best my helper in this was the dissenting judge she called the two judges to task for making up facts making up facts that all i need is d to take us into de novo land we are in danger of only you don't have to her as a judge in the minority doesn't carry much sway well you know i looked i researched what is the effect of a dissenting judge decision the situation you do i couldn't find any case i got lexus to help me i called up i couldn't figure i had to do a query myself i had research attorneys get research in a negative dept yeah it's hard you know it's difficult they told me that and i said please try because i want to frankly if you're sitting in our shoes we're going to say is there anything that the dissent said that may take the majority if you will on reasonable got it as to what the supreme court has said because they are interpreted in this court decision and we're going to be interpreting the supreme court decision and if there is no supreme court decision then they're going to get a lot of deference because at that point if they had turbot it as the supreme court did it's done and if there is no supreme court decision they can even be wrong and be ok i know  reversed when i say what you just said it's amazing people tell you how to decide your case and that's it seems to me i want to see if there's anything in hamilton about where a separation of powers isn't violated i'm not going to make that argument but it sure is violated when congress is telling you how to do your job well it's arguable whether the time the constitution was adopted there was maybe a school bus relief in federal court  knows when somebody is playing fast and loose with the facts because she had to decide that as a magistrate federal magistrate i had i had cases when she said to put me down twenty two fifty four while here she's on my side and boy i'm taking advantage of her to the majority's assertion i'm on page twenty eight in my brief and i've got her whole basically put her whole dissent in my brief because it's so good that are than anything i could ever write and she wrote it's remarkable that the majority everyone would have known about this evidence why is it prejudicial there would have been no way the prosecution would have given them the same deal if they had known about those napkins and they had known that they were there they wouldn't given him the deal he was a guy he was given no one knew that but him we're not saying anything about what he's got to say to his counsel we're not going there please don't know i'm not going there because i don't want to go there i'm going at it from the way of prejudice if everybody did known about those napkins and everybody  known what that was the prosecutor would have never given him the deal you have no evidence the prosecutor would have given him a slim deal in fact if any prosecutor i know maybe this one's weak kneed wouldn't well you're saying you're putting yourself how do we know you know i'm not a banker no no no how do we know the prosecutor i'm not i'm not putting myself in that i'm saying you've got the burden of proof you tell me what have you got that it's this is the laffer versus cooper left versus cooper justice kennedy said all these cases are decided by plea and if the attorney doesn't give good advice it was codefendant accepted your client the and then subsequently during the course of your client's testimony they learn about this additional evidence but when i wanted ask you is even if you're right at this stage why would we understand that if he didn't know i only know about the existence of this the details of the prior conviction he would have advised his client to plead guilty and his client would have pled guilty well this is an unusual case i so why don't we just assume that that's so for argument's sake if you're not entitled then it seems to me to get the conviction upset altogether you would be entitled to get at best what what the sentence was that what the police offer was to begin with i mean this is a strange case you know cases that saying in a context like this we could we could cure the by giving him what he would have gotten an effect if council as you say was in effect helps me which i haven't said yet and that's recent it's the lever says united states just came down in june of twenty seven thing where the supreme court this is the case involving where the defendant played the other way he pled guilty and in the supreme court said he if he'd gone to trial he might have beat it and he wouldn't be deported that's huge because there's a that's really hard to figure out and they gave that  it they gave that they said you can withdraw your plea because they granted it and that's what really when you grant hey b s you're basically doing a withdrawal of the police you're withdrawing the conviction say ok try him again but don't first moving to deficient performance appellant claims that his attorney conducted an inadequate amount of research but the standard that he's holding his attorney to is one that's greater than this court or the united states supreme court has ever held defense attorneys  o look at the cases cited in the defense brief the two cases he primarily relies on are wrong or the united states supreme court case in vegas the ryan run pilla was a capital case where the prosecutor indicated he was going to rely on certain evidence and the court described that evidence as readily available that's almost the opposite of the situation we have here no one had the evidence not the prosecutor or the defense attorney it certainly was not readily available because it was only located in off site storage and of course this is not a capital case you ryan the information was actually contained in the case file and the defense attorney didn't even bother to look through it or talk to either of the attorneys that had previously represented the defendant here it's again completely distinguishable on the information of course was not in the case file and so to hold an attorney to a level of research that's not just in knowing about the prior conviction because if we look at the record we see yes the attorney didn't not only knew about the prior conviction but he successfully argued in the motions and lemonade to exclude that evidence from the prosecutor's case and she appellant saying no not that his attorney should know about his prior conviction or be able to argue about it but he needs to know the minute details because if we think about it in two thousand and two when the prior occurred the fact that they were wrapped in a certain type of napkin was a fact that was completely immaterial and it's only towards the end of trial when the evidence began to come out that that fact became a consequence of additionally if we look at the declaration i understand the facts no and everyone knew that was a prior conviction no one knew exactly what the underlying details of the conviction were and counsel knowing that there was this prior conviction went to the court and said you cannot discuss this prior conviction that should not be admitted to trial and the court agreed yes your honor i cite caviar there were some details that were nonsense is that it was a hand to transactions but but not the detail about the napkin exactly your honor and no one knew anything about the napkins correct until after the defense had taken the stand started to tell his story and testimony in general but then he tries to lay it all on his codefendant and say well i didn't know anything about this present cresent tape that happened in the back of the car i didn't know anything about there's only this guy knew it so pinned him and at that point the napkin still wouldn't have come in but the codefendant said hey my turn to route the defense now isn't that true that's exactly correct your honor and so the codefendant is the one who was trying to get out from under the gun that his client aimed at that code of at the defendant and he's the one who questioned about these  there are not only was the defendant the person in the best position to know his own signature style of rapping drugs but he's the one that caused that evidence to come out because he could have chosen any sort of defense tactic but he chose one that specifically involve blaming the entire incident on perry his codefendant and not taking responsibility from south which caused their perry to then backlash against him and present the evidence and and additionally even if then at that point given the backlash and given the spends working on the case in the morning inculpatory evidence that's brought forward the less likely the prosecutor is to offer a favor favorable plea agreement which is exactly is the year somehow there was no prejudice how can the face a case of either deficient performance or prejudice and that's why this case is still covered under ed because the state court's decision was reasonable given the lack of cleaving that appellant did in his case and so for those reasons i would ask this is the majority left out totally just said made up the facts and said there's no evidence that mr shot one would have ever accepted the plea and of course he stated under penalty of perjury of course i would have i that's fine and he was in the car he was the driver he was the driver but the point is you're holding him to a standard of it's because it's his fault because he didn't get the records if the attorney this attorney said  client tells you that both the prosecutor and and the defense lawyer knew about this conviction there was a motion before trial to exclude the conviction the conviction was excluded even after this new evidence came to light the trial judge still said he wouldn't admit it on was your client that's something that would you know quote open the door and  think talking about double double deference is no doubt that the rest of the issue of whether counsel was ineffective is subject to double deference in this case if it's a d two double deference goes out for everything and we end it in the hurly cases right on point we know that when you make up facts you lose double deference the majority made up facts the dissent called them on it the dissent is reasonable the majority is not and there's no law that says you can't consider the reasonability of the dissent thank you counsel thank you both it's just what decision by the court