he did unfortunately the the at the person he apprehended or attempted to apprehend was the cousin of the jumper they were attending the funeral that's how i knew that they would he find him there and unfortunately though the gentleman that was attempted to be apprehended with the deputy sheriff out of alexander so that's when the problems occurred so i think that you know this this case obviously we have a difficulty here because we're in federal court are going to state case there's a lot of after all the time but exactly a worry that there's a lot of federal law here that's out with the ball and we're really talking about the common law all right that was decided according to purposes that would not be moot if he was actually in custody the spot doesn't matter that he was then released they're out and of course he is still under conditions such as a suspended sentence as well as all the consequences that come along with being a convicted felon that's correct but at the time yes your honor but at the time that he was he followed other forms of relief i said corum notice the notice is not really available in virginia if you're not as comported virginia you're in a federal court that's correct not using three words he didn't say a volley to due process he argued every day do he argued everything else wrong and that's that's where the problem becomes because the state court and then the district court here we've got to give a lot of deference to the state did that's correct it came in that what witness was all on and then do it the wrong and that would be all well and good except for the fact that for ten eleven twelve pages in the transcript defense counsel argued repeatedly if you re t the defense evidence and accept the comma was evidence then mr collins was acting under the color of law that's what he argued repeatedly because the statute does not specifically say that if you're an out of state but license you must also comply with the virginia law so it wasn't clear to anyone up until the point that this produce supreme court ultimately decided that they had abrogated the federal common law it respective of the laws of that other stay here versus hilton actually had to do with whether you have the right to go into another country and get your guy back and they said that's probably taken out of the holding of the case yes that if you can't go into another country if the holding express considerable skepticism as to whether that was still the law but the only skepticism they it is neck case if you look at footnote number two what not put them in number two says we proceed on the assumption that baylor decision which has never been overruled remains the law and then they go on to say but we know that it's been a long time since eight hundred seventy two that's the skepticism that it's been a really long time of course it's been a really long we're talking about federal common sort of following up on that issue and certainly have you happy to address any more of it what i think is important to note is that this court struggled mightily with the silence of the virginia statute or the issue of whether or not it abrogate i think the court for the purposes of the argument did accept this law the bondsman's right to go into another state to obtain his belly under delivered state in the court said it in fact specifically on the record on hundred nine of the appendix and again on page one ninety one and one ninety two of the appendix indicated that it was struggling with that very issue in our opinion think the net result is why or do you think you know your argument as to what my argument is to the point that it was ineffective for counsel not to have raised based on what based on the fact that the judge specifically says to him acknowledges that this statute is si and if the statute is silent it doesn't specifically revoke what is existing common law which the court recognized what he did what if we would use what if we would states reason with a patient look at that male looking at it now it did change that if you lose on the prejudice standards i don't think so judge because the mr collins is prejudice because he was and it wouldn't make any difference if he'd rage that or not if we were to look at it now and decide that it didn't prejudice is that he was ineffective in not saying well judge if you were making that determination that this abrogate federal law then you are the first one to do that and therefore to then apply retroactive clearly wasn't on notice the judge in two separate hearings in the second of two hearings after he says the counsel i understand the color of law is an issue here in the second one after hearing the comments argument he says i'm struggling with the comments argument to i don't know that i necessarily subscribe to that are you saying that silence that she is leaves open the federal right and the judge ultimately so do we are grant certificate ability ambiguous but i'm going to find that it abrogates are all at that point under those circumstances trial counsel should have said well judge if it's ambiguous then it doesn't fairly put him on notice and if it doesn't fairly put him on notice he doesn't have to process and if you're the first one that's deciding that it abrogates remember within i think eighteen months north carolina who has almost an identical statute their attorney general comes out with an opinion that says it doesn't affect the right of an out of state bondsman to come into our state just for the purposes of picking up remember the argument here was that i'm not really acting as a bail bondsman i'm not issuing bales conducting business in virginia all i'm doing is getting my this case judgment but i think i think that's a separate although one that the judge raised well if the court doesn't have any more questions on that i would have got a few moments left i'd like to move on to the second issue this that counsel was ineffective for not raising the issue that the defendant black intent specifically because any intent that he had deprived of liberty was incidental to an underlying offense that offense being a violation of the bail bond statute i would i would just mention to the court that in the judge's mind there wasn't a whole lot of dispute on the facts i understand the court's comment previously about the court soundly rejected the defendant's argument and i'll adopt mr harkins argument about where except in everything that the commonwealth said but up to that  the facts are largely not in dispute that he was a license bill bob but they did come into virginia soley for the purpose of getting his belly that he first went to the sheriff's office and he asked the sheriff for assistance they said we can't give you any assistance but this is individual be the wrong individual was detained only as long as it took to establish that he wasn't the right person he was he was confronted with what court found was a firearm in some aggressive language and that there was an attempt made to move towards the truck but that he replies repeatedly called by the name of this other individual that when he when he was asked for id and produced id and determined he wasn't that he lets him go so there's no question he doesn't have any other intent to do any other i was a little concerned with th trying to do and that's not really the case obviously there would have to be a factual basis for that and i would submit that in any other case where was this type of factual history that it wasn't fact mr collins only in ten that yeah all of those individuals not apparent on this record what he's real status was and what your old claims were a correct seat in my understanding as he has been released from custody it is also consistent with what mr card told you that and i can't give you a case i think there's actually a fourth circuit precedent that says if you're in but there is case law from this court and directions trial counsel is not ineffective for failing to raise inconsistent defenses trial counsel is not ineffective for doing it under certain circumstances and i cited those cases to you i think what we what we take from that is this is the alternative that there was this common law rule that that hadn't been rescinded so there was an alternative or he did not make the related argument that essentially was its own forseeable under buoy but again if you look at mason mason was a very similar it was a fourth amendment argument was the one that was actually made there was a selective racial of course but that also had to do with stop the court said you can set priorities even if the even if the defenses are mutually exclusive those types of priorities as a matter of judgment can be sat i would also say to you under the facts of this case i would point you to buoy because the facts of who we are essentially it's a trespassing situation in south carolina  this is jim crow era i think is when the when the case came out and a couple of the things that you had going on there you did not have in that case clear statutes and in fact the that the stat according to the u s supreme court on the face of the statute so so i think that's distinguishable from this case because you're dealing with in our case two different statute one of which is the abduction statute which essentially says if you snatch somebody the way that happened here absolute  just a facial justification or excuse that you violated the statute to conduct this person privacy is very clear in terms of abduction and i don't think that statute facially is problematic in that whatsoever as far as the bail bonding statutes in the bail recovery agents that use those also required licensure and i think certainly given those facts a reasonable attorney could have chosen to forego that type of due process argument and focus on first the my client's the one telling the truth and second the common law argument that was actually me was not that additional level of foreseeability and that's of course the virginia supreme court when it decided this went to strictly down the inconsistent defense which again i would say not ineffective or arguing for failing to argue i didn't do it but if i did i wasn't on notice that this was prescribed and that's that's the crux of the way the state time ago you do that ups of saying will be accept it but we do know it was a long time ago which clearly indicates ice i think that leafs except in that you know we have some misgivings and we just leave it where it is happened and i think but it may actually say that's what happened so what do you think that as you well i think a whole lot of things because this court because again remember the prism of a reasonable attorney looking at this and not mentioned again not to belabor the point litigation essentially that this doesn't give you unfettered right to go in and violate the laws of other states so if you're dealing with that issue as well so i think all those things lead sort of inexorably and i appreciate the comment somebody made about how do you show prejudice but it's certainly under the first prong the objective reasonable is choosing to forego that that there's a lot of things stacked against you not just the intuitive thing that state court latched onto about how it's  inconsistent fences is problematic but also just the body of law that's growing going back to this case decision here and any number of states i've been those are all cited in the brief i think a brief i cited rogers which talks about changes in the common law enforce the ability and the u s supreme court said there that yes you can look at what's going on in the other forty nine states when you're talking about before c it will be so that's yet another issue  and in fact here i say the tical basis for not pursuing that is probably even stronger than it would be under the roger situation is basically rogers was soley a judicial creation with respect to the year look at all fifty states certainly that is something that informs the analysis is that whether it's foreseeable and again remembering that we're only looking at what a reasonable turn it would do with the information so so you have all those things and for all those reasons i don't think that they've met the standard of showing objectively unreasonable conduct on the behalf of the lawyer who decided who decided this going if the court don't have any other questions briefly touch on the other on my own as it on yet and i would simply say to you that consistent with this court's caseload in the sixth amendment issue was decided by a state were solely applying interpretations of its state statutes literally this claim was framed both in state court and in federal court as not being a double jeopardy claim the supreme court of virginia has essentially said you can be convicted of both this is not a problem of one was the last three misdemeanors and i point out to you that's that the word intent has been thrown around a lot the misdemeanor statute is strict liability statute so there really wasn't any it can't necessary under that statute clearly you could act as a bail recovery agent try to react to try thank your honor i think this case boils down to whether this was a tactical decision and i think it's wrong to call it a tactical decision it ended a scotchman about whether it was reasonable for counsel to make the strategic decision not to make this additional argument well  completely ignores the record in this case that's simply not what happened in strickland tells us that we are to look at the cases under the totality he say he argued repeated though in that they all have a hearing or a thing no your honor and but what's so frustrating the years if you look at what he actually archy argued taylor versus painter he argued that the statute the not abrogate common federal law he made all the right arguments what we're saying is he did add three additional words that a violent would be a violation of due process to convict him of this now because the stats what lawyers do every all the time in a courtroom to make practical decisions as what they agree with that's reason that we have but only six of them a claim to it gives much that this is an attack the decision he forgot to add the most important part and that's to make it not just about statutory interpretation but to make it about the constitution that's the problem and if you look at the court of appeals only direct appeal one of the footnotes that they put in there is that he actually raised this very issue that we're saying should have been raised to raise it on direct appeal the court of appeals disregarded it and said they couldn't consider it because it wasn't race the trial court so all we're saying is that he didn't use the words violated due process because it does get a little more complicated if you start in one of the words retroactivity we're trying to make an argument but if you're saying that you can't apply this statute collins if you convict mr collins everybody else after us is going to know that they can't do this but as far as mr collins he doesn't know and it's not fair it's not due process to convict him and we started the two cases the talk about that they did exactly that in massachusetts and the tenth circuit want to case out of the new new mexico so what we're saying is all he had to do was make it this no argument would have preserved for appeal that is not a tactical decision he was making all the right arguments in the first place he just didn't take that one extra stuff and i think counsel was ineffective for failing to do that but you certainly can't call it an act of will decision you might want to argue about whether it was reasonable or not reasonable to call it a tactical decision it makes basically untouchable and it's untouchable it might as well be a procedural bar so if the tourney does anything he says well i had a tactical reason for doing it then we just dismiss it completely and we started the cases that talk about you can't water it water down the goal decision to nothing but just a mild form of acquiescence just say whatever you want to do a spot as long as you call it active call or strategic you can't do that and that's not strictly required and that's why we say this is an unreasonable application of stricken versus washington to say that the only reason we're dismissing this point we're not saying the claim doesn't have merit we're not saying that you couldn't win if this claim was advanced what we're saying is this is the supreme court talking what we're saying is is that because  mr collins said he didn't adopt this individual you lose but again repeatedly throughout this process counsel have argued both sides of the coin as a matter of fact he spent like you but i don't appreciate