all too tempting for a defendant to second guess counsel's assistance after a conviction or adverse sentence petitioner in his look nicholas ms long has unfortunately giving into that temptation in this case where his counsel did not have a duty to represent him in his federal cooperation and he has only himself to blame for failing to cooperate with the federal authorities thereby losing out on the more favorable state plea agreement but the district court disagreed granting mr ms long to haiti relief on his ineffective assistance of counsel claims under both united states versus chronic and stricken versus washington but under either ed or dyno review the district court cared for three specific reasons first under chronic mr ms long his cooperation with the federal authorities was not a critical stage of his state armed robbery prosecution and therefore as mr m was not entitled to counsel for that cooperation and second under strickland for the performance prong for the actual critical stages of mr muslim because state prosecution mr muslim his counsel was present and representing him competently and finally for the prejudiced prong of strickland mr was longer did not suffer any prejudice because it was he not his counsel who was the reason that he lost out on the more favorable state please remember it for those who don't read their claim number one or how you just describe these three reasons the same way that you phrase it it's tempting if you if  side to say he wasn't entitled to have counsel over on the federal side in connection with the state proceeding that seems to be probably true but that isn't what the claim is the claim is that in connection with his performance of the cooperation agreement on the state side he wasn't competently represented she wasn't she didn't go with them she didn't put the get the terms defined she didn't help them accomplish i guess bottom line the favorable plea deal correct your honor that is how their their claim is is is framed so what's the matter with framing it that way there's nothing wrong with framing it that way your honor that certainly is the way they have framed it but our contention is that even under that framework mr was like was not entitled to have his state appointed counsel do those things with respect to his federal cooperation because those were separate but they were separate proceedings and that the outcome of his i mean all this time when she allegedly was not actually competently representing him you're you're you're right to counsel i would have thought persists through your conviction and sentencing i guess i guess i misunderstand your point your honor well two things one you said  that you can see that she didn't have any right to counsel during this process and i didn't understand that there was that concession so i might need to have been pointed out to me where that confession is absolutely your honor that appears on page forty of their brief they say that they have never contended or that they have long conceded that mr ms lanka was not intitled to have representation with respect to his federal cooperation i believe they mean though that he was still entitle to have a state appointed counsel attend those meetings and here's my problem if he is conviction and we hung in the balance depending on how well he cooperated it would seem like there might be a pretty strong claim that he was entitled to have competent assistance through that proceeding even though it was a federal co operation it's possible that he of benefited from having counsel very there's not much denying that but if he wanted to have counsel for those proceedings he needed to request one from the federal level he needed a federal defender something along those lines it was not his state appointed understand why i mean i really don't understand why if counsel is appointed in this the proceedings to represent you until you are through the process of conviction and sentencing and what you're actually convicted of and the ultimate are in part contingent upon something else that happened albeit it with the federal system why are you entitled to help with that something else right up until the point that you actually have been convicted and well again you aren't he might have been titled through the federal system but the problem is the cross over here the problems the crossover from the state prosecution into the federal cooperation they certainly were factually tied there that is is present in the record absolutely the state prosecutor factually tied those coopt the federal cooperation to the state prosecution the problem is the legal connection between counsel's duty to represent mr was locked in his state prosecution versus her duty to represent if she had any duty to represent him or even help him in his federal cooperation for example your honour's i put in my brief the example of if mr was longto was being prosecuted for domestic violence and point of the conditions of his plea was that he divorced his wife if the who would be the victim in that case if that were the case mr was like a state appointed criminal attorney wouldn't have any duty and wouldn't be constitutionally ineffective for failing to represent him in those divorce proceedings this situation might seem more closely tied because we're talking about cooperation and cooperation often comes up in criminal prosecutions in criminal investigations so the they seem more intimately tied but if we look at a similar example the difference becomes more even if we use your example which may not be a perfect analogy while in your hypothetical the lawyer might not have the duty to go out and actually represent him in the divorce he would have here she would have a duty with to make sure that his client understood that that was the terms of the state cooperation he needed to get divorced he needs to get a lawyer he needs to go through that he can't pull back and say well i don't want to be divorced at the last minute or it's going to adversely impact the representation for which the lord did all that's absolutely correct or she would never that isn't really what the the the petitioner is saying in this case that's what he's saying but that's not what happened miss irwin did have a duty to represent him and advise him with respect to his cooperation cooperate with the federal authorities and that it rose or fell on his shoulders let's assume for a second that there was a clear understanding as to what his cooperation in the federal  that's true from reading this but let's assume that that's true and that the federal government at the last minute tries to get him to do a lot of things that he had agreed to do as a part of the state cooperation would the lawyer not have a duty to at least try to intercede on his behalf to enforce what the terms of the cooperation agreement were if in fact the government was reneging on the cooperation agreement the problem there you are is we're talking about two different governments so the state prosecution is obviously what's at issue here we're talking there with the respect to the grand jury testimony for instance that's on the federal level that's up to the assistant u s attorney that's up to the federal agents that's ms irwin did not have any duty to go there and represent or even advise mr was laca during that time when he's speaking with the federal authorities he's speaking with you says the u s attorney and furthermore your honor muslim is the only one the only person at that federal evidentiary hearing who claimed that the federal agents and that the assistant u s attorney just tried to change the terms of the deal at the last moment to federal agents and a assistant because it wasn't anything his counsel did or didn't do what could have or couldn't have done to change the outcome here the state prosecutor testifying at the evidentiary hearing and put on the record during the state proceeding as well that nothing mr irwin could have done could have told him could have talked to him about would have changed his mind about the deal he went back to the original deal that he was thinking about offering mr muslim even before he knew mr much longer was cooperating with the federal authorities mr was like it was going to be required before mr fox even stepped into the courtroom to talk to mr was lanka plead guilty to armed robbery and i will reduce the habitual offender notice from fourth to third then he found out mr masako was cooperating with the federal authorities and said ok if you complete that cooperation to the federal authorities satisfaction that was within their discretion whether it's by the u s attorney or not correct i imagine your honour's are more familiar with it even that's where it normally works i think yes i mean that was conveyed by counsel to the letter and advised him to cooperate to continue cooperating nothing ms irwin digger didn't do was the reason that he lost in that more favorable plea agreement it was on his shoulders and she continually told him as she testified that the evidence you're hearing that she kept correct your honor i see that my time is almost up we ask that you reverse thank you thank you counsel morning your honour's may please the court just before the federal defender office in detroit representing respondent nicholas must long discourse characterization of the importance of mr as long as cooperation on his state  pre agreement is apt as everybody testified to the evidence you're hearing mr s lagos plea offer hinged on his ability to cooperate with the separate federal investigation and the government has consistently claimed that that separate investigation is a collateral matter for which he was not entitled to counsel every court that has ever even considered this issue has accepted the idea that cooperation isn't  is that our agreement become non adversarial in terms of some some protection something some action that counseling gauges in that ensures that everybody is in agreement and understanding of what the terms of that cooperation is what the obligations are and frankly any potential limitations that the defendant might have in cooperating and that agreement needs to be you know conveyed to everybody and frankly it's interesting in this case that the agent the case agent in the case assumed that such a meeting had occurred here because that's a standard practice and this is a u s attorney that had been dealing with it with their cooperation who had not been to at the initiation the cooperation also assumed that some meeting had to have occurred your best evidence that your mistress lanka didn't understand that he had fully cooperate it's not that i don't understand you to fully cooperate but the question was whether who he had to cooperate against so as the district court found or will so this all depends on the definition of bully because that's all hinges on the definition of what the scope of the investigation is that he was asked to cooperate involving the district court made factual findings based on credibility determinations and those factual findings were never clearly challenged by the appellant in their in their brief that mr mintz longer had agreed to cooperate against three individuals in regards to a drug investigation and that he cooperated against those individuals in multiple debriefings sitting out also agree that he would testify before the grand jury you did and he had no point in  actual findings were never that he didn't agree and continued to offer to testify before the grand jury the just your car found that when they sat down and they prepped for the grand jury and everybody was in acceptance of all of what he was doing then and then when they sat down in the waiting room before the grand jury the dea agents started asking mr moss long about other individuals people he did not believe he was going to have to cooperate against people that were closer to him in terms of friends and family that he was concerned about cooperating against and he got nervous and he didn't want to answer questions about them and it was at that point that the dea agents decided they were not going to call him into the grand jury he never said he wouldn't testify in the grand jury he never said he went testify involving the questions that he had been asked in the grand jury the district court made the factual finding based on a credibility determination and it's been unchallenged in appellant's brief that mr miss long has cooperated his ability to testify before the grand jury terminated when the d agents unilaterally made a decision that they didn't want him to testify because he wouldn't answer questions about these other individuals and had his counsel been there judge griffin i recognize your point but had his counsel been there as you've been at the preparatory session had she been anywhere along the line anywhere along the line this could have been assuaged because it could it could have been it could have been avoided this could have been avoided because she she could if they could have made sure that the terms were side out of the beginning that you know you have to cooperate against anybody and everybody whether it's the first three people we talk about whether it's anybody else we introduce you to about down the line you have to cooperate against all of them i thought it was just kind of open ended that you have to cooperate in regard to this other investigation only had to testify against a few people because there was no there no and at no point was there anything set down that is subjective understanding was unreasonable because he didn't actually have a sit down meeting with his counsel and the it was never made a representation to him you cooperation is limited to the only three people were there but they never made a resume that was is that is that what you're saying because i never made a representation to him otherwise because i don't know if they are saying you have to cooperate fully to our satisfaction i would i would i would think that the presumption is to all individuals involved in this other criminal enterprise and not just select people i i mean they could go the other way well there's actually no representation on this record that they ever apprised him of anything regards to what they believed so they have to i mean they don't have to you know this this offer didn't have to be made to him at all no it didn't but it is important and both this is a u s attorney on the case at the time  and agent both discussed why it was important to make sure that everybody was on the same page why it was important to have meetings with attorneys with clients because it is important to them to make sure everybody is on the same page as to what your obligations are and  machine even talked about the fact that there are times when somebody will come to us and want to cooperate but they're concerned about cooperating against family members or they're concerned about testifying and we will make those limitations but when you don't have an understanding among the parties as to what cooperation means what it entails and what the potential subject of limitations or objective limitations might be of cooperation it's not like mr mintz longer you know a criminal defendant comes in and just innately understands what cooperation means it's an amorphous term if you're covering your whole case the least you're human so far seems to hinge on your contention the judge tarnow made  finding that the cooperation was limited to three individuals and i don't see that finding me i mean it does say on page two of his opinion that here a client provided the a with three names in the agents who were very interested in agreed to meet but that that's a far cry from saying that that's all they were ever going to ask him about and i didn't say that i said his judge turned off on that mr  ms longer gave three names and mr ms longest testimony the evidentiary hearing was that only that was who he was under the understanding that he was supposed to be cooperating against and he said that he had concerns about cooperate informed the government that he was concerned about this long i had been under the impression that he did not have to cooperate against other people going back to prejudice how would it make any difference if counsel was their client your subjective understanding is not consistent with what the s attorney wants and you think you only have just like of these three individuals but they insist that you testify against everybody else well you still didn't want to do it i mean how would how would that make any difference here well i think first of all we need to talk about what the burden is in terms of that we don't have to be certain that it would have made a difference we have to be certain we have to have a reasonable probability that it would have made every single probability that he would have testified ry reasonable probability that he would have testified in before the grand jury and i guess at that point he hey you're you're saying that even though you refuses to testify against the family members and the  their argument is that this could have been alleviated frankly not just if she had just shown up with a grand jury with her he wanted him to testify against all individuals not just three he subjectively your argument is thought that he was allowed to only that i think first of all the difference that i would make is that the testimony that he was going to give ultimately at the at the grand jury based on the what were questions were asked during the prepared prep session that he was that he was testifying about and that he was answering the questions accurately was just going to be about the the scope of the investigation that he had agreed to today that he had been cooperating with to date what the questions that the dea agent started asking about which were different than what he had prepared for today took him by surprise what they what what they what the attorney could have done in that instance she could have said to the dea agents look that's a separate separate from what he's going to testify about today can we hold off on asking him questions about that until he has had this until use testified and then we can talk about this in this because you're making him nervous you're making him think he's going to have to testify about people in this grand jury session that you have not prepared him to testify about and that's accurate she could have also been taken her client aside and said look you know when night when you will cooperate you have to cooperate fully and completely now frankly i have to say that sally irwin did not even know this to be the case because she didn't know what he was cooperating about  to cooperate and again she didn't know what he could there could not give them so it's hard for her two of them to cooperate fully she just told him that you need to cooperate with them and they will come our way but frankly that's really hard to see how that is competent advice when you have no idea whatsoever and you have no desire to find out whatsoever what your client is willing or capable of giving and if you know the agents the united states attorney really make a good point here that even because even when clients cooperate fully there are times when that cooperation does not rise to the level of substantial assistance they could give everything they have and it doesn't give them the benefit they're not going to get the benefit of that outcome because it doesn't actually further the investigation when you're counsel and you don't even find out what your client know us or can offer the u s attorney's office and find out if that's something that actually could help them further their investigation it's hard to see how that can be competent advice for you to tell them to cooperate fully and they will come our way back on the deficient performance problem we're looking at prejudice least right now so so let's see if we can push this to its extreme and see where it goes a normal cooperation agreement would be to cooperate not only with testifying before the grand jury but then if there are indictments and there's a trial you have to testify at the trial to correct is there any reason to believe that isn't wasn't what was in my they had in mind here the problem isn't there's no it there's no common understanding of what people had in mind here just understand it but there's no no mechanism by which any lawyer had had any ability to get the the the da to put in writing what somebody who is not even a target of the investigation was going to come testify to that and that's done actually accurate at least according the assistant u s attorney who said if if they had if she had come to them asking for some sort of casting or lighter or some they could have done that and frankly it's not even necessarily them you know you're  not suggesting that the agreement would have been just to testify before the grand jury which may or may not arise result in an indictment and then not follow up by testifying at trial no i am not saying that you're assuming that that would have been the case right but i'm one of my you just want to get through the questions so what you're basically saying then is that this lawyer would have had the duty to to go with him to in connection with these and to counsel him right up to his testimony at the grand jury obviously she can't go with him into the grand jury room right act and then if whoever is testifying against got indicted he then would have had a duty to show up and testify at trial so she would have had to show up for all the prep sessions and each day that he was called to testify at trial to basically be sort of stand by counsel in connection with the federal prosecution of somebody else  adversarial proceeding has stopped being an adversarial proceeding and in those instances it has been where there has been a meeting of the mines among the attorneys and the client so that everybody knows what is expected of the client and so when you look at when you go and alan and all of these other cases that we cited in our brief every court has said you know once there was cooperation agreement a plea agreement you know a cooperation light anything where all the parties got together laid out exactly what it was responses required of the client so that the client is aware and the attorney is aware and everybody is aware of what the obligations and the limitations are at that point she has satisfied her duties pursuant to all the cases that are out there we never got to that point because nobody ever was on the same page in this case as to what those obligations were i see that my time is up so let's hear from the questions they are not iran has just to respond to counsel's argument starting with the prejudiced prong here counsel mentioned that there has to be a reasonable probability that mr was lockable have testified at the grand jury but that's that's not quite the test here it is a reasonable probability standard but it's a reasonable probability that there would be a different outcome in the case the outcome here is which deal mr ms longer would have taken there is no reasonable probability that he would have even been offered the more favorable p agreement because he failed to fully cooperate and ms before it even mentioned that if the cooperating witness doesn't even have the  amount or quality of information that the federal agents want they can't be helpful and if they can't be helpful if mr muslim could could not be helpful either because he refused or is information was bad he was not going to get the benefit of that plea agreement with or honors the point here is mr muslim knew what he had to do in the moment while he was cooperating he knew what was required of him he didn't raise this claim until a year and a half after he was sentencing his state prosecution in fact even at his state sentencing he did not advocate for his own process or excuse me his own cooperation he didn't tell the judge but your honor i cooperated i should be getting a better deal i should be getting less time he didn't say anything along those lines he used the same grounds that his attorney did which was his history of substance abuse and why he committed that armed robbery he did not even use his own cooperation as a bargaining tool in that point and if he didn't use it there's no reason to expect his counsel to do it and no reason to think that she would be constitutionally ineffective for failing to do that unless your honour's have any