office of the federal defender district and that a for mr jones i'd like to reserve three minutes for about oh i mean defense counsel advised mr jones to agree to a sentence of life without parole because it meant that he would most likely be released that was deficient performance it was a gross mischaracterization of the outcome life without parole is just that life sentence no parole well that was not true at that time the only point which you oral is whether it was likely or not it was certainly possible it certainly was a real possibility but even then of that a supreme court described it as rare it was rare it is an impossible thing to know it is impossible to know how a future unknown governor is going to perform a discretionary act of grace it was simply wrong to tell mr jones that it was most likely that his sentence would be commuted which which is what what sentence in the in the in the letter that was written is in error it's that final sentence where he says based on all of the circumstances here it is most likely that you will have a life outside of prison someday that is the erroneous sentence accurate statement that the average time at that period for life without was in fact fifteen to eighteen years i honestly i don't know the answer to that but what i will say is that that sentence and why don't you know the answer to that gives in this definite time frame of eight fifteen to eighteen years but if we feel that that's true then what's wrong with that sentence that you quoted because it's at the time it's fine you know it's fine to say that it was fifteen to eighteen years but even counsel then takes that back i said it's not clear if this is a very very careful letter council this is a very responsible letter i don't know if i would characterize it that way i think it some parts of it are responsible but when you concluded by saying that you will most likely get out i don't think  responsible i think that crosses a line and i think that's misleading him to believe that a life without sentence means that it's not a life without sentence and i don't think that that's abuse that was most likely didn't say it was guaranteed well that's true but he did say but most likely means more likely than not turned out that it was that this that he's one of the unfortunate ones who didn't who didn't get out but it doesn't it doesn't mean you're guaranteed that well i don't know when when you hear that sentence when you hear the fifteen to eighteen years he puts this guarantee in there fifteen thousand years that's what i've been told and then at the end he says that means most likely you're getting out i don't think that's i don't think he's in a position to say that i just don't think that's something that it was you were it was not most likely it would be able to get out it was less likely than we originally estimated but that's a lot but an affective but even at the time we have that miller case which you know the district court cited it's actually helpful to us because even though i have spring court describe a commutation process is rare it was twenty six over a twenty year period if if the numbers that counsel had access to which he even admitted were not the  broad spectrum of all numbers he just said this is what i have access to but even on that aspirin court their decision describing the commutation process or the time was not most likely but process how it worked at the time they said there was still a rare avenue of relief so they would have to base that on some statistic right and they did and they got they would might have had to have been informed of that's correct they were the council here might have been informed of well  that could be true it's possible they have the same source and it's possible they didn't have the same source but it's going to problems well it might be but that's that's why council can't make this statement i mean he can't lead his clients into believing that a life without parole sentence means that counsel did not state in this letter anywhere in this letter that life without parole means life without parole you're not getting out unless you the governor performs an act of grace which is discretionary stoli within the governor that was not the tone of this letter and that is the only type of advice that counsel could provide in the search in this circumstance and making matters worse is the jones suffers with an intellectual disability he was incapable of questioning this advice that was given to him he was reliant upon counsel to give an honest and trustworthy advice and said councilman misled him into believing that he would most likely be released that is a reasonable and well helpful did use those words he was less than likely if he said i guarantee that you will get out that's one thing but the fact that you will live we'll be in for life is less less than likely is quite a different tone and quite a different promise what he didn't say i give you one hundred percent guarantee that's true but he did say most likely which means to an average person including somebody who is intellectually disabled oh most likely it must be i'm getting out and i see  wrote fifteen to eighteen years that leaps out i think that anybody in that situation would believe that life without parole means that oh i'm going to be getting out because the side of the other that a supreme court in the miller but in this in the paragraph before that they describe it as real albeit rare and i think that that is really the point here is that the most that counsel could have said here is that it's a real possibility you know life without parole you're going to spend the rest your life in prison however the governor could there's a real possibility the governor could commit your sentence but that's discretionary up to the governor and you have to go before the pardons board and hopefully that'll happen someday the nature of the crime here is  you know he doesn't put this into the letter but it seems to me likely that went into his calculation and terms of whether or not life without would truly be a life without i do you respond to that i think it's possible i mean i think that there's lots of factors as to why mr jones could have potentially someday gone before the pardons board i think all of that is fair he put some and doesn't put them all and but the question comes down to whether or not it's misleading that he says it's most likely that your sentence will get commuted someday and i just don't think that defense counsel was in a position to know that it's simply unknowable and it's something he crossed the line by saying and i just think it's it's a misleading comment that goes beyond just convincing it's misleading and how do we judge this  yes and if so why do you get to plead standard with the strickland standard well what happened here is the equivalent of a guilty plea at the united states supreme court has described a capital sentencing hearing as sufficiently like a trial in nevada the capital sentencing is considered one part of a bifurcated trial the same constitutional rights apply both meaning the right to the jury but realistically as a practical matter what's happening here is we're fighting over  there's not a down to plead guilty to having done it or not it's it's it's a lay down the hand sort of conviction right we're really talking only about punishment that's correct but what that brings me back to strickland well the hill standard is looking at you know whether or not the defendant would have chosen to go to trial as opposed to if absent efficient performance here it's the exact same thing meaning that what he was waving was equivalent to waiving a jury trial same constitutional rights the facts of this particular situation demonstrate that there were negotiations there was a deal there was a full  voluntariness during which the court reviewed the same constitutional rights it does when it when asked to see whether a guilty plea is voluntary and what is so interesting to me is that logically this should be the right prejudice standard because we're using  hill deficient performance cases to determine whether or not counsel is deficient so for using guilty plea cases determine whether or not counsel is deficient it should be the same on the prejudice component as well and under the he standard jones can easily show prejudice the letter itself shows that jones was unwilling to consider a life without sentence it wasn't until he received this misleading advice that he would most likely be released that he changed his mind  we would be here that's a fair statement i apologize that it is a fair statement because nobody no attorney wants to see is this is you make a make it see his client make a bad decision that can end up getting a death penalty i mean i certainly wouldn't but it was mr johnston to make and we know from the letter that he just refused anything other than life with that's what he wanted and i guess he was we don't know maybe we should maybe be room for a hearing to find out what his reasoning actually was but it could have been that he would rather get sentenced to death and spend fifty years in prison but whatever his bad thinking was it was his decision counsel still have the obligation to give an accurate and trustworthy incompetent advice and i think morning your honour's heidi stern on behalf of respondents counsel was not deficient in this case and advising a stipulated sentence for mr jones in order for him to avoid the very strong likelihood that he would receive the death penalty in a second penalty hearing at most as the district court correctly found counsel's letter was a bit overly optimistic with regard to the issue of whether he would eventually get out of prison however that's not what this court that's not all this court requires this court requires in order to find efficiency that counsel made a gross mischaracterization and in this letter as he read it as judge by we pointed out it's a careful letter makes no promises it makes no promises regarding the board in fact it's pacifically says that we can't predict what the board will do he also says in this letter that you can't rely on the average of thirteen to eighteen years it's also correct about the likelihood at the time whether the amendment to the constitution will apply to mr jones so the county the council in this letter basically laid out a bunch of correct information but the bottom line in the dean is literally the bottom line the way it is literally the last sentence is most likely you're going to get out yes and i would agree with the district court that's overly optimistic but is it a gross mischaracterization i would submit that within the context of this letter and how carefully it was written it was not grossly mischaracterized and in addition i would the possible but that counsel overstated this in order to persuade his client to take the  might be resistant to it and he was worried that he might otherwise get the death penalty i think that is possible in theory but not in fact i think if this court looks at the miller case and also if this court looks at the two thousand and four attorney general opinion  cited in our brief that the miller case and the a g opinion talk about the way that these sentences were handled in nevada in the seventy's these life without parole cases and specifically in the attorney general's report it cites a case where someone with a life without parole sentence for first degree murder got out in thirteen years and that is what that in addition to other cases like that is what led the legislature to amend the statute and the constitution in one thousand nine hundred two so at the time that counsel was writing this letter i don't think he needed to exaggerate by saying it was most likely because at that time it actually was so that covers grossmith characterization but this court also requires an error in the advice regarding the outcome of the proceeding and certainly that does not exist here counsel laid out correctly that there were three possible sentences a penalty hearing life with parole life without parole and the death penalty despite the supreme court's positive comments about the death penalty being a sort of a strange penalty here counsel analyzes that in one of the first paragraphs and says it's still on the table if the supreme court had wanted to withdraw that as a possibility it would have there's the issue of the fact that the second penalty hearing was not going to differ substantially from the first in which mr jones was sentenced to death the only other mitigating factors that were proposed to be presented at that penalty hearing were just another letter from a prison official which mr jones did have several in his first penalty hearing and then the possibility that there would be testimony regarding one of his prior violent crimes the problem with that is counsel at the defense counsel submitted to the court a declaration or a an affidavit saying that that person wasn't actually going to come and testify that he didn't want to be involved so the mitigation evidence and that's that the record at nine eleven in case you want to take a look at that but the bottom line is these this penalty hearing was going to be the same there was no additional mitigation so the possibility of the death penalty was very real and in addition counsel gave corrected by sircar ting what the outcome of the proceeding would be in fang that it was unlikely that mr johnson perceived life with with parole let me pursue judged by b s question with a little more bite to it let's assume you said it wasn't true and maybe it's maybe or maybe not true but let's assume that the trial lawyer his defense lawyer is very concerned about the possibility of a death penalty he thinks that the wise decision given that possibility is to take the deal and get life without and he's very concerned that his client won't do that and it will be against his own best interest and he exaggerates knowingly sell and he says it is most likely that you'll get out but he actually assesses the likelihood of getting out as at best fifty fifty is it ineffective assistance of counsel to exaggerate the likelihood of a release  to get your client to accept the deal no because because of the requirement of gross nics characterization which is a higher bar because you can mislead your client get him to make a decision based on a misleading prediction and that's not an effective assistance of counsel well i think there's a question of whether misleading and exaggeration are equivalent concepts well no they're different times and i'm asking you is it was ineffective assistance of counsel to mislead your client so that he makes a decision based on your misleading representation when in your view you have a lawyer when in your view is the client's advantage to do so and as long as it was a substantial substantial misleading it or not a little bit of a little bit of uncertainty percentage is probably running against you nevertheless i strongly strongly urge you to accept a life without parole there would be there there's no gross mis can and he can push him is as hard as he wants right yeah i agree with that and i think that the difference to me looking at those two examples is that your example judge by be includes it the statement is couched in this well we can't rely on it it's not stated as a near certainty it's couched in in a bunch of language that that tempers it so it's misleading a fact and i have to point so if i could just move on to unless there's further questions on counsel's deficiency i'd like to move on and talk a little bit about prejudice and as this court knows the state's position here is that there's no reason to take this case out of the strickland standard of prejudice the hill case really is meant to apply to a very specific type of situation in the guilty plea context where the defendant is giving up a lot more rights then mr jones was giving up and because of that because of those rights that are being given when a defendant enters a guilty plea there's good reason to require a lower prejudice standard but here that doesn't exist and i would say with regard to petitioners argument that the these are equivalent situations of the guilty plea and the penalty hearing that superficially there are similarities but as a matter of actual fact of what that defendant is for going there is a huge difference difference between being innocent and  the difference of three possible very strong penalties all of them it's just a completely different situation so mr jones has not shown that he was prejudiced under the strickland standard he has to show that there's a reasonable probability that the outcome of the proceeding would have been different and as we've discussed before with regard to the counsel's letter life with the possibility of parole for mr jones was not likely there really wasn't a difference in the medication evidence the aggravators were the same and a previous jury had already impose the death penalty based on that same information in addition and this is perhaps the most important thing the death penalty was still on the table mr jones had to make this decision knowing that he had previously been sentenced to death that the evidence was the same he could be sentenced to death and that his appeal to the nevada supreme court with two death penalty convictions would be very unlikely to be overturned the second time and his decision to enter into this agreement stipulated sentence to life with out the possibility of parole was imminently reasonable and he as he expressed to the judge in the penalty hearing itself said he wanted this and he understood that he was potentially spending the rest of his life in prison that's all i have unless has other questions i think not thank you the possible effects well counsels misleading advice did that as well without counsel's advice the only way that mr jones would be able to guarantee an opportunity to go before the parole board would be to go to the penalty hearing get a sentence get a sentence of life with parole however counsel told him you don't need to do that you don't need to go to the hearing anymore we're getting new life without and life without means most likely you're going to be released so you don't need to go through the hearing so it change the e lose there is to say the outcome that he faced was death life without her life with in order for you to win you've got to show us a vision probability he would have received life with which is the only better possibility on the  table and i think we can show that here the nevada supreme court's decision was strong it said that this is not a situation where the death penalty is should be imposed they say they went through the history they said that the as your honor said before this isn't one of the worst penalty case it didn't reverse it on the grounds of this is not a not a crime deserving of a no it is because there was the iran is instruction right but they did say that they remanded it because it was reasonable to conclude that a jury that was untainted by constitutional heir would cut may reach a different conclusion and so that's why i think we can't put much stock in the original what the original jury did because their decision making was affected by constitutional heir and so when you have an untainted jury looking at the facts of this case looking at the mitigating evidence which includes the extreme racial intolerance down in mississippi thad that the police set him and set him on fire and he didn't start committing crimes until after he was set on fire by the police and then he also had some extenuating circumstances with respect to some of the some of the crimes they occurred afterwards i think a jury untainted by the constitutional air would look at the mitigating evidence would see the facts and would as a result probability that they would come to life with parole sentence oh thank