intelligent and that argument here would have supported suppression of his highly damaging statement to police the statement that the government relied on a trial to secure a conviction and a life sentence without parole now we know that failing to raise this argument was deficient performance and not a strategic decision to use mr shield statement to his advantage a trial we know this because trial counsel actually did move to suppress that statement he just did so on a borderline futile ground of voluntariness rather than the substantial ground that he had based on mr steele's mental retardation and he failed to raise that argument even though he had every opportunity to do so there were several months between when the district court adjudicated that mr shields was mentally retarded for purposes of the death  penalty and the time of the suppression hearing as the court on direct appeal noted he certainly had the opportunity to make that argument but he devore did it so failing to raise that argument was an inexcusable mistake it was no in no way a strategy call if the government intends and maybe this is part of the prejudice analysis but in determining whether to try to raise something if your chances are very very small that the if the law is such that you're not going to win or you're very unlikely to win what's the wall if it's deficient to not take a flyer on something there's only a five percent or a two percent chance to win you're putting aside that i think that it was much higher than two or five percent here the deficient performance analysis i think in this case is like this court's appellate ineffective assistance cases where the question is simply is there should he reasonably have raised this argument and there are cases that this course is cited that we said in our briefs that say right where there's almost no chance of success or where the argument would have been futile we don't hear one of my questions is the you know there's a lot of back and forth about what is scores were and whether you could pay his bill credit card bills or get credit cards but he was so clear about i know my verandah rights i do know i know i don't have to talk the very same evidence that would sort of go to two actual voluntariness would  go to ability to be voluntary and would be equally strong so your honor as an additional matter this is a question of whether his rights were waived knowing intelligently not just voluntarily it's not a matter of coercion ok with respect you're quite had those words absolutely because it selves you know the least well i just quoted selves knowing that intelligent a couple couple of things first of all merely saying the words miranda  saying that i know my rights does not say that he actually understands the rights and that that is the test here whether he had a full awareness of the rights that he was abandoning and the consequences of doing so that's especially true with a person who is mildly mentally retarded as there is for mr shields there's record evidence from the mental from the atkins determination hearings that that say when asked a question initially someone with mental retardation may give a plausible sounding answer but any further probing it makes it clear that they they actually do not understand what's going on that that may well have been the case here with mr shields  been able to plead guilty that is would not the very same argument you're making now say that he wouldn't have the ability to plead guilty because he couldn't understand that i'm i'm not sure that it's the same question there it may be that there's a question more of voluntariness in free will with respect to the pleading guilty as opposed to here where the supreme court and moran said specifically that miranda waiver requires two things one it's voluntariness but it also must be knowing and intelligent or pleading guilty don't you have to know what your pleading guilty to being intelligent enough to understand there is a reason i'm raising that is that if there's any policy here as a policy matter too retarded to do certain things may be detrimental as well as favorable that's right now i know it may be that we don't want to go too broadly on it right i understand that it may also be that when pleading guilty he would have the assistance of an attorney and there are ways that you know someone who initially doesn't understand can be explained it can be explained to them in a way that they  do understand it but they have to at some point show that understanding so as in this case it it may be that had mr shields had the rights explained to him in some detail of more than just a normal functioning individual that he could have eventually been able to understand the rights but there's no evidence here that the officers gave that sort of extended discussion or explanation of the rights in that way  o i want to get to prejudice before we run out of time of course the merits issue on miranda does go to both the fish and performance and prejudice the prejudice in this case was substantial mr shields the statement was among the most damaging probably the most damaging piece of evidence that the government brought to bear against him in this case it was a thirty eight minute long taped statement in mr fields own words placing him at all of the relevant parts of the night as a cooperator he was a codefendant who was given a twenty year sentence rather than the mandatory life or potential death sentence that this charge carried  on prejudice the the standard for that of course is a reasonable probability the ultimate standard is there has to be a reasonable probability sufficient to undermine confidence in the outcome of the proceeding in this case that's that's two parts first there must have been a reasonable probability of success on this argument at the time counsel raised it which was during the motion to suppress and second a reasonable probability that without the statement of having the knowing and intelligent waiver based on the colloquy we've asked for both of those in the alternative your honor so and that depends on what this panel thinks about the evidence available for determining whether he understood his rights at the time in our brief we've laid out what we think is the best case for that based on the actions determination and the hearings and the expert testimony there  also observable indications during the interrogation him that he was in special education and that he didn't read well so we think that those are enough on their own to show that  judge figure it out that's right your honor and i think in that regard the important thing that we that we lack here and which judge clay mentioned in his dissent on direct appeal is focused testimony is particularly expert testimony on whether he actually could've understood the warnings in several of the cases we cite there are some district court cases and even in garner itself there was expert testimony that you know this defendant could or could y hearing would be a way to ensure that we had the best evidence available for determining whether he actually could understand the warnings at the time at any subsequent time has he made any statement or affidavit that he didn't understand not that i'm aware let me take you back we when we went through an initially what he says to you and i think we both said well i know my rights and you said well i know my rights you know might not be enough but he also said i know i don't have to talk to you if i don't want to and i can stop talking anytime i want to stop my quoting the record correctly there is a lot of awfully knowing and intelligent  i'd i know i don't have to talk to you if i don't want to and we got in our brief those citations in the government uses the other ones just to point that out again i think the the answer there is simply saying back  one of the rights to the detective's does not necessarily mean that he understands right much less all of the rights or the consequences of abandoning them and that's that's what's required at the least the cases say that you must understand that you don't have to talk if you don't want to that you can stop talking at any time of course that you have the right to an attorney you said something about repeating back which sometimes is what happens as i read the record and help me here perlman i guess says he asked him to read the first line out loud and which he did so he could read the first line out loud which was not the same statement is that something that it may have been something similar to it right that i had i know that i don't have to but he wasn't just regurgitating you know the officer says x he says x right on that particular statement it may be and it may be that he understood that one particular thing that i don't have to talk to you but there's there's a whole litany of rights that they have to understand for no intelligent waiver i see my time is up  this court on direct appeal with an opinion offered by judge merit found rejected that subsumes of claim on the merits so you cannot say that counsel was ineffective when this court has previously found that the the claim was  a loser on the merits as judge merit said i've got a couple of merits in there i've got three or four merits but i hope you understood that also even if you did revisit the case or that decision garter versus mitchell would still those principles would still let the government win further your honor when you go to the prejudice prong that presents a double challenge for the defendant he's both got to show the judge donald would have granted the suppression motion had they argued many retardation judge donald they overcame that challenge they would still have to overcome the challenge of the the trial evidence in the trial didn't even absent the statement was overwhelming you had the testimony of parker the accomplice who joined in later who testified about all the things he saw his testimony alone would have been enough to convict he certainly didn't get a great deal he got twenty years he never saw mr lott until he jumped out of the car grand he was just an accomplice then you got the video that shows mr shannon shields  at the corner grocery store you got his girlfriend french at a levy a den a fine him on the video you've got witnesses that sell them after they had mr lott brought him over to polk street in the trunk that saw shannon shields with the victim's car you got witnesses that saw him flashing money you've got witnesses that saw him with sonny shields who is certainly the other kidnapper you've got kevin jordan who's who testified that shannon shields told him that stay away from the car that was hot you got him having the burns on his face and hands from where they burned up the the car over memphis after burning mr lott body in arkansas in the field in arkansas you've got the testimony of french at a levy the girlfriend of course who identified him on the video but he also made an admission to her  when he called her from the jail that i was there when shannon shields shot him and he had mud on his clothes when he showed up at his aunt's house in the middle of the night he had the burns they saw the burns he told four five different stories about how he got the burns he fled to grenada after this incident he that when the officers got his shoes they matched the prints out in the field the proof was just simply overwhelming even absent the statement he gave a false name when he went down to mississippi said his name was willie all over he also of course when the officers confronted him at the outside the courthouse in greenville he blurted out that i'm not the killer of course i did implicate miranda he was blurting it out before they even tried to question him so the proof was truly overwhelming and there would have been nothing to undermine this court's confidence in the jury's verdict your honour's i would ask the court to to affirm this case and if the court has no further questions i will sit down well  and they give a statement i mean why would you have a hearing in their capacity to knowingly and teligent the right to be silent i mean why wouldn't that just why wouldn't that be what you would expect as a matter of course there are two reasons first is that the principles will garner versus mitchell so you have to take from the officers perspective and they had no reason to think that he was had any mental impairment that would keep him from validly waiving his miranda rights he told the officers he had no mental condition he said he knew his miranda rights that he's been arrested before he said he understood he didn't have to talk he understood he said he understood he didn't have to to talk later so really that would have been a losing defense counsel in this case the trial counsel really the bottom line is they had no good defense they had no good basis to make the suppress the case and they had no no basis really defended a trial it's one of these things where  there's just as a practical matter they did what they could in the second the second point i can't i can't remember what my second point was but i'm sure i had one but i can't remember as to as to why not just have a  hearing on the mental retardation of course judge dato intimately knew the defendant's mill capabilities and the sort of was a hearing on his mental capacity albeit under the atkins right we had a  two week hearing where they explored every possible bit about his capabilities with two experts from the government two experts for the defense and i guess the bottom line is even if defense made this motion the case can still be decided on prejudice at the trial issue but there was a hearing on the suppression motion just not rectory exactly this theory right they argued they are going to voluntariness but judge donald also decided that there was a valid waiver a miranda rights in this case not only voluntariness she decided that sided that would be fair to say that was gratuitous in the sense that it wasn't affirmatively raised to her i think that's correct i think she was just making a complete record i think she was covering all the bases to look at the police conduct and what the reason officers knows but you're right it didn't in but i think the key here is the judge donald knew all the facts and i would point out that basically the six circuits proper ruling in this case i mean that's that's it's basically the law of the case i mean that was considered by this court on the merits it wasn't just an advisory opinion it means something i mean it's a it's a case now we're as is the burden is now of course on the defendant to show that his miranda rights were violated i read a recent opinion by your honor i guess where he was versus how i think it was in this january last january where the court clearly stated in a hey vs case it's the burden is now on the defendant showed that his miranda rights were in invalid and they have not try to hit these points quickly i'll start with maclin just first of all that was that was a different issue that was about voluntariness and it was about coercion and not distinctly relevant to this particular issue about knowing intelligent waiver number two judge white you asked about why wouldn't you just have a hearing regarding mental retardation with respect waiver exactly there was a an act in searing but that's not the same question it goes into mental retardation it did not express they get to this question of course the reason they didn't have a hearing is because counsel failed to raise that issue number three my colleague mentioned garner  that of course is relevant to this issue and it does say you look from the officers perspective but garner also says you should look to the actual understanding of the defendant because especially in close cases it can show whether the officer should have known that the defendant could not or may not been able to understand and garner says you can't disregard signs or even hints that he may have a lack of understanding here of course that  mr shields said you know i was in special education classes that at least required some additional probing on the part of the officers as to prejudice the government says the trial evidence was overwhelming but that statement i can't i don't think we can overstate how important that statement was to the government's case it's him in his own words it gives the government a coherent narrative and it fills in some holes in the case that i think are pretty important first of all the corner grocery without that statement you have a videotape that does not show any of the abduction it just shows them walking in the parking lot and you have a juvenile twelve year old witness whose mom didn't even believe him at first saying that he saw this thing that happened the statement addition adds in the fields was in fact there that he jumped in the passenger seat it does not dispute that part of the story if the jury thought that that was reason reason enough to find that mr shields aided and abetted that's not there anymore the side in our brief several other points where the trial evidence is significantly undermined or at least not nearly as strong without that statement the government also mentioned parker and that his testimony alone was enough to convict him his testimony alone was also particularly subject to suspicion again he's a cooperat he's he has a twenty year sentence instead of potential life or death sentence and yet when you add in mr field statement much of that much of the ones of parker's statement is corroborated there's very very little