morning may it please the court i represent the appellant tobias boylan my name is random mayor mr boyle and appeals from a decision an order of the u s district court for the western district of new york which denied his petition for corpus relief mr boyle and is currently serving several concurrent terms of imprisonment of fifteen years for three felony weapons convictions which stem from weapons that were seized from forty five harvard place in buffalo new york on june twenty third two thousand and nine mr boylan's convictions should now be vacated because he was deprived of the effective assistance of counsel i'm specifically mr boylan was represented  of the initial an amended search warrant applications that led to the issuance of an amended warrant pursuant to which an agency investigator michael mccartney he had previously inspected the second floor of this home and used his observations to then go and get this amended warrant issued and then following the amended warrant being executed these weapons were recovered from the second floor of of the home o review here which is necessarily red state courts for forty court review the affidavits and concluded that they stated probable cause in light of that fine how can we was based completely on detective mccartney's walk through of this residence after a swat team had gone through there secured it and found in a k forty seven rep a type of salt assault rifle and a replica weapon at which point mccartney went mccarthy went went up there he wound up doing a search as well when he went in his application he essentially just relied on what he had seen when he went up there but he also incorporated his initial application and in that application there really isn't anything in there to establish probable cause of the criminal possession of a weapon charges which is why there was probable cause to search the premises and suppression based upon an invalid search warrant and that the police search exceeded the of the warrant and here's the important language upon review of the application or more at this court found that there was probable cause to issue the search warrant  forty the suppression court never had the obligation the application was never turned over the application didn't come to light until two thousand and thirteen january thirtieth of two thousand and thirteen when he when they say that the full forty court never had the upper case no not saying that the four forty court did have the application but in denying the four forty motion the court relied on its earlier decision when it denied suppression it specifically says that's was reading from the language it's like the second paragraph or the first full paragraph on a one zero five three and the about the omnibus motion moving for suppression so he's basically rubber stamping his prior finding in this yeah because nobody had them at that time because the defense attorney in his omnibus motion i don't understand how that could possibly make sense maybe you can help yeah i'm sure you're saying to me that the state court judge issued the war without there having been an affidavit that's not what i'm saying i'm saying well the state court judge who issued the warrant wasn't the same judge who conducted the suppression hearing so i'm talking about the judge who conducted the suppression hearing and who decided suppression motion freshened judge  the state court had the application had the warrant but didn't have the affidavit now i'm sorry he had the warrant order and he had the return but he didn't have the application which included the affidavit who was the suppression judge judge bowler and he says right here upon review of the application but he's what you just told me includes the affidavit which is what would be normal he didn't have the application that's that's a so you're saying his decision is a misrepresentation of fact ye am and what's the evidence that that's true because if you go back to the record ok there was a omnibus motion that was filed by the defense attorney on october twelfth of two thousand and nine he requested the warrant applications on november eighteenth of two thousand and nine the people gave only the search warrant orders and returns they asserted that the defense attorney wasn't entitle don't you think don't you think somewhere in the supreme court for erie judge basically law i know that's not yet reviewed affidavits i'm not saying that he lied and i never said that he lied look if that was a problem and that i'm not dismissing it as beyond the pale but that's a that's a challenge you have to bring to the state courts we have a state court record that says that a judge based on his own review of the affidavits found probable cause and you're saying test we should credit that i'm saying that that under twenty two fifty four the prom that resulted in a decision that was based on an on to resemble determination of the facts in light of the evidence presented mistake or proceeding you read that very well but  he got to do with this well let me if i could if i could beg your indulgence to continue what has to do with the point is if you look at the transcript of the hearing first if you look at the documents that were turned over to defense counsel he requested these applications which included the affidavits he wasn't given them then you have a hearing the only evidence introduced at the hearing is the search warrant order there's no application introduced at the e ring there's no discussion about locations and there's little to nothing said about  well then and perhaps it was a mistake that's what that's our position because your honor and the reason we believe that that's accurate and not speculation is because the defense doesn't get these warrant applications until three years later when the defend unfortunately representativeness opinion that he had seen the papers that's not my that's not my position at all your honor with all due respect i'm not representing that the judge falsely represented the warrant applications were signed by us erie county court judge judge michael i'm a co judge bawler conducted the hearing looking at the record as i am bound to do the record indicates that the applications were requested by the defense attorney they were provided to there's no mention of the record at the suppression hearing the only i'm sorry of the obligation of the suppression hearing the only time you it's mentioned at all is in the judge's for forty decision i'm sorry in the judge's suppression decision denying suppression and  if you look at the record the only time that we know that these applications were obtained was in two thousand and thirteen when mister mr boyle and himself put in a foil request and got those applications at which point he provided them to his new lawyer who attach them to the four forty ton that was filed in november thirteenth of two thousand and thirteen i'm not disputing their time for it but i'm going to ask you to look  me we'll hear from you mr hilary misspoke the other representation that we're relying on to say that he reviewed the applications is his own representation it would be speculation for me as much as it would be for my colleague here in opposing counsel to assert how exactly it was and i can speak to how files are transported from one court to another in such matters but again there's nothing in the record that would establish that that in fact occurred what we have is the representation of the sitting judge which that was the application in the motion papers with the hearing record before judge bowler in two thousand and fourteen i believe it was your honor but again i'm i'm going and you point to it in the in the record before i'm only going by what he said i'm only going by his representation that he had been to help me out with buffalo geography because it's a good thirty years since i last visited the city is the supreme court and the county court in the same building yes they are your honor the clerk's office is on the same floor different floors on the same floor as supreme court where would the application for the warrant be on file in the building where judge bowler's this should be your  yes it would have been good if the defense counsel had actually obtained the applications that he requested we know he requested them but on this record it's ultimately not very important and the reason is is because no prejudice has been estab ished by counsel's inability to get those applications counsel brought out every single argument that he could conceivably have been brought out in the light of the affidavits the amended affidavits because there was no new information in them the only new information was that investigator macartney had gone up himself immediately after a protective sweep had been conducted and simply confirmed what he had been told by officer savidge who was heading up the swat team that did the protective suite when that officer said to him i went up and i observed that certain rooms had been converted a kitchen had been converted into a family and one family unit that issue was raised by counsel and his contention was that mccartney investigator mccartney had no business essentially going on after the protective sweep was conducted the protective s was over all the concerns that justified that had dissipated and now he's going up essentially to snoop and therefore the amended affidavit is based on that impropriety by investigator mccartney our argument to that is he learned no new information than what had already been conveyed to him in the lawful exercise of protective sweep by officer savage it was purely confirmatory and the record bears out repeatedly that no search of either floor was conducted no true search save a protective suite was conducted by the floor until the amended search warrant was obtained so i just fail to see this record how there is any prejudice made out to the defendant the court doesn't have any questions i'll rest on that thank you m r you have three minutes and actually judge i had pulled page a ninety nine eighteen myself previously and a one zero five three because my position is not that the judge deliberately said he read something that he didn't but that he didn't have it and the fact that he could have gotten it doesn't mean he dead and according to the record  recently resulted in a decision that was based on reasonable determination of the facts in light of the evidence presented in the state court proceeding and the evidence in the state court proceeding did not include the search warrant applications it only had the order there was no testimony about the applications and the record as a whole demonstrates that the applications themselves never turned up that language would not prohibited from taking judicial notice of official court records would it it wouldn't but there is no evidence that he did the evidence shows right here at page  nine he may have been mistaken if the review of the first and second warrants and their applications the court finds that there was probable cause your honor with all due respect i know what it says but he didn't have the applications according to the record to review he could have made a mistake people make mistakes including judges people make mistakes that's why we have the appellate court here because we the application now you're telling us he didn't review the application and i don't know where our factual basis the as for that is the record the record shows that he didn't have that the application wasn't turned over it wasn't part of the evidentiary hearing them but that's a lot of thought to respect your honor that's a lot of speculation of what the record if your position was that the judge misspoke and that or the deliberately misspoke why isn't your remedy is your remed review of the four forty decision and you have an obligation to exhaust that claim if that's your claim that it was based on the rule based on evidence not in the record then them with if that's you know if that if that's my obligation then i would ask  remained and have not this and you had you had an obligation to to do that before you brought the hate is i didn't represent him on the for forty years and what i'm saying is that the defendant had the obligation to do it before he brought the that's the law you have to exhaust your state remedies you can't now tell us that there was an error in the state court that you didn't print try and pursue in the state court but you're saying to us that we should soon that this document is not in the record and we're saying to you when a judge says he's reviewed something and you have not secured a ruling that no we didn't why don't we accept his representation i see your point honor but i do feel that on this record it's on there's nothing to support finding that this judge had the application and that the judge said so and it's your burden to show i know i know you've tried to make the strongest argument you can for you kline and we've pressed you on this but thank you very much we're going to take the matter under advisement we'll we'll get your decision is that thank you for you and thank you for your time absolutely the last case on our calendar jones versus