said that no man can serve two masters and in this case mr mason's lawyer l foster garrett chose to serve the person who was paying his bill rather presentation well first of all during the trial itself we know that the the payer who was elton mason  directed mr garrett i'm looking for a concrete reason this happened he didn't this didn't happen this strategy wasn't pursued he did not engage in pretrial preparation he put witness have that would have produced well of course we do not have to prove actual prejudice but the idea that you're instead of he was putting witnesses on the stand who had not even been shown their prior statements who were not even told that some of the statements they made were floored it and they were floundering but of course we don't have to show a strickland type of prejudice i sort of when you have to show some effect on counsel's performance don't you certainly and i would say that that's a big effect failing to prepare witnesses is a significant effect on n withdrew right at a time well and at that time to which the jurors were willing to talk but by the time they couldn't get a new new counsel and because mr garrett took months to give his file to new counsel by that time the jurors could not be found not mine understanding was that in some point during the post oceans new counsel was retained hired an investigator in the investigator contacted the juror who initially contacted dro counsel about the possibility of the juror having some opposing counsel's time to make sure i have that exactly correct did you write the brief in yes i did wasn't that an argument you made in your brief opportunity to council approved by the court who hired an investigator contacted the juror who made the initial contact interviewed that person and reported to the court that there was no basis for that kind of under that umbrella would sign your argument but my understanding though was part of the problem was that they could not they could not find some of the key jurors by that point  n i have a question for you about i have concerns about jurisdiction in this case all right and that i just i think the case that you cite deals with abandonment here it apparently the client fired the lawyer and but no one filed the paperwork to show that he was pressed say and so i think in your reply brief you argue that the mailbox rule as codified in frappe foresee applies to represented in un representative prisoners but in two thousand and fourteen didn't we reaffirm that the mailbox rule applies only to pro se prisoners and hernande versus spearman so night circuit case so how do we get around that well but i i am citing i gave two arguments for why there is jurisdiction that and the first one is based on very clear still representing the defendant but whether he was actually assisting and we now have efter the motion to supplement the record it is now undisputed that i did not  actually assist mr mason with the notice of appeal the facts are and i apologize i did what i didn't do was follow the rule the local rule which said that i should use get leave of court to withdraw but it is undisputed that mr mason and i both agreed that i would withdraw and that he handled the votes ahead of it's sort of ironic that he fired you and then then we have this jurisdiction issue and now you're back after he on his own obtained a it was not clear that he would ever retain obtain a certificate of appeal ability but once he did that on his own and the court said they would appoint counsel he contacted me again and asked if i would please take the appointment for that well he didn't really fire you that we have had you know two situations like that but this this was a completely out of amicable thing between me and mr mason he wished at that when he lost in the district court he wished to just work on his own to see if he could get a certificate of appeal ability and get an appeal going and those are undisputed facts and they're exactly the facts and volunteer records the same thing the lawyer did not file follow a local rule vigorous advocate and did not advocate his authority to make strategic and tactical decisions when what do we do with that finding i don't think very much you know this isn't a strickland claim that we're making  that you have to show some effect on the proceedings don't you right you know he may have been vigorous while he was in court but as i said he didn't do any preparation and then he withdrew at a critical  fact that effective in court despite not doing much preparation how is there any actual conflict of interest in the prejudice well w well there was a negative as they said there was a negative effect i'm not sure what they meant by being vigorous i mean you can argue all you want in court but if you if you're not prepared your chances of winning are not very good that we have to determine that that finding was unreasonable in order for you to prevail i don't think that the use of the word vigorous negates the idea that he may have that his conflict may have had an adverse effect in other ways you know maybe he did do a good cross examination somewhere in the case but that does not change the fact i realize may please the court john sampson as scuse me assistant attorney general representing the respondent as this court is aware of this case does come before the court under a twenty two fifty four d and to obtain relief the petitioner my show the state court's decision on this claim was nunneries mopp cation of u s supreme court precedent in the state's position is that petitioners failed to satisfy that burden for two reasons first this claim is not based on clearly established federal law because this is not a type of conflict held by the us supreme court and to violate the six memmott and second even if it was clearly established the state court's decision was not unreasonable th petitioner relies on wood vs georgia for his supreme court case but would versus georgia was a due process case it was not a six mimic case the case was before the u s supreme court on an equal protection challenge that was the claim that the court granted certify but then the u s supreme court re mandated for just a court to determine in the first instance was there was a due process violation because the case was on a probation revocation appeal and the issue then was did that violate a right to counsel under the due process clause the would court did cite to its prior precedent but  president was kind of versus all of an end hallway versus arkansas which is supreme court mickens versus taylor clearly said only established a conflict of interest where there is multiple representation in the same criminal matter honor i agree that yvonne vs record says the council does not have to withdraw and that if the petitioner actually shows that he was truly proceeding pro se the fact that counsel do not formally would draw is not sufficient and deliver their notice of appeal to prison officials within thirty days with instructions to forward to district court that not paraphrasing that rule could be applied to a prisoner who was represented at trial if prisoner was no longer represented at the time the theos filed i take it you take issue with the last part of this well your honor i think that if you truly was no longer represented the difficulty is is when we filed our opening very the only evidence in the record was that he was still represented by counsel had filed a notice of an availability saying he would be available again during the time between the judgement and the date the notice  appeal had to be filed he was again available there is no indication that he was actually went through it and then we have the unusual circumstance where he is back again as counsel and so the concern is whether or not this court recognized that even if the petitioner is not formally represented by an attorney if the attorney is truly assisting him in some manner then he is not proceeding without the assistance of counsel and on what evidence is there in the record that attorney was assisting him you're on of the only evidence was when we filed our brief was that he had never withdrawn he had filed a notice of an availability and according to that he was still he was still then available as the counsel and now he is back as counsel so i cannot come in and dispute his declarations filed after our briefs were filed saying that he he was fired by mr mason and that that i guess under a local rule eighty three point two it seems that fine counsel required a stipulation of proposed order withdrawal that must be signed by all opposing counsel or press a parties and be signed by the parties new council or the party so you're just saying the fact that that wasn't done which i guess the defendant could have also he had signed something too you're just saying that don't worry about that now have no ability to contest his subjective statements presented in the in the post briefing declarations that he was filed that he was essentially fire not it's just that jurisdiction something that you know courts take pretty seriously and assuming jurisdiction without you know it's not you know a lot of times we assume things and then go to the second prong of something but jurisdiction is a little you know you can create slippery slope so i agree and that's a serious issue because you could have a situation where the petitioner is being actively represented by counsel which would occurred in the district court in this case being actively represented by counsel on appeal and then is and i'm not saying it occurred in this case but could be playing fast and loose with the rules and they realize they blew by the deadline so they quickly have the petitioner claiming that that he was actually proceeding pro se often does that happen i'm not saying it happens very often your honor just saying that it's a concern but when we filed our brief and raise this issue all the evidence that was in the record show that he was still represented by counsel rule for the mailbox role under this court's federals villa procedure require a certificate by the petitioner that was not filed when he filed his notice of appeal so even then he but we further researched the issue and determined he did in fact mail the document within the thirtieth day is the mailbox rule applies if for all practical purposes the defendant was acting on the petitioner was acting process what do you do with that language i would think that if that was a situation where counsel had aband d the petitioner and was no longer truly representing him in any form no one abandonment is different then for all practical purposes i think that's a little more lenient it appears to me if he's acting pro se for all practical purposes for instance if the formality of the paperwork just wasn't signed but nevertheless he was acting pro se it appears rickets appears just to say that the mailbox  that your honor but stillman also says which was issued after records are also says that even if counsel is not formally representing him if else was doing some something to assist the petitioner then th petitioner was not proceeding without the assistance but we don't have that in this record that he was doing something only that your honor that he was actively representing him in the district court that there was a notice of an availability that said that he was again available during the time period where the notice of appeal would be filed that he has now currently representing him at that time there was nothing else now there are post pilla briefing declarations and indicate that he wasn't doing anything i have nothing at this time to rebut that that's that's all i can say i would say that and i understand jurisdiction is very important but there is also the fact that the claim fails on the merits and if the court wanted to deny or to affirm the judgement on that basis the state would would be agreeable to that because this is not a case where the state court decision was an unreasonable application they complained that the attorney was not prepared for trial but actually the attorney did do quite a bit of work in the main problem was with mr mason's girlfriend  miss coleman and the fact that she provided inconsistent testimony but that was based on the fact that her testimony and her statements were inconsistent and she could get her story straight not based on the  and i do i do apologize for not following the local rule that we have to acclamations undisputed declarations from three people including myself that in fact all parties understood that there would be no help from me and there was not getting back to the other issue of why ultimately the motion failed i do now see that i have it in my brief that by the time new counsel could be located it specifically juror maria gilkerson who had indicated earlier that she was willing to be interviewed could no longer be be found so there was at least some level of some adverse effect at that  point as far as the state's argument that would be georgia is not the clearly established precedent here i would simply ask the court to to review my reply brief on that issue i think it's very clear that in mickens the u s supreme court did come right out and say that that would be georgia was simply