officers elicited during an on mirandized custodial interrogation while this court said that there are two key questions for deciding whether that exact type of failure requires granting hideous relief on the st question is whether suppression likely would have been circumstances would not have felt free to terminate the interrogation and leave the nd question is whether suppressing mr pressley statements would have a reasonable probability of changing the outcome of the trial the answer again is yes the government does not cited holding that a confession to a crime used in trial was not prejudicial and this case is a very poor candidate to be the st justice in greater mr pressley statements were devastating evidence and a central pervasive role in his trial because the undisputed record establishes both deficient performance and prejudice i ask that the court reverse the into order that the judgment be entered for as presley starting when to whether suppression likely would have been granted here the government agrees that mr presley w interrogated and that he was not mirandized so the only question for purposes of miranda is whether he was in custody during the interrogation the test for custody of course is whether it reasonable person would have felt that he or she was at liberty to terminate the interrogation and leave or his miranda put it you know that custody if the suspect was deprived of his freedom of action in any significant way and here you know the key facts of establishing  client on the stand i mean isn't that where this argument is leading in this neck create a problem i mean if if if i mean if i represented a client my client was not telling the screws are you suggesting that i had to put him on we are honored there is nothing in the record that at all indicates that the basis for counsel failing to file the suppression motion here had to do anything with doubting the facts of what mr presley waved to him the only signal in the record that i've been able to find of counsel's explanation for not filing this was that presley i think the quot speak if the government ward probably counsel position was that there was some factual doubt as to what mr presley had told counsel you know summary judgment of course would be a great opportunity to have tested that explanation that currently in the record but the records completely empty and the government did not even bother arguing that this was some sort of strategic judgment or that the counsel was doing anything besides misunderstanding miranda went into kind of a file suppressing suppress and counsel said i thought the motion would have been baseless and explained in an affidavit why that was the case and this court review the question on the miranda d without deference to trial counsel's understanding of the case law and said no  motion wasn't baseless it actually would have succeeded the reason for that is because it's an objective inquiry not a subject of one right is that the question is could a reasonable not this person that put a reasonable examination during the trial and ways that begins the unlikelihood it that the court would believe the defendant over the two officers who testified to the contrary and simply make a strategic decision not to file and that seems to be imminently reasonable decision given the circumstances and we look at that objective inquiry to determine whether it is unreasonable that so so far below the realm that it is ineffective assistance and i'm agreeing i think with judge keenan here what i don't see from you is any explanation of that even if you are those strategic judgments could lead a very reasonable in fact maybe the some of the very best lawyers to say we need not throw all hail mary in the st quarter we know it's not going to work and it has these negative repercussions that come on right and your honor as i understand the questions of the book and the purpose of the questions but i have to distance s because this this court now twice entice and encourage or has actually looked and said we demand some sort of record evidence that there was a strategic judgment made here and when there is no explanation that has anything to do with strategy when it just is i thought it wouldn't have done any good i thought it was baseless i don't want to follow it because i thought it was a loser and it wasn't in fact a loser we can't now sitting here without any support for the decision hypothesise reasons the council may not or don't have a position your position that it's a subjective inquiry so that we're only looking at whether the that was the actual reason that the defense counsel like in his heart of hearts believed in it we say all the time it's an objective in greece and why would it be as subs giving corey here this was actually in his heart of substance no matter the negative implications that might result from doing so is her say in effect and that's the argument you're making while you're going your honor i apologize i but the next point i was going to make is that i think if counsel did have some actual strategic reason for not doing i think what those cases are bestsellers at the say that there is a presumption that you should try to seek exclusion of highly incompetent or evidence particularly confessions but if counsel of course says  not so much the counsel lacked a strategic decision regarding whether to file but the fact that counsel was trying to do it clearly in violation of the sure your honor the court  judgment on the legal misapprehension and my understanding about discussion in the court is saying if you know regardless of the procedural mechanics of what counsel did here the only evidence in the record about counsel was thinking and to go to the question of subjective perhaps objective the the court is saying the circumstances of course go to the object of inquiry put a reasonable lawyer in the circumstances declined to file and we have to have some facts to know what the circumstances were and here we just don't there is nothing in the record suggesting any strategy to this decision and in fact there's affirmative signals the counsel just thought the motion would fail and that it's not strategy or an interest very clear on  facts your honor there's not a particular statement that he relates to every single fact that he describes having explained the circumstances that they interrogate ssion also mr presley then received the i r s treasury interview memorandum in discovery and again asked counsel to seek suppression of the statements on the memo of course detailed all of the inculpatory statements made and had some information about the location of the interview so i don't think there's any dispute that tonto but but can we pursue me can we presume he told these things to his lawyer your honor i wonder is there a factual basis is there a factual basis for the district court to determine that the and fifty five motion i think indicates that there really is nothing on the other side here one that not only when it comes to custody but also to this point about this being a strategic judgment i think that i have i have exceeded my time i apologize  's an objective inquiry it and maybe it's not tell me if i'm wrong but it is an objective inquiry of what a reasonable lawyer would do why does it matter what the defense lawyer would say i mean if he if he got up and said it was tuesday i don't matter what the point is is that is an objective in paree i mean so his subjective belief even if it was based on a mistake if an objective a reasonable attorney would have done the same lawyer has to say well might be interesting is not necessary so this might be helpful on the sort of subjective versus objective point i think the completion might be bat my confusion at least there has to be some sort of facts for what you make the objective judgment was there's a reasonable decision by tropical the only facts in the record right now indicate that this was not a reasonable decision by trial counsel because there is no there's no  prejudiced in ask you in you can spend your time on rebuttal dealing with that too but we've got a situation here how do we find a reasonable probability of a different result i agree with you that confessions are very damning but here you have a situation of the major drug a d m events we have cooperating witnesses we have testimony from the i r s agent deers about the defendant's lack of legitimate income he wasn't filing his tax returns he was dealing a huge amount of cocaine witnesses involved he testified involving financial crimes related can eventually con so this wasn't a garden variety drug case such a thing just was a really much more complex case and so how do we find a reasonable probability of a different result when there was really overwhelming evidence regard his participation in this start answering now and i could return to the summer of zero so you noted the beginning of your question that you know confessions are damning generally but i think what's important here is that the confession was really damning in this individual case and the government clearly thought so because it used the confession as its absolute central evidence it put on the tenet christianson early in the case it was the remark he witnessed he walked through the statements in scrupulous detail for dozens of pages of the trial transcript came back to the statements in closing arguments it began with them it's either them as a crime area evidence of guilt especially on count one which is the overarching charge and the only charge that enabled mr presley to get a life sentence in this case it told the jury that it could just rely on pressley statements to find guilt in other words like that was it you're done i think was the quote and then in the very the very last lines of the republic d for the court charset jury the government told d the jury quote pressley admitted it he admitted he bought the suburban with drug proceeds he admitted he was a drug dealer that's a fact i was the last thing the jury heard and we sacked several cases and particularly it paid twenty four hour  courts really treat the government's treatment of its own evidence of highly corroborative of prejudice because prejudice is about what the jury heard not just whether there was other evidence that could a potentially supported the conviction   that activity i came from a cooperating witnesses who there were there was doubt as to the as to their credibility i'm exposed on cross examination and a strong signal that the jury doubted that testimony because they also testified  austin who was of course acquitted on all counts i'm so i think that there are very strong signals from far stronger even than cases where this court has found prejudice like in green injury where there was a big who testified at trial as to each and every one to in our brief we highlight some of the trial record but frankly we could have done a better job for the court on the prejudice prong and so i'd like to take a moment to highlight the trial record which demonstrates that even if a motion had been filed and defendant's statements suppressed there was no reasonable probability that the jury verdict would have been different the defendant's confession was merely icing on a mountain of evidence during this cocaine the testimony can connection with those controlled by is included the two cooperators smith and ripley a coconspirator david williams there was audio recordings video recordings there was g p s tracking device there's photographs in addition to those five controlled by the government presented evidence through five coconspirators williams taylor brown ernest mcneil and lawrence mcneil brown himself testified that the defendant and him purchased together over one hundred dollars kilos of powder cocaine credibility determinations rest with the jury the jury found these witnesses credible based on the special verdict form and the quantities they attributed to the defendant in addition the government had the defendant's own statements during the course of brown's testimony he authenticated a september two thousand and eleven audio recording where he was trying to set up a consumption monitor purchase with the defendant that audio recording with the defendant's own voice was played to the jury they heard the defense in connection with and drug trafficking a fast in addition t government presented the testimony of an inmate all barry and to him who was in pretrial custody with the defendant the defendant admitted to albright that he had been dealing drugs since  amounts that defendant had told already about the supplier and that his supplier had turned on him that supplier was mr taylor who testified at trial and the defendant admitted to allbery that there was video and audio surveillance of his control purchases you also had testimony from taylor where the defendant the day before taylor testified had threatened to quote whip his ass because taylor was testifying against the defendant you also have williams who testified the defendant admitted to dealing with smith in ripley that to cooperate in witnesses who set up the controlled purchases that is just on the drug counts the money laundering evidence of a significant as well and there was testimony from car dealerships banks the i s agent financial on individuals there was a tax return information the defendants residents of this cars and businesses were linked by all the testimony to the drug dealing and corroborate what you respond to mr callaghan's point though that the government kept bringing up the pact that he can bet i mean this was a big part of the government's argument so how do we then and i agree with you there was said a ton of other references it but the government referenced in the context of all of the other overwhelming evidence so the government would submit that the trial record in this case supports the finding that there would be there is absolutely no prejudice from the admission of these statements whatsoever however i would also like to turn and spend time on the performance prong of strickland and now that i ask you to can i ask you to help me understand what the st question is thought i maybe i'm wrong but i think about this is three parts st is about the likelihood of the motion being granted nd i think about the tactical decision making or or lack there off in the rd is precious but on the st part we're talking about as i think we are setting room injure in other places and we look at the likelihood that the motion would be granted or whether it was likely the motion would be granted and my question is how do we do that in light of the divergence between the plaintiff's allegations and the  police officers recitation of what happened are we asking the question whether if the if the now playing it but if the defendant the criminal defendants testimony was fully believed when the motion be granted or which would be one option or are we asking in light of the totality of the evidence is it likely that the motion will be granted which call weigh the officers in the criminal defendant and make a estimation as to whether it was likely the most will be granted what are we doing here was the brain that album and i think strickland counsels the the court to look at what the defense counsel knew at the time he was making the decisions so in two thousand and twelve to two thousand and fourteen range before the trial and i think if you look at the entire record in overlay that with what the defense counsel knew in tw we need to step back to two thousand and twelve the interview took place august rd two thousand and twelve the defendant is indicted six days later in august on august th two thousand and twelve in his attachments to his own it from his brother which is dated january that reflects a genuine th two thousand and thirteen conversation with the ns counsel and that says the defense counsel responds james made the statement on himself and did not think it would do you know the suppression motion would not do any good there is a fifty seven dollars defense cap defendant some to letter to defense counsel on february th two thousand and thirteen he says i feel i would be in my best interest for you to f no mention of the suppression issues and this is consistent with the rest of the record and that this was a voluntary statement along horsemen in an effort to cooperate and the  know that comes up the way but it means he's made the allegation here that he claimed he asked for an attorney and they at least implicit is that they refused to give it to him and they wanted it to basically a strategic decision that you didn't want suppression motion and hearing where you would have to put your client on the stand in order to testify and that an object of choice by the defense counsel makes absolute sense you don't want to risk perjury you don't wish obstruction of justice that makes horner is not believable who am i right about what i'm asking the court to determine is what did the defense counsel know at the time that he made the decision not to file the motion to suppress and the government's position is that the defendant did not share these facts that he's now presenting in two thousand and seventeen to his trial counsel in two thousand and twelve and there are other places in the record that supports this and what and if you look at both the so you have your raymond your honor where the defendant is specifically asked is there any defendant is not fully and completely satisfied with his attorney's services no that's it that's the two thousand and seventeen information was not provided to defense counsel in two thousand and twelve and again there are there are other places in the record that support this that i could have a moment i'll run through them quickly for the court to before recognize that you're not on the court is not supposed to be making credibility determinations at a summary judgment on a summary judgment motion i agree with that but what the court needs to do is it has to look at the the defense counsel's thought process in two thousand twelve and what whether what that council did in two thousand and twelve up until trial two thousand and fourteen was reasonable in light of the information that counsel hat and i'm submitting to the court that that counsel did not have these details in the tw seventeen because if you look at how cross examination unfolded the trial of peers in questions and it only focuses on two people being there the defendant was present he was conferring with counsel he was engaged in his defense you move forward from trial to the motion to withdraw ringback by defense counsel the motion to withdraw makes no mention of defendant's complaint that he didn't file suppression motion you move forward to the sentencing memorandum he's given  new counsel steps in in the sentencing memorandum they'd challenge the court's reliance on the defendant's statement not because it was the subject of a miranda violation they argue that it was unreliable they do the same thing at the sensing hearing the defendant is present and there is no argument ever presented to the district court that it was in violation of his miranda it was all the question of whether it was reliable basement context of the other evidence presented and and so there is it is if you're looking at what the defense based on that entire record it is reasonable the decision by the defense counsel lack there are going to be doing at least in part it seems that you know maybe what we need to do is just see if the water was even thinking about it at the time you know trying to figure out what actually happened these many years ago and if the court has any concerns that is absolutely correct course to go is to to remove the man for an evidentiary hearing on the issue regarding performance but the court again the president's problem does not go to the defendant's credibility there is no credibility terminations necessary there so the court can affirm the dismissal based on that another piece of the strickland test so given and the other thing that the court may wish to consider is also the context of this confession it was a that the if that would leave the attorney to reasonably conclude that it was a  terry statement according to the agents they went to his house asked him to follow them he follows them ten miles out of town gets into a car makes the statement when prochoice the defendant in august of two thousand and twelve they have already had the five controlled by they already have the audiotape man twenty brown they did not need any additional evidence to arrest the defendant they could have arrested him what they wanted and what is evident is that they wanted his cooperation against taylor so they invited him to go yes ten miles out of town done outside the county lines to a church and the reason they him to go ten miles out of town was so no one would see him because that would undermine cooperation so the defendant agrees to go with them he goes with them to give the statement and then later changes his mind and doesn't want to cooperate he goes to trial he loses and now he's having remorse and those that scenario is something that the trial attorney also have before him that i've got these the law enforcement statement that he went with them voluntarily there is evidence that he voluntarily spoke with them that would have been part of the information defense counsel would considered in deciding whether or not to file a motion and all of these things play into his objective reasonable decision making process not to file the motion so let's just unless the courts have any additional questions for me i would just say to the court given the profound importance of the finality of judgment and the highly deferential review of trial court trial counsel decision combined with the jury verdict which rebuttal yes thank you your honor there are quite a few points here so i'll try to be brief with this st point about that that this come up truly for the st time not just in this appeal but at at oral argument this is the st time i'm hearing this argument that counsel may not have had all the facts to make it suppression motion there's no basis on the record for this concept the only thing in the record or in the case the presley told his lawyer about this encounter and asked him to seek suppression and  of the treasury memorandum showed up in discovery and he asked counsel again to seek suppression i really don't understand the basis for sect for doubting that that council had the facts necessary and your honour's the government made an argument in its motion to dismiss mr president motion that this is a strategic judgment that the court should defer to them last the motion to dismiss and then it's summary judgment he did not even raise this argument at all i just think to do this now a little bit late in the game but i do want to possibly simplify things because even taking on its own terms the argument that counsel was making a strategic decision because he may have a doubt it presley's account of the facts  i took you earlier just say that it is an affidavit including you know the claims that he was followed by a bunch of officers and that they were whatever it was twenty people around him with guns drawn in the church parking lot exception you know threats in the law i that that it might be custody what amount left to do you at this point right i mean i understand what a trial judge would have done but this point defendants involvement in trade how do we find that there's a reason probability of the different results are you are you hitching your argument mainly to different results as to punishment as opposed to different result which charge both cracking and powder cocaine you know the wanderlust approach to prejudice here to sort of listing out bits of evidence or belies the fact that there were multiple separate counts of conviction rested on different evidence and in fact the fact of the government views this as one big ball of wax is actually i think supportive of prejudice because that's exactly how they presented this case if you read closing arguments the confession is the center is it's mr presley admitted to being guilty as to every bit of conduct we charged let me also list a few bits of evidence as to each individual how to support that and then coming back to the confession at the end to hammer it home i think that supports that there was prejudice as to each and every count of conviction it does not undercut it in any