petition claiming ineffective assistance of counsel so under strickland petitioner most showboat cause and prejudiced and judge can always found that counsels failure to preserve an argument against the continued vitality of supreme court precedent is not considered to be objective only substandard but we would submit that the precedent involved which is terrorist versus united states was not vital at all at that point because the fifth as just a sort of lawyer or points out in a line the fifth vote in harris was from justice pryor who in harris said i cannot easily distinguish  this case in terms of logic because i believe extending a printing to mandatory minimums would have adverse practical as well as legal consequences i cannot yet except it's rule but for most lawyers point of view it sounds like sooner or later justice breyer is going to accept a pretty and so with that probability counsel in this case should have objected to the brandishing enhanced that this that sounds like the contention that the supreme court's rule that prior convictions may be considered without submitting and the jury has always because it was five to four and justice thomas has doubted it a lawyer has to raise that issue in every single case that can't be true we've said over and over and over that supreme court can change its law but a lower court can i have a more concrete question when did this sentencing occur in a case where it's relevant yes and where you have been a statement like justice prior that i don't accept apprentice it certainly would be prudent for counseling and well my question is when did it become ineffective strickland purposes under your theory under my theory when you have a situation where it's so easy to make an objection and you have a signal that in the objection needs to be made i'm sure i'm i'm asking for so here's here's my problem with this i mean this is not the easiest terry because and i think it's very important to distinguish between actions that might be prudent on the part of trial counsel and actions that are so  responsible as to fall below the performance standard that strickland requires when there's a governing supreme court decision whether it's harris whether it's alman doris torres the judge used to brooke just referred to overrule the supreme court that will certify that you didn't forfeit it but i'm having trouble thinking that it's ineffective assistance of counsel to refuse to fail to throw into the brief you know this kind of kitchen sink sort of approach and actually there are circumstances in which defense lawyers stand up there and say no we had no obligation to do this and so please don't consider it a for good marks for the people who are you know the elaine lawyer you know the people who managed to get the issue up and get it changed or you don't have that many things in a particular case this was the one obvious issue these extra two years for brandishing it was a would have been a simple matter i don't there's no indication he made a strategic decision is just overlooked and doesn't completely completely answer your question but it would have been simple enough on the one thing sitting there are two year increase in the sense to simply say we object to this and that simply wasn't true although you know that's not the other thing i would just want to say quickly is is i think maybe with the benefit of hindsight we all think that elaine was inevitable and of course they were going to pitch harris out the window there are ways of rationally saying that a jury has to agree to a higher sentence but whether there's a mandatory minimum is not a jury kind of issue just as we do with limited jurors so you know it wasn't a system that was simply impossible to understand although there was an acknowledgment from justice prior that it was it was his non acceptance of  standard of review in the direct appeal in our view from player to harmless error well right but the entered i'm trying to think about the bottom line result here because at least as near as i can tell from this record  if mr kirkland is being held responsible for supplying the guns to carry out the armed robbery brandishing was certainly in mind a conviction on the on on a brandishing element would be virtually inevitable here and a district judge even if that even if the conviction is formally only for using carrying the district judge would be looking at evidence that there he was in fact responsible for brandishing and might say well five years is the minimum one using carrying but there's no way to go and impose seven he could have done that and could do that on one hundred men but i point to the jury question that came out which showed some uncertainty on the part of the jury about how the gun statute worked and the question was not answered they were simply said read your instructions again so i think it's very it would be inappropriate to conclude what the jury would have ruled if they'd been given a special i during brandishing they might very well have said for whatever reason no you know even though they convicted on the gun they might not have convicted on the brandishing because of their uncertainty about that area which the may please the court and standing on behalf of the united states in order to be effective under strickland a defense attorney is not required to anticipate changes in governing supreme court precedent he is not required to make that after that date it would be prudent to preserve an objection room to require i don't think that it we don't have to decide in this case obviously but the only question presented in the lean was whether arrow should be overruled the governing supreme court precedent while pending at the supreme court still was that harris was good law and i don't think that an attorney needs to predict the votes on the supreme court's not know my question the only thing an attorney needs to do is notice the grid lawyer or does a lawyer to be competent have to bring that to the attention of the district judge and it's and if he doesn't with the government then on appeal turn around and say oh you know this is a plain error standard of review very hard surmount that that's what the lawyers are concerned about they want to make the right objections so that they can get at least a fair hearing on it later stages so i don't think that the only thing that's required is for th lawyer to make an objection to preserve the argument the lawyer needs to consider the case as a whole in this case the brandishing enhancement even if made after spirit is granted would not have been m lost i completely understand the contention that we're supposed to judge the performance of the case as a whole but your brief doesn't ask us to do that right this is a claim brought saying the lawyer made an isolated injury let's look at this happened before certainly it was granted this court does not need to reach that issue i think that the prejudice inquiry is a clear one as judged by how below but it's not necessary for the court to reach that search had not been granted governing supreme court precedent h that branching did not need to be proven beyond a reasonable doubt or alleged in the indictment and that disposes of the issue it's consistent with how this court treated ineffective assistance of counsel claims after a pretty in cases like smith and similar  where it said the defense attorneys did not need to anticipate or foresee a pretty before randi that before that opinion was released and this portugal there was a lot of debate about how much more years are supposed to foresee and how much we say you know you can rely on what appears to be settled law circuit or settled law of the supreme court because as i said it's a two edged sword here you know  do expect the law to develop a lawyer you know somebody who's representing mr elaine and succeeded in getting the supreme court dimension to it so so you want you want to encourage innovative ar honor night the government acknowledges that tension in that ambiguity here i don't think that it's in play under the facts these case under the facts of this case given the timing in question but we do acknowledge that sometimes that ambiguity arises particularly with respect t plane your standard of review i was trying to figure out is i still am whether we ought to stick with a fairly bright line rule which is what you're advocating and then you know you've given the degree of publicity these days for supreme court oral arguments was transcripts available online the same day or the next day you know a lame is argued and commentators predict a reversal  predict where the justices are going to fall in these cases and that's a very noble profession but ordinary defense attorney doesn't need to do that they're not experts on where justice brier justice thomas is going to fall and it turns out there are you know experts there was a recent article published showing that if you look at supreme court specialists who predict after or a argument they get only seventy five percent of the decisions right sounds about right and i think that either way if you predict that seventy percent of all decisions will be reversal you'll be right so that the best experts in the world get a five percent improvement over their prediction everything will be reversed probably not statistically  give you more certainly one is i would suggest that the october sixth a just correct in the car dana case which had a line issue two of us made post trial objections after certain was filed and one counsel did we were on harmless error he was on play there or we thought he was acting in ineffective assistance of counsel at the time that was our perception that so we think at the very least there's an obligation to know when the supreme court's read assert and the only other point i would make is that in the prejudiced side of this we would ask this court to consider the third circuit approach  in lewis which is i'm not going to go into details as to you at the correct interpretation of a print all right thank you very much thanks to both counsel will take the case under advisement in the cour